The Milosevic Trial: The Final Service of the Tribunal as a Political and Propaganda Arm of NATO – by Edward S. Herman
Part 1: The Tribunal and Its Record
The International Criminal Tribunal for the Former Yugoslavia (ICTY, or Tribunal) was created in 1993 by the major NATO powers,
notably the United States and Germany, to go after Serbian leaders and personnel, as part of the buildup to a war against Serbia and the remnant Yugoslavia. With an extremely clear public relations and political role in support of NATO policy, the Tribunal has been “international” or “independent” only in a Pickwickian sense. Its abuses of the principles of Western jurisprudence have been spectacular from its beginning to today. It represents an egregious case of the powerful using a nominal cover of law to help attack and dismantle a small country; a case of what Diana Johnstone, referring to the Tribunal’s work from 1993-1998, calls “FUTURE victors’ justice.” Since the NATO war and subsequent political conquest of Yugoslavia, and with the current trial of Milosevic, we have a more familiar case of straightforward “victor’s justice.”
This hugely politicized operation has nonetheless been an outstanding public relations success for the NATO powers. This is because the Western media, and especially the U.S. media, have treated it uncritically, and allowed NATO to get away with murder, both figuratively and literally. The familiar demonization-of-the-enemy process, the allegations of “genocide,” the intense focus on selected victims, context stripping, and institutionalized myths, have allowed NATO to appear a humanitarian instrument and have made for an intellectual and moral environment in which fine points, even gross points, of judicial bias and injustice are of little account.
In this article I will review some major features of the history of the Tribunal that demonstrate its political role, extreme bias, and systematic violation of elementary rules of jurisprudence. I will show that there are striking similarities between this prosecutor-dominated Tribunal and the Moscow treason trials of the 1930s. In Part 2 I will describe how the media–and the New Humanitarian intellectuals who readily access the media–have ignored these inconvenient facts, instead following the lead of the Tribunal prosecutors and NATO officials, while blacking out all relevant critical context. In Part 3 I will analyse the institutionalized untruths that are Tribunal premises, and which pervade the media, from In These Times and The Nation to the New York Times, Washington Post, and CNN and network TV.
One important consequence of the media’s performance is its incompatability with a fair trial of Milosevic in the Hague. By prejudging the case in a biased, ignorant, and highly emotional way, thereby mobilizing public anger and hatred at the man on trial, the media create a set of understandings and expectations that would make a verdict of not guilty seem outrageous. This pattern is familiar: the Sacco-Vanzetti case, the Rosenbergs, and the many examples of mobilization against “another Hitler” abroad targeted by U.S. policy–Manuel Noriega, Saddam Hussein, Osama bin Laden, Kadaffi for alleged Libyan participation in the Lockerbie bombing, the “evil empire” for allegedly arranging for the 1981 shooting of the Pope. The media speedily find the official truth self-evident, ignore or marginalize inconvenient facts and analyses, and thereby facilitate official policy actions, just as
in a totalitarian state.
In the Milosevic case, however, the outcome is already assured by the purpose, personnel, and structure of the Tribunal, given that a guilty verdict is essential in justifying the U.S. and NATO war and conquest of Yugoslavia. It will be the final and most important propaganda service that the Tribunal carries out for its organizers, funders, and controllers, as will be made clear below. But the media role remains very important in concealing from the public the gross abuses of the Tribunal and its service as a political and propaganda agent of the United States and NATO. This concealment will help make future “humanitarian interventions” and “wars on terrorism” more palatable, having shown that the war against Yugoslavia had a moral basis, stopping yet another Hitler.
Some Tribunal Context
1. Mother and Father, Albright and Kinkel, Define Its Purpose. The original drive for the Tribunal was led by German foreign minister Klaus Kinkel, who pushed for it as early as August 1992, and quite explicitly wanted it to prosecute the Serbs for “genocide.” His role in initiating the Tribunal led its first president, Antonio Cassese, to refer to Kinkel as “the father of the tribunal.”
Gabrielle Kirk McDonald, Cassese’s successor as president, noting that Madeleine Albright had “worked with unceasing resolve to establish the Tribunal,” referred to her as “mother of the Tribunal.” The man who wrote the Tribunal’s Statute for Albright,
Michael Scharf, spoke frankly about its political purpose: The Tribunal was “widely perceived within the government as little more than a public relations device and …useful policy tool….Indictments…would serve to isolate offending leaders diplomatically…and fortify the international political will to employ economic sanctions or use force.” (WP, Oct. 3, 1999). Note the proposed role of indictments, which would serve political ends prior to a trial and verdict, in contradiction to Western principles of jurisprudence.
2. Dubious Legality. The Security Council had no legal basis under the UN Charter for establishing a judicial body, but it ignored that nicety, claiming that Chapter VII, which granted it the right to “take measures” and “establish subsidiary bodies” in the interest of maintaining “peace and security,” gave it that authority. This legal trick circumvented the need to get non-NATO countries to accept the new judicial body, and it has the advantage that all countries are obliged to accept enforcement actions taken under Chapter VII. The argument was made that the Tribunal’s actions taken on the basis of this judicial authority would “deter” evil men and prevent war, but not only is this claim simple-minded, the record shows that the Tribunal facilitated NATO’s pursuit of war.
3. Funding and Personnel. Although Article 32 of the Tribunal’s charter says that Tribunal expenses should be provided from the general budget of the UN, this proviso has been violated continuously, and the Tribunal has had to depend on U.S. and other governmental funding, the solicitation of George Soros and other interested private donors, and “seconded” personnel from (mainly) the NATO powers. In 1994-1995, the United States provided the Tribunal with $700,000 in cash, $2.3 million in equipment, and many seconded personnel, while failing to meet its legal funding obligations to the UN.
This funding dependency not only makes for external control, it also permits the funders to direct Tribunal operations in ways that suit their immediate political aims. Thus, for example, the Clinton administration found $27 million during the bombing war to enable the Tribunal to collect data on Serb war crimes from Albanian refugees. (Gilbert Guillaume, President of the International Court of Justice [ICJ], speaking on October 26, 2000 before the UN General Assembly, noted that the ICTY gets ten times as much money as the ICJ, and he suggested that this was because various parties engage in “forum shopping,” or even create new forums, that will be “more amenable to their arguments.” He suggested that it was not compatible with good judicial practice that courts should be “made subject to the law of the marketplace.”)
