Lipstick on a Pig: Corrupt “Justice” at the ICTY

Written by: Andy Wilcoxson

At a ceremony marking the 20th Anniversary of the International Criminal Tribunal for the former Yugoslavia’s (ICTY) establishment, Tribunal President Theodor Meron gave a speech about the Tribunal’s “profound contributions to global efforts to battle impunity” and the international community’s “resolve that there be no impunity for any individual, even the most senior political or military leader.”[1]

In spite of Judge Meron’s shameless boasting, NATO warplanes were allowed to attack civilians in Serbia with impunity in 1999. They attacked Radio-Television Serbia’s Belgrade studios where 16 civilians were killed and a passenger train in Grdelica where another 14 civilians were killed.

The ICTY didn’t charge anyone from NATO with a crime, even though it has prosecuted Serbian officers for similar offenses. Gen. Dragomir Milosevic was tried and convicted for, among other things, shelling the TV Sarajevo building and shooting at trams in Sarajevo. It stands to reason that if it’s a war crime to attack a TV Station in Sarajevo, then it’s a war crime to attack a TV station in Belgrade. If it’s a war crime to shoot at a tram in Bosnia, then it’s a war crime to bomb a commuter train in Serbia. The double standard is obvious.

The ICTY is a Political Tool and They Admit It

When reporters asked Lester Munson, Communications Director for the U.S. House of Representatives Committee on International Relations, if he was concerned that the Tribunal might attempt to prosecute NATO officers for attacking civilian targets in Serbia he told them: “You’re more likely to see the UN building dismantled brick-by-brick and thrown into the Atlantic than to see NATO pilots go before a UN tribunal.”[2]

The ICTY likes to portray itself as an independent UN institution, but in reality it is the brainchild of the U.S. State Dept. and the CIA. Not surprisingly, the United States has used the Tribunal to advance its interests in the Balkans and government officials openly admit it.

In an interview with BBC Radio, former U.S. Assistant Secretary of State Richard Holbrooke said, “When President Clinton brought me back to Washington to take over the Bosnia negotiations I realized that the War Crimes Tribunal was a huge valuable tool. We used it to keep the two most wanted war criminals in Europe – Karadzic and Mladic – out of the Dayton peace process and we used it to justify everything that followed.”[3]

Courtroom_I

Holbrooke wasn’t the only American official who saw the Tribunal as a “tool” for advancing American interests. James O’Brien served as Clinton’s special Presidential Envoy for the Balkans and he described the Tribunal as “a very useful tool in bringing about a settlement.” In his opinion, “It was a primary way to remove or, at least, undercut the legitimacy of people who would be obstacles to peace.”[4]

Former U.S. Secretary of State Madeline Albright explained that “when people were going to Dayton, the fact that Karadzic and Mladic didn’t go to the talks was thanks to the existence of the War Crimes Tribunal.” She described the economic sanctions and the War Crimes Tribunal as “the two issues that provide us the most leverage.”[5]

In a speech at the U.S. Supreme Court, former ICTY President Gabrielle Kirk McDonald was generous in her praise for Ms. Albright. She said, “We benefited from the strong support of concerned governments and dedicated individuals such as Secretary Albright. As the permanent representative to the United Nations, she had worked with unceasing resolve to establish the Tribunal. Indeed, we often refer to her as the ‘mother of the Tribunal’.”[6]

Former NATO spokesman Jamie Shea openly bragged to the media that “NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers.” Accoding to Shea, “Without NATO countries, there would be no International Court of Justice nor would there be any International Criminal Tribunal for the Former Yugoslavia, because NATO countries are in the forefront of those who have established these two tribunals, who fund these tribunals, and who support on a daily basis, their activities.”[7]

The Tribunal’s conflict of interest couldn’t be more obvious. The United States and NATO were direct participants in the very conflicts where the Tribunal is adjudicating the facts. NATO bombed the Serbs.

A verdict from the ICTY has the same credibility and conflict of interest problems as a study on the health effects of smoking that’s published by an institution that gets funding from the tobacco companies.

