SOURCE: Yugoslavia.com
The case against war crimes tribunal
New York, February - As the International Criminal
Tribunal for the Former Yugoslavia prepares for its
first war crimes trial in the Hague, Joan Phillips
accuses the United Nations of staging a political
showtrial using the methods of a kangaroo court Dusko
Cvjetkovic went on trial in October, charged with
genocide. The 26year old Serb appeared in an Austrian
court, accused of committing arson and murder in the
village of Kucice in Bosnia. The genocide indictment is
based on the charge that Cvjetkovic killed one or more
people because of their ethnicity or religion. He denies
the charges.
The trial opened in Salzburg, where Cvjetkovic has lived
as a refugee since April 1993. Before the day was over
it was obvious that the prosecution had no case. The
testimony of the chief prosecution witness, a Bosnian
Muslim, diverged considerably from his own affidavit.
Evidence offered by other witnesses included thirdhand
hearsay. The affidavits of some witnesses identified
people other than Cvjetkovic as the murderers. Police
records of statements made by Cvjetkovic and the chief
prosecution witness were inaccurate and contained
translation errors.
Asked during a break in the case whether he had a leg to
stand on, the prosecutor, Hubert Maringele, replied,
'not at this stage. The judge apparently agreed. But
instead of throwing the case our of court, he adjourned
the trial until 5 December to allow the prosecution to
find a leg. Perhaps witnesses will now come forward,
unaffected by the media coverage of the trial, to
testify that Cvjetkovic is indeed a genocidal killer.
The Cvjetkovic case should ring alarm bells about
impending war crimes prosecutions to be held under the
authority of the United Nations in the hague. In its
first public hearing on 8 november, the prosecutor's
office of the International Criminal Tribunal for the
Former Yugoslavia requested permission to ask the german
authorities to hand over Dusan Tadic, a suspected
Serbian war criminal held in Germany. If Germany allows
the case to go to the international court, the trial is
expected to start in spring 1995. Tadic is alleged to
have beaten, tortured, raped and killed Croats and
Muslims in the Prijedor region of northern Bosnia.
Many questions can be asked about what the UN is doing
staging war crimes trials. For a start, what criteria
are used to define a war crime? If genocide means
killing one person or more because of their race or
religion, then any number of American cops or Loyalist
gunmen in Northern Ireland could be so charged. This
sensationalisation of ordinary acts of war has become
routine. For example, the UN Commission of Experts talks
about a 'mass grave' of three or more people. Three
might sometimes be a crowd, but since when has it bee a
'mass'?
This type of tabloid sensationalism is nothing new to
the discussion of the civil war in the former
Yugoslavia. For three and a half years, lurid tales of
ethnic cleansing, death camps, systematic rape,
Mengelestyle experiments on human beings and genocide
have been the staple of media coverage of the war.
And it is not just journalists who have sensationalised
the war and been selective in attributing guilt. Stories
about atrocities committed by Serbs have been given the
stamp of authenticity ny international bodies such as
the UN and the EU human rights groups such as Amnesty
international, and women's organisations like Maris
Stopes. In their resolutions, factfinding missions
(which usually manage to find no facts) official
reports, advertisements and leaflets, these bodies have
added to the popular perception that acts of extreme
bestiality unseen for half a century have been carried
out in Bosnia and Croatia, and that the Serbs have been
responsible for most of them.
In an extraordinarily presumptuous statement in its
final report to the Security Council. the Commission of
Experts declared that the Serbs had committed war crimes
in northern Bosnia and would probably be found guilty of
genocide in court: ' It is unquestionable that the
events in Opstina (county) Prijedor since 30 April 1992
qualify as crimes against humanity. Furthermore, it is
likely to be confirmed in court under due process of law
that these events constitute genocide.' What
implications this will have for Dusan Tadic, who is
charged with committing war crimes in Prijedor, is not
hard to guess.
A consensus already exists that genocidal crimes against
humanity have been committed in the balkans, and that
one side in the conflict is more guilty than the others.
