Nobody could really anticipate the shock and triumph – depending on which side you were on – occasioned by the Oric judgment, which was handed down by the International Criminal Tribunal for Yugoslavia in June 2006. The sentence may not have hit the headlines in the West as either of the two sides might have hoped, but the reason for the two widely divergent reactions could not be more obvious. Sentencing Naser Oric was, in a word, light. For the Bosnian Muslims, the sentence was as a sign that Oric was regarded universally as a hero. The Serbs, in turn, got yet another painful reminder that some people are more equal than others before the tribunal, and it is not necessarily a bad thing to be a Muslim.
The truly remarkable thing about the Oric judgment is how unremarkable it was. The sentence was lenient but, hey, so what? It took the tribunal 10 years after the events to indict Oric and it took another two years to arrest him. The Serb leaders, like Karadzic and Mladic, had been indicted while the war was still going on. That decade-long delay did nothing to suggest that the tribunal was intent on getting Oric behind the bars at all costs. There is nothing surprising in the sentence in itself. The surprise was really due to the fact that the inveterate critics of the tribunal got another (unwanted) chance to say: “See, I told you so”.
Oric was sentenced to two years imprisonment, no more. Since Oric had been in the ICTY detention unit for over 3 years, the court ordered him to be released as soon as possible. The sentence was in effect an acquittal, because Oric would not have spent any less time in detention even if he had been acquitted. The two-year imprisonment was a laconic rebuttal of his reputation as a ruthless killer among the Serbs.
When the tribunal’s beatific vision of Oric was threatened by the Serb version of events, the Trial Chamber dismissed the rival views as misinformation. The effect is almost subliminal. The judgment mentions the word “misinformation” three times, and it always refers to the Serb allegations of Oric’s crimes.
If the ICTY had handed down no other judgment than the Oric judgment, the judgment would be pretty good. From the defendant’s point of view, it is great. The tribunal’s case law is explained in great detail, with great subtlety and consummate skill. The defendant is presumed innocent, as he should be. Indeed, if one were unsuspecting enough to start reading the judgment from the beginning, wading through the 300 pages, one might have the excuse for concluding that the judgment was excellent.
But alas, the tribunal has handed down other judgments. And no, they have not been quite as great. When the Oric judgment is compared with those other cases, the conclusion is somewhat less flattering to Oric and the Trial Chamber that judged him. The Oric judgment is simply too good. What amounted to an acquittal was due to the double standard the tribunal has been accused of holding to so many times before.
Oric was found guilty of murder and cruel treatment. In a way, his criminal responsibility was indirect, because it was based on his capacity of superior and his failure to prevent or punish the acts committed by his subordinates, in other words, his command responsibility on the basis of Article 7(3) of the ICTY Statute. The verdict did not find Oric guilty of any murder and cruel treatment he might have committed personally, because he had not been charged for his personal participation in the murder and cruel treatment.
On the other hand, Oric was acquitted of the charges of wanton destruction. Again, he was charged of wanton destruction in his capacity as a superior and his failure to prevent or punish the acts of wanton destruction by his subordinates. However, he was also charged for his personal participation in the wanton destruction. No wonder the Trial Chamber found the charges unfounded.
The plundering charges had been withdrawn from the indictment for lack of evidence. The indictment had to be doctored, as it were, to reflect the lack of evidence that became obvious to the Trial Chamber in the course of the trial. The plundering charges were again significant in that Oric was charged not only for his failure to prevent or punish his subordinates but also for his personal conduct.
In the last portion of the judgment, the Trial Chamber offers some erudite observations about the philosophy of sentencing. It explains that the main purposes of sentencing are retribution and deterrence (para. 718). Retribution has a bad name, but the Trial Chamber makes it quite clear that retribution does not mean revenge. That is quite important. The sentencing has to be so lenient that no-one would dare to suggest that the tribunal was being vengeful.
“If not revenge, what was retribution then?” one might feel tempted to ask. Amazingly, the Trial Chamber explains that retribution is determined by the outrage expressed by the international community. That is amazing because retribution is not necessarily measured by anybody’s outrage. If it were, it would easily become what the tribunal tries to deny: revenge. Let’s face it. The outrage expressed by the international community was quite subdued in regard to the Muslim atrocities. It might even appear politically incorrect, and certainly politically unwise, to talk of Muslim atrocities at all (para. 719). That is why the tribunal holds up retribution as the guiding principle. Retribution is not revenge, at least not in this case, for the simple reason that the lack of outrage felt by the international community did not demand retribution. Yes, there may have been some dissident voices, but the Trial Chamber just provided itself with the license to take its revenge on those who did not share its vision of retribution untainted by any thought of revenge.
The Trial Chamber also mentions deterrence and explains its philosophy of deterrence in para. 720: the purpose is to reassure the general public that the legal system is implemented and enforced. Never a truer word was spoken. The downside is that if someone like Oric is treated like a hero, as he was, the crimes he might have committed could be not only condoned but glorified. Should that be the case, the effect would be quite opposite to deterrence.
The Trial Chamber explains that the sentencing depends on the gravity of the offense. It does an unwitting imitation of Gilbert and Sullivan by observing that the punishment must fit the crime (para. 719). In the Oric case, such platitudes are rather inopportune. Oric was not sentenced, strictly speaking, for any of his own wrongdoings. He was sentenced for his failure to prevent or punish the crimes committed by his subordinates in his capacity of a superior (para. 724). Whose crimes should the punishment fit, then? It should fit his own crime, of course. Except that if he is to be punished only for his failure to do anything about the crimes committed by the others, the “fitting” is rather difficult.
In this case, things are even more complicated, however. Who were those “others”? Yes, they were his subordinates, but even the subordinates’ responsibility has to be hemmed in. The subordinates’ wrongdoing consisted of not keeping “outsiders” from hurting the detainees (para. 736). That was their crime. So the real culprits are the outsiders. The subordinates are in a curious position of having a sort of thwarted command responsibility in regard to people who were not their subordinates, whereas the paragon of the story, Oric, is deemed to have command responsibility only in regard to people who were his subordinates. That logic cannot help but thwart the process of sentencing.
In that curiously ambivalent situation, everything becomes a matter of circumstance. The Trial Chamber discusses this question systematically and it divides the circumstances into aggravating and mitigating circumstances. Actual offenses are seen exclusively from the perspective of so-called aggravating and mitigating circumstances. That is right. There was nothing really grave about the offenses, because gravity is simply relegated to the periphery of “circumstance”. It is only because of the extensive use of “circumstance” that the Trial Chamber finds the courage to declare that the punishment must fit the crime, as it does in para. 719.
What were the charges? It is hardly surprising that the sentence was light: the charges had been handpicked to guarantee the lightest possible sentence. The charges had to do with the treatment of the Serb detainees in Srebrenica. The indictment also addressed wanton destruction and plundering. The plundering charges were regarded as insufficiently proven and, consequently, they were withdrawn from the indictment. The charges of wanton destruction were dismissed as unfounded.
As if that selectivity were not enough, the Trial Chamber states that the periods of detention were relatively short (para. 739). The Trial Chamber then does something remarkable. It regards the duration of detention as an aggravating circumstance but because the duration was relatively short – and not relatively long as the prosecution had alledged – the Trial Chamber dismisses the duration as another aggravating circumstance (para. 738-739).
Another potentially aggravating circumstance addressed by the Trial Chamber is Oric’s hero status (para. 743). Nobody can deny he is a hero to his people. However, the Trial Chamber reminds us that the circumstances in Srebrenica were so appalling that heroes were exactly what the Muslim population needed (para. 744). The Trial Chamber makes use of the appalling circumstances in Srebrenica to explain not only Oric’s hero status, which could be seen as an aggravating circumstance, but it uses the hero status to account for the less than commendable conduct Oric may have been guilty of in the course of the battle. It has to be noted that the sentencing is not allowed to wander off to any actual crimes that Oric – or his subordinates – might have committed, apart from some passages under the heading “Circumstances Prevailing in Srebrenica” (767). Until then, they are dismissed as circumstances.
After making short work of the aggravating circumstances, the Trial Chamber discusses the mitigating circumstances. It does not even make an effort to conceal its partiality. It is very liberal in acknowledging various mitigating circumstances.
One mitigating circumstance is cooperation with the tribunal. The Trial Chamber is satisfied that Oric has co-operated with the tribunal in three instances: in giving the lengthy interview to the Prosecution, volunteering to surrender (although he did not surrender) and conceding to 43 agreed facts (748).
Remorse is another factor for which Oric gets credit. The Trial Chamber admits that Oric has made no statement to that effect, but it points out that the defense counsel expressed compassion to witnesses on his behalf (para. 752). Even if the Trial Chamber now explains that he did not surrender, it had already given points for voluntary surrender. It clarifies the confusion by saying that according to one witness (John Fenzel), Oric “expressed his readiness to surrender… if and when requested to do so”. The tribunal finds it a pity that the indictment remained confidential until the day of his arrest so Oric never got the opportunity to show how serious he was about his willingness to surrender. Although the Trial Chamber does not regard that lack of opportunity as either a mitigating or an aggravating factor, it had already used the simple willingness to surrender as a sign of co-operation (para. 753).
The Trial Chamber keeps pouring credit on Oric. Although the defense had not raised the young age of the accused, the Trial Chamber takes it into account as well. The Trial Chamber gets quite eloquent. It speaks of the “enormous burden that was cast upon him at the age of 25” and does not forget to mention that the situation in Srebrenica was desperate. Even if Oric was young, he had a lot of experience, which the Prosecution thought should offset his young age. However, his experience makes the Trial Chamber’s admire this extraordinary man even more. By that simple formula, it dismissed the Prosecution’s nasty comments about Oric’s “extensive experience”. (para. 757)
After doing such a splendid job in safeguarding Oric’s interests, the Trial Chamber mentions that Oric is married with two children (para. 758). It also mentions the lack of prior violent criminal acts and criminal history (para. 759), which is only to be expected of somebody who had worked as Milosevic’s bodyguard earlier in his life. It further mentions Oric’s conduct while in detention (para. 762-763). It does not even matter that neither of the parties had addressed those issues. The Trial Chamber was giving Oric the royal treatment anyway.
