Marlise Simons and the New York Times on the International Court of Justice Decision on Serbia and Genocide in Bosnia:

On many issues the New York Times serves as a propaganda organ of the state, latching onto a  position that meets an ongoing state interest and then adhering undeviatingly to the party line that ensues. This was true on a stream of Cold War issues, including decades of inflated claims about the Soviet military threat, with the vastly greater U.S. military spending framed as if the U.S. were merely responding to a Soviet challenge;[1] the Times editors also swallowed whole and steadily propagandized the false claim of Soviet involvement in the shooting of Pope John II in 1981.[2] More recently, as is well known and even acknowledged by the Times editors, the paper played an important role in disseminating disinformation on Saddam’s non-existent weapons of mass destruction (WMD), helping to set the stage for the U.S. invasion-occupation of Iraq.[3]


For years now, the New York Times has been riding a similar propaganda bandwagon on the wars and dismantlement of the former Yugoslavia: but in contrast to its performance over Iraq’s non-existent WMDs, once the Times climbed aboard this bandwagon, in the early 1990s, it never climbed back down again.  Like the rest of the establishment media in this country and elsewhere, the dominant frame to which the Times subscribed was helpful to longstanding elite interest in a NATO bloc expansion into Central and Eastern Europe that was activated by the collapse of the Soviet bloc.  Accordingly, the Yugoslavia party line holds that some combination of Slobodan Milosevic and the clique around him in Belgrade, or even the ethno-national group of Serbs as a whole, were the cause of the Yugoslavia wars, and required both foreign intervention and the bypassing of the UN Charter and international law to set things right.[4]  The Times‘s obituary following the death of Milosevic in March 2006 repeated this version of history for what must have been the thousandth time: "[Milosevic] rose and then clung to power by resurrecting old nationalist grudges and inciting dreams of a Greater Serbia, [and] became the prime engineer of wars that pitted his fellow Serbs against the Slovenes, the Croats, the Bosnians, the Albanians of Kosovo and ultimately the combined forces of the entire NATO alliance….The Croats reacted by turning to their own nationalist, Franjo Tudjman, and so the stage was set for a deadly showdown between Yugoslavia’s two largest ethnic groups, whose leaders manipulated centuries of historical differences…into a brutal civil war that spread from Croatia into Bosnia-Herzegovina.  There, the Muslim plurality led by Alija Izetbegovic proved powerless to enlist sufficient international support to prevent Mr. Milosevic and Mr. Tudjman from trying to dismember his state. Three and a half years of war ravaged Bosnia, leading to some 200,000 deaths and the eviction of millions from homes in a practice that became known globally as ethnic cleansing."[5] 


This basic narrative was drafted early in the wars, and was instilled through constant repetition as well as through the selection of stories, portrayal of characters, and the development of themes; alternative accounts were not only ignored, but their authors were frequently the targets of aggressive defamation campaigns.  David Binder, the Times‘s fine reporter on the former Yugoslavia for many years, had been largely removed from this assignment by the end of 1993, quite obviously because he did not toe this party line but had continued to file reports that overstepped it, writing more complex analyses that did not focus simply on Serb villainy.[6] 


By contrast, John F. Burns, whom the Times assigned to the former Yugoslavia at the start of 1992, was famous for his close relationship with Bosnian Muslim leader Alija Izetbegovic, and even won a Pulitzer Prize in 1993 based on his detailed reporting of the confessions of  Bosnian Serb, Borislav Herak, then in the custody of Bosnian Muslim forces.[7]  While Herak’s allegations about his "odyssey of brutality" (Burns) were extremely dubious from the start, and  betrayed every sign of the syndrome of false memory under extreme duress, Herak’s claims were very sexy, and, more important, they conformed to the already-established narrative of vicious, sadistic, genocidal Serbs driving the breakup of Yugoslavia.  At his trial before a Sarajevo court in March 1993, Herak offered emotional testimony about "his part in, or his knowledge of, the deaths of at least 220 Muslims, including 12 women" (Burns).[8]  Eventually, however, a retraction by Herak along with other telling evidence demonstrated that Burns’s star witness had provided false testimony based on threats by his Bosnian Muslim captors.[9] But Burns suffered no ill-consequences: his Pulitzer was not withdrawn, nor did Burns surrender it.  Instead, he remains a New York Times stalwart, and has filed hundreds of reports from Baghdad since the fall of 2002.

