Brammertz’s observations about closing of ICTY - critisized

Brammertz’s observations about closing of ICTY - critisized

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I am surprised to read ICTY Chief Prosecutor Brammertz’s observations about links made at the Tribunal between crimes committed in Bosnia and Croatia and the state of Serbia. He cites no court decisions. The indictment policy of the tribunal let Serbia off the hook. There was no serious effort in the Karadzic or Mladic cases to prove the links and judgments in both cases allow Serbia to claim itself to be an uninvolved party and that Bosnia Serbs were barely worse than other perpetrators.

How this came about is hard to explain although none of the prosecutors, except me, tried properly to prove those links and the case I prosecuted, Milošević, ended with Milošević’s death, apparently from natural causes convenient though that was to all Serbian and International interests.

From the moment the West ordered Holbrooke to sacrifice the territories and populations of Srebrenica, Žepa and Goražde, thereafter withdrawing air support to the Dutch, Serbia has enjoyed remarkable beneficence at the hands of the West. The sacrifice by the West was something of which the Serbs were no doubt told, in order that the map could be ‘tidied up’ by ‘swap’ of other territory.  The beneficence included:

  • the decision at the ICJ acquitting Serbia of genocide;
  • the failure to indict the other Serb state leaders Lilić or Bulatović of the same genocide allegations levelled against Milošević and that could, singly or collectively, have shown Serbia - the state - was the guilty party in whose interest all the murderous wars were pursued;
  • the failure to indict Serbs like Perišić with genocide; and, then,
  • the pattern of judgments and appeal judgments that all served Serbian interests, as, more recently, has the creation of the ‘Specialist Chamber’ that will bring satisfaction to Serbs by trials only of Kosovo Albanians for possible crimes that could always have been tried at the ICTY. (It is as if the West that forced this trial process on Kosovo had not recalled how the term ‘Victors Justice’, derived from trials of one side only of a conflict, smeared the reputation of the Nuremberg trials).

Milošević had been indicted for Kosovo crimes by Louise Arbour. That could not be interfered with. Once, to everyone’s surprise, Milošević was handed over to the ICTY, it was inevitable that indictments would be prepared for Croatia and Bosnia crimes.

The Milošević trial chamber was incorruptible and went so far as to find that Milošević - and thus the state he headed although we are not to supposed to say such things - had a case of genocide in Bosnia to answer. Milošević would have had to answer the case of genocide, reflecting as it would on the state he had led; but he died.

At some stage we must all wake up to the realities of international justice as revealed through the ICTY. Yes, there were very considerable benefits and I have referred to them too often elsewhere to need repeating here. It may be, however and as often suggested, that the international community created the ICTY as sticking plaster to cover, if not to heal, the wounds of Western failings. But, even if it was international guilt at failing those killed in Yugoslavia that led to creation of the ICTY, a court had been formed that the world citizen would expect to be, and to act as, a proper court.  

No amount of dodgy judges drawn from ranks of ambassadors or people to whom governments owed a favour could save the ICTY from being seen as a court. And those running the court should - as I attempted in the Milošević case – have made it function as a proper court: 

  • by getting evidence immediately not letting Serbia the USA and others hold back whatever it suited them to obscure. That was not what the world wanted.
  • By trying accused swiftly by modern processes that were not indulgent of the self importance of the judiciary but respectful of the interests of victims.

Future generations may condemn the ICTY so heavily for its failings that its real and substantial successes may rest in a permanent penumbra. Future generations will be completely unforgiving of how the court lasted for 24 years to bring in verdicts that major international newspapers could articulate with accuracy in months of events, such as the Srebrenica massacre, happening. The world is simply not that interested any more in procedures that entertain (and pay) lawyers and judges but that were created a century or so ago when national court systems needed to save their national citizens from truly barbaric national practices of the law. We have, we hoped, moved on.

More than anything else the world citizen will be completely unforgiving of Serbia being allowed never to hand over documents in its archives that showed what Serbia did, generally and at the time of Srebrenica in particular. The UN should have recognised in advance that it - THE UN, not the necessarily toothless ICTY -  had to exercise the power a national court would have to obtain documents IMMEDIATELY they were relevant to an investigation or to a case in progress. It did not and would no doubt never really have wanted to. Once a precedent for such processes of DOCUMENT production were set major Western powers would have no excuse from responding to similar demands for documents following questionable interventions and conflicts (consider the US or UK in the dock over Iraq, for example). And that would never do.

And that brings me to the worst of the Tribunal failings

The USA and UK and other countries have archives of what actually happened, especially at Srebrenica and what it was those powers did that allowed the massacre to happen. For the usual bogus reasons, the documents are retained as secret. The Tribunal did nothing remotely to force the West to open its vaults. On the contrary.  When I tried to produce evidence of what was heard by intercepts of what Milošević and Mladic said to each other at the time of Srebrenica and Žepa the ICTY bowed its knees at first order of a western entity and withdrew the application for the material to be produced.

Would that sort of intervention do for a local crime committed in a nation state? Of course not; but anything was OK where geopolitical interests could corrupt for the present, leaving a gently stinking trail of corruption to be followed by historians centuries hence who will want to trash the entire record of an otherwise worthy Tribunal?

 

I have been slow - perhaps slower than others - to be convinced of there being any connection between the various ways in which Serbia and the West have all been protected from disagreeable truths that would have upset some states but served victims well. But at precisely this time last year Nena Tromp and I were drawn into what was clearly a fraud by Bosnia’s President Izetbegovic on his own people when he sought to get my signature on a document - any document - to avoid his own responsibility for not even seeking to correct the unsatisfactory ICJ judgment. He will eventually have to explain to his people why the application for Revision, lodged at the ICJ by his team led by the American professor and former US Ambassador at Large for War Crimes (Scheffer), was knowingly designed from the start to fail. But even what Izetbegovic did or failed to do was not the central question. That question was and is what force operated on him NOT to to do what any self respecting leader of his people would have done? What stopped the son of the father who had instituted the ICJ case from doing what had to be done? It could have been venal self interest but when put together with every other coinciding events - not least institution of the Specialist Court trying only Kosovo Albanians - it is necessary to look elsewhere and to ask how the Serbia principal aggressor state in all three wars - Croatia, Bosnia, Kosovo – is seemingly protected by invisible forces.  And why.

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