Neither Justice Nor Reconciliation

Diana Johnstone

Do international criminal tribunals contribute to reconciliation between parties to armed conflicts? On April 10, the question was discussed during a “thematic debate” at the United Nations General Assembly – but not by everybody.

The United States boycotted the affair.

Why? It was organized by a Serb.

Richard Dicker of Human Rights Watch took on the task of warning people away in an article in the Huffington Post.  The debate “will serve up a revisionist denial of the worst killings in Europe since the end of World War II”, he announced, adding that “it is unlikely much thoughtful discussion will occur.”

The Serb organizing the conference was Vuk Jeremic, who used to be Serbia’s foreign minister before becoming current president of the UN General Assembly, a position which allows such special thematic debates to be organized.  With the moral weight of Human Rights Watch behind him, Dicker wrote that “the government Jeremic served is dominated by the nationalist Serbian Radical Party (SRP), whose founder, Vojislav Seselj, is on trial at the International Criminal Tribunal on Former Yugoslavia” (ICTY).  Dicker accused Jeremic of deciding to “organize a ‘debate’ to serve as cover for an auto-da-fe of the tribunal.”

Take that, you Serbs!  We know what you’re up to!  Except that, incidentally, there has never been a Serbian government dominated by the Serbian Radical Party. That party ceased to exist during the ongoing decade-long incarceration without trial of its leader Seselj – which is perhaps precisely why Seselj is being kept indefinitely in The Hague.  The government Jeremic served was in fact the submissively pro-Western Democratic Party government of President Boris Tadic, which spent its years in office doing everything it could to please its tormenters in the European Union, the United States and the Tribunal.  But never mind the facts: those Serbs are all alike, extreme nationalists, of course.

Having disposed of the Serbian sponsors, Dicker concluded: “Countries with a more constructive agenda need to find a way to debate these and other lessons as we near the 20th anniversary of the Yugoslavia tribunal.”

Of course, Human Rights Watch could have brought its “constructive” views to the April 10 conference. All that was needed was for its executive director Kenneth Roth to accept the invitation from Jeremic, who also invited other champions of the ICTY.

Erin Pelton, spokeswoman for the U.S. Mission to the United Nations, said the United States would not participate in the “unbalanced, inflammatory” meeting.  Indeed, why should the Superpower that has systematically ensured its own immunity from the International Criminal Court discuss international criminal law with indictable riffraff?

So the debate was left to those beyond the pale of “the International Community” – such secondary  countries as Argentina, South Africa, Russia, China, Cuba, India, Algeria, Turkey, Brazil, etc., etc.

Jeremic posed the paramount issue of the conference in his introductory remarks: “how international criminal justice can help reconcile former adversaries in post-conflict, transitional societies.” He ventured to suggest that: “Reconciliation will come about when all the parties to a conflict are ready to speak the truth to each other. Honoring all the victims is at the heart of this endeavor… Reconciliation is in its essence about the future, about making sure we do not allow yesterday’s tragedies to circumscribe our ability to reach out to each other, and work together for a better, more inclusive tomorrow.”

Not much of an “auto-da-fe”.

This was soon followed by the dreaded moment of scandal when the current President of Serbia, Tomislav Nikolic, delivered his speech.  “U.S. boycotts U.N. forum over agenda set by Serb”, headlined the International Herald Tribune, noting that: “Critics took offense that the General Assembly president, Vuk Jeremic, whose antipathy toward the Yugoslavia tribunal is well known, had invited as keynote speaker the like-minded president of Serbia, Tomislav Nikolic, but not the victims of Balkans atrocities …”  What Nikolic himself actually said was not reported.

So, addressing only the majority of the world that lies beyond the pale, Nikolic said that Serbia yearned for reconciliation with its neighbors with whom it used to live in the same country.  But he was “deeply convinced that the Hague Tribunal has only done harm to this process and that it has probably caused an unnecessary delay that will be carried over to the next generation.”

The one-sided focus of the Tribunal on crimes by Serbs stands in the way of reconciliation, he said. The extreme imbalance between convictions of Serbs and other parties to the tragic conflicts indicates an effort to establish the conclusion that the Serbian side alone was carrying out murder and genocide while the others were passively going about their daily business.

“It is not true that in this war that destroyed us all only one side was getting killed and the other side was doing the killings”, he said, blaming the ICTY for a “lack of objectivity and impartiality”.

Nikolic recalled Serbia’s extraordinary cooperation with the Tribunal over the years, extraditing 46 defendants, including two former presidents, government ministers, three army chiefs of staff and several police and army generals, including the director of intelligence service which, Nikolic stressed, has never been done by any other country. Serbia has “almost given up sovereignty,” relieving more than 750 witnesses from the obligation to safeguard state secrets and opening its archives to prosecutors.
In return, crimes against Serbs have been almost entirely ignored by the prosecution, and the few prosecutions of the most notorious crimes of ethnic cleansing of Serbs have ended in acquittal on appeal.

The verdicts reached by the Tribunal are making the Serbian people feel frustrated and depressed while creating feelings of exaltation and triumph among Croats and Bosnian Muslims, he said. In the absence of a balanced truth, “any reconciliation will be imposed and insincere.” A convincing court “cannot be fair to some and unfair to others.”  No real reconciliation is possible when one nation is made to feel that it is the victim of a great injustice, while giving the other side a feeling of great triumph.