Enter Marlise Simons          


After 1993, Burns’s place as the Times‘s most frequently published byline on the Balkans was filled by a number of reporters.  One was Marlise Simons, who, beginning in 1996, with the start of  trials before the International Criminal Tribunal for the Former Yugoslavia (ICTY), reported regularly on the workings of the Tribunal, later becoming the Times‘s principal reporter on the Milosevic trial, and she still carries on that beat.  Simons’ record in dealing with Balkans issues has been one of undeviating accommodation to the establishment narrative, with an essentially perfect record of failing to ask critical questions or to report developments that do not conform to it.  In a separate analysis of 120 Marlise Simons-bylined articles on the ICTY that the New York Times published through December 31, 2003, we showed that Simons’ bias was both systematic and comprehensive.[10]  From how Simons framed a story (always adhering to that of the Western establishment), to her sourcing (excluding all serious critics of the ICTY), to her word usage and tone (see the table below), all the way to selectivity in her choice of evidence (she uses the "preferential method"): we found it "hard to believe that the Soviet media at the time of the Moscow show trials in 1936 could have done a better job on behalf of the Soviet prosecutor than Simons has done for the ICTY’s prosecutors."[11]


We reproduce here a Table on Simons’s word-usage from our earlier work, a dramatic and almost comic illustration of this Times reporter’s bias.[12]   




                            MARLISE SIMONS’ WORD USAGE

Slobodan Milosevic                    Prosecutors Louise Arbour and Carla 
                                                      Del Ponte; Judge Richard May

Infamous                                                            Forceful (Arbour)

Sniped                                                              Resolute (Arbour)

Scoffed                                                New assertiveness (Arbour)

Smirk on his face                                           Very capable (Arbour)

Speechmaking                                       No-nonsense style (Arbour)

Badgers the simple conscripts             Tough crime fighter (Del Ponte)

Carping                                      Unswerving prosecutor (Del Ponte)

Blustery defense                                     Natural fighter (Del Ponte)

Loud and aggressive                           Unrelenting hunter (Del Ponte)

Notorious                                            Finding the truth (Del Ponte)

Defiant                                                 Keeping tight control (May)

Reverted to sarcasm                    Patiently repeated questions (May)

Contemptuous                                   Sober, polite and tough (May)

Outbursts                                               Expert on evidence (May)

Face often distorted with anger             Among the best suited (May)


This differential word usage cannot be explained on the grounds that the ICTY’s former Chief Prosecutor Louise Arbour, but not Milosevic, was "resolute" and "forceful," and that Richard May, the former Presiding Judge at the trial, was only "sober, polite and tough," whereas Milosevic was "contemptuous" and "carping." John Laughland writes that May was "stubborn and aggressive" and "behaved rudely towards Milosevic throughout the trial," while "exceedingly indulgent to the prosecutor."[13] The noted Toronto lawyer Edward L. Greenspan, commenting on the opening days of the Milosevic trial, was immediately impressed with the fact that May "clearly reviles Milosevic" and "doesn’t even feign impartiality, or indeed, interest."[14] But Simons would never call this attitude, so obvious to Laughland and Greenspan, "contemptuous." Numerous trial observers have noted how May continuously interfered with Milosevic’s cross-examinations in a manner that could reasonably be called "carping" and far worse.  But not Simons: she reserves such words strictly for the bad man.  During the Prosecution testimony by former NATO General Wesley Clark, May interrupted Milosevic’s cross-examination at least 60 times, but didn’t bother Clark once, even as Clark spent many minutes discoursing on matters that had no bearing on the trial charges.[15]  Simons never mentioned this, nor did she note that during his period as witness Clark was allowed to telephone Bill Clinton to get from him a faxed statement, contrary to previously firm courtroom procedures as enforced by May.