Documents recently declassified by the CIA show that the Tribunal began as a U.S. policy initiative. On 1 February 1993, the Director of the CIA circulated a memo that assessed how various countries would respond to “US policy options” in the former Yugoslavia.

One of the policy options was to “establish a war crimes tribunal”.  According to the memo, Western Europeans would be supportive of the Tribunal, Moscow would oppose it, and “Muslim states would approve a War Crimes Tribunal and publicizing Serbian atrocities. Even treatment of Bosnian transgressions, however, would be regarded as tilting in Belgrade’s favor.”[8]

Leaked Diplomatic Cables Expose the Tribunal’s Cozy Relationship with the U.S. State Dept.

U.S. State Dept. cables leaked to the website Wikileaks indicate that ICTY personnel have maintained an inappropriately close relationship with the U.S. Embassy in The Hague.

When the Tribunal needs money to retain staff and finance their operations, they go hat in hand to the U.S. Embassy. A cable dating from 2004 says, “The Chief Prosecutor and Registrar of the International Criminal Tribunal for the former Yugoslavia (ICTY) urged Ambassador for War Crimes Issues Pierre Prosper to weigh in with UN Headquarters to help solve two emerging budget and personnel crises.”[9]

It’s interesting that a supposedly “independent UN Tribunal” would need the U.S. Government to act as an intermediary between itself and UN Headquarters to secure its funding.

In addition to asking the United States for help with funding, ICTY personnel have disclosed confidential information to the American Embassy. Carla del Ponte disclosed the contents of Slobodan Milosevic’s confidential witness list to the Americans.[10] The unauthorized disclosure of confidential ICTY filings is a violation of Rule 77(A)(ii) of the ICTY’s rules, but that didn’t seem to stop her.

Tim McFadden, the head of the ICTY’s UN Detention Unit, went to the American Embassy and disclosed details about Slobodan Milosevic’s medical condition, his mental state, details about his daily routine, and even personal details about his relationship with his wife and the contents of their telephone conversations.[11]

The cables show that internal politics, greed and self-interest play a big role at the Tribunal. According to one cable, “The newly appointed President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), judge Patrick Robinson, recently informed ICTY registrar Hans Holthuis that he would not recommend that the Secretary General reappoint Holthuis for a third four-year term. Holthuis was informed of this decision on November 17, Robinson’s first day as president and less than two months before the end of Holthuis, term.  This decision comes at the same time that the judges are lobbying for increased pension benefits.  We believe that this decision is in part because the President does not feel that Holthuis has done enough to lobby for increased pensions.”[12]

ICTY Verdicts and Personnel Corrupted by Politics

It’s ironic that the judges have their hands out for more money when, according to these leaked diplomatic cables, they’re not even the ones who write the verdicts. They palm that responsibility off on their legal clerks.

When the ICTY Appeals Chamber handed down its verdict in the Radislav Krstic genocide trial, American embassy personnel in The Hague reported back to Washington that “There is a general sense among prosecutors that the Appeals Chamber first decided that Krstic did not merit conviction as a principal perpetrator of genocide but that, for ‘political’ reasons, it did not want to set aside the finding that the massacres around Srebrenica constituted genocide.  The result, one prosecutor said, made it seem as if ‘an eighteen year-old law clerk’ had written the judgment on the basis of a decision reached ‘by academics and diplomats’.  In fact, a law clerk involved in the drafting confirmed to embassy legal officers that the chamber had given the drafters general directions, ‘the bottom line,’ and that the law clerk drafters had to determine how to get there.”[13]

Rather than the evidence leading to the findings, the opposite was done with the Krstic Appeal judgment. The people who wrote the judgment were given a predetermined conclusion, and then they had to “determine how to get there.” But perhaps the most noteworthy thing about this cable is its implication that politics influenced the Tribunal’s classification of the Srebrenica massacre as a “genocide”.

