Swans Commentary » swans.com June 4, 2007  



Attacking The ICTY And The ICJ
Marlise Simons Goes Over the Top in Service to NATO PR


by Dimitri Oram





(Swans - June 4, 2007)   On February 26, 2007, the International Court of Justice (ICJ) voted to acquit Serbia of the charges of genocide and to reject Bosnia's claims for compensation. The court's decision stands as a strong challenge to the standard narrative that held Milosevic, Serbia, and the Serbian people guilty for the disintegration of Yugoslavia and accused the Serbs of committing genocide against the Muslims in Bosnia. This standard narrative was used to hide the role of NATO powers (especially the U.S. and Germany) as well as secessionist leaders in Slovenia, Croatia, and Bosnia, in Yugoslavia's disintegration, and to justify outside intervention from the NATO powers including the 1999 bombing campaign against Yugoslavia. (1) The notion of Serbian guilt has long been used to pressure Serbia and the Serbian people of Yugoslavia into compliance with great power designs for the region including full privatization, an independent Kosovo, and a fully unified Bosnia. Most importantly, the tale of Serbian aggression against Bosnia has served to promote Western intervention, including military intervention, into the affairs of other weaker countries. As such, the standard narrative has many prominent supporters, some of whom have made entire journalistic, diplomatic, military, or literary careers from it. It is not surprising then that, as a challenge to the standard narrative, the ICJ's decision was met with fury by all those who had portrayed the war in Bosnia as a case of genocidal aggression orchestrated by the Serbian government and planned from Belgrade.

Proponents of the Bosnian genocide narrative tried to do what they could with part of the ICJ's decision which claimed that the July 1995 killings at Srebrenica were a case of genocide and that Serbia violated international law by failing to stop it. The notion of Srebrenica as genocide is already highly questionable in light of numerous facts, among them that the Bosnian Serbs sent the women, children, and the elderly to safety. (2) Nevertheless, the ICJ also ruled that Serbia and its organs were not involved in the events at Srebrenica.

The New York Times' Marlise Simons, whose work on the Milosevic trial has been extensively documented by Edward Herman and David Peterson as a case study in NATO propaganda, moved to take the attack on the court's decision a few steps further. (3) In an April 9 piece entitled, "Genocide Court Ruled for Serbia Without Seeing Full War Archive," Ms. Simons tries to prove the falseness of the ICJ decision while attacking Serbia and even, bizarrely, the International Criminal Tribunal for the former Yugoslavia (ICTY) for allegedly hiding damning evidence. She makes these assertions even though Serbia turned over hundreds of documents containing the minutes of the nation's military Supreme command:

Serbia, the heir to Yugoslavia, obtained the tribunal's permission to keep parts of the archives out of the public eye. Citing national security, its lawyers blacked out many sensitive -- those who have seen them say incriminating -- pages. Judges and lawyers at the war crimes tribunal could see the censored material, but it was barred from the tribunal's public records.

There are more than a few problems with this "scoop," which falls apart under any serious scrutiny. For starters, Serbia's decision to hand over hundreds of secret documents containing the wartime minutes of Yugoslavia's political and military leaders to an international tribunal established under highly dubious legal circumstances, stands in striking contrast to the refusal of NATO and the NATO powers to provide the tribunal with requested documents. (4) Second, the meeting minutes were not hidden from the ICTY judges and lawyers; but rather, they were not made available to the public on the grounds of national security. While Simons treats this as something sinister, it is not at all surprising that a state, particularly one attacked repeatedly by the most powerful countries on earth, might not wish all its military secrets made public to the entire world. As Simons herself acknowledges:

Confidentiality rules to protect "national security interests" have often been invoked at the tribunal, including by the United States, which has privately provided intelligence like intercepts and satellite images to assist prosecutors.

It isn't that Simons has a problem with invoking national security interests, only with Serbia's invoking these interests. Nevertheless, the documents were, as even Simons admits, made public to the ICTY's lawyers and judges, and the ICTY's own ruling allowed Serbia to keep parts of these documents hidden from the public. Is the ICTY, then, in on the cover-up? Sounding almost like a genuine critic, Simons refers at one point to "proceedings in the Hague where hearings can turn into closed sessions and deals happen behind closed doors."