During the course of her reporting on the Milosevic trial, Simons often referred to Milosevic’s and the Serbs’ quest for a "Greater Serbia" as a central charge of the prosecution.[16] But during the defense phase of the Milosevic trial, when the Serbian Radical Party leader and fellow ICTY indictee Vojislav Seselj was called to the witness stand, an exchange took place on the fourth and final day of his testimony in which prosecutor Geoffrey Nice acknowledged that Milosevic himself never advocated a "Greater Serbia," and didn’t even believe in the concept, as Seselj did.  What Milosevic really wanted, Nice explained, was "first of all that the former Yugoslavia shouldn’t be broken up because he argued, well, then, if they [i.e., Serbs] all live in the same place one where they can do it in [is] the former Yugoslavia."[17]  But this startling admission in court by the chief prosecutor in the Milosevic trial, that the defendant accused of being the fountainhead of Yugoslavia‘s breakup wanted instead to preserve the common state, was never reported by Simons or any of her colleagues at the Times.[18]

Simons and the Times on the International Criminal Court Decision


More recently, Marlise Simons has written two articles on the judgment by another tribunal, the International Court of Justice (ICJ) in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (better known as Bosnia and Herzegovina v. Serbia and Montenegro, or simply Bosnia v. Serbia).[19]  Both of these articles, as well as a Times editorial covering the same ground, which Simons  may have authored or co-authored, will be the focus of the balance of this article.[20]


First initiated in 1993 by the Muslim government of Bosnia and Herzegovina against the Federal Republic of Yugoslavia, the case was finally argued before the ICJ in 2006.  On February 26 of this year, the ICJ published a Judgment exonerating Serbia of any direct responsibility for the crimes committed against the male population of the Srebrenica "safe area" following its evacuation in July 1995, but also finding that Serbia "failed to take all measures within its power to prevent" the commission of these crimes.[21]


The New York Times and Marlise Simons headlined her initial article "Court Declares Bosnia Killings Were Genocide," adding the subhead "Serbia is Faulted but Cleared of the Crime" (February 27).  Simons’ lead sentence affirmed that "The International Court of Justice…for the first time called the massacre of Bosnian Muslims at Srebrenica in 1995 an act of genocide…."  The Times editorial later repeated the line that "The World Court…concluded that genocide did take place…" (March 5).  And in her first follow-up article, Simons again repeated the line that "The judges ruled that Bosnian Serb troops committed genocide against Muslims in 1995 in Srebrenica" (March 6).  Similar assertions about what the ICJ declared or determined or ruled or found (etc.) comprise the main frame describing the Judgment, and its ubiquity is fairly close to total.[22]


But this framing of the decision is dishonest for many reasons.  One is that this case was about Serbia‘s responsibility for the Srebrenica killings, which the ICJ denied but the Times did not feature.  A second reason is that the "declaration" of the ICJ that this was a case of "genocide" was not based on any independent investigation by the ICJ itself, but was derivative: in fact, the ICJ imported from the ICTY’s rulings in its Krstic and Blagojevic cases, as well as the UN Secretary-General’s 1999 report The Fall of Srebrenica, an already-existing determination to this effect,[23] and undertook no investigative effort to confirm or disconfirm it.  This resulted in large measure from the fact that, by the date the oral pleadings were heard by the ICJ in 2006, Serbia’s defense strategy was to bypass all questions related to the fate of the Srebrenica "safe area" population, which are complex and would have required a major research effort, and to focus on the narrower question of Serbia’s responsibility for whatever actions the Bosnian Serbs themselves may have taken.  Since Serbia addressed only the so-called "evidence of attribution" produced against it by Bosnia, the ICJ avoided the more fundamental matter before it, and merely quoted the ICTY’s findings of "genocide," employing them contextually in an ex cathedra fashion without itself opening this critical question.  Although this was the only case ever to be argued before the ICJ under the Genocide Convention, and though the Judgment is replete with mentions of "genocide,"[24] the 15 voting-judges at the ICJ produced no finding on whether the Srebrenica-related killings constituted genocide: as anyone who checks paragraph 471 of the Judgment can plainly see.