Even at the risk of neglecting any actual crimes, the judgment highlights Oric’s selfless consideration toward the Serb detainees. Two detainees testified that Oric had asked them if they had been beaten. The Trial Chamber goes on in its praise in para. 764:
“He also inquired about the manner in which Dragutin Kukic had died. On one occasion, the Accused brought meat for the detainees to their cell….[T]he Accused was evidently not pleased to see them in the bloody condition in which they were. In addition, the Accused discussed with Hamed Salihovic and Ramiz Becirovic the killing of a prisoner, agreeing that this was wrong and should not be allowed to happen. He was also instrumental in promoting an investigation of the Kukic killing, which ultimately resulted in the removal of Mirzet Halilovic, a decision in which the Accused also took an active part.”
The Trial Chamber is not finished yet. The Trial Chamber discusses Oric’s valuable input while co-operating with SFOR (the UN Stabilization Force) in para. 765. The evidence to that effect came from the same John Fenzel. He also described Oric “as always honest and forthcoming with him, and as a gentleman”. All the other considerations aside, Oric had undoubted star quality. The Trial Chamber also notes that Oric has been respectful during the proceedings (para. 766). Obviously, the tribunal respects anyone who respects it.
The praise is almost touching. At the same time, it is perplexing. How often does the Trial Chamber quote character witnesses in its judgments, especially when the praise for Oric has been anything but universal?
So far, the sentencing has been nothing but praise. The Trial Chamber is not only preparing the reader for the anticlimax, but it also explains why there has to be one. Finally, the Trial Chamber has to make the sad announcement. Oric’s behavior was not without reproach. Actually the Trial Chamber does not say even that. The Trial Chamber says that Oric could have done more to stop bad people from being mean to the Serbs. No, actually it does not say even that. Who would those bad people be? Instead, the Trial Chamber tries to be as roundabout as possible: “the Accused had the duty to prevent the re-occurrence of murder and cruel treatment of prisoners…yet he preferred to do nothing.” That is impersonal and passive enough because it does not identify those who actually committed the murder and cruel treatment. Then the Trial Chamber admits what should have been obvious all the time: “This is his only wrongdoing” (para. 771).
The grudging admission that Oric may have been guilty even of this “only wrongdoing” comes after the description of the utterly dismal situation in Srebrenica and its relevance to the sentencing in para. 767-771. The bottom line is that everything started with the Serb offensive and the Muslims had no choice but to defend themselves. Necessity is the mother of invention and it knows no law except to conquer. The Trial Chamber puts it as follows:
“It was a situation which became worse by the day. It was the result of a combination of inter-related factors, chief amongst which were the escalating offensive by militarily superior Serb armed forces, the unpreparedness of the Bosnian Muslims, an unmanageable influx of refugees, an increasing isolation of the town and area resulting in critical shortages of food and other essentials, the general chaos and last, but certainly not least, the flight from Srebrenica of all the authorities, civilian and otherwise, soon after the outbreak of hostilities and the take-over of the town by the Serb forces.” (768).
As if to make sure that the addressees really had understood the royal treatment Oric was getting, the Trial Chamber recaps in para. 772 all the mitigating circumstances it could come up with (the bullets appear in the judgment):
· Expression of remorse
· The Accused’s expressed readiness to surrender to the Tribunal if indicted
· Young age
· Family circumstances
· Acts of consideration towards prisoners
· Co-operation with SFOR
· General attitude towards the proceedings, and
· As the dominant factor, the circumstances prevailing in Srebrenica and those particular to the Accused and to the crimes committed
Then comes the sentence, but only after explaining how it has arrived at its sentence. The Trial Chamber explains that “sentencing is a discretionary decision and […] it is inappropriate to set down a definitive list of sentencing guidelines” (para. 779). The tribunal also explains that the Trial Chamber has found little assistance in previous decision on sentence (para. 780).
It is almost as if the Trial Chamber were searching for a word. Could that word be “arbitrary”? Yes, that’s it: the Trial Chamber is trying to say that sentencing is arbitrary. For understandable reasons, it wants to keep its voice down, so instead it goes on for a few more paragraphs explaining why sentencing is a “discretionary” decision.
It explains that each case is different. In other words, the connection between the sentencing and the 266 pages that have preceded does not necessarily have to hold water. It would appear that the Trial Chamber has taken great care to come up with a sentence that was shorter than the time Oric had already spent in the detention unit so that he could be released right away.
For the benefit of those who might be wondering what will happen to all those people whose names had been mentioned in the judgment so that Oric could get away with a two-year sentence, the tribunal explains that “the case presents unique features that warrant a sentence of imprisonment which reflects his limited criminal responsibility and no more” (para. 779). Note that one word: “unique”, which is used here three times. That word is susceptible of two different meanings. One meaning is that the case is unique in terms of the multitude of factors which may have contributed to the outcome. One of those factors was the great number of Bosnian Muslim leaders who could have been responsible for the atrocities. The other meaning is the following. For the benefit of those who are naïve enough to suppose that the tribunal now has the duty to hunt down those who were “really” responsible, the Trial Chamber explains that this case is what it just said: “unique”. That meant there would be no follow-up. In some kind of contorted logic the tribunal is arguing that if Oric got away with two years, what use would it be to indict other people mentioned in this judgment? Oric had just spent more time in detention than his sentence warranted, so procedural economy did not favor any more prosecutions of Bosnian Muslims.
As if pausing for effect, the Trial Chamber makes sure that the case is really as unique as it says: “…the present case is unique in its particulars and no real comparison can be drawn with other previous cases both in regard to the Accused’s very limited responsibility and the extraordinary circumstances in which he operated…Consequently, the sentence to be imposed needs to reflect this uniquely limited criminal responsibility.” (para. 780, emphasis added).
To make sure that nobody missed the point the first time, the Trial Chamber explains: “There is no other case in which the Accused was found guilty of having failed to prevent murder and cruel treatment of prisoners in such a limited manner and in such abysmal conditions as in this case” (para. 780).
In other words, the Trial Chamber admits it is aware that what it is about to do is bound to raise some eyebrows. The abysmal conditions, which were brought about by the Serb offensive, amply merit such leniency.
The Trial Chamber found Naser Oric guilty of the failure to discharge his duty as a superior to take necessary and reasonable measures to prevent the occurrence of murder and cruel treatment from 27 December 1992 to 20 March 1992 (para. 728). For that failure, the Trial Chamber sentenced Naser Oric to two years imprisonment and ordered his release with immediate effect.
Withdrawal of the plundering charges
After enumerating all the mitigating circumstances, the tribunal still had not run out of imagination. For instance, one might have wondered what happened to counts 4 and 6 in the indictment. The third amended indictment did not mention those two counts (which had to do with plundering).
The Trial Chamber explains that the withdrawal was its own idea. In fact, the withdrawal was an all-time first. As it says in para. 822:
“The Trial Chamber in the present case was the first to apply the new oral procedure set out in the amended Rule 98bis of the Rules…The Trial Chamber found that the Prosecution had failed to adduce evidence capable of supporting a conviction for the crime of plunder of public or private property, and thus acquitted the Accused of Count 4 and 6. The Trial Chamber also found that the Prosecution had failed to adduce evidence capable of supporting a conviction for the murder of Bogdan Zivanovic, the cruel treatment of Miloje Obradovic and the wanton destruction of cities, towns or villages, not justified by military necessity, with respect to the hamlets of Bozici and Radijevici”.
As we said, the judgment is good in itself. Only when it is compared to other judgments by the same tribunal does one begin to suspect anything.
For instance, what is wrong with the above-cited procedure of amended Rule 98bis? If the prosecution was serious about prosecuting Oric, how could it agree to remove two counts from the indictment just because it failed, in the Trial Chamber’s opinion, to present enough evidence to support them during the trial? How seriously did the prosecution want to nail Oric?
The other problem is again selectivity. Milosevic would have welcomed such a procedure when the Prosecution had failed to adduce enough evidence in support of its genocide charges against Milosevic. What happened? In the Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis, which was filed on March 3, 2004, the amici curiae requested that the charges should be dropped for lack of evidence. What did the Trial Chamber do? It demanded the prosecution to provide the evidence. And what did the prosecution do? The prosecution presented its genocide evidence in secret. It filed its confidential Prosecution Response to Amici Curiae Motion for Judgement of Acquittal Pursuant to Rule 98bis on March 23, 2004. The prosecution explained that the secrecy was necessary to guarantee the safety of its sources. And what did the Trial Chamber do then? It allowed the prosecution to adduce the evidence.
The tribunal’s approach in the two cases could not have been more different. It would not have occurred to the Trial Chamber to delete the genocide charges from the indictment because of lack of evidence when the name of the accused was Slobodan Milosevic.
How a crime can justify another crime
Another problem is the weight given to the historical overview on pages 31-45. Actually the historical overview is called General Overview, and it is divided into two parts: 1) “background to the conflict in Bosnia and Herzegovina” and 2) “Srebrenica area: The Specific political, military and humanitarian context of the case”. As we have seen, the ultimate purpose is to describe how abysmal the situation in Srebrenica was and to blame the Serb offensive for it. The Serb offensive is blamed for pretty much everything that was wrong in Srebrenica. The Muslims are portrayed as innocent victims who had no alternative but to defend themselves against the Serbs.