Of the refusal of ICTY representatives to attend the conference Nikolic said that “if they did not respect the most ancient legal rule, ‘Audiatur et altera pars’ (hear the other side too), how can we expect even a minimum of law and justice of them?”

Following statements by representatives of participating countries, the conference heard discussion by two expert panels, made up of a total of two Serbs and eight speakers from the United States, the United Kingdom and Canada.

Savo Strbac, a Bosnian Serb who has collected data on war deaths, used statistics to show that the Tribunal had unfairly prosecuted a disproportionate number of Serbs.  William Schabas, an American defender of the ICTY, replied that the 1945 Nuremberg Tribunal was, after all, even more one-sided against the Germans.  He thus confirmed exactly what the Serbs object to, namely that the Tribunal was set up at the start of the Yugoslav wars of disintegration to put political pressure on the Serbian side, after Germany and the United States, for contrasting reasons, had decided to back the Croatian and Bosnian Muslim separatists against the Serbs.  The ICTY was used as a constant threat to the Serbs, the party most opposed to dismantling Yugoslavia. The prosecution of members of the secessionist national groups have been token at best.

The second Serb panelist, Cedomir Antic, noted that over 70% of Serbs have a negative view of the Tribunal, but other national groups are not satisfied either. He protested that the underlying identification of Serbia with Nazi Germany was unfounded and unjust.  By developing a condemnation of Serbia’s entire historic culture, the ICTY has even fostered hatred of their own country among some Serbs. Serbs are accused of hating others, but self-hatred is welcomed.

It is striking that not long after World War II, which left over 60 million dead, the Federal Republic of Germany was cozily rehabilitated into the West, economically and militarily, whereas years after the end of an incomparably smaller localized war, Serbia remains a criminalized pariah.

The reason for this ongoing stigmatization of Serbia lies in the need to justify the 1999 Kosovo war.

At one point, a Cuban delegate asked Canadian panelist General Lewis MacKenzie, who commanded UN peacekeeping forces in Sarajevo during the Bosnian phase of the wars: what was the real reason that NATO bombed Serbia for 78 days in 1999?  General MacKenzie replied candidly that it was because NATO was celebrating its fiftieth anniversary, the Soviet bloc had collapsed, and “NATO was looking for work”.

The 1999 bombing of Kosovo was blatantly illegal – an act of aggression, without U.N. Security Council mandate, carried out with impunity against a country that posed no threat whatsoever to any NATO member.

As Cedomir Antic observed, the nature of the Tribunal is proven by the fact that it refused to indict anyone in NATO for its illegal crime of aggression against Serbia, or for its crimes in bombing schools, hospitals and other civilian targets.

International lawyer Matthew Parish raised the problem of international criminal law “stealing ground from historians”. The “fog of war” makes it hard to know what is going on, and justice pretends to give final answers, he observed.

ICTY indictments and convictions are designed to give answers that are clearly oriented in a way to support the NATO pretext that the bombing of Serbia was a “humanitarian” war to save potential victims (Kosovo Albanians) from a hypothetical threat of “genocide”. That version casts the Serbs as villains, with all other parties as innocent victims.

U.S. leaders wanted to give NATO a new mission, and claiming to “save the Kosovars” from genocide was an ideal pretext.  The main task of The Hague Tribunal for crimes in former Yugoslavia is to shore up that pretext. NATO powers proposed it, fund it, choose or vet its personnel.  Quite naturally, it follows and confirms the NATO interpretation of events.  The interpretation must be preserved above all because Kosovo as the “good, humanitarian war” still continues to serve as model for whatever other war the US or NATO may choose to undertake on a similar pretext.

It remained for British scholar John Laughland to conclude the debates with a scathing intellectual critique of the very principle of international criminal tribunals.  Laughland argued that the whole system is a fundamental mistake which overlooks the fact that the legal right to administer justice is the definitive characteristic of statehood which cannot rightly be usurped by such floating entities:

“This unimpeachable right to administer punishment is enjoyed by the state under very clear conditions, namely that this right is exercised in return for general protection of law-abiding citizens. The right derives, in other words, from the social contract. That social contract is systemically broken by international tribunals which offer no protection in return for the punishment they administer because they are not part of a state and have no police force. Not embedded in the structures of statehood, international criminal courts are a perfect example of power without responsibility.”

Laughland expressed his conviction that “the United Nations system is itself endangered by these developments and by the rise of that interventionism which international criminal justice embodies.”

To promote reconciliation, it would be necessary, Laughland maintained, to return to “the lost art of peace” which, until the early twentieth century, was exemplified in the amnesty clauses included in all peace treaties.  Amnesty was not an individual forgetting, but an official act of sovereign states to put hostilities behind them and make a fresh start on friendly terms.

Ignoring all such issues, the mainstream media, in its indigent reporting, focused on the absent victims.  Bosnian Muslim activist Munira Subasic was lengthily interviewed by the Associated Press, calling on emotion to trump reason with references to Srebrenica, genocide, rape, evil.

“As a victim of genocide, Subasic said, ‘I will never forgive.  I will never forget’,” AP reported.

It was a final proof of the failure of the International Criminal Tribunal on former Yugoslavia to advance reconciliation.

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