A large fraction of the personnel of the Tribunal are from the NATO states, and many of these come from the United States and Britain; in mid-1996, 23 of the 52 “seconded” staff came from the U.S. Departments of State, Defense and Justice. Top choices of Tribunal officials are vetted by leaders of the dominant states. Those who serve well, like former prosecutor Louise Arbour, are rewarded for this service (she was quickly selected to be a Justice of the Canadian Supreme Court). Others merely return to former jobs that should, in fact, have disqualified them from Tribunal service: Gabrielle Kirk McDonald, former president of the Tribunal, had been a director, and has returned as “Special Counsel to the Chairman on Human Rights,” of Freeport-McMoRan Copper & Gold Inc., a notorious human rights violator working in West Papua with the cooperation of the Indonesian army.
When Milosevic was indicted in May 1999, Dr. Hans Koechler, president of the International Progress Organization (an NGO),
noted that all high officers of the Tribunal were citizens of the NATO states or their allies (Australia). He asked whether an institution that observed legal norms of impartiality would not have found a “conflict of interest for ‘judges’ from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating ‘judicial’ action against the head of state of the country under attack?”
4. Contractual Relations With NATO. On May 9, 1996, the Tribunal’s prosecutors signed a memo of understanding with NATO that made it the official Tribunal gendarme. However, Article 16 of the Tribunal’s charter states that the prosecutor shall act independently and shall not seek or receive instruction from any government. But the prosecutor cannot act independently if dependent on specific governments for financing, personnel, and police service. And the Tribunal’s prosecutors have not acted independently, as described below.
During the bombing, NATO public relations spokesman Jamie Shea was asked about NATO’s vulnerability to Tribunal charges. He was not worried. The prosecutor, he said, will start her investigation “because we will allow her to.” Further, “NATO countries are those that have provided the finance,” and on the need to build a second chamber “so that prosecutions can be speeded up…we and the Tribunal are all one on this, we want to see war criminals brought to justice.” And when Arbour “looks at the facts she will be indicting people of Yugoslav nationality and I don’t anticipate any others at this stage” (NATO press conference, May 17, 1999).
5. Explicit Service to NATO. A major service to NATO took place at the time of the Racak “massacre” in January 1999. Albright and her associates were then readying NATO and the public for a war against Yugoslavia, and needed public relations support. When it was reported that Kosovo Albanians had been killed at Racak, U.S. official William Walker rushed to the scene and declared it an “unspeakable atrocity.” On the very next day Tribunal prosecutor Louise Arbour declared at a press conference that she was opening an investigation into this crime. Within four days, having consulted only NATO officials, she declared this to be a “war crime.” This declaration helped publicize the alleged crime, and although the facts in the case were and remain in dispute, and the forensic report on the massacre remains unreleased by the OSCE, this massacre was listed in the May 22, 1999 indictment of Milosevic and his colleagues.
Then, on March 31, 1999, one week after NATO bombing began, Arbour announced the indictment of Serb paramilitary leader Arkan for crimes committed in Bosnia, which she had prepared two years before but had kept secret until NATO needed public relations cover for its bombing.
The most dramatic Tribunal service to NATO took place two months later. NATO had found that the Serbs were not surrendering to air attacks on their military forces, so NATO therefore turned to attacking the civil society, hitting bridges, factories, electric power and water facilities, and even schools and hospitals. These attacks were clear violations of international law–the Sixth Nuremberg Principle bars targeting “not justified by military necessity”–and were causing a certain stir of opposition even in the NATO countries. With perfect timing, on May 27th Arbour announced the indictment of Milosevic, based on data about alleged Serb killings provided by U.S. intelligence but otherwise unconfirmed. This enabled Albright to note that the indictments “make clear to the world and the publics in our countries that this [NATO policy] is justified” (May 27, 1999), facilitating further bombing–and further NATO violations of international law!
At the same time Arbour explained that, while individuals are “entitled to the presumption of innocence until convicted,” the indictments “raise serious questions about their suitability to be guarantors of any deal, let alone a peace agreement.” The
prosecutor thus took on the role of “surrogate politician” (Koechler), announcing her own political determination that Milosevic was to be ruled out as a negotiator! On many other occasions, indictments were used by the Tribunal to criminalize and effectively remove individuals from the negotiating process. Milosevic had to depend on the Russians to negotiate on Yugoslavia’s behalf to end the bombing war, and Bosnian Serb leaders Karadzic and Mladic were also removed from any diplomatic process in Bosnia by indictments. By this route, also, all were effectively demonized before trial and conviction, and any NATO violence was justified in the public relation/media forum by Tribunal indictments.
6. Exemption of NATO War Crimes. NATO had conveniently excluded from the war crimes subject to Tribunal jurisdiction what Robert Jackson at the Nuremberg trials declared to be the worst crime: waging a war of aggression. NATO could therefore attack Yugoslavia in violation of the UN Charter without thereby automatically committing a crime subject to Tribunal authority. Nevertheless, Article 5 of the Tribunal’s charter did make illegal “crimes against humanity,” which includes “murder” and “other inhumane acts;” and Article 3 includes “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering,” and “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings,” etc. Articles 1 and 16 of the Tribunal’s governing statute oblige it to prosecute any such illegal actions.
How Arbour and Del Ponte wriggled out of even INVESTIGATING NATO’s war crimes, and the contrast with their rapid service for NATO, is amusing in the grossness of the difference between the two. Canadian law professor Michael Mandel describes how in May 1999 he and a group of lawyers from North and South America filed a well documented war crimes complaint against 68 NATO leaders, and traveled to the Hague to make the case to Arbour and her successor Carla Del Ponte; and “like literally thousands around the world, we demanded that Arbour and Del Ponte enforce the law against NATO” (“Politics And Human Rights In The International Criminal Tribunal For The Former Yugoslavia: Our Case Against NATO And The Lessons To Be Learned From It,” Fordham International Law Journal 25: 95-128 ). He eventually gave up when it became clear “that the tribunal was a hoax.” It took Del Ponte more than a year to announce, on June 2, 2000, that NATO was guilty of no crimes, “and that (rather illogically) she was not opening an investigation into whether they had committed any” (ibid.). At that point she released a report of her Office of the Prosecutor (OTP), openly based on the belief that “NATO and NATO countries’ press statements are generally reliable and that explanations have been honestly given” (Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign…, U.N Doc. PR/P.I.S./510-E , available at http://www.un.org/icty/pressreal/nato061300.htm [hereafter OTP]). The OTP noted however, that NATO sometimes refused to answer (“failed to address the specific incidents”); in which case, NATO not wanting an investigation, the OTP chose to not look any further and simply dropped the subject! How is that for an independent judicial assessment?