When Nasir Oric was acquitted by the ICTY Appeals Chamber, the Head of the OTP’s Liaison Office, Mr. Deyan Mihov, told American Embassy personnel in Belgrade something that Serbian public opinion has long suspected. He said, “It is becoming increasingly obvious that decisions in the chamber are being politically driven.”[14]

Judge Frederik Harhoff was recently removed from the Tribunal’s bench after circulating a letter in which he claimed that Judge Meron was exerting pressure on his fellow judges in their deliberations because of “pressure from ‘the military establishments’ in certain dominant countries” — particularly the United States.[15]

The cables show that the U.S. Government lobbied for Meron’s appointment to the Tribunal. In fact Judge Meron is even described by one of the cables as “the Tribunal’s preeminent supporter of US Government efforts.”[16]

When Meron wanted Carla del Ponte fired as ICTY chief prosecutor, he took his request to the U.S. Embassy.

According to the cable, “Meron explained that Del Ponte is ‘primarily a media person who is primarily interested in her own legacy.’  She has ‘absolutely no idea about management’ and is ‘not in control of her staff.’  He described ‘tremendous unrest’ in the OTP, noting that a senior OTP official had met with him to convey a detailed litany of concerns about the poor management of the office and the threat it posed to achieving completion strategy targets. Meron provided a confidential memorandum of that conversation reporting the official’s view that ‘the current Prosecutor lacks the required vision, lacks the needed managerial competence, and lacks the commitment to the completion strategies that will be necessary to bring them about as promised’.”[17]

A cable dating from 2007 shows that France wanted the job of ICTY Chief Prosecutor to be given to Serge Brammertz for manifestly political reasons.

According to the cable, “France is backing Serge Brammertz to succeed Carla Del Ponte as ICTY Chief Prosecutor from a belief that Brammertz will otherwise refuse to extend his mandate at the UN International Investigative Commission (UNIIIC), an outcome the French characterize as disastrous. MFA UN/Middle East Action Officer Salina Grenet explained to Poloff on May 10 that Brammertz was conditioning any prolongation of his UNIIIC duties on a guarantee — by June 15 at the latest — of a suitable onward assignment.”[18]

Bias, Conflicts of Interest, and Suppression of Evidence

The apparent fact that the ICTY Chief Prosecutor got his job because of political horse-trading is particularly disturbing because the Office of the Prosecutor oversees the Tribunal’s investigations and it has the unique power to suppress evidence of war crimes by refusing to carryout investigations and refusing to issue indictments.

Moreover, there are strong indications that the investigations they do carry out are biased. In 2006 a survey of twenty-five forensic pathologists employed by the Tribunal was conducted, and the results were published in the prestigious academic journal “Medicine, Science and the Law.”[19]

The study found that “some of the forensic pathologists involved belonged to human rights organizations that were not neutral in the conflicts. Moreover, most of them belonged to countries which are NATO members.”

In spite of the Tribunal’s attempt to stack the deck with pathologists that would be sympathetic to the NATO cause, the study found that of the twenty-five pathologists surveyed: “Three forensic pathologists reported that they had been subjected to pressures, one by the Croatian government, the two others by a human rights organization, a non-governmental organization which controlled the course of autopsies and also concerning the writing of the autopsy reports.”

Moreover, “Three forensic pathologists were aware of mass grave sites wittingly not investigated by the ICTY, especially mass graves of Serbian victims” and “four of them questioned the impartiality of the justice led by the ICTY.”

The study noted disturbing irregularities concerning the ICTY’s forensic investigations, including that the “financial independence of the forensic pathologists could be questioned as not all of them have been paid directly by the ICTY according to the comments of some of our respondents.”

The study also noted what it called a “disturbing feature of the ICTY proceedings” where “not all forensic pathologists involved presented verbal evidence to the court in The Hague, but only the senior chief forensic pathologist of the team appeared to give evidence, in contradiction to the tradition that the responsibilities of an individual forensic scientist are personal and not corporate.”

