And Justice for All?
The International War Crimes Tribunal: after Milosevich also Kissinger or Sharon?
After an eventful career at the center of Balkan politics, former Yugoslavia strongman Slobodan Milosevic is where he belongs. However, although the war crimes tribunal finally has him in their grasp, they will no doubt have a tough time in dealing with him. Indeed, depending on how the process unfolds, the trial of Milosevic may end up raising questions about the true meaning of justice, one which will reverberate far beyond the Balkans.
Unlike other cases handled by the tribunal, the trial of Milosevic is important for several important reasons. First and foremost, he is the first head of state to ever face charges of war crimes in court. Also, it will be the first time that the notion of "command responsibility" will be the main focus of criminal proceedings.
In addition to potentially turning the trial into an entertainment spectacle, mainstream media is already muddying the waters as to what the case is all about. While images of Bosnia and Croatia have been linked to pictures of Milosevic standing trial, he is initially only being charged with what went on in Kosovo, namely the expulsion of hundreds of thousands of ethnic Albanians. Little mention is made, however, of the fact that many actually fled of their own accord when the war had begun in order to escape the bombing, this in sharp contrast to the notion that NATO took action because so many people had already been forced out of their homes.
Another misconception which is subtlety being relayed by mainstream media is the notion that Milosevic was the prime cause for the breakup of Yugoslavia and the subsequent wars it spawned. The ridiculousness of this can be clearly seen in present events. If Milosevic is responsible for the mess in the Balkans, who is to blame for the events in Macedonia? Indeed, the violence in that part of what remains of Yugoslavia erupted while Milosevic was out of power and in jail.
So far, what has been surprising about the trial of Milosevic is unlike other events in the Balkans, it seems to have generated little interest.Lengthy op-eds, heated discussions, novel conspiracy theories, and insights into the role of the new media as a new political and social dynamic were all usually in abundant supply on-line during other points in Milosevic's ignominious career, for instance during the election protests or when he finally fell, not to mention during the NATO bombing of Yugoslavia. With the former dictator finally on trial, however, there seems to be little interest in such discourse.
Enigmatic Existence
One reason for the apparent lack of interest at present in the trial of Milosevic is uncertainty surrounding the the war crimes tribunal. The International War Crimes Tribunal in the Hague for the former Yugoslavia is based on the principle that those responsible for war crimes must be punished. What is new with this war crimes tribunal in comparison with others is that rape has been regarded as a war crime. Likewise, the concept of command responsibility has been applied. It is this latter concept for which Milosevic is now being prosecuted in The Hague.
Despite the apparent fairness with which trials have thus far been conducted, there are doubts as to the justice it deals with in principle. For some, it carries with it the taint of retrospective law. Also, as in the case of Milosevic, who has been indicted primarily for his policy in Kosovo in the late nineties, there lingers a trace of hypocrisy: NATO commanders and politicians had ordered bombing raids against civilian targets as opposed to military ones, and used weapons contrary to the Geneva convention; hence, many Serbs consider themselves as victims and also demand justice. For them, not only have the crimes against them gone unpunished, but the present trials appear to assume the collective guilt of the Serbian people.
In addition to this, there is the question of impartiality. The tribunal in The Hague is supposedly not influenced by governments. However, it's hard to believe in the impartiality of the proceedings when key posts of the tribunal are held by Europeans, despite the fact that it's a United Nations tribunal.
Indubitably, Milosevic will take advantage of these and other weak spots in the organisation of the tribunal. Not only this, but if the trial runs its proper course, which means Milosevic will have access to the material being used against him, he might end up revealing information that would embarrass his opponents. It's too soon to write off Milosevic just yet.
The Meaning of Justice
While few dispute the fact that Milosevic should be held to account for his actions, many are wary of how he has been brought to justice and who should actually be prosecuting him. All this further tarnishes the credibility of the war crimes tribunal.
It is no secret as to why Milosevic was delivered to The Hague: the fate of 1.28 billion dollars hung in the balance. In essence, Serbia was paid off in order to satisfy the demands of the tribunal. Justice, therefore, seems to depend on the ability to pay, either to bring a case to the attention of the court, or to prevent oneself from being prosecuted.