So what is wrong with this picture? From the Milosevic trial we know that whenever a certain action was explained in light of its historical background, the judges leaned over to their microphones and whispered that the information was irrelevant, in case they did not manage to turn off Milosevic’s microphone quickly enough. That is not the case here. The circumstances are not irrelevant at all. Indeed, they are the key to understanding the Bosnian Muslim psyche. Rarely, if ever, has the tribunal touched on the history of the Roman Empire, but it does so in para. 88 of the Oric judgment. It was about time.
Because the Serbs were so incorrigibly bad (“it is axiomatic,” as Stephen King and Peter Straub would put it), the Bosnian Muslims could not be that bad. Predictably, the same exculpatory logic does not work the other way around. When Milosevic tried to argue during his trial on December 17, 2003 that the Bosnian Muslims had started the conflict, the presiding judge Richard May stated: “And is it in any way suggested that that in some way justified these men being killed, as this witness has set out in his statement? Is that what’s being suggested?” Milosevic answered: “No, of course it’s not justified by that. Heaven forbid. A crime cannot justify another crime.” Only if it can be demonstrated that it was the Serbs who started the conflict, is the Trial Chamber willing to accept that a crime can justify another crime.
Presumption of innocence
In para. 12, the Trial Chamber explains that it has evaluated the evidence according to the principle of in dubio pro reo. In footnote 22 it explained the concept: “According to the principle of in dubio pro reo, any doubt as to the evidence must be resolved in favour of the accused.”
What could be the problem with that? Is it not appropriate to give the accused the benefit of the doubt? The problem is that such fair-mindedness is selective. When Ojdanic challenged the doctrine of joint criminal enterprise, he argued that it was against the basic legal principle of in dubio pro reo. What did the Appeals Chamber do then? It could not dismiss the principle. In its decision of 21 May 2003 on Dragoljub Ojdanic’s motion challenging jurisprudence – joint criminal enterprise, the Appeals Chamber said that the principle of in dubio pro reo, which the defense had invoked, did not apply because there was no doubt (para. 27-28). In other words, joint criminal enterprise pulled the rug from under such basic legal concepts as presumption of innocence because as soon as joint criminal enterprise had been evoked, any douct suddenly ceased to exist.
These are just a few examples of the revealing incongruities in the ICTY case law. Most of the incongruities are connected to the doctrine of joint criminal enterprise. Like the in dubio pro reo they reveal what kind of partiality the tribunal’s case law is steeped in under the pretext of learned-sounding constructions that have no basis in the tribunal’s basic legal documents.
COMMAND RESPONSIBILITY VS. JOINT CRIMINAL ENTERPRISE
The Trial Chamber keeps conspicuously silent about the most important feature of the judgment. The prosecution has built its case against Oric not on joint criminal enterprise but on command responsibility. The difference is crucial. Unlike joint criminal responsibility, command responsibility is mentioned in the Statute and thus is controlled by some rules. On the other hand, joint criminal enterprise is not mentioned in the Statute, and therefore the tribunal has had the opportunity to define it as the need has arisen.
It may be remembered that Milosevic and his partners, like Ojdanic, were indicted on the basis of command responsibility in the initial indictment. The prosecution must have felt too insecure with command responsibility and ventured on the uncharted territory of joint criminal enterprise. Even if the success was not guaranteed, the prosecution was confident it would be able turn the obscurities of the case law concerning joint criminal enterprise to its own advantage. As command responsibility was mentioned in the Statute, it had to obey some kind of logic. Joint criminal enterprise had no similar shortcomings.
In the starkest possible terms, then, the difference between the Milosevic case and the Oric case is that Milosevic was prosecuted on the basis of joint criminal enterprise, whereas Oric was indicted and judged on the basis of command responsibility. A poignant detail is that the Milosevic indictment was first based on command responsibility and only later on joint criminal enterprise.
The command responsibility, which was the cornerstone of the Oric case, is mentioned in Art. 7(3) of the Statute. Command responsibility has a fearsome reputation, because a superior is not actually punished for any of his own wrongdoings but for those of his subordinates. That seems to be contrary to the idea of individual criminal responsibility, which is engraved in the Statute.
All is relative. Command responsibility is more convenient for the defendant than joint criminal responsibility. In the Oric case, the tribunal takes great care to explain the relevant case law first and then to find the most positive interpretation available from the defendant’s point of view. That way, none the loopholes offered by command responsibility is overlooked.
First, there has to be a vertical relationship between a subordinate and his superior. That is called the superior-subordinate-relationship. Even if it is not necessary that the superior knew the criminals personally, some kind of connection had to exist between them. The buzz phrase is “effective control” (para. 311). The formal superior position is not enough. The control exercised by the superior has to be “effective”. The Trial Chamber is not satisfied beyond reasonable doubt (another of the Trial Chamber’s favorite phrases in this judgment) that the Accused, as commander of the Srebrenica Armed Forces Staff, exercised effective control over the Srebrenica military police between 24 September and 16 October 1992, when murder and cruel treatment were committed at the Srebrenica Police Station (para. 504).
In concrete terms that meant that if the great multitude who committed atrocities in the war was not strictly speaking under Oric’s command, Oric was not responsible for any of them. The Trial Chamber makes the most of that curiosity. That is why it is so eager to call all the different commanders “independent”. That is taken to mean that they were not under Oric’s command and therefore Oric had no command responsibility. The definition the judgment itself gives is merely that each “independent” commander had the power to decide whether he would participate in a particular action or not (footnote 1997). According to that definition, “independence” should not have let the commander of the joint action off the hook once the independent troops had decided to participate, although that is of course exactly what the tribunal now does.
The other elements of command responsibility are laid out in para. 294. The act of omission was committed by other(s) than the accused. The accused knew or had reason to know that the subordinate was about to commit such crimes or had done so, and the accused failed to prevent such crimes or punish the perpetrator(s) thereof. The Trial Chamber draws many subtle distinctions. For instance, the phrase “knew or had reason to know” is parsed into actual knowledge and imputed knowledge.
It is enlightening to see what the Trial Chamber does with the two distinct duties “prevent” and “punish” in para. 325 ff. Since command responsibility means that a superior should have prevented or punished his subordinates, what happens when the superior did nothing? Should he be punished for both his failure to prevent and his failure to punish? That question is not answered. There is something else the Trial Chamber does with that distinction. After elaborating on the distinction, the Trial Chamber suddenly chances on a decision by the Appeals Chamber that does away with that distinction. One would think that is scarcely possible, but the Appeals Chamber has had its own reasons for its decisions and the Trial Chamber states that it will not question those reasons here. That is not surprising in light of what we already know of the decision. The duty to prevent and to punish are inseparable in the sense that “the superior must have had control over the perpetrators of a relevant crime both at the time of its commission and at the time that measures to punish were to be taken.” (para. 335). The Trial Chamber is right to express its amazement at the Appeals Chamber’s logic but wrong to claim it is powerless to do anything about it. The Oric judgment had already taken some liberties in interpreting the case law of the Appeals Chamber (for instance in footnote 821).
It is clear that the Trial Chamber’s avowed powerlessness is selective. It simply wants to let Oric go free. When someone like Oric experiences a meteoric rise in the ranks (he became brigadier on July 17, 2004), the command responsibility does not seem to work retroactively. In other words, if Oric got a promotion that put him in charge of people who had committed a crime before Oric got the promotion and were not his subordinates before that, he was not required to punish the people who were not his subordinates at the time the crime was committed (para. 335).
The Trial Chamber does take a faltering step back before making that announcement. It discusses the connection between command responsibility and the principle crime. The principle crime does not only mean “committing” the crime. The principle crime can also consist of aiding and abetting, as the Trial Chamber notes in para. 280. Aiding and abetting is also mentioned together with commission in Art. 7(1) of the Statute. The Trial Chamber interprets aiding and abetting quite broadly in para. 282: “any kind of physical or psychological, verbal or instrumental assistance or support, regardless whether rendered directly to the perpetrator or by way of an intermediary, as well as irrespective of whether the participant was present or removed both in time and place from the actual commission of the crime”.
The question is whether command responsibility should be limited to “committing” the crime in the strictest sense or whether it should include aiding and abetting as well. The Trial Chamber concludes, wisely enough, that command responsibility “is not limited to crimes committed by subordinates in person but encompasses any modes of criminal responsibility, in particular instigating as well as otherwise aiding and abetting” (para. 301).
That extensive interpretation is not necessarily in the interests of the accused. However, if the Trial Chamber has to find Oric guilty of something, it might just as well use this very broad interpretation of command responsibility and make Oric’s sentence seem almost like a legal technicality. Yes, the Trial Chamber found Oric guilty, but only on the basis of command responsibility, which the Trial Chamber has attenuated here as much as it could.
Joint criminal responsibility
There is scarcely another case before the tribunal where command responsibility has been explained so carefully. The reasoning in the judgment may seem flawless, and in a way it is, but one has to keep in mind that the prosecution does not always seek the toughest sentence for the accused, no matter what its stated policy may be. There are many ways for the prosecution to decide to prosecute the accused on the basis of command responsibility. It does not matter if the accused are military leaders or civilians. As the Trial Chamber explains in para. 308, command responsibility in Art. 7(3) of the Statute “does not only include military commanders within its scope of liability, but also political leaders and other civilian superiors in possession of authority”. As we remember, Milosevic was indicted on the basis of command responsibility, but the indictments were later changed so that criminal responsibility rested on joint criminal enterprise. We will see why.
The joint criminal enterprise differs from command responsibility in one respect: the prosecution does not have to prove that the accused had any “effective control” in regard to anybody. It is sufficient that the perpetrators were somehow operating in concert, and the operative word is “somehow”. Once that has been demonstrated, it does not matter much if they were really perpetrators. People can be shown to be guilty by association. The participants in the joint criminal enterprise become perpetrators once it has been demonstrated that the accused had contacts, no matter how passing, with somebody who belonged to the same supposed joint criminal enterprise.