The Tribunal likes to boast that its “proceedings provide victims and witnesses the opportunity to be heard and to speak about their suffering. To date, over 3,500 witnesses have told their stories in court. Through this, they have contributed to creating elements of a historical record.”[20]

One victim that was not allowed to contribute to the historical record by speaking about her suffering was Ms. Angelina Pikulic, a Serbian woman from Pofalici who was held prisoner at the Silos prison camp in Tarcin from May of 1992 until January of 1996.

During her stay in the camp she was subjected to inhumane treatment by her captors, and she witnessed other Serbian prisoners being tortured, raped, and killed by Muslim soldiers and policemen. The prisoners were held in terrible conditions, and she had to live for more than three years with the constant threat of being raped or killed while she was in that camp.[21]

The conditions of her imprisonment were just as bad as anything Muslim prisoners had to endure in Serb-run camps. The difference is that the Office of the Prosecutor never bothered to indict any Bosnian-Muslim officials for what they did to the Serbian prisoners in the Silos camp.

When Ms. Pikulic testified as a witness in the Karadzic trial, the trial chamber forced her to redact her witness statement and remove all references to her imprisonment in the Silos camp after the Prosecution requested that her testimony be rejected on the grounds that, “Thirteen out of the eighteen paragraphs of Ms. Pikulic’s statement relate exclusively to crimes committed against Serbs.”[22]

She protested the Chamber’s ruling saying, “Those paragraphs have to do with my stay in the Silos camp, which in turn would mean that I cannot convey the suffering I had undergone in the Silos camp.”[23]

Judge Morrison explained that “the reality of the position in which we find ourselves is this is not the right forum for that and accordingly the limitations have been put on. This is not out of a lack of sympathy for the witness; it’s to expedite the proceeding.”[24]

While there may be truth in the argument that Muslim crimes don’t excuse Serbian crimes, and that the Karadzic trial may not be the best forum for Serbian victims of Muslim atrocities to tell their stories. The reality for Ms. Pikulic is that there was no other forum to go to because the Tribunal isn’t prosecuting anyone for what was done to her or the other prisoners in that camp.

Muslim victims from Serb-run camps like Omarska and Keraterm can come to the Tribunal and have their stories recorded for historical research and posterity, but she can’t.

Not only did ICTY Prosecutors fail to prosecute her captors for what they did to her and the other prisoners in the Silos camp, but they went out of their way to have her witness statement redacted to ensure that no mention of the crimes they endured would be recorded anywhere in the Tribunal’s archives.

In spite of Judge Morrison’s explanation, it didn’t expedite the proceedings for the Prosecution to file a motion to exclude her evidence, nor did it expedite the proceedings for the judges to go through the process of writing a decision granting the Prosecution’s request and for the defense to redact and refile her witness statement. If anything that whole process delayed the proceedings. The judges are perfectly capable of ignoring whatever evidence they think is irrelevant. The only purpose that redacting that evidence could have is to suppress it and prevent it from going on the record.

Conclusion

The Tribunal’s high minded rhetoric about fighting impunity and giving a voice to the victims of atrocities is disingenuous at best. The ICTY gives impunity to its NATO benefactors, and it only gives a voice to the victims it wants to hear.

The Tribunal’s purpose isn’t “bringing war criminals to justice” or “bringing justice to victims”. The Tribunal’s purpose is to provide political leverage to the United States and NATO – that’s why it was established in the first place. The judges and the prosecutors know that their paycheck depends on keeping their American and NATO benefactors happy, and that’s why the Tribunal issues the indictments and the verdicts that it does.

They can put the Tribunal in The Hague, they can dress the judges up in fancy red judicial robes, and they can put a UN flag on the building, but none of that makes the Tribunal a politically neutral institution. The ICTY is corrupted to its core by politics and by the influence of NATO and the United States Government.

We have a saying in America. You can put lipstick on a pig, but it’s still a pig. In spite of all of the pomp and window-dressing surrounding the ICTY and its proceedings, it’s still a kangaroo court.