The success of this policy of justice for money is not limited to bringing Yugoslavia's former president to The Hague. Shortly after he was delivered to the war crimes tribunal, Croatia and the Serb entity in Bosnia announced that they too would be delivering war crimes suspects to The Hague. This sudden sell-off of indicted war criminals has further undermined the credibility of the war crimes tribunal in that trading suspected war criminals for favours is not real justice. Instead, it's justice for sale.
Not only does this tarnish the image of the war crimes tribunal, it also raises questions about the state of democracy in countries like Serbia. Many have already noted that the way in which Milosevic was whisked out of the country was no different from the tactics used by the dictator himself when he ruled Yugoslavia. To this extent, Kostunica's approach of first bringing Milosevic to trial in Serbia and playing by the rules of the constitution was probably the most pragmatic and appropriate for the situation.
While it may seem that the Milosevic case was a flash in the pan, the undemocratic tendencies of the present government in Serbia has been apparent even before he was "sold" to the criminal tribunal in The Hague. As Aleksandar Gubas wrote in his post to Nettime entitled "beware of bulldozers" at the end of last year, "People want to see a slightest sign of improvement of their life [sic!] standard within the next months, and they want to see some guys behind the bars. Djindjic seems ready to do it." He adds, however, that "Djindjic seems ready to concentrate the power [sic!] in his hands. The bulldozer, taken as a kind of symbol of the October Bourgeois Revolution in Serbia, may be as well taken as the metaphor for ambitious Djindjic."
Apart from this, many are questioning the ulterior motives of the war crimes tribunal in the first place. For many, the real reason for the trials appear to be nothing more than an elaborate publicity campaign aimed at soothing bruised egos in the west for not taking action in the region earlier, as in Bosnia. For this reason, the fact that one of the main actors in the tragedy that was Yugoslavia is now facing trial has been met with relief and satisfaction by western governments, and is considered the be the war crimes tribunal's "biggest success to date".
Others are even more damning, claiming that it's nothing more than vengeance pure and simple. Milosevic had forced the hand of western governments. They, in turn, won the war, and as the loser he must now pay the price.
Finally, there are those who feel that the war crimes tribunal is a means to divert attention from NATO policy in the Balkans. This is the stand of Milosevic himself, who is convinced that the trial is nothing more than a ruse to justify NATO's war against Yugoslavia. Not only this, but it helps to cover NATO's own atrocities during the war. Among them is the use of weapons such as depleted uranium munitions as well as those banned by the Geneva convention, such as cluster bombs.
Even more controversial is the blowing up of the Danube bridges during the campaign, which were of limited military value and ended up causing widespread environmental damage, not to mention economic hardship outside of Serbia on those countries dependent on the river, including one of NATO's newest members, Hungary. In many ways, it was a breach of international law, enshrined in the Danube River Commission of 1876, in where the Danube was recognised as a vital resource over which no-one has power nor the authority to obstruct. Obviously, the US failed to take this into account when it bombed the bridges at Novi Sad and elsewhere.
By far, the most scathing criticism of the war crimes tribunal is ist apparent hypocrisy. There are countless examples of war crimes akin to what Milosevic is charged with but to which the international community has turned a blind eye and deaf ear to. What is more, some of these have been conducted by NATO members themselves, and tacitly condoned by western governments. Turkey is a classical example, in where one million Kurds were displaced in the early 1990's by the Turkish government in its attempt to destroy the PKK.
This apparent hypocrisy behind the tribunal is not lost on everyone. As Jo van der Spek, journalist, program maker and tactical media consultant, sarcastically noted on Nettime in welcoming Milosevic to The Hague: "make yourself, and us, comfortable."
Criminals on the run
In recent years, there has been increasing sentiment about bringing leaders to justice for crimes committed while in power. The attempt to extradite former Chilean dictator Augusto Pinochet to Spain threatened to set a precedent. While he will now most likely never stand trial, he nevertheless will go down in history as an indicted war criminal.
