On October 6, 2005, Carla Del Ponte, prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), gave a talk before an audience at Goldman Sachs in London that throws light on the role of the ICTY as well as the character of Ms. Del Ponte and qualities of her efforts.1
Speaking before this business audience, Del Ponte emphasized that the ICTY and other UN organizations facilitate profit-making for others by helping bring stability: “This is where the long-term profit of the UN’s work resides. We are trying to create stable conditions so that safe investments can take place.” This will make for “a reasonably prosperous democracy — a factor of peace and stability in the world.”
In trying to sell the ICTY to this business group as a servant of neoliberalism, Del Ponte runs into the difficulty that the actual work of her organization has been highly destabilizing. It did not “save lives,” nor did it diminish human suffering and destruction; and it has left its main areas of intervention — Bosnia/Herzegovina, Serbia and Montenegro, and Kosovo — in a state of semi-permanent crisis, with conditions singularly unattractive to private investment (except for the drug and sex trades, which thrive in Kosovo).2 On the other hand, insofar as the ICTY contributed to the real ends sought by Bill Clinton, Tony Blair, and other leaders of major NATO powers — helping NATO celebrate its 50th anniversary in 1999 and showing that NATO still had a role to play as a U.S.-dominated organization; destroying an independent and socialist-inclined Yugoslavia and bringing its constituent parts into the NATO orbit of influence; and preparing the ground for further “humanitarian interventions”3 — the ICTY could be said to have done a good job for the dominant Western powers and therefore neoliberalism broadly viewed.
In her opening remarks, Del Ponte says that the ICTY is tasked with “bringing peace, security and justice,” but shortly thereafter “peace” and “security” fade out, and she asserts that “our primary objective is to bring justice.” Justice ranks high, she says, because it “contributes to the reconciliation between peoples who have been torn apart by the wars of the nineties.” Before I explain the one-sided and highly politicized nature of “justice” of Del Ponte, the ICTY, and NATO, it should be recognized that there may be a conflict between pursuing “justice” and “peace.” It is no coincidence that the work of the ICTY has been associated with chronic instability in the ex-Yugoslavia, its work running parallel with outbursts of ferocious local warfare and Western wars of intervention. It certainly failed to contribute to “peace.” In fact, an excellent case can be made that the ICTY’s focus on “justice” was well suited to avoiding peace — its very design being to facilitate war, an attack on Serbia, and a dismantling of Yugoslavia.
This case is made compellingly by Michael Mandel in his How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press, 2004), where he points out that the formation of the ICTY was immediately preceded by a December 1992 speech by the U.S. State Department’s Lawrence Eagleberger, who named three top Serb leaders who needed to be brought to justice, and stated explicitly that “the international community must begin now to think about moving beyond the London [peace] agreement and contemplate more aggressive actions.”4 Even before this, the United States had sabotaged the promising Lisbon agreement of February 1992 by encouraging Bosnian Muslim leader Alija Izetbegovic to withdraw and break the plan that the Bosnian Serbs, Croats, and (previously) Izetbegovic had accepted.5 Following Eagleburger’s talk, in February 1993, as Lord David Owen wrote bitterly, “We have more or less got a peace settlement but we have a problem. We can’t get the Muslims on board. And that’s largely the fault of the Americans, because the Muslims won’t budge while they think that Washington may come in on their side,” so that in reality “the Clinton people block it.”6 These crucial facts did not interfere in the least with the established view that it was Milosevic and the Bosnian Serbs, seeking a “Greater Serbia,” that made peace unattainable.
The role of the ICTY in this peace-sabotage business was to indict Serb leaders in order to make them ineligible for any peace negotiating process — in Mandel’s words, the ICTY function was to help the Americans “justify their intention to go to war — by branding their proposed enemies as Nazis.”7 As presiding judge Antonio Cassese said at the time regarding Bosnian Serb leader Radovan Karadzic, “Let us see who will sit down at the negotiating table now with a man accused of genocide.”8 Later, in the 1998-1999 run-up to the NATO bombing war on Yugoslavia, the ICTY turned unremitting attention to denouncing Serbs, and as Mandel points out, its work in this period “had nothing to do with trying and punishing criminals, and everything to do with lending crucial credibility to NATO’s cause.”9 During the 78-day NATO bombing war, which began on March 24, 1999, the ICTY served as an aggressive public relations arm of NATO, most dramatically in indicting Slobodan Milosevic in May 1999 just as NATO was drawing criticism for extending its bombing targets to Serbian civilian facilities. In short, the ICTY, serving as an arm of NATO, helped prevent peace settlements in the Bosnian conflict in the deadly years 1992-1994, and helped justify and sustain NATO’s 1999 assault on Yugoslavia.
