VIEWPOINT: THE POLITICISED TRIBUNAL
Western political control of the court prejudices the process and casts
doubt over whether Milosevic can get a fair trial.
By Aleksa Djilas in Belgrade
Balkan propaganda portrays the war crimes tribunal in The Hague as a
political tool of the Western powers. Most Serbs believe that NATO
governments control the court and that the US manipulates the judges.
Croatian views are similar.
People in both countries feel their governments are forced to comply
because of conditions on aid and other pressures which amount to
blackmail. Russian Ambassador to the UN Sergei Lavrov demanded in
February that the tribunal be closed because it is "anti-Serbian". Yet
even Moscow rarely raises the issue, in order to preserve relations
with the West.
Paranoia aside, political control does exist - though not in the blunt
and direct way presumed. In fact, since the tribunal does not have its
own police force, its indictments rely in part on evidence gathered by
the US and other NATO intelligence services.
Intelligence services give evidence only when their governments tell
them to, and they provide only so much information as is considered
politically useful. Needless to say, the CIA would never send evidence
that in any way incriminated US politicians, diplomats, generals or the
CIA itself.
The tribunal cannot change this state of affairs. In a democratic
country, a court can try those who conceal evidence for political
reasons and sentence them to long prison terms. But the tribunal has
limited powers to interrogate officers in the Western intelligence
agencies, or compel them to testify as witnesses if they decline to
appear. Same with the defence.
Indeed, no leader, diplomat or general serving a Western state is
likely to appear in court at The Hague. The tribunal cannot even
subpoena them, let alone charge them with perjury. Judges have
mechanisms to try to compel governments to produce evidence, as well as
the capacity to dismiss charges where crucial evidence is unobtainable.
The prosecution too faces evidentiary difficulties. In the Todorovic
case, judges indeed ordered NATO officials to appear and provide
evidence, but the matter was settled when Todorovic made a plea bargain
and no subpoena was served. But in practice, the system is weighted
against the defence.
This fundamental flaw in the tribunal undermines the right of
defendants to a fair trail, and calls into question its overall
balance. The problem is evident both in the timing and selection of
indictments, and in the preparation and presentation of cases. The
matter of Slobodan Milosevic is the best example of both.
At the height of NATO's bombing campaign against Serbia, Judge Louise
Arbour of Canada, then Hague chief prosecutor, issued a warrant for the
arrest of Slobodan Milosevic and four other Serbian leaders in
connection with the killing and expulsion of Albanians in Kosovo.
I had no doubt that Milosevic was guilty. With over 100,000 men under
his command in and around Kosovo, he could easily have stopped the
Serbian paramilitaries had he wished to. There is also evidence that
the units of the interior ministry armed and supported them.
But I remain concerned by the timing of the indictment, and what it
says about the West's politicised approach to the court.
While I did not find Arbour's warrant unjust, it raised troubling
questions. First, why was Milosevic indicted for crimes in Kosovo, but
not for his misdeeds in the 1991 war in Croatia or the Bosnian war that
broke out one year later? It was common knowledge that Milosevic had
armed the Bosnian Serbs, which implicated him in their crimes. He was
even more accountable for the ethnic cleansing of Muslims in eastern
Bosnia since the Serbian ministry of interior armed and equipped the
paramilitaries from Serbia who participated in these expulsions. The
explanation is not hard to find. The US and other NATO countries
followed a simple rule during the Yugoslav wars, "If we need you, you
are not a war criminal; if we don't need you, you are."
Milosevic was indispensable to NATO's efforts to bring peace to Bosnia,
since he was the only Serbian politician who could rein in the Bosnian
Serbs. So NATO absolved him and promised to end the international
sanctions imposed on Serbia.
NATO not only exonerated Milosevic, it treated him as a friend and
hero. As recounted in Richard Holbrooke's book, "To End a War",
Secretary of State Warren Christopher even suggested that Milosevic
would make a successful democratic politician.
And in Paris, where the Dayton Peace Accords were formally signed by
Milosevic, then Croatian President Franjo Tudjman and then Bosnian
President Alija Izetbegovic on December 14, 1995, then US President
Bill Clinton acknowledged in a one-to-one meeting with Milosevic that,
as recounted in Gary Jonathan Bass's "Stay the Hand of Vengeance",
peace in Bosnia would have been impossible without him.
But once the West was directly at war with Milosevic, the situation
changed. It was clear that the West could no longer consider him a
"factor of stability" or a man to do business with. And forthwith came
Arbour's indictment. Now he is vilified as evil - Senator Joseph Biden,
the new chair of the US Senate Foreign Affairs Committee, called
Milosevic the most "maniacal" leader in Europe since Hitler. And
following his extradition to The Hague June 28, Chief Prosecutor Carla
del Ponte repeated her promise that he will soon be charged with war
crimes in Croatia and Bosnia.
What about other Balkan leaders with blood on their hands? Del Ponte
claims that she would have charged Tudjman, the late Croatian
president, if he were still alive. But previous prosecutors had five
long years in which to indict Tudjman before he died peacefully in his
bed in December 1999.
Since he came to power in 1990, Croatian paramilitaries together with
the military expelled almost half a million Serbs from Croatia. The
Croatian army also invaded Bosnia to help Bosnian Croats in their
secessionist struggle.
All this was well known, but Tudjman was NATO's ally, first against
Milosevic and subsequently against the Bosnian Serbs. No one cared then
about the thousands of Serbian and Muslim civilians killed by Croatians
and
- although the tribunal has recently sent two sealed indictments to
Zagreb, presumably regarding Croatian citizens - as yet no Croatian
citizen has been brought before the court for crimes against Serbs in
Croatia.
I believe that Kosovo Liberation Army leader Hashim Thaci and his
commanders should also be indicted for imposing a reign of terror and
expelling almost all non-Albanians in Kosovo after NATO moved in. But
NATO leaders, especially then US Secretary of State Madeleine Albright,
have praised Thaci as a responsible and democratic leader.
Now the Albanian-Macedonian conflict in Macedonia is turning into a
real shooting war, with the Kosovo Liberation Army bearing heavy
responsibility for it. The Hague may yet move to indict Thaci. More
likely he will remain in Kosovo, and be helped to serve as part of the
emerging political structures there, despite the repression still meted
out against the minority populations.
The failure to indict one leader (so far) cannot diminish the criminal
responsibility of another. Yet these anomalies affect public opinion and
are a large reason why people in the region reject the court.
Moreover, the perceived politicised nature of the court may provide
direct and insurmountable obstacles to the right of the accused to
mount a full defence.
When Milosevic first appeared before the tribunal on July 3, he claimed
that it was not a legitimate international court because it had been
founded by the UN Security Council, not the UN General Assembly. Most
international law scholars disagree with Milosevic on this point and
most ambassadors in the General Assembly have no problem with seeing
him in The Hague. He refused to accept the services of a lawyer, or to
defend himself.
But if he changes his mind and attempts to mount a proper legal
defence, it is difficult to see how he could have a fair trial. To do
that, he would need access to the data banks of NATO intelligence
agencies and he would have to call to the stand the Western leaders and
diplomats with whom he made secret political deals.
It is possible to believe that Slobodan Milosevic is guilty of war
crimes yet to have grave concerns about the process and about the
possibility for the world's most famous defendant to get a fair trial.
The West, and the tribunal, would do better to attend to these problems
- and expedite proceedings in other cases - rather than beat its chest
in self-satisfaction that, with Milosevic in The Hague, it has finally
achieved justice.
Aleksa Djilas is a sociologist, historian and political commentator
living in Belgrade.
www.iwpr.net
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