Rule Of Exception

Arguably, the political purpose of the ICTY was and is not in fact to indict, try and punish political and military leaders for crimes committed during the (profitable, successful) war(s) to destroy the Federal Republic of Yugoslavia, but to ostentatiously NOT indict others, such as Tudjman, Clarke, Clinton, Blair, Izetbegovic and Fischer. The purpose of the tribunal is to confirm the propaganda justification for the destruction and plunder of the FRY, the dispossession of its population and the imposition of foreign dictatorship upon them; the criminal aggressions are retroactively legalized, portrayed as a kind of global police work, necessitated by the criminality of the victim state and population.

Diana Johnstone, Fool's Crusade:

The Karadžic' case

On 24 July 1995, and again on November 1995, the ICTY indicted Karadžic on 16 counts of genocide, various crimes against humanity, violation of the laws or customs of war, unlawful confinement of civilians, the shelling of a civilian gathering, destruction of sacred sites, extensive destruction of property, appropriation and plunder of property, sniping against civilian targets, and other grave breaches of the laws of customs of war. This is a compendium of all the crimes that may or may not have been committed in the course of the war. But guilt depends on personal responsibility. The grave accusations against the Bosnian Serb leader were based on the following factors:

1. An a priori judgment that the war aim of the Bosnian Serbs was "genocide."

2. A statement made by Karadžic' during a parliamentary debate which was interpreted by his adversaries as a "threat"

3. Attribution of "command responsibility" to Karadžic' for all crimes allegedly committed bèy the Serbs in Bosnia during the civil war.

4. Specific responsibility for the "Srebrenica massacre" - a charge added in the 14 November 1995 indictment.

In late June and early July 1996, the case against Karadžic was laid out in a novel ICTY exercise called a Rule 61 hearing. Invented by the Tribunal judges, "Rule 61 of the Rules of Procedure and Evidence" allows the Prosecution to present all the charges against an accused person in his absence after indictment. This "Rule 61 Hearing" is just one of the innovations made by the ICTY drastically reducing the rights of the defense. At the opening of the 27 June 1996 hearing, the French presiding judge, Claude Jorda, author of Rule 61, refused to allow Karadžic's defense attorney, Igor Pantelic', to represent his client during the hearing. He was merely permitted to observe proceedings from the public gallery. In short, this was a public ceremony of uncontested accusation, in which the indicted man's attorney was banned from cross-examining witnesses or offering rebuttals. Three attorneys for the prosecution presented the case, based on the four factors mentioned above.

1. The charge of "genocide"

The term " genocide" tends to be used increasingly for crimes that fall far sort of the literal meaning: the annihilation of a people. Already, the definition of the term in the 1948 Convention on Genocide was extremely broad and included "causing serious bodily or mental harm to members of [a] group". There is a marked tendency in war to harm or kill people along lines of "national," ethnic or religious identity. This was clearly the case in Bosnia-Herzegovina. Therefore, technically, all sides might be charged with "genocide". However, although the Hague Tribunal has occassionally accused Croats and Muslims of "war crimes", the "genocide" accusation has been reserved for Serbs. The key word seems to be "intent". It has simply been assumed from the start that the intention of the Serbs was more "genocidal" than the intentions of the others.

Even at the Rule 61 Hearing, where all the witnesses were called by and for the Prosecution, such intent was assumed or inferred, but never demonstrated. An Australian police officer named John Hunter Ralston was called to explain the political program of Karadžic's Serbian Democratic Party (SDS). The party was founded in Sarajevo in July 1990 and went on to win and overwhelming majority of Serb votes in the November 1990 elections in Bosnia-Herzegovina. Ralston acknowledged that the main goal of the SDS was the "complete and unconditional civil, national, cultural, religious and economic equality of the Serbs in Bosnia-Herzegovina. Its most important political goal was a federal Yugoslavia and within it a federal Bosnia-Herzegovina." This does not sound much like "genocide".

2. Karadžic's threat

The main "evidence" of genocidal intent produced at the Rule 61 hearing was a statement by Karadžic uttered during a heated exchange in the parliament of Bosnia-Herzegovina during the night of 14-15 October 1991. Karadžic's Serb Democratic Party wanted to keep Bosnia-Herzegovina within Yugoslavia or, short of that, create autonomous Serb regions. Izetbegovic's Democratic Action Party totally rejected such suggestions. Calling on Izetbegovic to recognize the Serbian people's desire to remain in Yugoslavia, Karadžic declared: "You want to take Bosnia-Herzegovina down the same highway of hell and suffering that Slovenia and Croatia are travelling. Do not think you will not lead Bosnia-Herzegovina into hell, and do not think you will not perhaps make the Muslim people disappear, because Muslims cannot defend themselves if there is war - How will you prevent everyone from being killed in Bosnia-Herzegovina?"