Not surprisingly, the Pinochet case made many potential defendants more than a little nervous. Hence, George Bush Sr. called the case against Pinochet a travesty of justice, while Margaret Thatcher had reportedly made discreet inquires to the British Interior Ministry on the likelihood of being arrested while travelling abroad.
But now that a precedent has actually been set with Milosevic in The Hague to face criminal charges based on his political policy, a policy that undoubtedly was responsible for murder, disappearances, rape, genocide, and ethnic cleansing, the question naturally arises: why can't others -- such as Kissinger and Sharon, to name just a few -- be held responsible for the mass mayhem they caused? Indeed, the cases of both Kissinger and Sharon indicate a growing clamour of administering justice for all.
Like Pinochet, Henry Kissinger is being pressured to account for his actions over a quarter of a century ago while he was Secretary of State in the US government of Richard Nixon. The idea of holding Kissinger to account for his actions is not an abstract one, but very real indeed. According to declassified documents that anyone can access on the National Security website, Kissinger, Nixon, and CIA director Richard Helms ordered a coup in Chile even before Allende assumed office.
Former Secretary of State Henry Kissinger was summoned in May of this year to appear at the French Palace of Justice to answer questions about murders and disappearances in Chile in the 1970s. French authorities wanted to ask Kissinger, who was visiting Paris at the time, about Operation Condor, the terror network set up by the governments of Chile, Argentina, Brazil, Uruguay, Paraguay, Ecuador and Bolivia. The French magistrate who summoned Kissinger was particularly interested in what light he might shed on the disappearances of five French nationals who disappeared in Chile during or shortly after the U.S.-supported coup there in 1973. But the French courts would learn nothing from Kissinger, who left town the day after being summoned without answering any questions.
This wasn't the first time the former secretary of state was confronted with his ignominious past. In 1999, Kissinger stormed out of a widely heard radio interview when questioning turned to his complicity in war crimes. Radio 4 host Jeremy Paxman had asked the former secretary of state whether he felt like a fraud for accepting the Nobel Peace Prize after plotting a coup in Chile in 1973 and orchestrating slaughter in Cambodia. Naturally, Kissinger had denied everything, saying his host was woefully misinformed. He then failed to show up for a BBC roundtable discussion scheduled for later that day.
Lately, there has been increased interest in the Kissinger case on the Internet, brought up by Russel and Mokhiber's Focus on the Corporation and Fairness and Accuracy in Reporting (FAIR). Both raised concerns that there appears to be an agreement that American interviewers and journalists would avoid raising uncomfortable issues with Kissinger relating to his possible involvement in war crimes.
Meanwhile, Ariel Sharon, the present prime minister of Israel, is another leader who is finding it increasingly difficult to escape the ghosts of an ignominious past. In fact, he now stands accused in a Belgium court by one of the survivors of the massacres at two refugee camps in Lebanon, for which he has become synonymous. A documentary broadcast by the BBC on its show Panorama, aired shortly before the deportation of Milosevic to The Hague, added fuel to the fire.
The extent of the crime Sharon is being charged with should not be underestimated. In the documentary, an Israeli soldier who was in Beirut at the time noted that walking through the camps after the massacres conjured up images of the holocaust. The documentary makes it clear that under the concept of command responsibility, of which Milosevic is being presently held in The Hague, Sharon can be indicted as a war criminal.
Not surprisingly, the official Israeli response to the broadcast was to condemn the BBC for misleading information and denouncing the organisation as being anti-semitic. Ironically, this was the same tactic used by Kissinger when faced by the media spotlight. Earlier this year, Harper's magazine published a two-part series of articles by British journalist Christopher Hitchens, "The Case Against Henry Kissinger" that has since been published as a book, The Trial of Henry Kissinger (Verso). Kissinger hit back, not by answering the substance of Hitchen's argument, but by smearing the journalist, telling listeners on a Detroit radio talk show that Hitchens had "denied the Holocaust ever took place."
These vain attempts to skirt the issue reveals the desperation of some of the accused. In the Panorama report it was Israelis themselves, some of them former soldiers near the scene of the crime, who condemned the atrocities. As for Hitchens, who is Jewish himself, he told the New York Post: "Mr. Kissinger will be hearing from my attorney, who will tell him two things he already knows -- what he said is false, malicious and defamatory, and if he says it again, we will proceed against him in court."
