The critics in Serbia of the Yugoslav war crimes tribunal apparently believe that no rebuke of the Hague court can be unfounded. That is not surprising, because the critics are used to getting a sympathetic response from the Serbian public to any argument they make against the tribunal. The tribunal is an anti-Serb stooge? Everybody in Serbia knows that it is. Americans control the tribunal? They obviously do. The tribunal’s prosecutor does a lousy job in the process against Slobodan Milosevic? Clearly, yes. Over time and unchallenged, these allegations become self-evident truths.
Much of the criticism of the Hague tribunal derives from three sets of misperceptions. Some commentators and reporters see the tribunal as a symbol of “the West,” which they have distrusted since at least the 1999 NATO bombardment. Others were not a priori hostile, but turned against it when they concluded that the prosecutor in the proceedings against Slobodan Milosevic was dealing too much with history and politics, and offering little evidence about the responsibility of the accused. Still others have problems with the very idea of bringing in facts about crimes committed by ethnic Serbs before any court.
The negative stance could be a perfectly respectable position if it were based on objective analysis and fair understanding of the Milosevic trial, and of the tribunal’s work in general. This is usually not the case, however. The following analysis aims at explaining the main fallacies in public perceptions of the tribunal’s work.
All Against the Hague
Most importantly, there is the post-Milosevic government with its own reasons to dislike the tribunal, and the crucial impact such a position had on shaping the broader attitude toward the Hague. The government used the mass graves of Kosovo Albanians, discovered in Spring 2001 near Belgrade and in other parts of Serbia, solely as an alibi to surrender Milosevic to the Hague, rather than an impetus for public debate about the recent past, or for criminal proceedings against those responsible. Three years after the fall of Slobodan Milosevic from power, Serbian courts tried only a handful of war crime cases, with scant media coverage. The government has portrayed cooperation with the Hague as a means of receiving economic assistance from abroad, rather than a duty to victims and justice.
In sum, the government has stripped the discussion of war crimes responsibility of its ethical dimension. This fed cynicism and a value system that reinforces extreme nationalism. Not exactly the background on which the work of the tribunal would be welcomed.
Against this background, it is no surprise that the media treated crimes committed against non-Serbs in the former Yugoslavia as undeserving of attention. With the exception of the newspaper Danas and Television B-92, they have refrained from addressing the issue of war crimes. In contrast to Serb politicians and media, the Hague tribunal keeps bringing the issue to the fore. Resistance, and outright hostility, is a natural response.
The hostility exploded when the trial of Slobodan Milosevic began, in February 2002, with testimonies about the crimes in Kosovo. Commentators of all colors joined in the search for weaknesses in the testimonies of Kosovo Albanian witnesses for the prosecution. Witness accounts of unspeakable crimes were mentioned only in passing, if at all; the core of the reporting and analyses consisted in thrashing the witnesses for real or alleged contradictions and lies. A month after the beginning of a trial expected to last several years, Serbian observers concluded that the prosecutor was not doing a good job.
In fairness, the exaggerated reporting has improved slightly in the meantime, at least in the several outlets not completely insensitive to criticism about the inflamed reporting at the beginning of the trial. But the damage had already been done. The public had already been inclined to distrust the Hague, and the reporting and commentary on the Milosevic trial have only encouraged such an attitude.
Orders and Joint Criminal Enterprise
Many in Serbia wrongly believe that the prosecutor has to prove that Milosevic ordered crimes to be committed, and, consequently, they judge that the prosecution has done a poor job because it has not produced proof of such orders.
Reporters and analysts in Serbia have failed to inform the public that, to have Milosevic convicted, the prosecution does not have to show that he issued orders. It need only prove that Milosevic participated in a joint criminal enterprise whose purpose was to forcibly remove non-Serbs from territories in Croatia, Bosnia, or Kosovo. Or, it must prove that Milosevic held an effective command position, knew or should have known about the crimes, but failed to take reasonable measures to prevent them and bring the perpetrators to justice. Both joint criminal enterprise and responsibility of a superior are well-established concepts in international criminal law, and neither requires proof of issued orders.