In this lynchmob atmosphere the idea of the accused in
war crimes trials being presumed innocent until proved
guilty, or of all persons being equal before the law,
goes out of the window. When such a strong impression
has been created of the entire Serbian people as a race
of bestial, genocidal killers, any individual Serb who
ends up in the dock will not stand much of a chance even
if the prosecution does not have a leg to stand on.
All the signs are that the sort of legless evidence
presented in Salzburg will be the stuff of cases at the
Hague. No forensic evidence is likely to be presented;
prosecutions will rely on personal testimonies, flimsy
evidence given in the magnitude of the alleged crimes.
in a civil war in which all sides have suffered
grievously, the danger of people testifying in order to
exact revenge is considerable, The chances of hearsay
evidence, which has been a recurring feature of media
reporting of alleged atrocities in Bosnia, being used to
damn the accused are high.
This danger is illustrated by the tens of thousands of
pages of evidence about alleged crimes submitted to the
UN by governments, international bodies, human rights
organisations, journalists and individuals. Many of
these submissions have come from unreliable sources,
such as the various war crimes commissions established
by the three parties to the conflict. Some have come
from prejudiced sources, such as human rights bodies
which have taken sides in the conflict. Others have come
from media reports which themselves are based on hearsay
evidence.
On top of all this, the war crimes tribunal is in danger
of elevating secrecy into a principle, with its secret
database of testimonies, anonymous submissions,
protected witnesses and in camera proceedings. Secrecy
is antiethical to the pursuit of justice. Anybody who
wants to know the truth should be demanding that nothing
is secret and everything is out in the open.
The UN seems to be making up the law as it goes along
and trying to cover its tracks with legal mumbo jumbo.
For example, in order to justify the war crimes process,
it has decided to classify the war in Yugoslavia as an
international rather than an internal conflict. The UN
insists that the 'character and complexity' of the
conflicts in Croatia and Bosnia justify the
international designation, and therefore the application
of the law applicable in international armed conflicts.
This is arrant nonsense, designed to disguise an
unprecedented interference in the affairs of small
states. By waving a magic wand and turning a civil war
into an international conflict, the major powers on the
UN Security Council have given themselves the authority
to sit in judgement on the rest of the world. The
spectacle of the great and the good lecturing lesser
peoples about how to behave is a throwback to the days
of Empire.
Which brings us to the most important questions of all
what is a war crime, and who decides? Atrocities are
committed in all wars, but they are not always classed
as war crimes, In practice, whether an atrocity is
defined as a war crime depends on who is doing the
killing and who is doing the judging.
Many ugly things have happened in Croatia and Bosnia,
Atrocities have been committed by all combatants. But
why should they be singled out as war crimes? The war
crimes lobby argues that the atrocities in Bosnia and
comparable to those of the Nazis. There is no evidence
to support this view. The crimes for which people will
stand trial in the Hague are not peculiar to the war in
Yugoslavia. They are the staple of most wars in the
twentieth century which begs the question why a Serbian
soldier can be prosecuted as a war criminal for
committing atrocities, while a British soldier who
executes an Argentinean prisoner and outs off his ears
as trophies is regarded as a hero?
This double standard should make us suspicious of the
motives of those staging the war crimes trials. It is
not strange that we had to wait until the Cold War was
over (and all those atrocities committed by the British
and the Americans and their allies in Korea, Kenya,
Malaya, Vietnam, Cambodia, El Salvador and a hundred
other places were forgotten) before somebody was put on
trial for war crimes? The concept of war crimes appears
to be an ideological construction of New World order
politics, used to legitimise the international packing
order by branding some as criminals and casting others
in the role of judges.
All the evidence suggests that the war crimes trials are
politically motivated. They reinforce a moral division
in the world between those few nations qualified to sit
in judgement and the other races fit only to stand in
the dock. If this moral and racial divide has not
already become obvious in the case of the Serbs, it will
certainly become clearer if and when the proposal to put
Rwandans in the dock for war crimes is carried out. And
even if no case ever comes to court, the war crimes
process will have served its purpose for those who set
it in motion. The Western powers which have appointed
themselves to sit in judgement on less civilised peoples
will be sitting pretty, their authority to dictate to
the rest of the world strengthened by the legal
trappings of an international tribunal.