"All's fair in love and war," the venerable English saw
tells us and, looking at the performance of the international
tribunal in The Hague, it could be updated to "All's fair in
love and war crimes prosecutions."
Lopsidedness persisted for more than two years as the
tribunal dealing with the Bosnia conflict indicted more and
more Serbs on allegations of mass murder, but seemed to be
uninterested in identical crimes by Croats or Bosnian Muslims
in the three-sided civil war. Although this has been redressed
somewhat (at this writing, 57 suspects have been indicted: 46
Serbs, eight Croats, and three Muslims) the imbalance continues,
and the impression remains that The Hague method may be the
judicial equivalent of "shoot first, ask questions later" --
that is, "indict now, investigate later."
This impression hardened through the seizure and arrest of
a general and a colonel of the Bosnian Serb army earlier this
year by the forces of the Muslim-led government of Sarajevo,
and through the ex post facto endorsement of this action by
Richard J. Goldstone, the South African judge who is the
outgoing chief prosecutor of the tribunal.
Under considerable pressure from the United States, the
Muslims handed the two Serbs over to NATO, which swiftly
delivered them to Mr. Goldstone's custody. He indicted General
Djordje Djukic, the chief logistics officer, on February 29,
on allegations that he took part in the siege of Sarajevo.
His fellow prisoner, Colonel Aleksa Krsmanovic, though
unindicted, was not set free, but was returned April 3 to the
very people in Sarajevo who had seized him -- Serbs say
"kidnapped" -- in the first place, for "further investigation."
By extrapolation, this seemed to posit the Muslim
government as a police force empowered to seize as a potential
war criminal any Serb who ever put on a uniform in the last
four years. The Djukic-Krsmanovic seizure has already proven
to be a dangerous precedent that could be employed in
retaliatory fashion by Bosnian Serbs against Muslims.
For a time the Muslim-Goldstone actions stalled further
implementation of the peace accords agreed in Dayton and
signed in Paris last year because the irate Bosnian Serbs
simply broke off talks with the peacemakers. Even the U.S.
government, the chief advocate of the Bosnian Muslim cause
for the last four years, was displeased with this sequence
of events which called into question the purpose of the
Dayton-Paris accords: Was it to bring peace to the ethnically
jumbled and now almost hopelessly hostile mountains and
valleys of Bosnia and Hercegovina? Or was it an instrument
principally for prosecuting war criminals, mainly Serbs?
WORLD'S STRANGEST COURT
The tribunal at The Hague has to be the strangest court in
the world. It has no power to enforce an order to arrest
suspects. It has limited powers to investigate alleged crimes
on site and a doubtful capacity to conduct fair trials. It
lacks adequate funding and it has had to change chief
prosecutors just as the first trials get under way.
There is no comparable institution in the short history of
international law. Nuremburg, after all, was created by the
victorious powers of World War II to prosecute the Nazi losers.
Rather, The Hague tribunal is primarily a political
creation, pushed upon the international community by a nervous
Clinton administration in May 1993, with Madeleine Albright in
the lead at the United Nations, as a fig leaf to cover up the
deliberately adopted impotence of the United States toward the
Bosnian conflict at that time.
The court was established by the United Nations Security
Council under Chapter 7, the organization's vague, all-encompassing
instrument for dealing with any casus belli. This alone was unusual.
In classical terms, it should have been established by convention
in the General Assembly (with now more than 170 members), which
would have then required accession by treaty ratification of
each member. But the United States was, as usual, in a hurry
and it was decided to sidestep such niceties.
Then, with a powerful -- some would say predominant --
injection of American funding, manpower, and technology, the
court adopted rules that would not be tolerated in the United
States. The accused has no right to confront his accuser. That
means accusers may remain anonymous and, as the American Bar
Association has noted in a critique, immune from cross-examination.
In short, contrary to the American system of justice, the accused,
whether Serb, Croat, or Muslim, is held guilty until proven
innocent.