Understanding these two concepts requires some effort among those who are not trained lawyers. One cannot blame the reporters and the public for lacking legal expertise. On the other hand, one would expect the reporters to acquaint themselves with legal standards underlying the trial, and, in the meantime, to avoid making definitive judgments—such as that the prosecutor is failing to prove the case.
The concept of the joint criminal enterprise has caused particular confusion, although the concept is straightforward. A group of bank-robbers are all criminally responsible for a robbery, as participants in a joint criminal enterprise; the purpose of the joint criminal enterprise is, obviously, to rob the bank. Less straightforward is that if during the robbery one group member waits outside in the car, and another member kills a person in the bank, the person outside will be responsible not only for the robbery (which he agreed to) but also for the killing (which he may not have agreed to). This is so because the killing was a natural and predictable consequence of the robbery, and the person waiting in the car was aware of the risk.
Applied in the context of the Milosevic trial, the concept of the joint criminal enterprise means the following: If the prosecutor can prove that Milosevic planned, prepared, or committed ethnic cleansing, or even only instigated or aided and abetted those who committed it, Milosevic is criminally responsible for ethnic cleansing. With regard to killings, property destruction, imprisonment, torture, and other crimes accompanying the forcible transfers of non-Serbs, Milosevic is criminally responsible for them too, even if he did not agree to the commission of those crimes, if the crimes were predictable consequence of the “cleansing.” (This is not to suggest that Milosevic disagreed with those crimes; the point is that even he did, he can be criminally responsible).
Domestic law also contains rules closely resembling those that outline the concept of joint criminal enterprise. Under the law in Serbia and Montenegro (article 26 of the Basic Penal Code), those who formed or used a group or a plot for the purpose of committing criminal acts are responsible for all crimes arising from the criminal plan, regardless of the role—if any—the individual had in the commission of each specific crime. The law also includes the concept of complicity, with responsibility of an accomplice for acts committed directly by others.
Politics and Greater Serbia
Most persons in Serbia believe that the tribunal is trying Slobodan Milosevic for having started the wars in the former Yugoslavia, in pursuit of creating a “Greater Serbia.” Those who believe it accuse the tribunal of being “political.”
However, none of the three indictments against Milosevic—for Croatia, Bosnia, and Kosovo—charge him with the attempt to create Greater Serbia by starting the wars. Only the indictment for Croatia makes reference to a link between Milosevic and Greater Serbia, stating that Milosevic’s “calls for the union of all Serbs in one state coincided with those agitating for the creation of a ‘Greater Serbia.’” The sentence is descriptive and does not constitute a criminal charge. Milosevic is indicted for something else: for forcible removal of non-Serbs and for other crimes committed therein. If he had worked toward realizing a political goal (the creation of a Serb-dominated state) without war crimes—forcible transfers, killings, destruction of properties, and other—he would not be criminally responsible.
More sophisticated among the critics advance a slightly different argument against the Milosevic trial: they say the prosecutor politicizes the case by dealing with the break-up of Yugoslavia and not solely with war crimes.
Now, untangling the “political” from the strictly “legal” components of the testimonies by prosecution witnesses is possibly the most complicated aspect of the Milosevic trial. One should bear in mind that the indictments accuse Milosevic of participation in a joint criminal enterprise. To show that a joint criminal enterprise existed, the prosecutor has to show that those participating in the enterprise had a common purpose or plan. According to the indictments, the purpose of the joint criminal enterprise in which Milosevic allegedly participated was the forcible transfer of the majority of the non-Serb populations from parts of Croatia, Bosnia, and Kosovo. To show that forcible transfer indeed was the purpose, the prosecutor should make a plausible case that forcible transfers had some goal, rather than being an unintended consequence of chaotic events.
As the prosecution suggests, the goal behind forcible transfers was to join parts of Croatia and Bosnia to a new, Serb-dominated state, and to ensure continued Serbian control over Kosovo. That is why the prosecutor has introduced witnesses who talked about Milosevic’s intent to join parts of Croatia and Bosnia to the new state—about “politics,” that is. But in this context politics is legally relevant.
