The Hague’s red robed clowns are at it again dispensing flawed justice. The clowns who call themselves judges have just rendered two judgments, one in Gotovina & Markac, the other in Haradinaj, Balaj & Brahimaj,that defy legal logic, that give a whole new meaning to “travesty of justice”.

None other than Carla del Ponte, the former Prosecutor for the International Criminal Tribunal [ICTY] finds the Gotovina judgment “not justice” and that she is “shocked” and that she “fully disagrees with the…verdict”. She is the proverbial cynical kettle calling the pot black, she reminds me of Casablanca’s Captain Renault being “shocked, shocked to find gambling going on” in Rick’s Café.

Remember del Ponte? She jumped ship; left her post at the ICTY after dominating the media for years with her never ending news releases and pronouncements that justice was served, when the opposite was true. She, with the world’s and the media’s acquiescence, propagated the myth that the ICTY is just and fair. As I would bluntly put it: what bullshit.

But there are cracks in that false façade. William Montgomery, the former American Ambassador, and Florence Hartmann, the former ICTY porte parole, have traded charges and countercharges on the flawed justice dealt by the Court. Now comes del Ponte’s condemnation of the Court.

Montgomery promoted the charade that the United States, England and France did not exert influence and did not politicize the Court and its decisions. Hartmann, in her book Peace & Punishment, charges that from the very “outset there was an effort to steer justice to justify the actions of the big powers in response to the war”. These accusations and justifications are in the press and on the internet. Each day some new revelation is made, but often buried in the back pages of newspapers, the world has lost interest.

It’s time to review again, lest we forget, the existence and workings of this institution that has spent millions of dollars and labored for twenty years with little result and almost no justice.

Yugoslavia imploded in 1991. What was once a relatively stable and even prosperous country soon became a series of mini-states engulfed by ethnic strife. The restraints that the great powers exercised in the breakup of the Soviet Union and Czechoslovakia were absent when it came to Yugoslavia. In order to paper over this grave misjudgment the Security Council gave birth to a flawed institution, the ICTY.

In February, 1993, with the war in Bosnia in raging, the Security Council established the ICTY invoking Chapter VII of the Charter. The Secretary General’s Report to the Security Council candidly admitted that an International Tribunal could be established only by approval of the General Assembly or by Treaty. The Secretary General cynically discarded international law as being too time consuming and cumbersome. The great powers, all well represented on the Security Council and all desperate to protect their self-interest, went along with this usurpation of power. What is telling is that the United States has boycotted a court established by Treaty, the International Criminal Court, while it has championed the ICTY. And so this misbegotten Tribunal was born.

Read Chapter VII of the United Nations’ Charter. It clearly specifies when and how military and economic sanctions may be invoked. The Chapter does not authorize nor condone the establishment of a war crimes tribunal. Another flawed experiment in justifying the end by any means.

The actual workings of the ICTY are also worthy of review. A fair and speedy trial is a hallmark of justice. Can one honestly believe that justice is well served when three separate indictments of immense magnitude are joined in one never ending trial? Deciding to do so in Slobodan Milosevic’s case was grand standing at its very worse by both by the Tribunal and the Prosecutor. Their role on the world stage, even though it was but a mere footnote, was assured. A rational prosecutor and an impartial court would insist the trials be separate and that the defendant be afforded a speedy trial which Milosevic did not get. What Milosevic got was today’s version of Stalin’s show trial, where the outcome was predetermined.

A court that hears evidence in secret, closed session, where transcripts of proceedings are blank redacted pages is not a just court. That is what happened to Dario Kordic when he tried to rely on secret testimony in the Blaskic case. One would hope that the Stalin show trials of the 30’s are no longer. The ideal of justice is transparency and the right of the public to evaluate the actual workings of purported justice. The very minute one condones secret sessions, closed hearings and sealed decisions, justice has been compromised.