In the indictment of Milosevic, Arbour used evidence about events that took place only six weeks earlier from a war zone, provided by an interested party (NATO). But neither she nor Del Ponte could even “open an investigation” on NATO, after a year, with
overwhelming evidence in the public domain on NATO actions that had killed many more than the numbers presented in the initial
Milosevic indictment. That indictment and charge of “crimes against humanity” was based on an alleged 385 killings; but the OTP report found that 500 deaths attributable to NATO were too few to rate–“there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity”! (Ibid., #53.)
In examining possible NATO war crimes, time after time the OTP would consider the evidence and then choose an interpretation favorable to NATO, as in the bombing of Serbian broadcasting facilities, or simply decide arbitarily that since “another interpretation is equally available” no investigation is needed (this in reference to NATO’s bombing of a train on a bridge at Grdelica Gorge) (# 59-61). Michael Mandel gives a number of illustrations of this mode of exoneration, which as he says “comes as close as possible to being an actual NATO press release that might have been issued by Jamie Shea or James Rubin.”
After Del Ponte took over from Arbour, she announced that her first priority would be to gather more evidence on Milosevic, implicitly conceding that she didn’t have enough, but once again making clear her NATO-service priorities.
7. Explicit Direction to Serbs; Exemption of Croats and Bosnian Muslims. From the very first, the Serbs were the NATO target, hence that of the Tribunal. As early as 1991 German foreign minister Kinkel was accusing the Serbs of “genocide,” and in December 1992, just as the Tribunal was in process of formation, Acting U.S. Secretary of State Lawrence Eagleberger also publicly named four Serb leaders, Milosevic, Radovan Karadzic, Mladic and Arkan, as the targets of the Tribunal. Tribunal president Gabrielle Kirk McDonald referred to Serbia as a “rogue state,” and another Tribunal president Antonio Cassese expressed gratification that “indictments” had made it impossible for Serb leaders to participate in negotiations. (Cassese was not bothered by this abuse of indictments as a political instrument.)
Most of the indictments were leveled against Serbs, and the double standard here was blatant. Serb paramilitary leader Arkan
was indicted, but not his Bosnian Muslim counterpart Naser Oric, who had bragged to the media about his killing of Serb civilians. Serb leader Milan Martic was indicted in 1996 for launching a rocket cluster-bomb attack on military targets in Zagreb in May 1995, on the ground that the rocket was “not designed to hit military targets but to terrorize the civilians of Zagreb.” But the NATO cluster-bombing of Nis on May 7, 1999, which repeatedly hit a market and hospital far from any military target, produced no indictments. And the massive ethnic cleansing of Krajina by U.S.-advised Croatian forces in 1995, with many hundreds killed, led to no indictments until May 21, 2001, when Del Ponte, aggressively pursuing the new Yugoslav government to extradite Milosevic and other alleged war criminals, and apparently feeling a need to demonstrate her even-handedness, belatedly indicted a Croatian military officer. (Prior to May 2001, only Serbs had been indicted for war crimes in the Krajina region.)
Only Serbian leaders have been charged with “genocide” and top-down responsibility for the acts of subordinates. Numerous mass killings by Bosnian Muslims–including imported mujahedeen whose specialty was beheading civilian victims–and by the Croatian army and paramilitaries, never caused the Tribunal to use the word genocide or to attribute responsibility to Croatian president Tudjman or Bosnian leader Izetbegovic. And during her pretended look at NATO crimes, Del Ponte considered only the responsibility of NATO pilots and their immediate commanders, not the NATO decision-makers who decided to target the civilian infrastructure and population. The double standard here is dramatic.
8. Judicial Malpractice–Analogies With Soviet Practice in 1936- 1937. Anybody reading Not Guilty: Report of the Commission of Inquiry Into the Charges Made Against Leon Trotsky in the Moscow Trials (1938), written by a group chaired by John Dewey, can only be struck by the frequent parallels between Soviet and Tribunal principles and court procedure. The commission stressed the public relations function of the Moscow trials (393) and the “prearranged scheme” and plan to prove that a single bad man (Trotsky) was guilty (19, 388). The commission argued that there was no real effort to establish truth, but merely to prove guilt (xxi, 21). It stressed the self-interest of the accusers (25).
As regards specific procedure, the commission noted the scanting of the rights of the accused and defense (21), the dependence on accusations by those with a special interest (25), the absence of documentary evidence backing up accusations and the frequent use of documents that don’t prove anything relevant (29). The commission also stressed the failure to provide context for statements (325), the failure to call important witnesses (30), and the failure to explore contradictions in the accusations (12, 322).
All of these charges are applicable to the work of the Tribunal. As noted above, the public relations function of the Tribunal is clear and even acknowledged, as is its aggressive pursuit of the bad man guilty beforehand of genocide while allegedly trying to create a “Greater Serbia.” Also clear is the limited search for truth, as well as the self-interest of the NATO accusers.
As regards judicial procedure, the Tribunal is openly prosecutor friendly, oriented to “victims’ justice,” and it gets money from the United States and Soros specifically allocated for the prosecution. The first Tribunal prosecutor, Richard Goldstone, stated that “The victims of the Yugoslav wars want legal vengeance,” and the victims “should decide what is appropriate.” And Goldstone never doubted that he knew which groups were victims and had a right to demand vengeance. As Diana Johnstone points out, “A ‘victim-centered’ justice is extremely favorable to the prosecution and unfavorable to the defense.” Furthermore, “a victim-centered justice creates its own victims: those who are unjustly accused and who cannot be properly defended because fair and thorough defense may be rejected as an ‘insult to the victims’.” (Deception and Self-Deception, Pluto, forthcoming). Under this system in the Tribunal, the defense has been given short shrift financially and in status and rights.
