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Few human rights activists had ever contemplated such an outcome, still less an acquittal. The presumption of innocence has never counted for much in the highly politicised world of international humanitarian law. One war crimes expert, James Gow, said on Channel 4 on Monday that it would be better if Milosevic died in the dock, because if the trial ran its course he might be sentenced for only relatively minor charges. That ought to be awfully embarrassing for those like Gow who have assured us that he is as guilty as hell. Fortunately for them, the ICTY is not really in the business of acquittal. As one academic specialist on the ICTY, Professor Michael Scharf, has noted approvingly, the ICTY’s rules were designed ‘to minimise the possibility of a charge being dismissed for lack of evidence’, a sentiment of which the Queen of Hearts would have been proud. As it stands, the judges seem poised to impose a defence counsel on Milosevic. Far from helping him, of course, the intention here is to weaken his defence by requiring him to be represented by a lawyer who knows the issues far less well than he does. Such a move would fly in the face of the judges’ earlier rulings against this idea — and the new presiding judge himself was, in the past, especially firm that this would be contrary to the defendant’s rights. It would at least provide comfort to the beleaguered prosecution. When he is not trying to get the court to force Milosevic to give up smoking — a certain death sentence for any Serb — Geoffrey Nice QC, the lead prosecutor, has repeatedly sought to accomplish this switch, not least because the two-year prosecution case has been a nearly unmitigated disaster. Since the trial started in February 2002, the prosecution has wheeled out more than 100 witnesses, and it has produced 600,000 pages of evidence. Not a single person has testified that Milosevic ordered war crimes. Whole swaths of the indictment on Kosovo have been left unsubstantiated, even though Milosevic’s command responsibility here is clearest. And when the prosecution did try to substantiate its charges, the result was often farce. Highlights include the Serbian ‘insider’ who claimed to have worked in the presidential administration but who did not know what floor Milosevic’s office was on; ‘Arkan’s secretary’, who turned out to have worked only as a temp for a few months in the same building as the notorious paramilitary; the testimony of the former federal prime minister, Ante Markovic, dramatically rumbled by Milosevic, who produced Markovic’s own diary for the days when he claimed to have had meetings with him; the Kosovo Albanian peasant who said he had never heard of the KLA even though there is a monument to that terrorist organisation in his own village; and the former head of the Yugoslav secret services, Radomir Markovic, who not only claimed that he had been tortured by the new democratic government in Belgrade to testify against his former boss, but who also agreed, under cross-examination by Milosevic, that no orders had been given to expel the Kosovo Albanians and that, on the contrary, Milosevic had instructed the police and army to protect civilians. And these, note, were the prosecution witnesses. Serious doubt has also been cast on some of the most famous atrocity stories. Remember the refrigerator truck whose discovery in the Danube in 1999, full of bodies, was gleefully reported as Milosevic was transferred to The Hague in June 2001? The truck had allegedly been retrieved from the river and then driven to the outskirts of Belgrade, where its contents were interred in a mass grave. But cross-examination showed that there is no proof that the bodies exhumed were the ones in the truck, nor that any of them came from Kosovo. Instead, it is quite possible that the Batajnica mass grave dated from the second world war, while the refrigerator truck may have contained Kurds being smuggled to Western Europe, the victims of a grisly traffic accident. The realisation is now dawning that lies were peddled to justify the Kosovo war just as earnestly as they were to justify the attack on Iraq. The weakness of the prosecution case was underlined by the fact that its triumphant conclusion in February was to broadcast a TV documentary made several years ago. This suggests that its two-year marathon has not served to advance knowledge of the truth beyond the tall stories peddled by telly hacks at the time. Even professional supporters of the ICTY now admit that the only ‘proof’ of Milosevic’s guilt has been General Sir Rupert Smith’s stated ‘impression’ that Milosevic controlled the Bosnian Serbs, and Paddy Ashdown’s statement that he ‘warned’ the former Yugoslav head of state that war crimes were being committed in Kosovo. In February, the chief prosecutor herself, Carla del Ponte, admitted that she did not have enough evidence to convict Milosevic on the most serious charges. The supposedly impartial judges have been deeply complicit in this prosecution bungling. The ICTY has long been characterised by an unhealthy community of interests between the judges and the prosecutors; I have myself heard the first president of the ICTY, Judge Antonio Cassese, boast that he encouraged the prosecutor to issue indictments against the Bosnian Serb leaders, a statement which should disqualify him from serving as a judge ever again. In the Milosevic trial, the judges have admitted a tawdry parade of ‘expert witnesses’ who are not, in fact, witnesses to anything. In Britain, the role of experts is rightly under the spotlight after the convictions of some 250 parents found guilty of killing their babies have been thrown into doubt precisely because they relied on this kind of testimony; but in the ICTY you can be a ‘witness’ without ever having set foot in Yugoslavia. Numerous other judicial abuses have been legitimised by the ICTY. The use of hearsay evidence is now so out of control that people are often allowed to testify that they heard someone say something about someone else. It is common for the ICTY to offer reduced sentences (five years in one case) to men convicted of hideous crimes, mass murder for instance, if they agree to testify against Milosevic. The use of anonymous witnesses is now very widespread, as is the frequency of the ‘closed sessions’: a glance at the ICTY transcripts shows pages and pages blanked out because sensitive issues have been discussed in court — sensitive, that is, to the security interests of the Great Powers which control it, the USA in first place. The ICTY’s nadir came last December, when the former supreme commander of Nato, Wesley Clark, testified in the Milosevic trial; the court agreed to let the Pentagon censor its proceedings, and the transcripts were not released until Washington had given the green light. So much for the ICTY’s transparency and independence. Ironically, Slobbo has one objective ally: the British prime minister. The possibility is now real that a conviction of Milosevic can be secured only on the widest possible interpretation of the doctrine of command responsibility: for instance, that he knew about atrocities committed by the Bosnian Serbs and did nothing to stop them. But if Milosevic can be convicted for complicity in crimes committed by people in a foreign country, over whom he had no formal control, how much greater is the complicity of the British government in crimes committed by the US in Iraq, a country with which the UK is in an official coalition? This is not just a cheap political jibe but a serious judicial conundrum: the UK is a signatory to the new International Criminal Court, and so Tony Blair is subject to the jurisdiction of the new Hague-based body whose jurisprudence will be modelled on that of the ICTY. So if Slobbo goes down for ten years in Scheveningen jail because of abuses committed by his policemen, then by rights his cell-mate should, in time, be Tony. John Laughland’s latest book is Le Tribunal pénal international: gardien du nouvel ordre mondial, published by François-Xavier de Guibert, Paris, 2003. |
