The
Capitulation of the Hague Tribunal
Marko Attila Hoare, June 2005
06/27/2005
The recent announcement, that the International
Criminal Tribunal for the former Yugoslavia will not be issuing any more
indictments against war-crimes suspects, is a disgrace. As a Research
Officer, I worked at the Tribunal in 2001 on the case against Slobodan
Milosevic. I believed in what the Tribunal was trying to accomplish, and
continue to do so. Yet this announcement amounts to the Tribunal's
capitulation: with the sole exception of Milosevic himself, the men most
responsible for the bloodshed in the former Yugoslavia have escaped
justice. For this there is no justification, either in terms of
principle, or expediency, or force of circumstance.
The Tribunal has scored some notable successes. The
principal Bosnian Serb war-criminals have for the most part been
indicted and are currently being brought to justice. The Serbian leaders
most responsible for the atrocities in Kosovo in the late 1990s have
been indicted and are being put on trial. The principal Croat
war-criminals died of natural causes before they could be indicted, but
the most important of their deputies are currently awaiting trial. Yet
all these cases are of secondary importance: the Bosnian Serb
perpetrators were merely the agents of higher authorities based in
Belgrade; the Bosnian Croats their accomplices. Those indicted over
Kosovo were indeed the principal culprits, but the death toll in Kosovo
in 1998-99 was a fraction of the death toll in Bosnia and Croatia in
1991-95. Several Croatian commanders have been indicted over atrocities
against Serbs in Croatia, but the death toll here was a smaller fraction
still, barely reaching into four figures. Most of the killing in the
whole series of Yugoslav wars, beginning in 1991 in Croatia and ending a
decade later in Macedonia, was carried out by Serbian forces against
Muslims and Croats between 1991 and 1995. The Yugoslav political and
military leaders who organised and implemented this genocide, involving
at least one-hundred thousand dead, have mostly not been indicted.
To understand this, it is necessary to look at the
command-control structure of the armed forces of Yugoslavia as they were
during the years in question. Milosevic is widely and rightly viewed as
the no. 1 war criminal. Yet as the President of Serbia, he was merely
the leader of one of the Yugoslav republics. In principle, he had not
the means to wage a war of aggression and extermination against his
neighbours. He was able to do this due to his alliance with the top
commanders of the Yugoslav People's Army (JNA). The men in question were
Yugoslav Secretary of People's Defence Veljko Kadijevic, Yugoslav Chief
of Staff Blagoje Adzic, and their deputies Stane Brovet and Zivota
Panic. In violation of the Yugoslav constitution, they allied the JNA to
Milosevic and commanded its operations during the war in Croatia. They
laid the foundations for the Bosnian Serb army (the 'Army of the Serb
Republic') and the war that it would wage against the Bosnian Muslim and
Croat population. Following the retirement of Kadijevic and Brovet in
January 1992, Adzic and Panic commanded the JNA during the opening phase
of the war in Bosnia. None of these commanders has been indicted.
Above the top JNA commanders was a still more senior
layer: the members of the collective Yugoslav Presidency, who formally
comprised the JNA's supreme command. This body had ceased to function by
the time the war broke out, on account of the conflict between its
members. The last person to assume the post of President of the
Presidency of Yugoslavia, Croatia's Stipe Mesic, was wholly unable to
exercise any influence over the JNA. But in practice, the Presidency
members from Serbia and Montenegro, above all Serbia's Borisav Jovic and
Montenegro's Branko Kostic, continued to coordinate war strategy along
with Milosevic and the JNA commanders. Finally, in October 1991, at the
height of the war in Croatia, the Serbian and Montenegrin members of the
Yugoslav Presidency carried out a coup, declaring themselves the acting
Yugoslav Presidency and, consequently, the acting supreme command of the
JNA. They remained in this role until the spring of 1992, and were
centrally involved in planning the war in Bosnia. Yet none of them has
been indicted, even though Jovic subsequently published his diary,
revealing all this, and revealing himself to have been one of the
principal architects of the Yugoslav war.
It might be objected that the men in question were
merely figureheads, and that the real power lay at all times with
Milosevic and his secret police. It is indeed true that Milosevic was
the dominant figure, but it is untrue that the JNA commanders and
Yugoslav Presidency members were not responsible: they were under no
legal or constitutional obligation to follow his orders; nor could he
have waged war without their consent.