The Prosecutor’s “Weak Case”
Mesmerized by the exchanges between Milosevic and the witnesses he cross-examines about Greater Serbia and responsibility for wars, the reporters and commentators in Serbia mainly miss the segments of the testimonies addressing joint criminal enterprise and the responsibility of a superior. Numerous witnesses testified that forcible transfers and other crimes alleged in the indictments did take place, and were systematic. Others testified that the immediate perpetrators of the crimes were members of the Serbian police and the Yugoslav Army, or other armed groups assisted from Belgrade through provision of arms, logistical support, cadres, and in other ways. Milosevic, according to testimonies, had effective control over the responsible units, or aided and abetted their actions (which included foreseeable crimes). Milosevic also knew or should have known about the crimes, but—it would follow from the testimonies—he did not take measures to prevent the crimes or have the perpetrators punished.
Numerous testimonies corroborate the above conclusions. It is therefore astonishing when critics make no reference to them and bluntly assert that the prosecution is “doing a poor job.” This assessment is difficult to square with what has been heard in the courtroom from witnesses including: Milan Babic; Aleksandar Vasiljevic; Captain Dragan (and the tape from the Red Berets ceremony); Dr. Michael Williams; Peter Galbraith; Charles Kirudja; Slobodan Lazarevic; Zoran Lilic; Andreas Riedlmayer; Jeri Laber; Osman Selak; protected witnesses B-24, B-104, B-127, B-129, B-161, B-1455, C-013, C-47, C-1149, and others; as well as numerous Kosovo Albanians who testified about crimes in Kosovo.
An Anti-Serb Prosecutor and a U.S.-Controlled Court?
The imbalance between the numbers of Serbs and members of other ethnic groups indicted in the Hague (the ratio is roughly 2.5:1) causes a particular stir among Serbs in the former Yugoslavia. The conclusion they infer is that the office of the prosecutor is biased against Serbs.
The critics appear to not have considered the basic question: if hundreds of people from over a dozen different countries work in the office of the prosecutor, is it probable that all or most of them have something against Serbs? An affirmative response is not likely to sound serious, and the proponents of the theory of an anti-Serb office of the prosecutor never ask the question.
If the question is asked, however, a possible response is that those working in the office of the prosecutor are unbiased professionals. The high number of indictments against Serbs might then stem from a higher number and a more systematic nature of the crimes committed by armed Serb formations, compared to the crimes committed by other parties. Srebrenica, Sarajevo, Foca, Vukovar, a dozen mass killing incidents in Kosovo, forcible transfers of hundreds of thousands of people at gunpoint, are crimes that were less numerous and systematic on other sides, or did not exist (there is no equivalent for Srebrenica on the other sides).
In addition to that, before the fall of Milosevic Hague investigators could barely approach the witnesses of crimes against Serbs, and this obstacle slowed down the preparation of cases against non-Serbs. Also, the recent killings of Kosovo Albanians who testified in Kosovo trials against former KLA commanders should convince a skeptical observer that the Hague prosecutor indeed faces difficulties in finding Kosovo Albanians willing to testify against other Albanians. These difficulties are all the more important because the structure of the KLA was more dispersed than that of the Serbian police or Yugoslav army, and proving command responsibility might be more difficult.
Another strongly held belief among many in Serbia is that the Hague tribunal is subservient to the United States. The critics in Belgrade took as evidence of this the news that representatives of the U.S. government would sit in the courtroom during the upcoming testimony of General Wesley Clark, with the authority to demand protective measures if segments of the testimony would prejudice U.S. national security interests. What they overlooked was that the government of Serbia and Montenegro exercised that same right in June 2003, during the testimony of the former Yugoslav president Zoran Lilic. Two representatives of the embassy in the Netherlands, Slavoljub Caric and Miodrag Panceski, sat in the courtroom and could have demanded protective measures, pursuant to tribunal’s Rules of Procedure and Evidence.
Critics also claim that the United States provides most of the funding for the tribunal and, as result, can shape its work. The reasoning on the cause-and-effect relation between funding and control is dubious in itself; in any event, it is based on wrong facts. The bulk of the funding (approximately 95 percent) actually comes from the regular U.N. budget, and only a small part from a special trust fund through which states contribute financial resources.