This ICTY service was based on structural facts: the institution was created by the NATO powers, with the United States in the lead; it was funded heavily by these powers and closely allied NGOs (George Soros’s Open Society Institute); it was staffed with NATO country personnel, and its high officials were vetted by NATO-power leaders; and it depended on NATO for information and police service. But this meant that NATO itself would be exempt from “justice,” and that it would be difficult to bring to justice NATO clients, even if they committed crimes similar to or even worse than those committed by Serbs. Mandel points out that, when he presented the ICTY prosecutor with a three-volume dossier and complaint on NATO war crimes in May 1999, it took a year for the prosecutor to decide to reject this application, without ever having made a formal investigation, whereas in the case of the alleged Racak massacre, attributable to the Serbs, the prosecutor declared this a war crime and rushed into action on the very same day, based solely on information supplied her by the U.S. representative in the scene, William Walker.10 Of the leaders in the Balkan wars, Clinton, Blair, Izetbegovic and Franjo Tudjman have never been indicted by the ICTY, only Milosevic, although on the logic applied in the Milosevic prosecution, an equal or better case could be made for each of the exempted leaders.11
This highly politicized “justice” brought by the ICTY not only served war rather than peace — it also cannot be regarded as justice at all. A judiciary that is not even-handed is deeply compromised. And if it is clearly serving an external political agenda, as in the case of the ICTY, it is almost certain to fail to bring justice even in dealing with politically eligible targets, as it must bend its process in order to satisfy the aforementioned agenda. This has been evident throughout the ICTY’s operations — from the timing of indictments to coincide with NATO PR needs (e.g., the indictment of the Serb paramilitary leader Arkan in March 1999, just as the NATO bombing commenced; Milosevic in May 1999, just as NATO’s bombing of civilian sites was creating a PR problem), its steady resort to publicity that compromised supposed judicial proceedings, to endless instances of judicial malpractice in the ICTY proceedings themselves.
According to Michael Scharf, an ICTY supporter, over 90 percent of the evidence brought forward in the Milosevic trial was hearsay,12 all freely admitted into the record by the judge, although almost none of it had any connection with proving that the man on trial had given orders for or sanctioned war crimes (and all of which could be readily duplicated for Bosnian Muslim and Croat treatment of Serbs or U.S. bombing attacks on the Serbian civilian infrastructure). It did, however, set a tone in creating a moral environment of demonization that served NATO political aims, even if it compromised the possibility of a fair trial.
Take the handling of the “Racak massacre,” for example. The “Racak massacre” claim was the basis of 45 charges of murder against Milosevic, and William Walker was a key driver of that claim. Judge Richard May, however, gave the defendant a fixed time limit for the questioning of Walker and interrupted the defendant’s questioning over 60 times, preventing serious cross-examination. In contrast, Judge May never once interrupted Walker as he ranged far and wide on the stand for the prosecution, even covering his view of Milosevic’s “general attitude.” Moreover, while allowing a stream of hearsay from prosecution witnesses, Judge May refused to permit Milosevic to enter into the record articles from Le Monde and Figaro that raised serious doubts about the Walker version of events at Racak.13 The absence of judicial equity cannot be made clearer.