Furthermore, the detailed procedures are highly reminiscent of the Moscow trials. As in Moscow, there is a failure to separate prosecution and judge, confessions and hearsay evidence are acceptable, secret witnesses not subject to cross-examination are used regularly, confessions are presumed to be free and voluntary unless the contrary is established by the prisoner, there is no right to bail and a speedy trial, there is double jeopardy in allowing the prosecutor to appeal an acquittal and obtain a conviction on second try, there is no independent appeal body, and conspiracy claims are common and (as in one case) “lack of evidence can in fact be proof of conspiracy.” The Tribunal also changes its rules at its convenience, and is even proud of these tricks: “The Tribunal does not need to shackle itself with restrictive rules which have developed out of the ancient trial-by-jury system” (1984 Yearbook). Finally, the Tribunal uses “sealed indictments” that its NATO enforcers can use to seize some unsuspecting victim for delivery to the Hague, again a throwback to Moscow methods. John Laughland has described the Tribunal as “a rogue court with rigged rules” (Times [London], June 17, 1999).
9. Purchase/Capture and Indictment of Milosevic. Del Ponte and the Tribunal put great weight on getting Milosevic to the Hague, to cap their service to NATO. In doing so they trampled on the rule of law in Yugoslavia–a constitutional court order had denied
extradition–and they humiliated the newly elected President Kostunica, who had pledged to deal with any Milosevic law violations under Yugoslav law. Del Ponte and the Tribunal had been quite willing to let Croatia try its war criminals, but not Yugoslavia, even after its ouster of Milosevic and installation of a pro-Western regime.
In order to gain control of Milosevic, the Tribunal made a secret deal with Zoran Djindjic, the prime minister of Serbia, who arranged for the abduction and extradition in exchange for aid money, some $1.3 billion. In short the Tribunal and West bribed an official of Yugoslavia to violate its laws. Thereafter, Djindjic found that his bribe partners had misled him–to his annoyance, “suddenly we were informed that [of the first installment of 300 million Euros]…225 million Euros were being withheld for outstanding debts, [so]…the dying man gets the medicine, once he is dead” (Der Spiegel, June 16, 2001).
As noted earlier, kidnapping is standard Tribunal practice, usually linked to seizures under “sealed indictments.” Back in 1996, after Bosnian Serb General Djordje Djukic had been seized by Sarajevo authorities, in violation of the Dayton accord, he was illegally detained and interrogated by the Tribunal while dying of cancer, in a hope of getting him to incriminate high Serb leaders. (Then chief prosecutor Richard Goldstone thanked the Bosnian government for their illegal seizure, and proceeded to rearrange the rules so as to be able to hold Djukic until close to his death, illegally.)
With Milosevic in the Hague the stage was set for the final Tribunal service to its masters. However, Del Ponte realizing that the actual indictment was thin, that Operation Horseshoe had been shown to be a NATO propaganda fabrication, that 11,000-500,000 people had not been murdered (some 3,000 bodies had been recovered from all sides), decided to enlarge it to put the onus of killings in Bosnia and Croatia on the head of the bad man. The new charge once again violated Western judicial norms: a fundamental principle of extradition law is that a defendant may not be tried for a crime other than the one for which he was originally sent for trial. But it was once again a fine analogue to the Moscow scheme of fitting the villain into a “historical connection” of villainy, while the other active participants in the historical events (Tudjman, Izetbegovic, Albright, Clinton) are vindicated by the staged trial.
Forecasting the Outcome of the Milosevic Trial
It is almost certain that Milosevic will be found guilty, because the Tribunal is a creation and servant of the NATO powers, has served NATO faithfully up to this moment, and will surely not let it down here when vindication of the NATO war is at stake. It has
demonstrated repeatedly that traditional Western judicial standards will not stand in the way of serving its political ends.
It would, of course, be easy to gather and parade before a court the many Serb victims of the NATO bombing, of Croatia’s Gospic massacre of September 1991 or the ethnic cleansing of Krajina in 1995, or of numerous Oric and mujahedeen massacres in Bosnia in the years 1992-95. And as much evidence of high level responsibility for these killings as will be mustered for the Milosevic case could be offered for the criminality of Clinton, Tudjman and Izetbegovic (among others). But that could only have happened if the Serbs had been victorious and needed a “judicial” vindication of THEIR war. Losers must suffer victor’s justice.
However, it is likely that Milosevic will not be found guilty of all 66 charges against him, but only enough to keep him in prison indefinitely and thereby vindicate the NATO war. The throwing out of some of the charges will demonstrate the unbiased character of the Tribunal! Marlise Simons in the New York Times recently cited the dismissal of charges against two Croatians as showing that the Tribunal is not biased (“An Unexpected Reversal Of War-Crimes Convictions,” NYT, Oct. 29, 2001). Nobody had told poor Simons that Croatia is a NATO friend and that the Serbs are the enemy! Simons will surely find the elimination of some of the Milosevic charges equally telling of Tribunal integrity!
PART 2: MEDIA AND NEW HUMANITARIAN: NORMALIZATION OF VICTOR’S JUSTICE
Despite the overwhelming politicization and abuse of judicial process that has characterized the International Criminal Tribunal for the Former Yugoslavia (ICTY, or Tribunal) from its inception, discussed in Part 1, the Western New Humanitarians (David Rieff, Michael Ignatieff, et al.) and mainstream media have taken its work as entirely principled and truth- and justice-seeking. Demonization, an intense focus on worthy victims, and an automatic acceptance of official perspectives, quickly creates a consensus “truth” that is protected by repetition and an avoidance of incompatible information. Everybody can then repeat the established line, and anybody who contests it becomes an “apologist for Milosevic.”
New Humanitarians on Victor’s Justice
Several dozen New Humanitarians have played a major role in selling the official line. They have uniformly accepted the ICTY as a legitimate judicial body dispensing justice. For Aryeh Neier, president of the Open Society Institute (funded by Soros), establishing the Tribunal was “the most important step by the United Nations to protect human rights since it adopted the Universal Declaration.” The claim that the Tribunal is a “tool of the U.S.” he dismisses as unworthy of refutation (WP, May 5, 1998; NYRB, March 8, 2001). Neither Neier nor any of the New Humanitarians discuss the significance of the Tribunal’s NATO-power origination, purpose, funding, and staffing; its less than stellar adherence to western legal standards; or its service as NATO’s public relations arm. Their assumption of the benevolent purposes of NATO’s leaders and of the unique villainy of NATO targets precludes critical analysis.