Nor are the rules of evidence even spelled out.
Its initial practice showed that the tribunal was virtually
incapable of prosecuting Dusan Tadic, the first and, for a long
time, the only (Serbian) defendant in its hands, because the
interpreter hired by the court was incomprehensible.
Goldstone has been described by a senior U.N. official as
"in equal measure political and judicial." His recent activities
would seem to bear out the political side of that analysis. He
lobbied in the press and on television in Washington, New York,
and Brussels for more money and more time, threatening to quit
over the former and hinting that he would like to stay on, in the
limelight of The Hague, if people really wanted him.
In January he complained bitterly that he had to beg for
alms every three months -- $7.6 million in alms -- to keep the
282-member Hague operation going. "No criminal justice organization
should be dependent on handouts," he declared. Mr. Goldstone has
since been replaced by Louise Arbour, a judge from Ontario, Canada.
The senior U.N. official expressed the hope that "his successor
might be more judicial and less political."
So what are the prospects for prosecutions now, especially
after Mr. Goldstone and others have declared that their
investigations and indictments would be carried up the line of
command to the very tops of the Balkan war crime gangs?
We know they have done that with General Ratko Mladic and
with Dr. Radovan Karadzic on the basis of their responsibility for
alleged massacres of Muslims around Srebrenica last July. (Karadzic
has told me and I guess others that he is prepared to go to The
Hague and face the music.)
But those were easy, the Republic of the Serbians and its
leaders being the pariahs the so-called civilized world has made
them. As for apprehending them, Lt. Gen. Patrick Hughes of the
Defense Intelligence Agency predicted in March that "the U.S.
element of IFOR [implementation force] will do that when the time
comes." A few days later John Shalikashvili, chairman of the Joint
Chiefs of Staff, said he was "absolutely" opposed to such an
operation.
Concerning Srebrenica, the tribunal has been all over the
place with its allegations of Muslim massacre victims, ranging from
8,000 down to 3,000. Characteristically, in early April, John Gerns,
its representative on the scene, had plenty to say as teams of
investigators probed possible massacre sites around Srebrenica and
nothing to say when he went to a mass grave site in Mrkonjic Grad
where the corpses of 181 Serbs massacred by Croats last summer had
just been exhumed. The press also continues to be selective, rushing
almost like ghouls to sites where Muslims were killed, but studiously
ignoring those of murdered Serbs.
But, what about Slobodan Milosevic or Franjo Tudjman or
even the Bosnian Muslim leader, Alija Izetbegovic?
If Bill Clinton was shaking hands with these men in Paris
and Ambassador Richard Holbrooke changed from calling Milosevic a
"Communist thug" a year ago to the Prince of Peace today, you can
bet your bottom dinar that this tribunal is not going to be
prosecuting them.
Nor is it likely that either Belgrade or Zagreb is going
to deliver many of the most prominent indicted men to that spiffy
former insurance company building in The Hague.
For that matter, not even the funding of the tribunal is
certain, for all the moralistic bombast of the Clintons, Albrights,
and Holbrookes, especially in a budget-conscious election year in
America.
Moreover, there is a debate under way in the United States
about whether The Hague tribunal might set a dangerous precedent
for creation of a permanent international criminal justice system,
posing the issue of infringement on U.S. sovereignty. The argument
pits conservatives against liberals (personified by the World
Federalists, who have long lobbied for such a global criminal
justice institution). That debate is not likely to be settled in
favor of the Goldstones of this world, unless Ambassador Albright
prevails with the idea that, as a permanent Security Council member,
the United States could simply veto any procedures against Americans
charged with war crimes -- a kind of "not in my backyard" on a
global level.
David Binder is a correspondent at The New York Times,
where he has covered Balkan affairs since 1963.
Legal Times is an affiliate publication of Court TV.
Copyright ) 1996, American Lawyer Media