When General Wesley Clark testified for the prosecution, the judge allowed the U.S. government to force a closed session and to redact the testimony before release. He also permitted Clark to talk about anything he pleased, including ten minutes of self-adulation, without judicial interruption. Clark was even allowed to phone Bill Clinton to request a letter of support, contrary to the stated rule that no outside communication was permitted in the midst of testimony. Milosevic was not permitted to ask questions challenging Clark’s credibility or anything not directly responsive to Clark’s verbal claims.14
More recently, during the defense’s presentation of its case, the ICTY judge allowed the prosecution to present a video of a killing of six Bosnian Muslims in 1995, (without prior notice to the defense or permitting the defense to question the presentation), although the video had no bearing on the ongoing questioning of the defense witness. However, introduction of this video did serve to dramatize claims about the Srebrenica massacre at a time when that event’s tenth anniversary memorial was being given publicity by the Western establishment.
Del Ponte states authoritatively in her Goldman Sachs talk that 8,000 Bosnian Muslims were slaughtered at Srebrenica in the “the only genocide in Europe since World War II.” The 8,000 figure was given by the Red Cross in July 1995 based on estimates of 3,000 captured by the Bosnian Serbs and 5,000 initially claimed to be missing. The Red Cross as well as other observers soon recognized that several thousand of the missing had escaped to Bosnian Muslim lines and to Yugoslavia itself, and that several thousand more were almost surely killed in fighting. But the initial estimate of 8,000 survived not only subsequent correction, but also the fact that fewer than 3,000 bodies were found in the Srebrenica area,15 with an unknown fraction of them killed in the savage July 1995 fighting or earlier. Belated claims of reburials to hide evidence lack plausibility. Although Madeleine Albright warned the Serbs that “[w]e will be watching you,” no satellite photos showing digging up, moving, and reburying bodies have ever been displayed publicly. In short, the figure of 8,000 rests on a politically convenient inflation for propaganda, supported by the combination of NATO officials, the mainstream media, and the ICTY.16 ICTY judges repeatedly stated as an established fact that 7-8,000 Muslim men had been executed, while simultaneously acknowledging that the evidence only “suggested” that “a majority” of the 7-8,000 missing had not been killed in combat.17
The ICTY judges suggested that the Serbs, by pushing the Bosnian Muslim inhabitants out of the Srebrenica area while killing many Bosnian Muslim males, committed genocide. The Tribunal therefore dealt with an awkward problem: why would the genocide-intent Serbs bus Bosnian Muslim women and children to safety? The Tribunal finessed the problem by arguing that the Serbs did so only for public relations. However, as Michael Mandel points out, failing to commit some criminal act despite your desire (in this case, an unproven desire to commit genocide) is called “not committing the crime.”18 What of the fact that, as prosecution witness Borisav Jovic testified, 10,000 mainly Muslim residents of Zvornik sought refuge from the civil war in Serbia itself? Naturally, the Tribunal never asked why Muslims found refuge in Serbia if Serbia were intent on exterminating them.
In the case of Srebrenica, the ICTY essentially classified ethnic cleansing as genocide. It is therefore noteworthy that the ICTY has never called Operation Storm, the August 1995 Croatian ethnic cleansing of some 250,000 Krajina Serbs, “genocide,” although Operation Storm killed many women and children and produced a larger population of victims of ethnic cleansing than Srebrenica did. It was also preceded by an earlier series of Croatian army attacks — first attacks on the Serbian villages of Medak, Citluk, and Divoselo in the UN-protected Krajina region in 1993, in which a hundred or more unarmed civilians were slaughtered, and then “Operation Flash” that killed many hundreds in Western Slavonia in May 1995, the brutal ethnic cleansing trial run for Operation Storm. There was no ICTY response to any of these major death-dealing operations, even though a UN dossier was submitted to the ICTY that described the 1993 crimes.19
The ICTY’s double standard is now obvious. Remember that, for the ICTY as well as for Del Ponte, Srebrenica was “the only genocide in Europe since World War II.” For them, it doesn’t matter that Srebrenica had been the base of Bosnian Muslim commander Naser Oric who had sallied forth from 1992 into 1995 in forays that massacred well over a thousand Serb civilians. Indeed, to include such a context interferes with the ideological premise that the Serb action was pure unprovoked evil. Del Ponte’s treatment of Operation Storm and the Krajina massacre makes an enlightening contrast and is worth quoting at length:
Another typical case is Ante Gotovina. This Croatian general was indicted in 2001 for crimes committed against Serbs in 1995 [Operation Storm]. Over 100 were killed and a hundred thousand forced to leave their homes while their houses were looted or destroyed. These crimes were committed in the course of a military operation, undoubtedly legitimate as such, aimed at re-taking the part of Croatian territory which was occupied by Serb forces. The operation was a success, and Croatians remember it as one of their finest hours. Gotovina was one of the commanders and, quite naturally, he is revered as a hero. The mere mention of the war crimes committed in the course of the operation was taboo for years. . . . The logic was: only enemy forces committed war crimes, defenders were innocent by definition. It is only recently that the government has acknowledged that, yes, crimes were committed, and those responsible for these crimes, including Gotovina, must be tried in The Hague.