If, on the other hand, one insists on the innocence of
these men, on the grounds that the war-crimes 'really' originated with
Milosevic alone, it raises serious questions about the Tribunal's
procedure. The Tribunal has several times indicted senior figures on the
basis of 'command responsibility'; i.e., the principle that senior
commanders are responsible for crimes carried out by their subordinates,
even if they did not actually order these crimes. On this basis, the
most senior commanders of the Bosnian Army during the war, Sefer
Halilovic and Rasim Delic, and the most senior commander of the Croatian
Army, the late Janko Bobetko, have been indicted for crimes carried out
by their subordinates.
Were the Tribunal consistent, it would have indicted
the top JNA commanders and the Serbian and Montenegrin members of the
Yugoslav Presidency for war-crimes carried out by JNA forces in Croatia
and Bosnia; for example, for the killings at the Vukovar hospital, for
which an indictment of lower-ranking JNA officers has already been made.
Yet none of them has been indicted for the crimes at Vukovar, or for the
shelling of Dubrovnik, or for the spring offensive against Bosnia -
which accounted for the bulk of the deaths. Only middle-ranking JNA
officers have been indicted over Vukovar; two relatively high-ranking
JNA officers were convicted over Dubrovnik, but given lenient sentences
of a few years each. Their superiors have escaped untouched.
The scandal is that the principle of 'command
responsibility' therefore applies to the Croatian and Bosnian victims of
aggression, but not to the Serbo-Montenegrin aggressor. As the sole
member of the top Serbo-Montenegrin political and military leadership to
be indicted for war crimes in Croatia and Bosnia, Milosevic is
effectively being made the sole villain of crimes that were the
collective responsibility of this leadership. It is as if Hitler were
punished while Himmler, Goering, Goebbels, Keitel and Jodl were let off.
As someone who worked at the Tribunal on the case
against Milosevic, I can reveal that it was not initially the desire of
our investigating teams to make Milosevic the sole indictee. The
original intention was to indict a much larger circle of people. Traces
of this intention can be found in the indictments against Slobodan
Milosevic, which mention a 'joint criminal enterprise' involving Jovic,
Branko Kostic, Kadijevic, Adzic and others. That most of the members of
the enterprise - including all those mentioned here - have escaped
indictment was not due to any lack of will on the part of the competent
and committed investigators of the Tribunal, nor due to lack of evidence
against them - the case against Milosevic himself was more difficult to
mount, since his 'command responsibility' in Croatia and Bosnia was less
clear. It was due to a decision taken at the highest level, by Chief
Prosecutor Carla del Ponte herself, to restrict the indictment to
Milosevic alone.
The reason for this arbitrary decision, which betrays
every principle that the Tribunal was supposed to uphold, can only be
speculated upon. The claim of various Serb and Croat extremists and
Western neo-Stalinists, that the Tribunal is a 'political court' with
its own, covert agenda, is nonsense. Yet like any legal body, the
Tribunal can be swayed by sufficient political pressure . The determined
resistance of the Serbian mafia and secret police, through their
mouthpieces in the Serbian government, has successfully stonewalled del
Ponte, causing her to limit her indictments of Serbian war-criminals -
far fewer Serbs have been indicted from Serbia than from
Western-controlled Bosnia. The assassination of the reformist Prime
Minister of Serbia, Zoran Djindjic, was part of this resistance.
The Tribunal also suffers from structural problems
that have hindered its effective operation. Established in 1993, at the
height of Western appeasement of Milosevic's Serbia, the organisation of
the Tribunal reflects the dominant Western precepts of the day: that
atrocities were being 'committed by all sides'; that Serbia was
quantitatively but not qualitatively more guilty than the other parties;
and that the war in Bosnia-Hercegovina was a 'civil war' in which
Bosnian Serb crimes were carried out autonomously from Belgrade. Instead
of beginning with the 'joint criminal purpose' of Serbian, Montenegrin
and JNA leaders that brought about the war, and working downwards and
outwards, the Tribunal's Office of the Prosecution began by fragmenting
the war-crimes according to ethnicity and territory: different
investigative teams dealt with Serb crimes in Croatia, Serb crimes in
Bosnia, Serb crimes in Kosovo, Croat crimes in Croatia, Croat crimes in
Bosnia, Muslim crimes, Albanian crimes and - most recently - Macedonian
crimes.