[The citation was read into the record not in the original Serbo-Croatian but as rendered into English, from Laura Silber and Alan Little, Yugoslavia, Death of a Nation, Penguin, Harmonsworth, p. 215]

Despite the double negatives, these are strong words, uttered in the heat of debate. They are certainly no more warlike than Izetbegovic's statement months before, in February 1991, that he "would sacrifice peace for a sovereign Bosnia-Herzegovina, but for that peace in Bosnia-Herzegovina...would not sacrifice sovereignty". Karadžic's statement could be interpreted as a warning to Izetbegovic of the dangers of war and an invitation to compromise to save the peace. Izetbegovic, who had chosen war, described the Serb leader's statement as a threat, in an obvious move to shift blame. Accepting this interpretation, the Tribunal presented the citation as proof of Karadžic' intent to commit "genocide".

3. Attribtution of command responsibility for all crimes committed by Serbs in Bosnia-Herzegovina

Had Karadžic been defended at the Rule 61 hearing, his attorney could have presente ddocuments indicating that Karadžic not only did not order the crimes enumerated, he also did not (as accused) "fail to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators". His very first directive issued as President of Republika Srpska, on 13 May 1992, was an order to the armed forces to respect international conventions of war. To this end, he reminded officers of their "duty to initiate prosecution invoking the full sanctions of the law against individuals under their command who offend against the international conventions of war", and also "to hold regular training sessions" to make sure the conventions are understood. A month later, he issued and order outlawing paramilitary groups and another giving detailed instructions for humane treatment of prisoners of war. Subsequent directives stressed the need for "proper conduct towards the civilian population of other nationalities in our Republic." On 19 August 1992, Karadžic issued an order reiterating the need for "compliance with international humanitarian law and particularly the 3rd and 4th Geneva Conventions", and ordering a "stop the forced movement and other illegal measures against the civilian population". (This order was clearly directed against "ethnic cleansing".) And so on.

This may prove nothing to those whose minds are made up. But in the absence of presidential orders to commit crimes, the hypothesis can at least be advanced that whatever crimes were committed by Serb forces were in violation of Karadžic's orders and without his consent.

The Tribunal's application of the principle of "command responsibility" was blatantly selective. For example, in May 1995, violating a UN-sponsored truce, Tudjman sent his forces to recapture western Slavonia from Serb rebels, driving tens of thousands of Serbs from the region and killing hundreds of civilians who were too old, weak or sick to flee. In retaliation, and to get the Croats to stop attacking Serbs civilians, Krajina Serbs lobbed two Orkan rockets into central Zagreb, killing seven people. For this, the ICTY indicted the president of Serbian Krajina, Milan Martic'. Three months later, the Croatian army, strengthened by illegal arms shipments and U.S. advisors, swept through the Krajina, driving out some 200,000 Serbs, destroying homes, and killing civilians. In a rare moment of boldness, EU envoy Carl Bildt suggested that if ordering shelling was a war crime, Croatian President Franco Tudjman might deserve an ICTY indictment as much as Martic. The only result was that Bildt was declared persona non grata in Croatia. Supported by the United States and Germany, Tudjman never needed to fear indictment for his command responsibility. He remained above criticism until safely dead (he died on 10 December 1999).

Srebrenica

However, for public opinion, all of this seems like quibbling. The case against Karadžic, and indeed against "the Serbs" in general, can be reduced to a single word: "Srebrenica". The difficulty in knowing the truth about Srebrenica began with the fact that before any solid information was available, Srebrenica had already become an important symbol and overwhelming political weapon. Uncertainty has persisted concerning the actual number of people killed, the circumstances and motives involved, and the political significance of the real or assumed killing that took place. In trying to understand what happened at Srebrenica, a number of factors should be taken into account.

The "safe areas" in Bosnia-Herzegovina were not demilitarized, and thus served as Muslim military bases under UN protection.