This is straightforward apologetics for ethnic cleansing, with a number of omissions and serious misrepresentations of fact. She never mentions that Krajina, like Srebrenica, had been a UN protected area, brazenly violated by the Croatians in 1993; nor does she mention the May 1995 Operation Flash in which the Croats killed many hundreds of Serb civilians. She doesn’t mention the fact that the UN continued to urge a negotiated settlement of the Krajina dispute, ignored by the Croats in the massive attack of August 1995. She says that the crimes in Krajina “were committed in the course of a military operation,” but so were the crimes in Srebrenica (which was defended and then abandoned by a military force relatively stronger than the Krajina Serbs’). Her statement that the Krajina operation was “legitimate” because it was “aimed at re-taking the part of Croatian territory which was occupied by Serb forces” gives this operation an apologetic context that involves serious lying — this was a carefully planned campaign, not mainly to remove “Serb forces” (relatively weak in Krajina and arguably there to defend a civilian population against Croatian army massacres such as occurred earlier at Medak and in Operation Flash) but to remove the Serb civilian population that had lived in that area for centuries. In other words, this was deliberate ethnic cleansing, but Del Ponte cannot admit the fact in this case. Can you imagine Del Ponte saying that the Serb attack on Srebrenica was to “remove Bosnian Muslim forces,” or that the Serb operations in Kosovo in 1998 and 1999 were to “remove KLA forces”? Serb actions are invariably ethnic cleansing, but Croatian actions of comparable or greater anti-civilian scope are merely “military operations,” never ethnic cleansing, in accord with a clear political agenda.
Further misrepresentations are Del Ponte’s statements that “over 100 were killed” and that “a hundred thousand” were “forced to leave their homes.” Just as she swallowed the inflated 8,000 for Srebrenica, so here Del Ponte grossly underestimates the toll of the politically inconvenient victims. The Serb human rights organization Veritas estimated that 1,205 civilians were killed in Operation Storm;20 and their list of victims included 368 women and children. Operation Storm may well have involved the killing of more Serb civilians than Bosnian Muslim civilians killed in the Srebrenica massacre (only one of 1,883 bodies in the graves around Srebrenica was identified as female and the ICTY made no attempt to establish that none of the rest were fighters rather than civilians).21
As to numbers expelled, even conventional studies give a figure of 200,000 or more for those driven out of Krajina.22 Del Ponte strives to minimize these numbers because 250,000 civilians ethnically cleansed is hard to explain away as merely part of a “military operation” to deal with “Serb forces.” In contrast with her usual dramatizing of Serbian violence, Del Ponte uses gentle language in describing Croatian actions: the 100,000 were “forced to leave their homes,” not “deported,” “driven out,” or “ethnically cleansed” as she and her allies would describe comparable Serb actions. She provides no details on the impressively ruthless Croatian actions, such as: “UN troops watched horrified as Croat soldiers dragged the bodies of dead Serbs along the road outside the UN compound and then pumped them full of rounds from the AK-47s. They then crushed the bullet-ridden bodies under the tracks of a tank.”23
Del Ponte notes that Croatian General Ante Gotovina was indicted in 2001 for war crimes in Operation Storm, but a number of questions arise: Why did it take six years after the event for Gotovina to be indicted, whereas Bosnian Serb General Ratko Mladic and President Karadzic were indicted within days of the Srebrenica massacre? Why has NATO never sent military forces into Croatia to capture Gotovina as they have done on several occasions in Bosnia and Serbia seeking Mladic and Karadzic? Could this belated indictment have been connected to the seizure of Milosevic and the need to give the appearance of balance? Why was Croat President Tudjman (whose link to Operation Storm is clear) not indicted for these war crimes? Why were Clinton, Albright, and Richard Holbrooke not indicted24 even though the massive ethnic cleansing operation in Krajina was carried out by the Croats with U.S. approval and logistical support?25
The answers to these questions boil down to a simple fact: just as NATO was exempt by virtue of the structure, control and purpose of the ICTY, so also are U.S. leaders and their clients, though a few bones like Gotovina may be belatedly thrown to provide a not very convincing aura of fairness.