We are not quite sure how flexible a construct joint criminal enterprise would ultimately have been because there will be no judgment in the Milosevic case. We do know that the Greater Serbia charges had been withdrawn from the indictment in 2005 but the joint criminal enterprise was not. Since the creation of Greater Serbia was the focal point of the alleged joint criminal enterprise, the whole construct should have teetered on the brink of collapse.
Only, it did not collapse. Greater Serbia accusations are still alive and well in the Oric judgment. Needless to say, there is something profoundly anomalous in the situation. Theoretically, it might have been possible that the supposed Greater Serbia project could have continued without Milosevic having any part in it, but let us stop fooling ourselves. Milosevic was a vital part of the purported Greater Serbia ploy, and now that Milosevic is out of the picture, one wonders why Greater Serbia is still on the Trial Chamber’s menu in the Oric judgment, under the euphemistic guise of the New Serbian State (para. 82 ff).
There was a time when the tribunal used to suppose that joint criminal enterprise would stand or fall on the ideology behind it. Even if each side may have had an ideology, the tribunal was careful to attribute the ideology worthy of a joint criminal enterprise only to the Serb side. Even if the fate of the Greater Serbia ideology is now uncertain, the Serbian joint criminal enterprise is still wielded as a construct that exculpates the Muslim side.
Let’s see. Joint criminal enterprise does not presuppose vertical relationships, there do not seem to be limits to its retroactivity, and it does not seem to be relevant if the participants were in contact. The case law of the tribunal is fairly specific in explaining what joint criminal enterprise is not but a lot less specific in explaining what it is. Considering how many things it is not, it may be hard to grasp what joint criminal enterprise actually is, but it does seem to offer an instant relief from the prosecution’s headaches when its task is to convict somebody whose role in committing the crime is not quite certain.
From the viewpoint of the prosecution, joint criminal enterprise is command responsibility with teeth. Whenever the prosecutor was not sure it would get the Serbs convicted, joint criminal enterprise was expanded so that participation in the same war on the same side was enough to incur individual criminal responsibility. Joint criminal enterprise was a wonderful way to trap the Serbs and it worked impeccably.
The trouble is that the doctrine of joint criminal enterprise is inherently contradictory. It presupposes a system, a hierarchically structured entity to support it, while at the same time denying the importance of the hierarchical relations within it. The mere participation in that machinery, no matter how tangential, is enough for joint criminal enterprise to kick in.
What happens when there is no such machinery? Well, the Trial Chamber in the Oric case seems to suppose that joint criminal enterprise cannot exist without a structure. That is the reason it makes such a big deal of the fact that the Muslim forces did not even have uniforms or a functioning judicial system.
A layman may not deem the use of uniforms and the existence of a judicial system to be a prerequisite of a joint criminal enterprise. When a layman hears the term joint criminal enterprise, he may not realize that the participants in the enterprise are supposed to wear uniforms and/or have a functioning judicial system. On the contrary, he might suppose that the lack of an adequate judicial system and the absence of uniforms is the ideal environment for a joint criminal enterprise to flourish. Why then does the Trial Chamber make such a big deal of the lack of uniforms and courts?
The layman must be right. The Trial Chamber’s approach is, indeed, inadequate. One of the basic ideas of having a judicial body like the ICTY in the first place is to compensate for the inefficiency or non-existence of national judicial bodies at a time when atrocities were committed. When the tribunal accepts the argument that the Muslims had no courts, someone might have supposed that it was the tribunal’s turn to step in. The tribunal does the exact opposite and uses the lack of judicial bodies as an excuse to wash its hands of the matter.
One might note some larger strategic inconsistencies in the prosecution’s approach to the Serb and Muslim crimes. The case of a Serb joint criminal enterprise had been built painstakingly over the years, starting from the low-level soldiers. The prosecution worked its way through the hierarchy, so to speak, all the way to the top, to Milosevic. Once the small fish had been shown to be part of the joint criminal enterprise, a larger enterprise would emerge.
The prosecution’s strategy in the Muslim cases is quite the opposite. The prosecutors started by indicting some high-level figure, like Oric, who might be held responsible for everything that took place. Instead of prosecuting the lower-level figures, the prosecution started with the big fish and let the small fish go free.
That is where the Trial Chamber enters the picture. In its judgment, the Trial Chamber concludes that the Oric case was unique. The judgment uses the word unique three times. In para. 779, it considers that “this case presents unique features that warrant a sentence of imprisonment which reflects his limited criminal responsibility and no more”. In para. 780 it states that “the present case is unique in its particulars and no real comparison can be drawn with other previous cases both in regard to the Accused’s very limited responsibility and the extraordinary circumstances in which he operated”. In the same paragraph The Trial Chamber speaks of the “uniquely limited criminal responsibility”.
There are many ways to interpret the Trial Chamber’s statements, but the result is the same. No further indictments would be issued, especially now that their superior got away with a couple of years.
In one instance, the Trial Chamber does seem to entertain the possibility of a joint criminal enterprise among the Bosnian Muslims, amazingly enough. However, its conclusion is predictable: “Of course, it could be argued that in order to prevent wanton destruction, the Accused should have simply not embarked on these attacks at all. This argument might have some validity if the Accused could have been fairly expected to forgo the attacks. However, given the circumstances in which the Bosnian Muslim population of Srebrenica found itself at the time, the Accused could not be fairly expected to refrain from taking action.” (para. 687)
In the tribunal’s view, then, the point was that the Serbs were so steeped in a joint criminal enterprise that the Muslims’ concerted actions could not even come close (para. 82 ff.). There cannot be more than one joint criminal enterprise in one conflict, the tribunal seems to think. Once the stigma of the joint criminal enterprise has stuck to the Serbs, the Muslims were free to do pretty much what they wanted with them. The Muslim actions could be dismissed as self-defense or reprisals.
Even if the general feeling in the Milosevic trial was that a crime could not justify another crime, it was probably that self-questioning attitude that allowed the prosecution to pin the blame on the Serbs. If the Serbs admitted that some Serbs had done something wrong, it was regarded as a sufficient proof that their opponents could not.
The individual criminal responsibility was of secondary importance. The whole objective of the prosecution’s strategy seems to have been to separate the sheep and the goats and send the goats into the eternal fire prepared for the devil and his angels.
So far we have supposed that the Serbs started the conflict and the Muslims had the right to retaliate. It would be interesting to know how the tribunal would have proceeded if the Muslims had started the conflict and the Serbs retaliated. Well, actually we don’t have to speculate on that. We see the result before our very eyes. The tribunal just sticks to it guns and insists that the Serbs started the conflict and dismisses the matter by rounding up the usual suspects, one of whom was not Oric.
Oric was the protagonist
A good story needs a protagonist and the antagonist. No prizes for guessing who the protagonist was in the Oric judgment. You do not question the protagonist’s motives. But is this a good story?
First of all, we realize that the judgment is about the treatment of Serb detainees in Srebrenica. What is a detainee? A detainee is a prisoner.
What did Naser Oric say about prisoners? We have General Morillon’s testimony of February 12, 2004:
“Naser Oric engaged in attacks during Orthodox holidays and destroyed villages, massacring all the inhabitants…Naser Oric was a warlord who reigned by terror in his area and over the population itself. I think that he realised that those were the rules of this horrific war, that he could not allow himself to take prisoners. According to my recollection, he didn’t even look for an excuse. It was simply a statement: One can’t be bothered with prisoners.”
If Oric admitted that he could not be bothered with prisoners, what did he mean? Under cross-examination from Tapuskovic, Morillon admitted that he met Nasir Oric on several occasions and that Oric “admitted killing Bosnian Serbs every night.”
If that is so, did the tribunal have any right to limit the Oric case to the treatment of a few Serb detainees, or prisoners, in Srebrenica? Oric said that one could not be bothered with prisoners. It is a war crime to refuse to take prisoners and to execute prisoners of war. In the June 8, 1977 Protocols to the Geneva Convention of August 12, 1949, it is stated: “It is prohibited to order that there shall be no survivors.” Under both the international and non-international protocols of 1977, the same prohibitions exist. Why didn’t Carla Del Ponte indict Oric for these obvious and blatant war crimes?
The tribunal mentions in para. 686 that “there is no evidence to establish that he was the kind of ‘approving spectator’ required to be held responsible for active participation under Article 7(1) of the Statute.” The “approving spectator” is an interesting choice of words, which brings to mind Bill Schiller’s article “Fearsome Muslim Warlord Eludes Bosnian Serb Forces” in Toronto Star of July 16, 1995. Bill Schiller described his visit to Oric’s headquarters in Srebrenica in 1994:
I met him in January, 1994…Oric, as blood-thirsty a warrior as ever crossed a battlefield, escaped Srebrenica before it fell…On a cold and snowy night, I sat in his living room watching a shocking video version of what might have been called Naser Oric’s Greatest Hits….There were burning houses, dead bodies, severed heads, and people fleeing….Oric grinned throughout, admiring his handiwork. “We ambushed them,” he said, when a number of dead bodies appeared on the screen. ..The next sequence of dead bodies had been done in by explosives: “We launched those guys to the moon,” he boasted. …When footage of a bullet-marked ghost town appeared without any visible bodies, Oric hastened to announce: “We killed 114 Serbs there.”…Later there were celebrations, with singers with wobbly voices chanting his praises…Lately, however, Oric increased his hit-and-run attacks at night. And in Mladic’s view, it was far too successful for a community that was supposed to be suppressed….The Serbs regard Oric…as a war criminal.
Maybe that shows how “approving” a spectator Oric was. Of course, all that took place after the fact. “So what?” his sympathizers might ask to deny the obvious. Oric wanted to see the exploits of his subordinates in gruesome detail afterwards on video. Is that against the law? Well, it might be argued that Oric’s role in the atrocities went far beyond just approving. But of course, the Trial Chamber takes the easy way out and chooses a friendly description by admitting that “he inspired hope and courage among the fighters” (para. 700).