Six so-called "safe areas" were set up by the United Nations in Aprl and May 1993: Bihac' (200,000 inhabitants), Goradže (60,000 inhabitants), Sarajevo (380,000 inhabitants), Tuzla (130,000 inhabitants, swollen by refugees), Žepa (12,000 inabitants) and Srebrenica (an enclave with 44,000 Muslims, the Serb inhabitants having fled in 1992) . Common sense would suggest that a "safe area" in wartime must be demilitarized. In reality, these were all Muslim- held towns and the Muslims refused to demilitarize them. All were used by Muslim forces as safe bases, from which to attack the Serbs. The UN protection force (UNPROFOR) ensured safe transit to the "safe areas" of food shipments and other provisions from international charitable organizations. The Serbs suspected - correctly - that these shipments were also used to smuggle weapons. [The possibilty was usually rejected indignantly by Western spokesmen as Serb cyncism, but in the spring of 1994, the German foreign ministry was obliged to admit that arms and munitions had been smuggled to Bihac' in shipments of powdered milk for the hospital there.] From the Serb viewpoint, the "safe areas" were a fraud, a disguised form of aid to the Muslim side.

In April 1993, the Bosnian Serbs had given in to international pressure not to capture the enclave on condition that Srebrenica be demilitarized. On 21 April, UNPROFOR announced that "demilitarization of Srebrenica was a success." This was deceptive. The Muslims "handed over approximately 300 weapons, a large number of which were non-serviceable". Only the central urban area of the "safe" zone was demilitarized, while the Muslim forces in the outskirts kept their weapons and continued to make forays into Serb territory, attacking civilians as well as Serb soldiers. By taking up positions close to the Dutc UN troops and opening fire on the Serbs, Muslim units tried to provoke a fight been Serbs and UNPROFOR, which had neither the mandate nor the forces to stop them. [See Srebrenica Report: Report of the Secretary General Pursuant to General Assembly Resolution 53/35 (1998), III. D, and Willen Honig and Norbert Both, Srebrenica: Record of a War Crime, Penguin Books, London, 1996, p. 133]

The Muslim Military force stationed in Srebrenica - some 5,000 men under the command of Naser Oric', had carried out murderous raids against nearby Serb villages.

Serbs fled Srebrenica in May 1992, after the murder of a prominent Serb judge. Srebrenica thus became a Muslim enclave. The Muslim National Council gave command of the area to Naser Oric', who set about attacking surrounding Serb villages with remarkable brutality. Oric's raiders chose the Orthodox Christmas day, 7 January 1993, to attack the village of Kravica, slaughtering villagers and burning homes. Forty-six Serbs were killed outright, some as they left curch after Christmas services. The Western media almost entirely ignored the Christmas massacre at Kravica.

[The Kravica massacre of 7 January 1993 was reported the next day only in the Daily Telegraph and referred to in a CNN report on 23 March and in The New York Times on 22 April 1993 ("We Suffer Too, Serbs In Bosnia Cry", by John Darnton.) This scant coverage contrasts with widespread and repeated references to Serb attacks on Muslims.]

Between May 1992 and January 1994, some 192 Serb villages were pillaged and burnt, and over 1,300 villagers were killed, while many more fled. In 1994 and 1995, as Muslim commander at Srebrenica, Oric' actually invited foreign reporters to his comfortable apartment to show off his "war trophies": videocassette tapes of his exploits displaying severed heads and dead bodies of Serbs, burning houses and heaps of corpses.

[ Docmentation of the death and destruction caused by Oric's raids has been turned over to the ICTY, which has failed to act on it. As of this writing, no indictment has ever been issued against Oric. [Oric hads since been charged with war crimes by the ICTY judge-prosecutors. -q.] On 16 February 1994, the Washington Post reported that Oric "the toughest guy" in Srebrenica, dsplayed his "war trophies" on videocassette tape: "burned Serb houses and headless Serb men, bodies crumbled in a pathetic heap". In the Toronto Star of 16 July 1995, Bill Schiller reported watching "a shocking video version of what might have been severed heads, and people fleeing. Oric grinned throughout, admiring his handiwork. 'We ambushed them,' he said when a number of dead Serbs 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'...]

These grisly images exist, but have never been seen by millions of people, who vividly recall the picture of a thin Bosnian Muslim [Fikrit Alic] man behind barbed wire. To become a determining factor in public opinion, an event needs to be recalled repeatedly in reports, articles, and editorial comment. Analogies thrive on specific historical memories. In the West, a think man behind barbed wire can signify "Auschwitz". Among Bosnian Serbs, decapitation signifies "The Turks". Serbs were reminded of the centuries of Ottoman rule when the Turkish method of repression featured decapitating rebels and displaying their heads to the public.

In one of their raids, on 26 June 1995, Srebrenica-based Muslim units penetrated behind Serb lines to burn down the village of Visnjica, and reported killing 40 "Chetniks" (meaning Serbs.) To put a stop to these raids, the regional command of the Serb army hastily planned "Operation Krivaja 95", initially aimed only at the non-militarized surroundings of Srebrenica municipalty...