The ICJ’s exoneration of Serbia from responsibility for the events at Srebrenica was especially important because the entire case against Milosevic that had been before the other court, on which Simons and the Times lavished such great attention, turned on his alleged master-minding and control of the indigenous Serb forces in Croatia and Bosnia. As John Laughland immediately pointed out, "Slobodan Milosevic was posthumously exonerated… when the international court of justice ruled that Serbia was not responsible for the 1995 massacre at Srebrenica."[25]  Even former ICTY President Antonio Cassese: clearly unhappy with the Judgment: understood what it meant: "Serbia was not responsible under international law," he wrote; "Nor was Serbia guilty of complicity."  Most important of all, Cassese added that "if former Serbian President Slobodan Milosevic were alive, he would be absolved of the charge of genocide."[26]   Equally clear: though even more openly hostile toward the outcome: was Ruth Wedgwood, Johns Hopkins University international law professor and career-apologist for U.S. lawlessness, including acts of aggression, torture, the abandonment of habeas corpus and probable cause protections, and anything else required to serve the immediate needs of the imperial state.[27]  "The court’s judgment has broad implications," Wedgwood noted in a long and bitter commentary that visually dominated the Times‘s op-ed page.  "It amounts to a posthumous acquittal of Mr. Milosevic for genocide in Bosnia."[28]  But in the Simons-Times treatment of this subject, there is not a hint of the connection or parallel that exists between the ICJ’s exoneration of Serbia, on the one hand, and the status of the same category of charges brought against Milosevic in his serial indictments at the ICTY, on the other.  This strategic silence continues the pattern of suppression of inconvenient facts and lines of thought noted earlier as regards Simons’ failure to report the collapse of the "Greater Serbia" charge during the Seselj phase of the Milosevic defense. 


The Times‘s editorial states that the ICJ "established the official complicity of the former Serbian government."  This is an egregious misrepresentation: in fact, the ICJ’s Judgment even uses the word complicity in stating the opposite from what the Times claims: namely, "that Serbia has not been complicit in genocide" (Par. 471, Part (4), emphasis added). The ICJ claimed that the Serb government should have taken active steps to prevent the Srebrenica killings, but "complicity" implies control or some form of  participation. Furthermore, as the ICJ contends that the Srebrenica killings were not preplanned, but driven more or less by on-the-spot decisions and actions, it is not even clear that the Serbian government could have done anything about the killings. It is also not clear why the ICJ singled out the Serbian government for failure to act, rather than the UN Protection Force (UNPROFOR) and the NATO governments that were physically present within Bosnia at the time and therefore arguably in a better position to know and to act than the Serbian government.


As regards Serbia‘s "breaching it obligation of prevention," the ICJ argued that "it does not need to be proved that the State concerned definitely had the power to prevent genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them."[29] But any court taking this argument seriously would have no choice but to find the United States in breach of the same obligation: it had the means and obviously failed to use them.  The ICJ also stated that "The FRY leadership, and President Milosevic above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region."[30] But so was everyone else.  Moreover, the Serbian government’s armed forces had been withdrawn from Bosnia, but UNPROFOR was still in place, as was NATO’s newly created Rapid Reaction Force, and these forces exercised complete control of the skies.  Neither the Simons articles nor the editorial mention these considerations. 


Simons quotes the ICJ on "deep-seated hatred," but neither here nor in the earlier sample of her 120-bylined articles that we studied does she discuss the roots of this hatred: most notably Naser Oric’s frequent rampages against local Serbs from his armed camp in Srebrenica, from which Oric made videos of beheaded Serbs that he proudly showed to Western correspondents, reported elsewhere, but never by the New York Times.[31] In her article here Simons mentions that during the 1992-1995 wars in B

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