This inevitably created a structural pressure for each
team to produce a certain number of 'big kills' - hence the indictments
of Delic, Halilovic and Bobetko. The two teams responsible for
investigating Croat crimes in Croatia and Muslim crimes, respectively,
were widely regarded among my fellow investigators as two of the
Prosecutor's least competent teams. In indicting such figures as Bobetko
and Halilovic, the Tribunal chose targets who were easily indictable on
the basis of 'command responsibility', regardless of their actual degree
of guilt. When - in 2001 - I asked an investigator working on Croat
crimes, whether he believed Bobetko might be indicted, he said that it
was legally possible to mount a case against him, but that he did not
believe it would make any practical sense to do so. Likewise, an
investigator working on Muslim crimes told me that he believed Halilovic
was being framed by hostile members of the Bosnian authorities. The
investigator was therefore, he said, trying unsuccessfully to convince
his fellow investigators not to construct a case against Halilovic. Yet
both Bobetko and Halilovic were subsequently indicted - the Office of
the Prosecutor chose the easy option.
Several teams have dealt solely with Bosnian Serb
perpetrators, while Serbia's perpetrators of crimes in Bosnia - in
reality, the most guilty group - were the sole preserve of a single team
(at least when the present author was working there). Hence the
paradoxical indictments of much Bosnian Serb and Bosnian Croat small-fry
- figures scarcely worthy of mention in a history of the Bosnian war -
while the aforementioned big fish have escaped justice. And this despite
the Tribunal's stated priority of trying the big fish. Only six
officials from Serbia of any significance have been indicted for
war-crimes in Bosnia: Milosevic, Zeljko Raznatovic-Arkan, Vojislav
Seselj, Jovica Stanisic, Franko Simatovic and Momcilo Perisic. The same
number of Croatian officials was indicted for crimes during the Medak
pocket and Oluja operations: Rahim Ademi, Ante Gotovina, Mirko Norac,
Janko Bobetko, Ivan Cermak and Mladen Markac. The Medak pocket and Oluja
produced a combined civilian death-toll, according to the indictments,
of about 180. In del Ponte's eyes, therefore, these 180 Serb victims of
official Croatia warrant the same number of indictments as the more than
one-hundred thousand Bosnian victims of official Serbia. This despite
the fact that Medak pocket and Oluja were defensive operations aimed at
recapturing occupied territory, while Serbia's operations in Bosnia were
wholly aggressive.
Recent decisions by the Tribunal highlight the
lingering policy of appeasement practised by the West in relation to the
Serbian secret services and mafia. The Tribunal has allowed Serbia to
present key documents in the Milosevic trial on condition that they
remain hidden from the public, greatly reducing any positive impact the
trial may have in awakening the Serbian public to Milosevic's criminal
responsibility. The Tribunal has, furthermore, granted Stanisic and
Simatovic provisional release while awaiting trial. These two men - the
first Milosevic's former secret service chief; the second his chief of
police special forces - have blood up to their elbows and powerful
underworld connections in Serbia: it was members of Simatovic's 'Red
Berets' who murdered Djindjic. It is questionable how easy it will be to
persuade Stanisic and Simatovic to return to the Hague for Trial.
All this occurs in an international context in which
the West in losing interest in justice for the Balkans - insofar as it
was ever seriously interested. The Tribunal has helped to placate the
section of Western public opinion that felt 'something must be done',
while the old policy of appeasing the nationalists and war-criminals has
quietly continued. Washington's recent handing over of a Legion of Merit
to the daughter of Serbia's leading Nazi collaborator Draza Mihailovic -
who was originally awarded it posthumously in 1948, despite his trial
and execution in Belgrade as a war-criminal - is part of this trend.
Mihailovic was head of the 'Chetnik' movement that pursued a genocidal
policy against Muslims, Croats, Jews, Albanians and others during World
War II - a policy that Milosevic resurrected in the 1980s and 90s.
Meanwhile, the post-Tudjman governments in Croatia,
instead of lobbying hard for the indictment of Kadijevic, Adzic, Jovic
and other architects of massacres of Croats, have confined themselves to
obstructing the Tribunal's prosecution of their 'own', Croat
war-criminals - an expression of the lingering influence of the
Tudjman-era nationalist mafia of which Ante Gotovina is the poster boy.
Thus, those responsible for the war and the atrocities continue to
obstruct justice and progress for the peoples of the former Yugoslavia,
hindering Serbia's and Croatia's integration into European institutions.
Even the 'tough' del Ponte has been forced to back down: she has proved
to be a straw woman.
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