SELECTIVE JUSTICE IN THE HAGUE

Diana Johnstone

The Nation, September 22, 1997.

Brussels

It has become almost an article of faith these days that the failure to arrest indicted Serb war criminals and send them to the International Criminal Tribunal for the former Yugoslavia (I.C.T.Y.) in The Hague is the main threat to peace in the region. Yet nobody seriously contends that deposed Bosnian Serb leaders Radovan Karadzic and Gen. Ratko Mladic are plotting to revive the war. Rather, failure to arrest Karadzic and Mladic can be a threat to peace only because Bosnian Muslim leaders, enjoying worldwide support, may use unsatisfied demands for justice on their terms as a casus belli.

Testifying before U.S. Senate hearings in August 1995, Professor Cherif Bassiouni, who headed the U.N. commission that prepared the documentary basis for the Hague tribunal, declared that there can be "no peace without justice." Whatever the correlation between peace and justice, there are different concepts of justice, and exacting punishment is only one.

If the slogan "no peace without justice" means punishment for past offenses, it amounts to a recipe for perpetual war in a place where one party's justice is another's outrage, and each warring party claims to be pursuing justice when it takes up arms against another. Many of its champions present the I.C.T.Y. as an instrument of peace and reconciliation. Their most compelling political argument is that individual responsibility needs to be established to replace the notion of collective guilt, which fuels fear and hostility between population groups tragically turned against one another by the recent conflicts. That is the theory. In practice, the I.C.T.Y. has been comforting notions of collective guilt and thereby risks justifying future acts of collective vengeance. The very fact that the U.S. government is simultaneously supporting the tribunal and arming the Muslims suggests a combination of judicial and military means on behalf of one party to the conflict.

Moreover, the I.C.T.Y., set up on an ad hoc basis by the U.N. Security Council, has neither the budget nor the control of the terrain necessary to serve up any more than an extremely selective justice, and the selection has from the start centered on the Bosnian Serb leadership, pre-judged as the guilty party. Back in August 1992, German Foreign Minister Klaus Kinkel, whose government led the drive to fragment Yugoslavia at the expense of its Serb and Yugoslav citizens, called for creation of an international court to prosecute leading Serbs for genocide. And German courts have recently been prosecuting Serbs for alleged crimes against humanity with a zeal they never demonstrated in pursuing crimes committed by their own countrymen during the World War II Nazi occupation of Yugoslavia. Indeed, condemning "Serbian genocide" is the current psychological key to overcoming Germany's Nazi past in order to become a "normal" Great Power again, able to project military power abroad. Anything that helps promote a greater German role in NATO "burden sharing" is clearly welcome in Washington.

In the early months of the war that raged across Bosnia and Herzegovina in 1992, the Muslim-led government in Sarajevo, seconded by Croatian agencies in Zagreb, presented Western media with reports indicating that the Serbs were pursuing a deliberate policy of genocide. From that point on, a basic principle of caution, essential to justice, was abandoned. That is the principle that the more serious the accusation, the greater the need for proof, since otherwise accusations will become an instrument of the lynch mob. Most in need of proof is the fact that the crime in question was actually committed.

Yet the principle that has prevailed in Western media and public discussion has been quite the opposite, namely that the more grave the accusation, the less need there is for solid proof. One reason for this departure from traditional judicial prudence lies in the consciousness of an entire generation haunted by the Holocaust and afraid of failing to recognize a new one. Between the error of jumping to the conclusion that a holocaust took place when it did not, and the error of dismissing a holocaust that later turns out to have been real, the first error is felt to carry the smaller risk, whether for journalists, politicians, commentators or just private citizens watching TV with friends and family. Once the accusation of genocide was widely accepted, it became a matter of honor not even to listen to the other side, for fear of being the contemporary equivalent of a Nazi sympathizer. Moreover, listening to the other side was rendered considerably more difficult by the extremely comprehensive U.N. sanctions against Yugoslavia (Serbia and Montenegro) adopted at the end of May 1992. Sanctions made travel in and out of Serbia difficult and prohibited Belgrade from hiring public relations firms like the Washington-based Ruder-Finn agency, which kept journalists provided with press releases reflecting the viewpoint of the Zagreb and Sarajevo governments.

A circular process has developed in which the highly charged ideological framework of "genocide" serves to provide a nearly unchallengeable corroboration of the very allegations on which it rests, even when those allegations have not been verified. Nowhere is this circular process more evident than concerning the issue of rape. Today the public is largely convinced that mass rape as a deliberate Serbian war strategy of ethnic cleansing is a proven fact. This past March, a group of nine U.S. women senators sent a letter to President Clinton demanding tougher prosecution of Serbian war criminals and claiming that "investigators have documented rapes of over 50,000 women and girls and the use of rape as a weapon in a brutal campaign of ethnic cleansing." Yet the oft-repeated figure of 50,000 is not based on any documentation.