However, there is evidence that Oric was more than an approving spectator at the time the atrocities were committed. The evidence comes from General Philippe Morillon, though not from his testimony in the Milosevic trial but from the hearing before the French National Assembly on January 25, 2001. Morillon was at Srebrenica and witnessed the mass burials of Bosnian Serb victims. He saw Oric’s atrocities first hand. Morillon described the corpses of Bosnian Serbs thrown in pits around Srebrenica. He told the committee:
“Naser Oric, who was the commander of the Bosnian armed forces in this enclave, admitted himself that he conducted a war from this enclave which provoked massacres of the Serb population in the surrounding villages. He had thus become public enemy number one for the Serbs, particularly after an action they have never wanted to forgive him and which took place on Orthodox Christmas night, the holy night, in January 1993 when he made raids into the Serb villages and committed massacres of the population. I have been taken to these places myself and I have seen the mass graves which were exhumed in the spring of 1993 when the Serbs retook the offensive in this region…There were decapitated heads. Naser Oric’s forces had committed unspeakable massacres in the surrounding villages.”
That suggests that Oric was involved in more than mere “wanton destruction” outside Srebrenica. It also suggests that Oric’s criminal responsibility was more direct than command responsibility. But even if Oric had been involved in nothing more than wanton destruction and his criminal responsibility had only been command responsibility, the lack of retroactive effect, which was the Trial Chamber’s trump card in para. 335, was not the magic wand that could purify Oric and expurgate his case.
Command responsibility does not end at every promotion
The presumption is fairly simple. Every time that Oric got a promotion and a new unit was put under his command, his subordinates changed. Since a superior was not responsible for people who were not his subordinates when the crimes were committed, Oric had no responsibility to punish those people.
Aside from the legal problems inherent in that reasoning, how many of these changes were really only cosmetic? On 17 April 1992, Oric became commander of the newly-established Territorial Defence (“TO”) of Poto?ari. On January 1, 1994, all the units under the command of Naser Oric adopted the name of “8th operations group of the Srebrenica headquarters of the ABIH” (Army of Bosnia and Herzegovina). In early 1995, the group was re-named the ABiH 2nd Corps 28th Division.
That information comes from the indictment. It is significant that the indictment speaks of the units being “re-named” and “adopting the name” as if to indicate that the changes were in name only. On the other hand, the indictment expanded the relevant period of culpability “from about September 1992 to August 1995” and “from about June 1992 to August 1995″ as if to indicate that demilitarization of Srebrenica did not automatically end Oric’s criminal responsibility. But if the prosecution was going anywhere with this, why did it not make more of the continuity of the core group under its many names? Even if the prosecution did choose to prosecute Oric only for the crimes that had been committed prior to demilitarization, should it not at least have tried to prove that the supposedly independent fighters were actually part of the multiform Bosnian troops?
That has a bearing on command responsibility, too. If the military formations changed in name only and Oric was their commander, as the indictment alleges, how much sense does it make to speak of Oric’s rise through the ranks? On the other hand, if the situation on the ground was as amorphous as the Trial Chamber concludes in its judgment, how much sense does it make to speak of ranks in the first place? Oric rose to the rank of brigadier, or general, in two years. The promotions are used by the tribunal as an excuse to stop his command responsibility in its tracks. The question could not be much simpler: how appropriate is it to separate command responsibility from other forms of criminal responsibility if all distinctions were as muddled as the Trial Chamber concludes?
Who started the conflict?
Another factual mistake was who started the conflict. Of course, that question is much more than factual. It determines the criminal culpability, though it arguably should not. In the tribunal’s practice, the party that started the conflict has no rights, whereas the other party can commit crimes with virtual impunity.
General Morillon testified in the Milosevic trial was convinced that the Muslim side started the conflict.
JUDGE ROBINSON: Are you saying, then, General, that what happened in 1995 was a direct reaction to what Naser Oric did to the Serbs two years before?
THE WITNESS: [Interpretation] Yes. Yes, Your Honour. I am convinced of that. This doesn’t mean to pardon or diminish the responsibility of the people who committed that crime, but I am convinced of that, yes.
Milosevic asked Morillon if he knew that the first person killed in the Bosnian civil war on March 2, 1992 was a Bosnian Serb, Nikola Gardovic. He was killed by Bosnian Muslim gunmen in front of the Old Serbian Orthodox Church in Sarajevo, which was built in the XIth century. Gardovic was participating in a Serbian wedding in downtown Sarajevo when he was killed. The wedding was an Orthodox wedding relying on Orthodox customs and rituals which included the Serbian flag.
Morillon replied that he remembered the murder: “Yes, the Serb in question, according to what I know, was killed during a wedding.” The murder was an ethnic and religious murder. Gardovic was killed solely because he was an ethnic Serb and because he was an Orthodox Christian. His brutal murder during a wedding ceremony was meant to demonstrate the Bosnian Muslim intolerance for ethnic Serbs and for the Orthodox religion. It was the spark that ignited an already volatile climate. The Bosnian Muslim faction had declared war against Serbs and Orthodoxy in Bosnia. According to Milosevic, the message that Bosnian Muslims wanted to send to Serbs was: “We came out in favor of independence, and now we can kill you.” Muslim paramilitary commanders emerged, such as Juka Prazina, a paramilitary commander under Alija Izetbegovic, and Ramiz Delalic.
Who started the ethnic and religious killings and massacres in Bosnia? The very first massacres in Bosnia were against Bosnian Serbs. On March 26, 1992, entire Serbian families were massacred in northern Bosnia near Bosanski Brod in the village of Sijekovac. From April 3rd to 6th, 1992, Croatian regular army troops, who had moved illegally across the border into Bosnia, massacred 56 Serbs. On April 4, 1992, armed Bosnian Muslims from Korace killed 117 Serbs, old men, women, and children, who were Serb refugees from Barice and Kostres. Tens if not hundreds of Serbs were killed before the war/conflict in Bosnia even started.
Morillon commented on these massacres of Serbs: “It contributed to the sickness of fear…” The Bosnian Serb fear was real and justified, however, by these events in Bosnia. The Bosnian Serb fear was not based on “nationalism” but on real ethnic and religious murders that the Bosnian Muslims and Croats were committing in the present, not in the past.
On April 8, 1992, spurred on by the US government, there was a declaration of war by the Bosnian Muslim faction. The civil war in Bosnia then started.
Milosevic asked Morillon: “Did the Serbs kill anyone in that period? Do you have a single example that you could mention?” Morillon said that he did not know. There were “rumours” at the time that he heard about. Morillon conceded, however, that the civil war started in Bosnia with attacks against the Yugoslav National Army (JNA) by the Bosnian Muslim faction.
Morillon did his best to see things from Izetbegovic’s viewpoint. He said that “Karadzic’s men” opened fire on a peace rally from the Sarajevo Holiday Inn hotel in April of 1992, thus starting the war in Bosnia. Even if Morillon was allowed to elaborate on the background of the events of 1995, he also had an opinion on who had started the Bosnian conflict.
In his testimony on February 17, 2003, Aleksandar Vasiljevic gave evidence that the fire on the peace rally from the Sarajevo Holiday Inn hotel was opened by the Muslims (as noted by Andy Wilcoxson). Vasiljevic explained in detail how the Green Berets fired on the rally from the school next to the Holiday Inn, and how they had video tape and the intercepted radio communications of the Green Berets to prove it.
Despite his caution, Morillon’s version was too much for some people. In a February 15, 2004 article in Vecernji List, a Croatian news magazine, it was noted that the Srebrenica association of Bosnian Muslim residents of Srebrenica planned to sue Morillon as “an accessory to genocide” because he testified in court that the capture or fall of Srebrenica was in reaction to Oric’s war crimes.
But Morillon was not the only one who knew about the extent and magnitude of the Oric’s atrocities. So did the Dutch UN peacekeeping contingent around Srebrenica. The Dutch UN commander in Srebrenica, Lt. Ton Karremans, warned that culpability should not be assigned to one faction: “The Muslims burned 192 villages in Eastern Bosnia. Therefore I am saying that in this war there are no ‘good guys’ and ‘bad guys’.” Just like Morillon, Karremans got a lot of heat for such outrageously unopinionated utterances as that.
Neither was Morillon the only witness in the Milosevic trial who pointed to the Muslim responsibility for starting the conflict. The following is the examination of witness B-1619 on December 17, 2003. Part of the exchange was referred to above, and in this case the accused had to recap what had been said before:
WITNESS: All the Serb villages were destroyed by Naser Oric’s 28th Division. Everything was torched, everybody was killed.
JUDGE MAY: This is all defence. And is it in any way suggested that that in some way justified these men being killed, as this witness has set out in his statement? Is that what’s being suggested?
THE ACCUSED: [Interpretation] No, of course it’s not justified by that. Heaven forbid. A crime cannot justify another crime. I am talking about a situation in which you see that this conflict started. It started by an ambush aimed against a JNA column. An enormous number of soldiers were killed, 45 of them, ambushed. After that, they torched everything all around them, and that’s how the conflict broke out. And now whether people were taken prisoner were killed, of course nobody can justify that. That’s a shame.
A lot of devastating evidence comes from the Milosevic trial. Might the prosecution have a conflict of interests in the two cases? Our suspicions are confirmed by Carla del Ponte’s “emotional” opening in the trial of the seven Bosnian Serbs on July 14, 2006 after she had attended the eleventh anniversary of the atrocities of Srebrenica.