A key theme in Del Ponte’s speech was the importance of “justice” for bringing reconciliation to the area. The guilty must be brought to trial and punished, or else the victims and their heirs cannot become ready for peace. This principle is not applied in cases like Indonesia in East Timor, where a U.S. and British ally engaged in mass murder; and of course it would never even be thought of where the United States and its British ally committed aggression and killed large numbers of civilians, as in Iraq.
The ICTY’s selective “justice” cannot apply the principle to former Yugoslavia either. Ethnic cleansing in Bosnia was by no means one-sided, and deaths by nationality were not far off from population proportionality.26 The Serbs claim and have documented thousands of deaths at the hands of the Bosnian Muslims, their imported Mujahedeen cadres, and the Croatians, and they have their own group examining and trying to identify bodies at an estimated 73 mass graves.27 This victimization has hardly been noticed by the Western media or ICTY — the distinguished Yugoslav forensic expert Dr. Zoran Stankovic observed in 1996 that “the fact that his team had previously identified the bodies of 1,000 Bosnian Serbs in the [Srebrenica] region had not interested prosecutor Richard Goldstone.”28 Thus the question never arises for Del Ponte and her allies (including the Western media): if justice is required for reconciliation and yet the thousands of Serb victims of the ethnic cleansing wars (such as the thousand or more killed and 250,000 expelled from Croatian Krajina and their families) continue to be ignored, what is to reconcile them?
Apart from this double standard that makes Serb victims invisible, the ICTY has not even motivated Bosnian Muslims and Kosovo Albanians to seek reconciliation. In Kosovo, the NATO authorities have looked the other way as their Albanial allies unleashed serious and unremitting violence against Serbs, Roma, Turks, and dissident Albanians and pursued their long-standing aim of ethnic purification.
Clinton’s claimed objective of a tolerant multi-ethnic Kosovo was a fraud. In Bosnia, a British foreign office proposal to use the tenth anniversary commemoration of the Srebrenica massacre for a “statesmanlike initiative” of public reconciliation among the different groups reportedly received short shrift from Bosnian representatives on all sides.29 David Chandler points out that “the international community’s focus on the war has given succour to the most reactionary and backward political forces in Bosnia,” and that “those most socially excluded from Bosnian life have been able to dictate the political agenda and oppose the politics of reconciliation, because their social weight has been artificially reinforced by the international dominance over the politics of this tiny state. Without political, social and economic dependency on external actors that are legitimized by the idea of Bosnian victimhood, it is unlikely that the war would have remained so central in Bosnian life.”30
The record strongly suggests that the objectives of the NATO powers have never been justice and reconciliation – – rather, they are to keep all parts of former Yugoslavia weak, fractious, and dependent on the West and to continue to put the U.S. and NATO attack on and dismantlement of Yugoslavia in a favorable light. All information that casts doubt on the virtue of NATO interventions in Yugoslavia must be excluded. Thus, the rhetoric of “the war on terror” notwithstanding, how al Qaeda gained a foothold in the Balkans — Izetbegovic (whose Islamic Declaration proclaimed hostility to a multi-ethnic state) made an alliance with Osama bin Laden and imported 4,000 Mujahadeen to fight a holy war in Bosnia, with active Clinton administration aid, and the KLA developed connections with al Qaeda — never received attention.31
In sum, the ICTY was created by the NATO powers, not to bring either peace or justice to Yugoslavia, but to serve the U.S. and NATO aims there, which called for the dismantlement of Yugoslavia, the crushing of Serbia, and the conversion of the new mini-states of the ex-Yugoslavia into NATO-power dependencies. As the Serbs were the main obstacle to this program, they had to be demonized, their leaders driven from office and incarcerated, and their people humiliated and punished. This called for an ICTY focus on selective “justice” that helped provide the justification for undermining peace settlements and making war. The ICTY has performed this service effectively, with the help of the gullible Western media and intellectual class.