The commission to investigate war crimes in the former Yugoslavia set up by the Security Council to prepare the documentary basis for the I.C.T.Y. received reports of more than 1,600 cases of rape, and interviewed 223 victims who reported up to 4,500 cases. But at the conclusion of its work in May 1994, the commission had gathered exactly 575 affidavits with precise identifications. One can reasonably assume there were more rapes than those documented, although the full extent is hard to evaluate. This is the first conflict in which investigators have searched for instances of rape and encouraged women to overcome their reluctance to report it. In the absence of comparative studies, it is impossible to know whether what was unusual about the war in Bosnia was the frequency of rape or the attention finally focused on this odious crime, which usually flourishes freely in the chaos of war.

In testimony before a Senate committee in August 1995, commission chairman Bassiouni said 20,000 rapes was a "sustainable projection." Indeed, all the larger figures are "projections" based not on victims' complaints but on hearsay, from a conflict where rumors and vivid accusations have been every bit as much a "weapon of war" as was rape, and no doubt more so. Professor Bassiouni, a Muslim, took personal charge of the commission's investigations of sexual assault reports in an effort to prove that rape was part of a Serbian strategy. But he has sought to base the case less on the clearly inadequate number of proven cases than on what he considers "patterns," from which he deduced a "policy." Another member of the commission, Dutch criminologist Christine Cleiren, testified before the Hague tribunal in July 1996 that five patterns of rape and sexual assault had been identified: (1) sexual violence with looting and intimidation, (2) sexual violence during fighting, (3) sexual violence in detention facilities, (4) sexual violence in special rape camps, (5) sexual violence in brothel houses. But first she insisted on "expressing some reservation and caution" about drawing conclusions from the findings: The "reliability and the credibility of reports and testimonies could not be verified." Professor Cleiren noted:

Individuals, as well as groups, may be driven by political or personal revenge or by encouraging groups to report sexual violence. Some people identified themselves so much with victims of sexual violence that they state hearsay stories as their own experi ence. There are indications that sexual violence was reported by the parties in the conflict as an element of propaganda. The information in the reports was second or third hand, and much of this was very general.

Do five different "patterns" of rape prove a "pattern" that in turn proves a "policy," or do they simply show that the crime of rape takes different forms? If there was a policy of deliberate rape, exactly who adopted such a policy, on what occasion, where and when? This question can be answered with precision regarding Nazi genocide against the Jews. In the case of the Serbs, so far there is only one side's interpretation of facts that are not fully established.

The projected numbers and supposed pattern act in a reinforcing circle. The initial impression that rapes were "massive" suggests a deliberate policy and thus a pattern. When, later, the evidence does not support such large numbers, then the "pattern" implies a "policy" that in turn implies that the numbers must have been massive.

The fact that the tribunal is sitting in The Hague, not far from the venerable International Court of Justice, leads public opinion to believe that all this is being sorted out in the best possible way, by an impartial judiciary body. Alas, that is hardly what is happening. The tribunal has so far convicted two people. The meagerness of this result could be excused if the procedures were exemplary as first steps toward the "world justice" sought by many visionaries. The facts suggest that the I.C.T.Y. risks discrediting that noble goal.

First conviction: Last November Drazen Erdemovic, a Croat who fought in the Bosnian Serb Army, was given a ten-year sentence for crimes against humanity. This was heralded as a great "first" in the establishment of global justice. His case is considered of great importance to the tribunal since his confession of taking part in executing more than a thousand Muslims after the Serb capture of Srebrenica is now prime evidence in the tribunal's "main event," the future trial of Karadzic and Mladic. However, inasmuch as he confessed to his crimes, there was no formal trial and no presentation of material evidence to corroborate his story. In any case, because he had turned "state's evidence," there would have been no rigorous cross-examination from either a contented prosecution or a complaisant defense regarding the discrepancy between the number of Muslims he testified to having helped execute at a farm near Pilica1,200 and the number of bodies actually found there by the tribunal's forensic team: 150 to 200. If they were massacred, this is indeed a serious crime. But the discrepancy in the figures casts doubt on the reliability of the prosecution's star witness, Erdemovic. The problem here is that the tribunal accepted unsubstantiated testimony instead of using the trial to present material evidence. No material proof is needed once everyone is certain that "genocide" has indeed been committed. The circle works again: The greater the crime, the less the need for evidence. To insist on evidence may suggest complicity.