Muslim joint criminal enterprise
In fact, it is a paradox that the Muslims have not been accused of a joint criminal enterprise. They certainly had the concomitant ideology, which translated into the aspiration to unite all Muslim territory. The ICTY completely ignored the Islamic Declaration by Izetbegovic which outlined a militant Islamic nationalism that envisioned a strident Islamic militancy and a Muslim State of Bosnia. The Declaration was republished in a 1990 edition in Sarajevo as a blueprint for the SDA Muslim Party, and it is available on the web in an English translation. The ICTY pretends that this book, which is a political platform of the Izetbegovic regime, does not exist. The book provides an ideology on Muslim ultra-nationalism and the goal to create a Greater Muslim Bosnia. Also, the Sandzak Muslims of Serbia regarded themselves as “Bosnians” and allied themselves with the Izetbegovic regime. According to the Milosevic trial testimony, Sandzak Muslim “volunteers” were fighting in Bosnia in Srebrenica and in other parts of Bosnia as part of the Bosnian Muslim Army. Clearly, if there was a Serbian ideology to unite all Serbian lands, there was a parallel Bosnian Muslim ideology to unite all Muslim territory. The ICTY just ignored this evidence. There was evidence that Sandzak Muslims were volunteers in Bosnia and that they were engaged in incidents in support of the Bosnian Muslim regime.
The conclusive evidence comes again from Morillon’s testimony. He acknowledged that Sandzak Muslim “volunteers” from Serbia/Yugoslavia were fighting in Bosnia in Srebrenica, clearly showing a parallel Greater Islamic State ideology at play:
Milosevic quoted from a report made by Morillon that noted that citizens of Yugoslavia were fighting in Bosnia: “members of the armed forces from Sandzak…many volunteers from Sandzak in the army of the Bosnian Muslims”.” Izetbegovic had deployed them to the Sarajevo airport and in Srebrenica.
Morillon testified: “We called them the Sandzaki. There were some units which, like militias, probably several hundred but not much more. They were essentially, the Sandzak[i] were deployed in the region of Srebrenica…Some Sandzakis…some Mujahedin, yes.”
Milosevic asked about foreign Mujahedeen “fundamentalists”, or “the so-called Mujahedin or the warriors of the jihad?” Morillon replied that they were active essentially in the region of Vitez. There was there practically a brigade.” Morillon stated that: “I saw them in action.” Mercenaries are covered under the 1977 Protocols to the Geneva Conventions and have no right to the classification of combatants or POWs under the 1977 Protocols to the Geneva Convention of August 12, 1949.
What about all those “independent” warlords?
If there is a gist to the judgment, it is the finding that all those petty Muslim warlords were acting independently of Oric and, since they were, Oric should not be punished for anything else than the indifference that he displayed in regard to the treatment of the detainees. In order for that trick to work, there must be some inherent quality to the word independence. It suggests that Oric had absolutely no control over his supposed competitors. However, footnote 1997 sees it differently: ‘Independent’ is used here to explain that the local groups could decide not to participate in an attack and that no sanction was available to force them to participate. That hardly exculpates the superior of any wrongdoings that the subordinates may have committed during the operation.
What about those so-called independent commanders? Were they as innocent as the judgment supposes? According to para. 421, Zulfo Tursunovi?, who sat on a white horse and was wearing an olive-drab uniform, prevented further beatings. If the color of his horse had been anything else than white, would it have been mentioned in this judgment? The “olive-drab uniform” might not have been mentioned either, if it had been any other color than olive-drab, which was clearly evocative of the olive branch that he held out to his subordinates.
Not only were those commanders independent of Oric, according to the judgment. They were not so bad, either. In which case the question is: why is it so extremely important to insist that they acted independently of Oric? In fact, the very emphasis on their independence seems so contrived that one gets the sense that their actions might well be worth looking into. Incidentally, that would not be the only thing worth looking into.
The judgment becomes a eulogy to stout freedom-fighters whose actions are not even worth looking into. Nurif Rizvanovic acted independently (para. 157, para. 160). He has not been indicted. Refik Hasanovic acted independently (ft. 394). He has not been indicted. Zulfo Tursunovic acted independentely (para. 165). He has not been indicted. Mirzet Halilovic (para. 162) has not been indicted. Hakija Meholjic (para. 167) has not been indicted. Erjub Golic (para. 169) has not been indicted.
The fact that the tribunal, or the prosecution, whose case it is, does not consider these persons worth investigating, is interesting enough. What is even more interesting is the fact that some of these persons were mentioned in the Yugoslav State Commission for War Crimes Report submitted to the UN Security Council in 1993. The document’s official name is Memorandum on War Crimes and Crimes and Genocide in Eastern Bosnia (Communes of Bratunac, Skelani and Srebrenica) committed against the Serbian Population from April 1992 to April 1993 The report has been discredited. Or actually, it has not even been discredited, it has just been completely forgotten. It is hard to remember what the reason for the neglect was. The Security Council admitted the memorandum as an official United Nations document and gave it UN id numbers A/46/171 and S/25635. It was dated 2 June 1993. Had the report not been forgotten, the Oric judgment might have been quite different in June 2006.
Some passages in the report would have had a direct bearing on the Oric trial. Since the report mentions some of the persons that were also identified in the judgment, the report cannot be dismissed as misinformation quite so easily.
According to the report, Hakija ([father’s name] Husein) Meholjic was from Srebrenica. He was a former police commander, but at the time he was commander of a larger military Moslem unit. Meholjic was a SDA activist. He commanded an attack on the village of Osredak on May 14, 1992, killing of four elderly persons, civilians. He organized the killing of Goran (Drago) Zekic, [Serbian] deputy to B&H Assembly on May 8, 1992. Killed: Vojislav and Nova Djuric, Krsto Petrovic, Raca Jevtic from Crni Vrh. Attack on Brezani on July 30, 1992 and the killing of 19 villagers.
The report also mentions Zulfo Tursunovic, who was from Suceska, commune of Srebrenica. He was one of the commanders of Moslem bands in this area. He was an ex-convict and a habitual offender. He was also convicted of murder. He was an organizer and leader of numerous attacks on Serb villages, among other, attacked and burned the villages of Osredak, on May 14, 1992, Zagoni July 5, 1992 and Kravica, January 7, 1993. He was guilty of torture of civilians in prison. He tortured and maltreated [woman] Ljubica Gagic who committed suicide in prison in Srebrenica. He is directly responsible for the killing of about 20 civilians in the mentioned villages.
The report also mentions Ejub (Mustafa) Golic, who was born in 1958. He was from Glogova, commune of Bratunac. He led actions on a number of villages in the commune of Bratunac and on those occasions committed a number of crimes. He slit the throat of the wounded and captured Marko Micic from Slapasnica on July 25, 1992. He looted the property of Ilija Mladjenovic from Magasici.
Other sources tell a similar tale. On November 6, 1992, Bosnian Muslim military units from Srebrenica attacked and captured the village of Kamenica in the Zvornik district, in which action Bosnian Serb soldiers were captured. When the troops of the Republika Srpska recaptured Kamenica in February, 1993, they discovered seven mass graves containing the bodies of 41 Bosnian Serb soldiers. The exhumed bodies were examined by pathologist Major Zoran Stankovic, who was able to establish that the arms and legs of the majority of the bodies had been broken and the heads had been smashed and cut off. Some of the bodies still had the wires, belts, and cables, with which they were tied up and tortured. Eight of the bodies were so badly mutilated that they could not be identified.
The sad thing is that people have heard all this but they still don’t seem to care. Never before has the line between moral outrage and boredom been so thin. It is chic to express one’s outrage at massacres committed by one side and even more chic to express one’s boredom when massacres committed by the other side are addressed. If so, these trendy people have just proved John Rawls wrong. There is no such thing as a veil of ignorance, neither could there be, and even if there were, it would have nothing to do with justice but some indeterminate opposite of justice, which would most probably have something to do with being accessory to genocide.
What the judgment does not say of Oric’s activities
The above similarities between the judgment and the report again raise the question why the tribunal does not indict the persons mentioned. A lot of valuable information can be gleaned from the facts the judgment does not even bother to mention. They shed light on what Oric was doing when he was not looking after the detainees in Srebrenica. The judgment does not bother to touch on some of Oric’s more distasteful activities: he could just as well been saving the rainforests.
According to the Yugoslav War Crimes Report, the village of Gniona was attacked on May 6, 1992. The attack or even the village is not mentioned in the judgment. That was the first burned down and razed Serb village in the commune of Srebrenica. The attack was made by Moslems from the neighbouring village of Potocari under the command of Naser Oric, the leader of Moslem fundamentalists from Srebrenica.
The attacks of July 5 and 12, 1992 on the village of Zagoni had especially tragic consequences when over 20 villagers were killed. The judgment does not mention Zagoni. Villagers from the surrounding Moslem villages took part in the attack on Zagoni and the following were identified: Muriz Muratovic, Meho Oric, Idriz Muratovic, the son of Nurija Muratovic nicknamed “Spica”, Zulfo Tursunovic; an ex-convict, convicted of murder and now one of the commanders, Ramo Babajic, etc.
In Zalazje, a hamlet in the immediate vicinity of Srebrenica, 39 persons were killed in the attack on July 12, 1992. The judgment does not mention Zalazje. The attack was carried out by Moslem paramilitary formations and territorial defence units under the command of Naser Oric. The other identified participants were Zulfo Tursunovic, Akif Ustic, Hakija Meholjic.
And the report is not finished yet. It says that Naser Oric, commander of Moslem units in this area, was the organizer and participant in the attacks on most Serb villages: Gniona May 6, 1992, Osvedak May 14; Pajici and Hranca July 25, 1992. He was directly responsible for massacres and torture of prisoners. The ICTY judgment mentions none of those villages.
In face of the mountain of names and places, footnote 453 of the judgment admits that there were very many fighting groups. “The Trial Chamber does not seek to provide an exhaustive list of all the groups fighting independently in the area.”
Were the Serbs just making these things up? The report mentions that Marko Slijepcevic and Miladin Vukadinovic witnessed the destruction of Gniona by Oric. Velisav Vasic witnessed the destruction of Zalazje. If the prosecution had had the slightest intention to get serious about prosecuting Oric, it would have tried to find those witnesses. It did not. That was its golden opportunity to find out if the Serb allegations were misinformation or not.