2 Katarina Kratovac, “Five Years after Milosevic, Serbs Still Await a Better Life,” (A.P.), Philadelphia Inquirer, 5 October 2005; Ian Traynor, “Nato Force ‘Feeds Kosovo Sex Trade’,” Guardian, 7 May 2004; Sherrie Gossett, “Whistleblower: Kosovo ‘Owned’ By Albanian Mafia,” (CNSNews.com), 27 September 2004.
3 On these objectives, see Diana Johnstone, Fools’ Crusade: Yugoslavia, NATO and Western Delusions (Monthly Review Press: 2002), Introduction.
5 See Johnstone, p. 45.
6 Quoted in Mandel, p. 67.
7 Quoted in ibid., p. 126.
8 Quoted in Johnstone, p. 95.
9 Quoted in Mandel, p. 132; for compelling details, Mandel, pp. 132-146.
10 Ibid, pp. 80, 135.
11 Only in the case of Serbs has the ICTY adopted the notion of “command responsibility” extending to the highest officials.
12 Michael Scharf, the “Accounting for Atrocities: Prosecuting War Crimes Fifty Years after Nuremberg” conference,” Bard College, Oct. 5-6, 1998; cited in Kirsten Sellars, The Rise and Rise of Human Rights (Sutton Publishing: 2002), p. 187.
13 The judge’s handling of the Walker testimony and cross-examination are discussed in detail in Mandel, pp. 168-173..
14 Ibid., pp. 174-5.
15 In his testimony at the Milosevic trial on Jan, 26, 2004, ICTY investigator Dean Manning testified that 2,570 bodies had been found in total, with only 70 identified. “Milosevic Trial Transcript,” Jan. 26, 2004, pp. 31428-31437.
17 See Mandel, pp. 155-6.
18 Michael Mandel, “The ICTY Calls It ‘Genocide’.” in Edward Herman, et al., Srebrenica: The Politics of War Crimes, forthcoming.
19 “The UN dossiers, with their voluminous evidence, have been given to the Crimes Investigators (of the ICTY) on October 6, 1993. Since then there has been nothing but silence.” Cedric Thornberry, “Bosnia: Problems of Peace — Saving the War Crimes Tribunal,” Foreign Policy, September 1996.
21 These numbers are given in privately circulated tabulation of the characteristics of these remains by Dr. Zoran Stankovic, a longtime UN forensic specialist who worked extensively on the Srebrenica case.
22 Burg and Shoup give “several hundred thousands” as their estimate; Lord David Owen, 150,000.
23 Tim Ripley, Operation Deliberate Force: The UN and NATO Campaign in Bosnia (Center for Defence and Security Studies: 1999), p. 192.
24 See footnote 11.
25 On that support, see Raymond Bonner, “War Crimes Panel Finds Croat Troops ‘Cleansed’ the Serbs,” New York Times, 21 March 1999.
26 See Ewa Tabeau and Jakub Bijak, “Casualties of the 1990s War in Bosnia-Herzegovina: A Critique of Previous Estimates and the Latest Results” (Sept. 23, 2004), Demographic Unit, Office of the Prosecutor, ICTY, Paper Presented at The IUSSP Seminar on the Demography of Conflict and Violence Jevnaker, Norway, 8-11 November 2003.
28 “Relations with Rest of Former Yugoslavia: Yugoslav Forensic Expert Says No Proof about Srebrenica Mass Grave,” BBC Summary of World Broadcasts, July 15, 1996.
31 See Johnstone, pp. 51-64.
Edward S. Herman is Professor Emeritus of Finance, Wharton School, University of Pennsylvania.