Michael Ignatieff says that “The great virtue of legal proceedings is that their evidentiary rules confer legitimacy on otherwise contestable facts,” but he never examines the evidentiary rules of the Tribunal or evaluates the criticisms made of them; he knows a priori that it does not dispense “victor’s justice” (Harpers, March 1997; NewsHour With Jim Lehrer, May 31, 2000). Apart from expressing approval, neither Ignatieff nor his comrades discuss the Tribunal’s indictment of Milosevic on May 22, 1999, while NATO was bombing Yugoslavia; this remarkable politicization of an alleged judicial body did not bother the New Humanitarians, nor did the Tribunal’s refusal even to investigate the numerous claims of NATO law violations. Yale law professor Ruth Wedgwood,
who misleadingly calls Del Ponte the “internationally appointed prosecutor of war crimes,” praises Del Ponte’s report in which she declines even to open an investigation as “carefully done”–see the analysis of this travesty in Part 1–resting on “emerging” standards of law, and recognizing that “there is uncertainty and indistinctness in targets” in a “humanitarian intervention” (Fox News, June 16, 2000). In short, having taken sides, no rationalization is too absurd; the asserted moral ends justify the means.
In fact, the politicization of the Tribunal serves the New Humanitarians well. They regularly cite its findings as definitive confirmation of what they want to prove in their campaigning. For David Reiff, the Tribunal indictments of Karadzic and Mladic “FOR GENOCIDE” (his emphasis) show what a determined West could have done at any time to bring justice to the Balkans (Slaughterhouse, 1996). For Ian Williams, Carla Del Ponte’s estimate of probable killings in Kosovo is the final authority that “should have put questions concerning the death toll to rest” (Knight- Ridder/Tribune, Nov. 23, 1999). Rieff points out that national sovereignty no longer protects human rights abusers, “as Slobodan Milosevic learned when at the height of the Kosovo conflict, he was indicted for war crimes by an international tribunal at the Hague” (World Policy Journal, Summer 2000). Rieff takes it for granted that this indictment was carried out by a dispenser of justice–its public relations service to NATO during the NATO bombing of Serbia is unmentioned, perhaps never even strikes this war enthusiast and propagandist.
Mainstream Media: A Prosecutor’s Dream Team
The preeminent feature of media coverage of the Tribunal has been their uncritical following of the U.S. official and Tribunal prosecutor lead in reporting and interpreting the Tribunal’s work. They simply take Tribunal actions, usually the indictment or seizure of some preferred (Serb) villain, report the prosecutor’s charges in detail and without challenge, provide no critical historical context, and never analyse the selectivity in choice of villain or the political context of the Tribunal’s work.
From the beginning the media have never asked basic questions: Does the Security Council have a legal right to establish a judicial body like the tribunal? Do the funding, staffing, and police service of NATO entail NATO influence or control? Do the dominant members of the Security Council, who also dominate NATO, have political goals that might compromise the judicial efforts of a Tribunal?
Instead of addressing these questions the media have simply assumed that justice was being served, with the benevolent NATO properly, perhaps belatedly, trying to bring “another Hitler” to justice. But such assumptions violate the principles of objectivity whose use supposedly differentiates a free from a totalitarian press. It will not do to say that “in this case” the truth was obvious, because the truth should always be kept open to question– and the media have repeatedly gotten on similar bandwagons of “obvious” truth that ex post turned out to be untrue (the KGB- Bulgarian connection to the shooting of the Pope in 1981, the Soviet’s deliberate shooting down of Korean civilian airliner 007 in 1983, the latter later admitted by the New York Times to have been “The Lie That Was Not Shot Down” [editorial, Jan. 18, 1988]).
The media occasionally touch upon the problem areas, but they fail acknowledge their relevance and importance, and instead of building on the challenging information they quickly move on. Jamie Shea’s NATO press conference statement of May 17, 1999, that NATO had no worries about prosecution by the Tribunal because the NATO powers finance the Tribunal and the prosecutor does only “what we allow her to,” was entirely ignored by the U.S. mainstream media, despite its clear assertion of Tribunal subservience to external political control.
On National Public Radio (NPR), the issue of whether NATO could be prosecuted for war crimes came up on All Things Considered (March 24, 2000), but the program dealt only with U.S. officials’ annoyance at the question, and the resultant possible straining of relations between the United States and the Tribunal. U.S. officials pointed out that the Tribunal “depends heavily on the United States for funding, personnel, and the collection of evidence,” and that raising the question of NATO crimes had led to
U.S. authorities already “putting bureaucratic obstacles in the way of Tribunal requests.” With only U.S., NATO and Tribunal officials commenting on the issue, its scope was narrow, and the NPR reporters did not ask what kind of justice results from a judiciary so dependent on an interested power.
This same bias pervaded the coverage of Del Ponte’s June 2000 decision to exonerate NATO from war crimes charges without even opening an investigation. The major New York Times article on this decision was entitled “Kosovo Inquiry Confirms U.S. Fears of War Crimes Court” (Steven Lee Myers, Jan. 3, 2000). In keeping with its title, the article did not discuss the evidence of NATO war crimes, which Canadian law professor Michael Mandel presented to Del Ponte in three large volumes, nor does it examine the basis on which Del Ponte refused to investigate as laid out in the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign (OTP Report). The article focuses instead on theoretical U.S. vulnerability to war crimes charges. An A.P. report from the Hague (“U.N. Court Examines NATO’s Yugoslavia War,” NYT, Dec. 29, 1999) notes that even if evidence of NATO law violations was found, “it is questionable whether Ms. Del Ponte…would go so far as to issue any indictments. The handling of the report is a delicate matter for the tribunal, which depends on the military alliance to arrest and hand over suspects.” But there is no suggestion that this dependence compromises the judicial character of the tribunal.
Even more explicit in NATO-friendly framing is A.P.’s January 4, 2000 report “White House Blasts Kosovo Inquiry,” which features “Washington’s patience” being exhausted at these Tribunal provocations, its view that an inquiry would be “completely
unjustified” (White House spokesman), the awkward position of Del Ponte in trying to avoid charges of pro-NATO bias, and a number of citations to NATO spokespersons on NATO’s innocence–but not a word on the charges against NATO and the supporting evidence. Charles Trueheart in the Washington Post did quote Michael Mandel making a general case against NATO (“Taking NATO to Court, Tribunal Reviews Professors’ Charging That Alliance Committed War Crimes,” Jan. 20, 2000), while giving NATO and the prosecutor equal space and the last word. Trueheart cites NATO officials saying “they had been assured by Ms. Del Ponte that she would not carry the exercise far,” and that assurance was fulfilled.