Second conviction: On May 7 the tribunal convicted its first Serb, Dusan Tadic, of "persecution" and beatings, and of killing two Muslim policemen during the Bosnian Serb seizure of Tadic's hometown of Kozarac. But he was acquitted of other serious charges after the testimony of the main prosecution witness was discredited by Tadic's court-appointed Dutch defense lawyer. The witness, who had recited grisly tales of torture and sexual mutilation that he ascribed to Tadic, confessed on the stand that he had never been in the places he described but instead had been coached on the details by Muslim jailers in Sarajevo. The horror stories have been endlessly recounted around the world as proof of Serb bestiality. News media work too fast to establish historical truth, but the international tribunal is using methods that resemble the media's, notably reliance on "unidentified sources." As with the star witness against Tadic who turned out to be a perjurer, most of the tribunal's evidence is furnished by the same Muslim authorities in Sarajevo who provided Western journalists with gruesome stories that may or may not be true. On the pretext that they must be protected from reprisals, witnesses are granted anonymity. They cannot be cross-examined or charged with perjury. This is particularly grave in proceedings where verbal testimony rather than material proof is the basis for conviction.

Without its own police, with a skimpy budget dependent on voluntary contributions from interested governments, the tribunal is scarcely in a position to scrutinize too closely the aims and methods of Alija Izetbegovic's government in Bosnia. Those methods are clearly questionable, as is shown by that government's own judicial procedures. In March 1993, in the first instance of Serbian "genocide" brought before a Sarajevo court, a Serb, Sretko Damjanovic, was convicted of murdering two Muslim brothers largely on the basis of his own confession, which he retracted in court, saying he had been tortured by Muslim police into signing it. Four years later, The New York Times reported that the two "victims," Kasim and Asim Blekic, were alive and well and living in a Sarajevo suburb. The Sarajevo court has not considered the fact that his "victims" were never murdered as grounds for granting Damjanovic a new trial.

In a war where Muslims, Serbs and Croats, not to mention people who were never interested in such labels, have all suffered from the territorial war between ethnic leaders claiming to "protect" them by herding them into their respective sheepfolds, almost all the killing has been along ethnic lines. Therefore, all sides could technically be charged with "genocide" under the extremely broad definition contained in the 1949 Convention on Genocide, which includes "causing serious bodily or mental harm to members of [a] group," if committed "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group." From this definition, harming a single member of a rival group may be considered "genocide" depending on the supposed "intent." The broadness of this definition was cited as a reason for the U.S. Senate to postpone ratification for thirty-seven years.

Americans needn't worrythe system of ad hoc tribunals set up by the Security Council insures that the United States will not end up in the dock. Such influential Serb leaders as the Orthodox bishop of northwestern Republika Srpska stress the importance of enabling all refugees to return to their homes. There are more obvious obstacles to this resettlement than the presumed diabolical influence of Karadzic. One is lack of housing. Available housing in Republika Srpska is filled with Serb refugees from Croatia. The Krajina, from which most of them came, has the region's largest amount of empty housing, but so far Croats have obstructed the return of non-Croats to regions they control. And while reconstruction is booming in Croat areas, Republika Srpska received only about 2 percent of the $900 million in international reconstruction aid to Bosnia in 1996. And this year aid is again being withheld from the Serbs for "noncompliance" with Dayton. Is such compliance materially possible? Per capita income is about five times higher in the Muslim-Croat Federation than in Republika Srpska.

Meanwhile, Muslim leaders are massing Muslim refugees along the most strategically sensitive pointsnotably in the narrow strip that connects the two parts of Republika Srpska near the city of Brcko. International observers are aware that Serbs have reason to fear that refugee returns could be the prelude and pretext for a military offensive. And the Croats have been blocking the return of Serb refugees to the city of Drvar (formerly about 90 percent Serb) in the traditionally Serb-inhabited stretch of the Bosnian Krajina. The Croats have held this territory since they captured it in 1995 along with the neighboring Croatian Krajina. Now the U.S. "equip and train" program for the Muslim-Croat Federation Army has reportedly designated some 280 square miles of this formerly Serb region as a proving ground for 116 heavy artillery pieces with a nine-mile range. Last May, in announcing acquisition of these big guns for anti-Serb forces, James Pardew, the U.S. diplomat who is in charge of the program, told a Sarajevo press conference that the extra firepower should "help the federation defend itself if peace breaks down." The only threat to peace he could see was "the Republika Srpska's failure to comply" with the Dayton accords. Yet it is the Muslims and Croats who now have the weapons and the excuse to seize more territoryonce they agree between themselves on how to divide the spoils. Maps are circulating in Sarajevo showing Muslim territory expanded to include Banja Luka, the largest town in Serb-held Bosnia. The dominant Muslim, Croat and Serb parties have all been doing their best to consolidate exclusive power over their respective fiefdoms in Bosnia, ignoring Dayton provisions when necessary. Obsessively blaming the Serbs for this deplorable situation has encouraged Croat and Muslim ambitions. Having established themselves before an indulgent court of public opinion as victims, the Bosnian Muslims may believe that they can never commit crimes, but only punish those of others.