Notes


[1] ICTY’s 20th Anniversary – Statement by President Judge Theodor Meron
<http://www.icty.org/sid/11319>

[2] “Arbour Draws US Ire Over Remarks About NATO Pilots”, Monday, May 24, 1999, UN Wire,

<http://www.unwire.org/unwire/19990524/2768_story.asp>;
See also: “We’ll never hand pilots to Arbour: U.S. official”, National Post (Canada), May 22, 1999

[3] Interview with Richard Holbrooke, “United Nations or Not? The Final Judgement: Searching for International Justice”, BBC Radio, September 9, 2003

<http://www.bbc.co.uk/radio4/news/un/transcripts/transcript_programme3.shtml>

[4] State Department Dayton History Project Interview with Richard Holbrooke and Robert Owen, 18 JUN 1996
<http://www.foia.cia.gov/sites/default/files/document_conversions/1817859/1996-06-18.pdf>

[5] State Department Dayton History Project Interview with Madeleine Albright, 28 OCT 1996
<http://www.foia.cia.gov/sites/default/files/document_conversions/1817859/1996-10-28.pdf>

[6] Remarks at the United States Supreme Court, Washington D.C., Monday April 5, 1999

[7] M2 PRESSWIRE; May 28, 1999; NATO Transcript of press conference given by Mr Jamie Shea and Major General Walter Jertz in Brussels and “Press Conference Conducted by NATO Spokesperson Jamie Shea and Major Gen. W. Jertz,” M2 Presswire, May 17, 1999

[8] BTF Assessment: “Yugoslavia” Policy Options: Likely Responses 01-Feb-93
<http://www.foia.cia.gov/sites/default/files/document_conversions/1817859/1993-02-01.pdf>

[9] Wikileaks Cable: 04THEHAGUE1693 <https://www.wikileaks.org/plusd/cables/04THEHAGUE1693.html>

[10] Wikileaks Cable: 04THEHAGUE985
<https://www.wikileaks.org/plusd/cables/04THEHAGUE985.html>

[11] Wikileaks Cable: 03THEHAGUE2835
<https://www.wikileaks.org/plusd/cables/03THEHAGUE2835.html>

[12] Wikileaks Cable: 08STATE133190
<https://www.wikileaks.org/plusd/cables/08STATE133190.html>

[13] Wikileaks Cable: 04THEHAGUE1033
<https://www.wikileaks.org/plusd/cables/04THEHAGUE1033.html>

[14] Wikileaks Cable: 06BELGRADE1092
<https://www.wikileaks.org/plusd/cables/06BELGRADE1092.html>

[15] http://www.bt.dk/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf

[16] Wikileaks Cable: 03THEHAGUE2818
<https://www.wikileaks.org/plusd/cables/03THEHAGUE2818.html>

[17] Wikileaks Cable: 03THEHAGUE1827
<https://www.wikileaks.org/plusd/cables/03THEHAGUE1827.html>

[18] Wikileaks Cable: 07PARIS1882
<https://www.wikileaks.org/plusd/cables/07PARIS1882.html>

[19] Geoffroy Lorin De La Grandmaison, Michel Durigon, Grégoire Moutel,and Christian Hervé; “The international criminal tribunal for the former Yugoslavia (ICTY) and the forensic pathologist: ethical considerations”; Med Sci Law. 2006 July; 46(3): 208–212. <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3348121/>

[20] “The Tribunal’s Accomplishments in Justice and Law”
< http://www.icty.org/x/file/Outreach/view_from_hague/jit_accomplishments_en.pdf >

[21] Unredacted Witness Statement: <http://peterrobinson.com/Witness%20Lists/Week%20Six_Witness/Angelina%20Pikulic%20Revised%2092%20ter%20notice.pdf>

[22] Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulic; 19 November 2012; See Also: Karadzic Trial Chamber, “Decision on the Prosecution’s Motion to Exclude the Evidence of Witness Angelina Pikulic”, 27 November 2012

[23] Karadzic trial Transcript, 29 November 2012

[24] Ibid.