The media’s coverage of the NATO “inquiry” and exoneration comprised a few back page articles, far less coverage than given
indictments of even low-level Serbs. The media never compared the speed with which charges were made that served NATO, based on NATO- supplied information, with the inability to decide the NATO case for many months despite massive information in the public domain (summarized in Mandel’s three-volume dossier). The fact that Milosevic was indicted for “crimes against humanity” based on 375 deaths, whereas according to the OTP Report “there is simply no evidence of the necessary crime base” with 500 NATO-caused deaths, failed to attract the media’s attention. There was not a single citation by the media to the report used by the prosecutor, which relied on NATO press releases as authoritative sources and gives solid evidence of pro-NATO bias, as demonstrated by Mandel (see Part 1). The reporters were too lazy and biased to examine this readily available document.
Media and Tribunal NATO Service: (1) The Racak “Massacre”
By January 1999, the United States and NATO were ready to attack Yugoslavia, and the United States was looking for a casus belli. The death of some 40-45 Albanians in the Racak area on January 15 was therefore greeted happily in Washington. Many
questions have been raised about this incident: the Serbs had invited both OSCE monitors and journalists to witness their assault on this KLA stronghold, A.P. photographers were on the scene, and French reporter Christophe Chatelet, who arrived in the village
after the fighting, found the site calm, OSCE observers helping some elderly people but telling Chatelet that nothing important had happened. There were no signs of a massacre. After the report of a massacre, Chatelet and Figaro reporter Renaud Giraud insisted on seeing the A.P. photographers’ tapes of the day’s events, which again showed nothing supporting the claim of a massacre.
After the KLA reoccupied the village, the next morning 40 bodies were on display, and U.S. officials immediately claimed a
massacre, and Tribunal prosecutor Louise Arbour rushed to proclaim a war crime.
The U.S. media also rushed to give the incident intense and indignant coverage. The New York Times, Washington Post, Los Angeles Times, Time and Newsweek supplied 40 often lengthy articles over the next ten days. All regurgitated U.S., NATO, and Albanian claims of a slaughter of civilians. For Steven Erlanger, Milosevic “has thrown down the gauntlet to the West” by organizing a massacre (NYT, Jan. 21, 1999). Erlanger and his colleagues never mentioned the findings of the French journalists who were on the scene, looked at the A.P. tapes, and expressed serious doubts in Le Figaro and Le Monde. The U.S. reporters failed to question the A.P. photographers present at Racak on January 15 and whose documentation of the events there have since been kept under wraps. They did not interview the OSCE observers who were at Racak by invitation that day, even after U.S. and OSCE official William Walker admitted that the observers had not witnessed a massacre (Watson, LAT, Jan. 20, 1999). They never asked why the Serbs had failed to remove the bodies, but left them for Walker to find and put to work for NATO.
The U.S. media claimed that the massacre was an embarrassment to U.S. officials and NATO–e.g., “The Serb dictator understands well that NATO has little appetite for involvement in another Balkan conflict” (WP, ed., Jan. 20, 1999). However, British journalist Allan Little quoted Madeleine Albright as saying to National Security Adviser Sandy Berger, after hearing of the alleged massacre, “Spring has come early” (“How NATO was sucked into the Kosovo conflict,” Sunday Telegraph [London], Feb. 27, 2000).
William Walker, the OSCE official who had hastened to the scene and claimed an atrocity, not only had a conflict of interest as a
U.S. representative, he was a Reagan era apologist for Salvadoran army atrocities. Although the European press frequently mentioned his bias and European officials’ annoyance at his compromised behavior as head of the OSCE observer mission, the U.S. media took at face value his stance of being “visibly shaken” at the Racak death scene (e.g., Guy Dinmore, WP, Jan. 17, 1999), and never mentioned his conflict of interest or tainted record. Although the Jesuit Order had publicly opposed Walker’s nomination as U.S. Ambassador to Panama, “based on his alleged complicity in [and role in the coverup of] the November 1989 assassination of [six] Jesuit priests in El Salvador” (Inter Press Service, June 28, 1993), Paul Watson of the Los Angeles Times said only that “he was chief of the U.S. Embassy’s political section in El Salvador [and] ambassador from 1988 to 1992” (LAT, Jan. 20, 1999); and for Jane Perlez, he was merely “a seasoned diplomat” (NYT, Jan. 17, 1999).
The bodies at Racak were quickly subjected to a forensic examination by Serb and Belarus specialists, in coordination with a Finnish team sent by the European Union. Professor Dusan Dunjic, of the Institute of Forensic Medicine in Belgrade, who was one of the investigating team, says that 37 of the 40 bodies showed traces of gunpowder on the hands, indicating that before death the
individuals had handled firearms; that the bullet wounds were in different parts and sides of the bodies and had been inflicted from different directions; and that although in civilian dress, many had identical black trousers and other clothing designed for long wear out-of-doors (The (Ab)use of Forensic Medicine, http://www.suc.org/politics/kosovo/documents/Dunjic0499.html).
The U.S. media never talked with Dunjic or his colleagues, and relied only on the frequently ambiguous statements of the head of the Finnish delegation, Dr. Helen Ranta, who was a dentist and not a forensic expert. Her most often quoted words were that Racak was “a crime against humanity.” She continued by saying that “all killings” are crimes against humanity. This follow up statement,which made the first statement meaningless, was never quoted (e.g., Carlotta Gall, “Serbs’ Killing of 40 Albanians Ruled [sic: this was a mere press conference statement of Ranta] a Crime Against Humanity,” NYT, March 18, 1999).