All this raises the question once again of the notion of justice when dealing with crimes against humanity. It should comes as no surprise, therefore, that the US opposes the establishment of an International Court of Justice. Such a court could prosecute powerful individuals when domestic courts fail to act. The American position is quite understandable, for there are many US officials and businesses who provided weapons, training, financial support, and even direct guidance for some of the worst violations of political and civil rights. With such a court in place, the fear is that many Americans would be called to account for past and present crimes.
Selective Justice
With the increase in demand that all those involved in crimes against humanity, whether by actually carrying out the deed or by being in a position to influence events, be held accountable, for western governments the trial of Milosevic may end up causing more problems than it solves. Of ultimate concern is where to draw the line. Yet by drawing a line, the war crimes tribunal winds up simply administering selective justice. This, in turn, only further dampens the credibility of the war crimes tribunal and its moral responsibility.
In order to rationalise the need for selective justice, Milosevic is regarded as a "special case". For many, he is seen as the "Butcher of Belgrade". Bringing him to justice is a matter of course, but it should stop there, otherwise there is the danger of unleashing an international prosecutor with essentially no restrictions, and who can reach into sovereign states. In other words, it's a threat to national sovereignty, and threatens to lead international law down a slippery slope.
This, ironically, was the argument made by Kostunica in opposing the extradition of Milosevic to The Hague. Yet Milosevic is somehow seen as a different case; after all, it's often argued, he is "the butcher". In essence, Milosevic is not only the perpetrator but the symbol of the tragedy that was Yugoslavia in the post-communist period.
Another argument in favour of selective justice is that it must be done in the interest of ensuring stability. Thus, limits should be place on the scope and depth of the The Hague to continue probing, otherwise it will continue to produce instability within the region and keep the wounds open. Instead, there is a need for a time of "healing" and getting over the past, otherwise the ethnic hatred that exists will continue to simmer as each side demands more of the other to be put on trial for war crimes. Not only this, but most observers point out that a majority of Serbs and Croats don't wish to see the war crimes tribunal process to go beyond Milosevic.
These sentiments are shared by none other than Zoran Djindjic, the prime minister of Serbia. He feels that there should now be a moratorium on sending war criminals to The Hague. In a recent interview, he stated that having a bottom line was part of the condition for sending Milosevic to The Hague in the first place. As far as her is concerned, the sooner they could forget the past the better, for then Serbia can focus on trying to organise its future.
The reasoning of Djindjic on this point is dubious. Not only does he have to deal with the stigma of selling Milosevic to The Hague, but there is a feeling that the war crimes tribunal was used for political expediency in getting rid of a political opponent. What is more, there is the charge of hypocrisy, in that a member of his very own government is also an indicted war criminal.
The issue of selective justice is skillfully relegated to the background as the mass media -- both within Serbia and abroad -- paints a portrait that the vast majority of Serbs agreed with sending Milosevic to The Hague. Yet most Serbs were just being practical in their after-the-fact approval of the deportation, in that at least they got some foreign aid out of the deal. Not only this, many would have liked Milosevic to have stood trial in Serbia first, something along the lines to what Kostunica wanted. Now, because Serbs haven't been able to put anyone on trial in their own country for the suffering of the past decade, there is a judicial vacuum of sorts, and no closure to this dark period in their history.
Djindjic, for his part, says their country had its chance to prosecute Milosevic, but took too long to do it. He added that the country's reputation was at stake, because other countries were beginning to feel that the government was not serious in dealing with the former dictator.
Under the circumstances, however, one can't see how the courts in Yugoslavia could have gone any quicker. Not only this, but the war crimes tribunal doesn't seem to be going any faster. The fact that Milosevic was deported at the last minute before a deadline for financial assistance expired, a method also used in order to arrest him in April, speaks for itself.
In the end, there is no doubt that Milosevic should stand trial and be held responsible for the crimes he allegedly committed. However, not only should he have to face his accusers, but also others such as Clinton, Kissinger, and Sharon -- for starters. And that's just the tip of the iceberg.