Obviously, the prosecution had its reasons not to seize that opportunity. In all fairness, it is not always possible for the ICTY to gather incriminating evidence even if it wanted to. That was demonstrated by the violent outburst of the Kosovo Albanians in May 2006 when they found out there were two Serbs in the tribunal’s investigating team. It is more likely, however, that the prosecution had heard more than its share of bothersome evidence from the likes of Morillon and did not care to hear the same story from Marko Slijepcevic and Miladin Vukadinovic.
There would be more incriminating facts, but the indictment only deals with crimes committed during the period from 1992 to 1993. The period until August 1995, which he when Oric left the Bosnian Army, is only applied to the knowledge that Oric had of the crimes committed by his subordinates.
However, even within that time window, perhaps one incident is more telling than all the others. Oric’s forces assassinated Bosnian Serb Goran Zekic of the SDS party in Srebrenica on May 8, 1992 when Bosnian Muslim forces under Oric took Srebrenica. Zekic was shot in the head. Clearly Bosnian Muslim forces were the attackers in Srebrenica, not the Bosnian Serbs. In that light, perhaps the most flagrant non sequitur in the judgment is the last sentence of para. 744: “[T]here is no evidence of active abuse of authority on the part of the Accused”.
There was a time, not so long ago, when Ed Wood’s Plan 9 from Outer Space headed the list of the worst movies of all time. The following sample dialogue was supposed to give an idea how awful it was: “One thing’s sure, Inspector Clay’s dead. Murdered. And somebody’s responsible.” Today, that dialogue hits us like a revelation. When we find piles of bodies, it is possible, no, it is sure, that they are dead, and if they are dead it is possible they have been murdered. If they have been murdered, we know that somebody’s responsible. Maybe the reason for the prosecution’s willful blindness is the fact that murder is listed under crimes against humanity in the ICTY Statute and, if it knows who is responsible, that may not be the route it wants to take. If there ever was a case of the blind leading the blind, this is it. The Trial Chamber explained in para. 759 why it was so gentle with Oric: because of the lack of prior violent criminal acts and criminal history. It may be that Goran Zekic was not murdered by Naser Oric and his men but, in that case, one should at least pretend to want to find out who killed him. The Yugoslav War Crimes Report stated that the killing was organized by Hakija Meholjic, but he has not been indicted by the tribunal.
Circumstances prevailing in Srebrenica
The judgment has emphasized how important it is to get an idea of the extent of the destruction and desolation, and it takes those circumstances into account insofar as it is in Oric’s interests. It is entirely possible to turn the tables on Oric and the tribunal, however.
The NIOD report of the Dutch government addressed the Kravica massacre. It mentioned that at least a thousand Serb civilians lost their lives.
“After more than half a year of sallies, thirty Serb villages and seventy hamlets had fallen into Muslim hands and there were only a few places left that were Serb, among them Bratunac. Kravica was one of the last to fall into Muslim hands, on Orthodox Christmas (7 January 1993). There were at least a thousand Serb civilian casualties in all. Consequently, it is understandable that the Serbs saw the situation around Srebrenica as a war of aggression by the Muslims. They felt more and more threatened; many people had lost family or friends; and the humiliation and bitterness experienced as a result of the Muslim attacks was great. Most Serbs sought revenge if the opportunity presented itself.”
The NIOD report has been dismissed as pure conjecture and gratuitous fiction, but it is not the only report to that effect. The Report of the Secretary-General pursuant to General Assembly Resolution 53/35 (1998) – termed the Srebrenica report – conceded that Naser Oric’s forces “used techniques of ethnic cleansing” in burning Serbian villages and terrorizing Serbian civilians to flee. It was also conceded that they “apparently tortured and mutilated” Bosnian Serb civilians and soldiers. The Report also acknowledged that “Serb sources claim that over 1,300 people were killed” in the Srebrenica area by Naser Oric’s forces based in Srebrenica. It further acknowledged that the Bosnian Muslims had the 28th Division in Srebrenica, made up of 3,000 to 4,000 Bosnian Muslim soldiers.
Dr Patrick Barriot reconfirmed the story in the Milosevic trial in 2005. In his testimony on January 12, 2005, Patrick Barriot gave evidence that Naser Oric’s militia killed 1.500 to 2.000 people in the area. He reminded of the Kravica village massacre during the Orthodox Christmas in 1993 and said that everybody remembered Kravica.
The Trial Chamber has not forgotten about Kravica, but it adds a twist. It mentions in para. 671:
The evidence is unclear as to the number of houses destroyed by Bosnian Muslims as opposed to those destroyed by Bosnian Serbs. In light of this uncertainty, the Trial Chamber concludes that the destruction of property in Kravica between 7 and 8 December 1992 does not fulfil the elements of wanton destruction of cities, towns or villages not justified by military necessity
The Trial Chamber is not making much sense here. It does not deny that a certain number of houses were destroyed by the Muslims in Kravica. What does it matter if it does not know the exact numbers? If somebody had said that the Muslims under Oric’s command destroyed ten houses and somebody else had said they destroyed twenty, the Trial Chamber could have decided the Muslims destroyed ten houses. That would have been fair enough. However, it cannot do what it just did. It cannot reason that since it is so devilishly tricky to determine how many houses were burned by each side, let’s give the kid the benefit of the doubt and say that he and his men burned none, OK? It is hard to believe that the Serbs had destroyed the Serbian Orthodox church hall on Orthodox Christmas. It is also unlikely that the Serb houses were burned down by the Serbs themselves, which might have been a valuable lead for anyone interested in pursuing the matter further.
The tribunal performs this logical handspring, because the charges of wanton destruction are much more damaging to Oric than the charges concerning murder and cruel treatment. Murder and cruel treatment could be traced back to Oric only by way of command responsibility. The accusations of wanton destruction stick to Oric personally because the indictment evokes not only Art. 7(3) of the Statute but also Art. 7(1) of the Statute. That means that Oric participated in the wanton destruction personally.
There is also a black and white photo of Naser Oric in front of the Serbian Orthodox church and hall in Kravica in 1993 with his troops. They all have military fatigues and they all have AK-47s and sophisticated weapons. Obviously these were military forces under the leadership of Oric in an action he commanded.
As far as the Kravica massacre is concerned, the Trial Chamber let Oric off the hook easily. That was to be expected. The judgment does not even bother to mention other famous attacks, such as Milici and Skelani, except in passing. Milici was a famous atrocity. That attack was out of Srebrenica under Oric. It is difficult to describe the mayhem in scholarly fashion and in “objective” terms, in other words, inoffensively enough, but the short end of it was that one victim had his forehead cut out with an axe, another was circumcised, some had their skulls bashed in, brain extracted, roasted and burned, had their throats slit, bodies mutilated, etc. It is easy to understand why “misinformation” is the term of choice when descriptions of scenes like this are to be countered.
To get rid of such extremely damaging evidence, the Trial Chamber not only does the numbers game with the burned houses. It also adheres to very strict evidentiary rules which would not have been out of place in the O.J. Simpson trial in the U.S. The evidentiary rules are discussed at great length at the beginning of the judgment. They must have been tailored with a view to refuting the impending evidence. The photo alone raises too many questions and makes a mockery of the Trial Chamber’s insistence that the Muslim troops were uncoordinated.
One does not have to look further than the ICTY indictment of Naser Oric, however, to get an idea of how coordinated the Muslim military formations in the Srebrenica area actually were. The indictment lists the following military formations in the Srebrenica area: Company Srebrenica from Independent Battalion Srebrenica, Brigade Potocari, Brigade Suceska, Brigade “3 Maj” Kragljivoda, Independent Battalion Osmace, Company Pusmulici of the Srebrenica Independent Battalion, Independent Battalion Skenderovici, 114th East Bosnian Brigade, Independent Battalion Voljavica, Independent Battalion Biljeg, 1st Cerani Detachment, Company Kazani from Independent Battalion Srebrenica, Independent Battalion “5 Juli” Tokoljaci, 6th Detachment Kamenica, and Company Stari Grad.
The judgment, on the other hand, becomes almost like an extended wordplay on the word independent. Yes, the indictment speaks of Independent Battalion Srebrenica, Independent Battalion Osmace, etc. Yes, the word “independent” occurs many times, but how much “independence” is one allowed to read into the word “independent”? The judgment comes close to admitting in footnote 1997 that the conclusion it jumps into is not really supported by the meaning of the word “independent,” and when all the independent battalions are listed like that, it is easy to see that indeed it is not.
The Bosnian Muslims were organized in military formations and were equipped with AK-47 assault rifles, machine guns, grenades, grenade launchers, mortars, artillery, anti-tank missiles, and even tanks. Helicopters were used to transport arms and personnel from Tuzla, as the Muslim command admitted.
It is not always easy to tell which events took place before and after the supposed demilitarization of Srebrenica in April 1993. The indictment and the judgment deal with crimes that were committed before the demilitarization. Is that a good enough reason not to look into the events that took place after the demilitarization? If we were foolhardy enough to do so, any military activity in the enclave after the demilitarization would make the Bosnian Muslim activities look suspect, whether they took place before or after the demilitarization. Instead of “bracketing” the period following the demilitarization, the prosecution might have concluded that any military activity after the demilitarization, let alone any war crimes that may have been committed during that period, opened up a whole new line of questions. If one pursues the matter further, one has to reckon with the possibility that the prosecution knew what it was doing, so to speak, by ignoring the crimes committed after April 1993.