The Finnish study of the massacre has never been made public, which suggests that it fails to support the official story. The
U.S. media have not found this secrecy worth mentioning. In January 2001 three of the Finnish experts published their findings in Forensic Science International (J. Raino, K. Lalu and A. Penttila, “Independent forensic autopsies in an armed conflict: investigation of the victims from Racak, Kosovo,” 2001). Although lacking in explicit conclusions, the article made clear that the bodies had been shot from many different directions as Dudjic had stated, and suggested doubts about a massacre. Deutsche Press-Agentur’s article summarizing the report is titled “Finnish experts find no evidence of Serb massacre of Albanians” (Jan. 17, 2001). No major U.S. publication ever mentioned this study, despite their prior intense focus on Racak. They had done their duty earlier, and if this might be another “Lie That Wasn’t Shot Down,” they were not about to admit that.
In Louise Arbour’s indictment of Milosevic, the Racak massacre is the only pre-bombing charge. The media, having raised not a single doubt about Racak, naturally never questioned it as a basis for the indictment. When Arbour had sought to join William Walker at Racak, the media’s sole preoccupation then was Milosevic’s denial of entry to Arbour and threat to expel Walker. Paul Watson quoted James Rubin on the unacceptability of “the Serbs interfering with monitors bravely trying to do their work” (LAT, Jan. 19, 1999). Milosevic had the strange notion that Walker and Arbour had a political agenda in which he was the target. Serving on the same team as Walker and Arbour, the media never hinted at this possibility.
Media and Tribunal Service: (2) The Arkan Indictment; Arkan Versus Nasir Oric
On March 31, 1999, a week after NATO began bombing Yugoslavia, Tribunal prosecutor Louise Arbour announced the indictment of Serb paramilitary leader Arkan, which had been secretly issued in September 1997. The timing of the announcement was alleged by Arbour to be based on the desire to put on notice anyone who “might retain his services or obey his orders.” Marlise Simons and Charles Trueheart in the NYT and WP both reported the Tribunal explanation (April 1, 1999), and NATO’s “welcoming” the indictment, but neither pointed out that the rationale was silly, nor did they hint at the public relations service to NATO in focusing public attention on Serb evil.
There were 11 articles on the Arkan indictment in my five media sample in the ten days after March 31, more than double the number on the refusal of the Tribunal even to investigate NATO war crimes. It is enlightening also to contrast the media’s treatment of Arkan and Nasir Oric, the Bosnian Muslim paramilitary killer, who had bragged to Western journalists about his slaughter of Serbs in and around Srebrenica, and who was at least Arkan’s equal as a mass murderer of civilians. But the West supported the Bosnian Muslims, so Oric was never indicted by the Tribunal and the media coverage of this criminal was negligible. During the period from January 1, 1992 through December 31, 1996, Arkan was mentioned 150 times in my media sample, 60 times in the New York Times. During the same period Nasir Oric was mentioned only three times, not once in the New York Times. Equally interesting, while Arkan was always described with adjectives like “notorious” and “monstrous” and nouns like “massacres” and “ethnic cleansing” (Charles Trueheart, WP, Feb. 1, 1999), on the rare occasions when Oric was mentioned those words were missing. Thus, John Pomfret, although noting that Oric’s “war trophies” included videotapes of “burned Serb houses and headless Serb men, their bodies crumpled in a pathetic heap,” describes Oric only as “the toughest guy in town” and “a lion in his den” (WP, Feb. 16, 1994). No invidious language for a killer on our side and not indicted by the Tribunal!
Media and Tribunal Service: (3) The Milosevic Indictment
With NATO’s bombing of Serbian military forces in Kosovo not yielding an early surrender, NATO started to bomb the civilian infrastructure of Serbia. These attacks were contrary to the laws of war and were producing growing criticism even within the NATO countries. Into this public-relations breach stepped Louise Arbour and the Tribunal, with a patched together indictment of Milosevic and four other high Yugoslav officials, publicly announced on May 27, 1999.
In an outstanding example of parallel media propaganda service, not a single news or opinion piece in the 32 published in my media sample during the ten days after May 27, even noted, let alone criticized, that the Tribunal was gearing its work to accommodate NATO’s PR need, although several did mention that it did seem to justify NATO’s war, and several quoted Albright as saying the same thing. Many articles focused on whether the indictments might hamper ongoing peace negotiations, but not one questioned the appropriateness of a supposed judicial body issuing indictments that would have immediate political consequences.
Apart from the three or four citing Serb and Russian opinion, no article criticized Arbour, who was portrayed as a gallant believer in justice. In a later accolade to Arbour, Marlise Simons allowed Arbour to state her reason for indicting Milosevic in May–“we
might miss out” on getting him as a result of a peace deal–but Simons did not mention that there might be an alternative view, and she spoke only of the indictment as “now seen as a tribute to the tribunal’s firmness” (“Proud but Concerned, Tribunal Prosecutor Leaves,” NYT, Sept. 15, 1999). In many articles Arbour was described as in frequent conflict with NATO, which had been allegedly dragging its feet in apprehending the villains that Tribunal justice had indicted. Arbour’s statement accompanying the indictment, that indicted individuals are “entitled to the presumption of innocence until they are convicted,” was immediately contradicted by her remark that the current indictment “raises serious questions about their suitability to be guarantors of any deal.” These statements, which effectively declared Milosevic guilty by indictment before conviction, were never cited by the media.
The media regularly noted that Arbour depended on classified NATO evidence for the indictments, but they never pointed out that this evidence had not been independently confirmed by the Tribunal, or that its supplier had a conflict of interest. The media, like NATO and Arbour, knew in advance that they were dealing once again with “another Hitler” so that the sole question was efficiently bringing him to book–there was no concern about niceties like due process and conflict of interest.
Thus, in contrast with the media’s treatment of the charges against NATO, here the media offered voluminous and uncritical summaries of the charges, with gory details, along with half-baked and error-laden “background” (see Part 3). Apart from a few articles that gave brief contrary views from Belgrade and Moscow, the only dissent allowed was that the Tribunal’s action had been too slow!
Media and Tribunal NATO Service: (4) The Seizure of Milosevic
When the Tribunal organized the kidnapping of Milosevic to The Hague, once again the media and Tribunal worked harmoniously in NATO’s service. The media treated this process intensively and as a triumph of justice, epitomized by the title of Time Magazine’s article “Bagging the Butcher,” and Newsweek’s reference to Milosevic as “our postmodern Eichmann” (both on April 9, 2001). The media prejudged the case, with vast assurance and matching indignation, parroting the lines taken by the Tribunal prosecution, themselves identical with the position taken by Madeleine Albright and her associates.
