The Milosevic Trial, Part 1

S. Herman

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 “victors’ 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.

One important
consequence of the media’s performance is its incompatibility 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.


Tribunal Context

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” (Washington Post, October 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

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

Funding and
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?”

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.” 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,

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 27
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

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 [2001]).
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… UN Doc.
PR/PIS/ 510-E [2000], available at 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.”

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 arbitrarily 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).
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.

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.

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 and the “prearranged scheme” and plans to prove
that a single bad man (Trotsky) was guilty. The commission argued that there was
no real effort to establish truth, but merely to prove guilt. It stressed the
self-interest of the accusers.

As regards
specific procedure, the commission noted the scanting of the rights of the
accused and defense, the dependence on accusations by those with a special
interest, the absence of documentary evidence backing up accusations and the
frequent use of documents that don’t prove anything relevant. The commission
also stressed the failure to provide context for statements, the failure to call
important witnesses, and the failure to explore contradictions in the

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
, 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.” 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,

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,
hoping to get 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 him 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

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 victors’ 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,”
, October 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.


Edward S.
Herman is an economicst and media analyst. His most recent book, co-edited with
Philip Hammond, is
Degraded Capability: The Media and the Kosovo Crisis
(Pluto, 2000).

Part 2
describes how the media have ignored these inconvenient facts while blacking out
all relevant critical context. Part 3 analyzes the institutionalized untruths
that are Tribunal premises, and which pervade the media, from
These Times
and the Nation to the New
York Times
, Washington Post, and CNN and network