In the wake of the proclamation of Srebrenica as a safe area by the UN Security Council on 16 April 1993, the area was officially demilitarized. The indictment does not cover the period after the demilitarization of Srebrenica in April 1993, although that does not prevent the Trial Chamber from talking about the period following the demilitarization extensively. For instance, the judgment explains in footnote 470: “Because the crimes charged in the Indictment are alleged to have occurred between June 1992 and March 1993, the Trial Chamber limits its examination of the evidence presented with regard to military authority in Srebrenica after demilitarisation in April 1993 to what is strictly necessary to the assessment of the Accused’s duty to punish these crimes under Article 7(3) of the Statute.”
What it fails to mention, however, is that the demilitarization of Srebrenica was a dead letter and therefore April 1993 is an arbitrary date. The testimony of Enver Hadzihasanovic on April 5, 2001 in the Krstic trial showed the Bosnian Muslim army had a division in Srebrenica, the 28th Division after demilitarization:
WITNESS HADZIHASANOVIC: My name is Enver Hadzihasanovic, and I’m a retired army General… I am a General of the federation of Bosnia and Herzegovina, retired, a retired General.
Judge Rodrigues: [Interpretation] Before we proceed with your testimony, properly speaking, let me first of all thank you on behalf of the Chamber for having responded to the summons we issued for you, and for having accepted to place yourself at our disposal by appearing before the Chamber in this case. Thank you very much for the very detailed letter that you addressed to the Chamber with a number of attachments. …General, please proceed.
General Enver Hadzihasanovic: Just to confirm, the documents that I’m going to comment on are the product of the original documents. They are taken from the original documents that went to Srebrenica. According to those documents, the 28th Division in Srebrenica should have had, in total, 5.685 men. That is the total, and it is shown here at the bottom of this column. In actual fact, in Srebrenica it had 5.803 men, and the percentage was 102 per cent, which can be seen down here.
On this part of the diagram, you see the structure and organisation of the 28th Division itself in Srebrenica, without the brigade from Zepa. The request by the General Staff of the army was that each unit should have 110-per-cent manpower, a strength of 110 per cent.
The “Safe heaven” of Srebrenica after being “demilitarized” had 5,803 armed Muslims equipped with these weapons:
Pistols – 62.
Automatic rifles – 1.947
Sniper rifles – 13
Submachine-guns – 27
Machine-guns – 15
Mortars, 60-millimetre ones – 12.
82-millimetre mortars – 5
Hand grenades, hand launchers, 16 – 9
Recoilless guns, 82 millimetres – 4.
Hand-held rocket launchers of the Zolja type – 68
Anti-armour Osa-type launchers – one
Light launcher of the Fagot type, 9-K-11-F, – one
Anti-missile rockets – one
Anti-aircraft guns of the 20-millimetre type, one barrel – 4.
The testimony of General Halilovic of April 5, 2001 in the Krstic trial also shows that the Muslim command used helicopters. It shows that 8 helicopters full of weapons were sent from Tuzla to Srebrenica by the Bosnian Muslim military command in violation of the UN No Fly Zone and the demilitarized status of the area:
Council Petrusic to General Halilovic: General, you are familiar with the decision of the United Nations which had a no-fly zone envisaged.
Muslim General, Sefer Halilovic: Yes, yes, certainly. Flights were prohibited for military purposes, but… It was medical material that was transported more [sic!] than combat equipment.
Council Petrusic: General,… I’m talking to you about aircraft of the army of Bosnia-Herzegovina or aircraft of the civilian authorities of Bosnia-Herzegovina without the approval of the United Nations. Was that a violation of the resolution?
General Halilovic: Partially yes, because we were transported — transporting food and medicaments mostly, but partially, yes.
Council Petrusic: Is it a violation if ammunition were transported by means of those aircraft and helicopters? Will you answer that question, please, with a yes or no.
General Halilovic: In view of the fact that we were under an embargo and our hands were tied, I think not. Morally, no; legally, one could discuss it.
Council Petrusic: Naser Oric, General, says in this newspaper [Muslim controlled] Oslobodenje, an interview that you attended as did Mr. Mahmut Cehajic, that [Muslim General] Sefer sent six helicopters with ammunition. Is that correct, General?
General Halilovic: It is not correct. It is correct that I sent eight helicopters with ammunition, and if I could have, I would have sent 180.
Council Petrusic: General, you were violating the provisions of the United Nations resolution.
General Halilovic: The legal norms of the United Nations also guarantee the right to defence.
The testimony shows coordination and a hierarchical command structure for Srebrenica. There was command and control and coordination from the top. Investigating the crimes committed before the demilitarization was a good start, but if the prosecution had been consistent, it should not have closed its eyes to what happened in Srebrenica after the demilitarization. Looking the other way was the very thing Oric was sentenced for. Sure, it would have meant more work for the prosecution, but why would it not have been able to think “outside the box” and add a few new charges to the six it had already come up with, two of which were withdrawn, if it had been able to think of no fewer than 66 charges in its case against Milosevic?
It has been observed that the Oric indictment did not mention genocide, as if the prosecution had come up with every possible accusation it could think of. And that brings us to the ultimate question: Why no genocide charges? The report submitted by Yugoslavia to the Security Council in 1993 was called Memorandum on War Crimes and Crimes and Genocide in Eastern Bosnia. The victims mentioned in the judgment and the indictment are invariably identified as Serbs, and there is little reason to doubt that the murder and cruel treatment was based on their ethnicity. The judgment even concedes as much but does so in the typical topsy-turvy fashion by pointing to a number of instances where the treatment of the Serbs was motivated by the cruel treatment the Muslims had suffered in the hands of the Serbs. If such instances could be shown to be part of a large-scale ethnically based operation outside Srebrenica, the Oric judgment might have transmuted into some serious business.
Genocide does not require big numbers. In particular, it would be very hard to imagine how numbers could be used to gauge the gravity of an attempt to commit genocide, which is punishable according to Art. 43(d) of the Statute. The Genocide Convention defines genocide as any act committed with the intent to destroy an ethnic group, in whole or in part, including killing members of the group, causing serious harm to the group, inflicting on the group living conditions calculated to bring about its physical destruction, imposing measures intended to prevent births within the group, or forcibly transferring children of the group to another group. Attacks against the life, liberty and property of a group are deemed to be genocide when part of a conspiracy to destroy a national, ethnic, or religious group. The criminal intent to kill or destroy all members of a group shows premeditation, deliberation, and a state of systematic criminality. Under these criteria, why wasn’t Naser Oric charged with crimes against humanity and genocide for his systematic and planned murders of Serbian civilians and the burning of at least 50 Serbian villages?
The only, though indirect, reference to the genocide of the Serbs appears in para. 79 of the judgment. It does not relate to the possibility that Oric might have committed genocide. Instead, it dwells on the events during the Second World War: “On the social level, memories from the Second World War, when Serbs in particular had suffered at the hands of the other two ethnic groups, contributed to the escalating tensions in which the future of the SFRY was discussed.”
The problem is: Srebrenica was an Ustasha-occupied area in World War II where Bosnian Muslims and Croats massacred many Serbs. Naser Oric’s grandfather was an Ustasha who participated in the mass murder of Serbs, as Chuck Sudetic explains in his book Blood and Vengeance. It was this repeat of history that made Oric’s atrocities even worse than they actually were. Many Serbs still remembered the Ustasha massacres from 1941-45. And Oric’s massacres were highly provocative, right there on the border with Serbia on the Drina River.
Of course, the son does not have to bear the punishment for his father’s sins. That is not the point. When the evidence is pieced together, we see a pattern emerge. Oric’s actions were calculated to bring about the maximum provocative impact among the Serbs. He must have had a reason for provoking the Serbs like that. But that’s another story.
Montesquieu was quoted in the course of the Milosevic trial: “There is no crueler tyranny than one perpetrated under the shield of law, and in the name of justice.” The point was that the current tendency to put an end to an armed conflict with a judicial judgment is a paradox.
This judgment is not so much about Oric. Oric is the proverbial tip of the iceberg. The real portent of the case is to define the historical underpinnings of each case. The “siege of Sarajevo” was initially the major focus of the Bosnian war as were Omarska and Prijedor. But in 1995, Srebrenica became the “defining” image and event of the war.
The tribunal might want to be thought of as a neutral arbiter of events, but when it is stretching its judicial activities to dictating how history should be written, it is out of its league. Yes, we know that the wars in the Balkans did not end happily for the Serbs, but why does the verdict of history have to be reinforced with a judicial decision?
Nobody has captured the moral ambiguity of victory better than E.L. Doctorow in his novel The March. Doctorow describes what went on in General Sherman’s head after he had won the American Civil War:
There was this about the end of a war, that once the cheering was over, you were of two minds. Yes, your cause was just. Yes, you could drink your flagon of pride. But victory was a shadowed, ambiguous thing. I will go on wondering about my actions. Whereas General Johnston and his colleagues of the unjust cause, now embittered and awash in defeat, will have sublimed to a righteously aggrieved state that would empower them for a century.
In those days, the unjust cause lost and the just cause won. Today, the activities of international judicial bodies complicate things and, yet, Doctorow’s observations are truer today than ever before. Why does the just cause need a court approval for its victory? Since justice is supposed to be blind, why are the winner’s wrongdoings not investigated or, if they are, only grudgingly? Can the blindness be selective and still be just?
The moral ambiguity is compounded by the questionable practices we witness on a regular basis in the ICTY. After the recent events at the tribunal, like the death of Milosevic and the Oric trial, there is little doubt that the tribunal is not a disinterested observer. In fact, the tribunal has portrayed itself as a force to be reckoned with from the beginning. If there is to be a verdict of history, the tribunal is one of the suspects.
In spite of the much-publicized individual criminal responsibility of the accused, it is not only the individual who is put on trial but also the ethnic group that he or she represents, and some basic requirements of a fair trial, like the presumption of innocence, depend on it. That contradiction alone is enough to raise the unjustly treated to “a righteously aggrieved state that will empower them for a century”. Just don’t hold your breath.