Milosevic was spirited away secretly in defiance of the wishes of the relatively popular President of Yugoslavia, Vojislav Kostunica, and an order of the Constitutional Court, by a leader (Zoran Djindjic) who, while “pro-American”, had “fairly low popularity ratings” (Jeffrey Smith, WP, June 30, 2001). It was treated as a romantic escapade, with Djindjic the brave hero. That this kidnapping was done under financial pressure from the United States and other donor nations was viewed as entirely reasonable. None of my major media sample reported Djindjic’s anger when he discovered that most of the donor money from selling Milosevic went to liquidating Yugoslavia’s foreign debts!
A few articles noted that forcing the extradition in the face of Yugoslav law and a court order might not help Yugoslavia recognize
the importance of the rule of law. A number noted that the extradition was strongly opposed by many in Yugoslavia and might
create political turmoil and destabilize the fragile new democratic government, but this view too was exceptional. None of the media noted and reflected on the fact that Madeleine Albright had earlier explained that it would be inappropriate to pressure the Indonesian government to seek war crimes trials against Indonesian war criminals because it might destabilize the new, fragile government of that country.
Media and Tribunal NATO Service: (5) The Expanded Indictment
In The Hague Milosevic found himself facing an expanded indictment, that now included his alleged responsibility for Serb crimes in Bosnia and Croatia. John Laughland has pointed out that this expansion “is in direct contradiction to one of the most fundamental principles of customary extradition law, namely that a defendant may not be tried for a crime other than the one for which he was originally sent for trial” (“Victors’ Justice,” The Spectator [London], Feb. 9, 2002]). This point was never made in the major U.S. media.
Laughland notes also that, as the expanded indictments cover matters now seven to ten years old, which had produced no indictments earlier, “It seems obvious that these last-minute indictments over Croatia and Bosnia were issued to cover up the weakness of the Kosovo indictment. And the judges have connived in this” (ibid.) The U.S. mainstream media have never made these points either.
Prosecutor Del Ponte openly admits that, despite the age of those earlier events, she is busy collecting data for the new
charges, thereby acknowledging that indictments precede evidence, not vice versa as in a genuine court. This abuse replicates
Arbour’s in May 1999 when she rushed to indict based on unverified evidence from a party to the conflict (NATO), eager for a
propaganda boost. Now, as in May 1999, the U.S. mainstream media don’t notice.
Media and Tribunal NATO Service: (6) The Trial
The Hague trial of Milosevic is a show trial, like the Moscow trials of 1936-1937, with a demonized villain on stage whose certain conviction will vindicate the NATO war and interventions. After this service, the Tribunal can be dissolved, and the United States is now urging its near-term liquidation.
Toronto lawyer Edward L. Greenspan writes in Canada’s National Post (March 13) that “The first two minutes of the Milosevic trial told me all I needed to know. This is a lynching.” Greenspan points out that in her opening statement prosecutor Del Ponte claimed to be working “on behalf of the international community and in the name of the member states of the UN”–in Greenspan’s words “Prosecutor for the Universe.” And Judge Richard May didn’t object, probably because “he actually believes her. May knows what the world expects of him and this trial.” Greenspan also asks: how can justice be done in a court presided over by a NATO-country judge, and especially one who “clearly reviles Milosevic”?
Greenspan points out further that, as Milosevic has opted to defend himself, and is not very sophisticated in cross-examination and court-room practice, a fair judge would lean over backwards to help him–but May constantly presses Milosevic to be quick and not to bully witnesses, although bullying and pressure are, as Greenspan stresses, common, acceptable, and important courtroom practices.
Milosevic is also at an informational disadvantage. An incarcerated individual, with some links to his home country, versus NATO. The recent arrest of U.S. diplomat (and CIA official) John David Neighbor along with Serbia’s deputy prime minister Momcilo Perisic, apparently involved a U.S. effort to obtain secret documents that would help the Tribunal prosecutor link Milosevic to war crimes in Bosnia (“Political tension brews in Belgrade over spying row,” Agence France Presse, March 19, 2002). The U.S. media, however, never acknowlege an informational and resource imbalance. They have even suggested that Milosevic may have an unfair informational edge via associates back home, as compared with poor NATO and the Tribunal, who complain of the foot-dragging of Yugoslav officials in producing incriminating evidence. No mention is made of the new dependence of Milosevic-free Yugoslavia on financial aid from the NATO powers, and the leverage this gives for compelling the turning over of suspects, potential witnesses, and information, in further arm-twisting operations like the one employed in forcing the extradition of Milosevic.
May allows prosecution witnesses to testify at length about personal experiences, usually without supportive and verifiable evidence, and even to recite hearsay experiences. In Mahmut Bakali’s testimony (February 18, 2002), the witness cited what a local Serb official claimed to have heard that Milosevic might have said about Kosovo–twice-removed hearsay–without judicial interference. The media did not notice or object.
In his opening presentation Milosevic showed the court some gruesome videotapes of Serb victims of NATO bombing. The media do not ask why Milosevic’s evidence is less proof of war crimes and genocide by Clinton and Blair than the current Tribunal witnesses prove Milosevic guilt. That comparison would show both political selectivity and the essential irrelevance of this kind of evidence, except to show that war is ugly and–for the purposes of this trial–to produce a desired moral environment that will sustain a conviction.
When Marlise Simons interviewed and wrote about Carla Del Ponte, who claims to “represent the victims” (“On War Criminals’ Trail, An Unflagging Hunter,” NYT, Feb. 9, 2002), Simons did not ask her: what about the Serb victims in Bosnia, Croatia, and those massively “ethnically cleansed” in NATO-occupied Kosovo? Why does the “unflagging hunter” not fulfil her legal obligation and go after NATO’s war criminals? Simons avoided such questions, in this interview and in her numerous articles in the New York Times, just as her colleagues failed to ask about the “evidence” that the KGB and Bulgarians were behind the shooting of the Pope in 1981, or did not pursue the “lie that wasn’t shot down” regarding the Soviet downing of Korean airliner 007. Her job is to go with the flow of propaganda that, as NATO demands and the Tribunal implements, has targeted Milosevic as the latest villain, whose conviction will demonstrate Western justice, brought to the world by the rulers of the New World Order.
(In Part 3 I will show that the Tribunal and media truths which are taken as obvious and proven are often outright lies and myths.)