A court where the Prosecutor starts to prepare his case only after an indictment is filed, the defendant arrested, extradited and sitting in jail awaiting trial is not worthy of the name. Meanwhile, the defendant, even if he has voluntarily surrendered, sits for 10 years waiting for his trial to complete. This is exactly what has happened to Vojislav Seselj. No court will find a defendant innocent after holding him in jail for 10 years. No, that court must find the defendant guilty to validate its actions.

A court that allows hearsay evidence is not a court of law. “I heard that such and such happened” is a common refrain from witnesses taking the stand at the ICTY, a court where newspaper articles from a partisan press are admitted in evidence and where television broadcasts are poof positive. Just try to cross examine a newspaper article or a television documentary. Even Joseph Goebbels would have balked at that one. Imagine a court where a war diary by an unknown author is allowed into evidence without any possibility of cross examination. That is what happened in the Dario Kordic case.

A court where three witnesses, who have failed to identity the accused from a photo array, are then allowed to identify the accused in open court notwithstanding objection is a joke. That’s what happened to Haradin Bala. The “beyond a reasonable doubt” test has just been thrown out of the window and under the bus.

A court that allows a prosecutor to play international politics to further her mission can convict politicians to terms in excess of 25 years for just being politicians. That’s what happened to Momcilo Krajisnik and Dario Kordic.

The ICTY is a Court where the supposed equality of arms between the prosecution and the defense is ignored. Time constraints are strictly enforced when it comes to the defense and ignored when the prosecution is in question.

A visit to the Tribunal illustrates the fact: the defense is afforded but three medium sized rooms in a very large building. Add to that the fact that the defense is allocated but 11% of the budget which has now grown to over $250 million dollars. All in all, defense attorneys are paid less than $100 an hour, and that figure includes salaries, overhead, travel, investigation, trial preparation, trials and appeals. An auto mechanic in New York, Paris or London is billed out at a higher rate, so much for equality of arms.

We now have the Gotovina judgment where an appellate court rather than reviewing errors in law now sits as a trier of fact and makes findings of fact de novo usurping the traditional role of a trial court.

The Trial Chamber found that Gotovina and Markac were “members of and made significant contributions to a Joint Criminal Enterprise whose common purposes was the permanent removal of Serbs from Krajina”, “[t]he most efficient ethnic cleansing…in the Balkans” according to Carl Bildt, the EU Special Envoy. The Appeals Camber states to the contrary, without elaboration, that there was insufficient evidence by which to reasonably conclude the existence of a Joint Criminal Enterprise. Try and sell that to over 200,000 Serb refugees.

The Haradinaj judgment is “déjà vu all over again”, another whitewash. To comment is futile and a waste of time.

Not one of the Republics of ex-Yugoslavia has condemned this extraordinary exercise of power by the Security of Council. You can only ask yourself why? Is it because the Yugoslav legal system was hopelessly corrupt and its present incarnation isn’t any better? Is it because the safeguards imbedded in Anglo-Saxon jurisprudence, the presumption of innocence, the beyond a reasonable doubt standard, the burden of proof upon the prosecution, have not translated well into the continental model? Who knows?

That said, this should not be taken as a blanket endorsement of American or British style of justice. The faults of those systems are many and have resulted in grave miscarriage of justice: the Scopes “Monkey Trial” of Darwinism; the Scottsboro Boys rape trial; the Sacco & Vanzetti charade; the illegal interment of Americans of Japanese ancestry during World War II. A complete list of these transgressions would fill pages of this magazine.

But this does not justify the lack of action by the newly minted Republics. They stood mute and timidly acquiesced to the wishes of the great powers. By their inaction they ill served their citizens, whose rights they were charged to protect. Along with the rest of the international community by their silence they gave tacit approval. Ex-Yugoslavs, be they Muslims, Serbs or Croats, are sheep being led to slaughter on the altar of this so-called justice. If you think that history will not be repeated, somewhere else, sometimes soon, you are sadly mistaken. Justice is dead in The Hague.


Deyan Ranko Brashich, an attorney, Op-Ed columnist, resides in New York City. “Letters from America,” a collection of essays, will be published January, 2013. His contact and blog “Contrary Views” is at www.deyanbrashich.com.

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