Tribunal critics in Serbia compensate for the absence of compelling arguments with repeated assertions, and invoke similar assertions of their like-minded. To see how it works in practice, take the recent piece by veteran foreign affairs columnist Dragoslav Rancic, published in Politika of November 22, 2003. Rancic quotes “the most recent assessments abroad” that purportedly corroborate his thesis about the tribunal as a political instrument in the hands of big Western powers, and of the U.S. in particular. The article will be described in some detail, because the abdication from objectivity and professionalism by Serbia’s leading and otherwise fair-minded author suggests how other, less credible ones, treat the tribunal when they write about it.
Rancic invokes articles published in Junge Welt, Washington Times, and New York Times, a commentary read in a Radio France International program in South-Slavic languages, and a statement by the ICTY Judge Wolfgang Schomburg. With the exception of Judge Schomburg’s, all quotes contain simple assertions in lieu of developed arguments, so the value of the quotes lies solely in the presumed credibility of the sources. But on closer inspection, the sources either miss credibility, or simply do not say that “the tribunal is a political instrument in the hand of big Western powers,” which is how Rancic introduces them.
Junge Welt is a former German Democratic Republic communist newspaper, now only communist, and extreme to the extent that in the paragraph quoted by Rancic it suggests there no crime was committed in Srebrenica. The Washington Times article is an opinion piece by Paul Craig Roberts, a (“paleo”-)conservative isolationist hostile to every international organization in which the United States “dissolves” a part of its sovereignty, including the Hague tribunal. The author of the Radio France International commentary is Stanko Cerovic, a long-time proponent of radically anti-Western views imbued with apocalyptic and Kafkaesque tones; his writings arguably make for interesting literature, but hardly a serious analysis, as illustrated by the following sentence from the commentary Rancic cites: “Micunovic himself, the presidential candidate, might be indicted tomorrow. He doesn’t know why, but the [Hague] tribunal will know.”
Finally, there remain the New York Times and Judge Schomburg. These are respectable sources, but they do not say that the tribunal is a political instrument in the hands of Western powers. The quote from the New York Times only argues in favor of bringing the work of the tribunal to the close by the end of the decade, which is precisely what tribunal’s own exit strategy envisions. One week after Rancic’s op-ed in appeared Politika, a New York Times editorial opened with the following sentence: “In its nearly 10 years, the International Criminal Tribunal for the Former Yugoslavia has been fair and thorough.” So much for the New York Times as an ally against the tribunal!) As for Judge Schomburg, also quoted in Rancic’s article, he points at the risk of the court’s addressing historic issues. Without examining the statement in full, it is difficult to conclude what Schomburg really said, all the more so because during the recent trial of Milomir Stakic the same judge argued in favor of the tribunal’s elucidation of the broader context in which crimes took place.
Like Rancic, other journalists in Serbia resort only to those foreign sources—no matter what their credibility—which they hope would confirm the negative picture of the tribunal. The Belgrade magazine Nin, for example, writing about the tribunal invoked Jeffrey Kuhner, an American journalist and critic of the tribunal. Nin failed to inform its readers that Kuhner is a passionate defender of “Storm” and the operation in the Medak pocket, and that he criticizes the tribunal because it has indicted Ante Gotovina and Janko Bobetko for the crimes committed during or immediately after the two actions.
Utterly unheard in the media are the views of the serious international lawyers who maintain that Milosevic enjoys greater privileges in the proceedings than the defendants in any national trial (Geoffrey Robertson), or who systematically monitor the proceedings on the spot and, at the end of the first year of the trial, found that the Hague prosecutor offered evidence warranting conviction of Milosevic (Avril Macdonald, Heikelina Verrijn Stuart).
The resentment against the Hague tribunal is not likely to subside soon. The hostility is at its peak, and some analysts recently even blamed the ICTY Office of the Prosecutor for the poor result of the democratic candidate at Serbia’s presidential elections, in early November 2003.
One is to hope that the government and intellectual elites will, sooner rather than later, come to grips with their responsibility and take a more rational approach to the issues of war crimes and the Hague tribunal. Maybe the individuals and parties that became prominent as a result of the wartime pathology derive benefit from the tendentious coverage of the ICTY. Everybody else is losing.