What she does not tell her readers is that these closed sessions and deals behind closed doors have been used by the prosecution and the NATO powers (which fund and support the tribunal) to write the anti-Serbian narrative. Nearly a third of the Prosecution witnesses at the Milosevic trial testified as protected witnesses, and other prosecution witnesses simply turned in written statements but did not testify live. (All of the Defense witnesses testified live under their own names.) As for deals behind closed doors, there are quite a few involving the Prosecution...all undertaken against the Serbs.

Among other examples, Momir Nikolic's plea bargain with the prosecution to testify against others -- he was exposed as a perjurer on the witness stand, admitting that he had claimed he ordered the massacre of 1,000 Muslims at a warehouse in Kravica when in fact he was not even present there; the sentence of Drazen Erdemovic, a Croat mercenary diagnosed as mentally ill, who admitted to massacring 100 people in Srebrenica, to less than four years in exchange for his serving as a star witness against others; the testimony of NATO general Wesley Clark, whose two days at the Milosevic trial were kept private for 48 hours while lawyers from the US State Department reviewed his testimony afterwards to decide what would be available to the public, and so on. (5) However, according to Simons, it is not simply the ICTY but chief prosecutor Carla Del Ponte who was in on the cover-up:

In a recent interview Mrs. Del Ponte confirmed that she had sent a letter in May 2003 to the former Serbian foreign minister, Goran Svilanovic, saying she would accept the sealing of "reasonable" portions of the records. "It was a long fight to get the documents, and in the end because of time constraints we agreed," she said. "They were extremely valuable for the conviction of Slobodan Milosevic." Mr. Milosevic died before his trial was over.

This is rather startling, as Simons had previously been very supportive of Del Ponte, referring to her as a "tough crime fighter," "unswerving prosecutor," "unrelenting hunter," "finding the truth." (6) Apart from Simons's abrupt change in opinion, there are several other problems with the theory of Del Ponte's dirty deal. First, we are to believe that Del Ponte, trying to get a conviction against Milosevic, decided to sabotage her own case by allowing for Serbia to cover up some allegedly damning evidence. It is rather hard to believe this, as over the years almost any evidence or implication of Serbian guilt, no matter how tainted or flawed, has been seized on by the ICTY and/or the media, which rarely fail to accept it at face value.

To give one example, the infamous Srebrenica execution video of 2005 was portrayed by virtually all available media as key evidence that the Serbs had killed 7-8,000 Muslim males at Srebrenica and that Serbia played a role in the massacre. Despite key questions about its authenticity, the fact that the members of the Scorpions militia who committed the killings came from the Republic of Serbian Krajina (forcibly reincorporated into Croatia in 1995) and not Serbia, and the fact that the killings of six people not 7,000 were shown, the statements of the prosecution were taken at face value. In a show of open bias, the ICTY's President Theodor Meron even appeared on the June 14th, 2005, PBS NewsHour with Jim Lehrer and discussed the video and its "impact on public opinion in the region," again invoking the Second World War. (7) Despite the hype, the Srebrenica execution video itself was never properly authenticated or actually admitted into evidence, and the defense was never notified of the video until after the prosecution played it.

Second, we are to believe that despite Del Ponte's continuous condemnations of Serbia, so harsh and hysterical that it even drew protests from high level Western officials and interventionist writers, and the fact that the vast majority of accused at the ICTY have been Serbs, Del Ponte has really been covering up for Serbia all along. (8) It is touching that, despite her disillusionment with the ICTY's corruption, Simons still has the proper faith in Del Ponte when politically convenient. In keeping with her previous reporting on the ICTY, which has always downplayed or ignored the serious setbacks suffered by the Prosecution at the Milosevic trial and the numerous flaws in the standard narrative of Yugoslavia's disintegration, Simons does not challenge Del Ponte's claims that Milosevic would be properly convicted.

Once again Simons also chooses to downplay the troubling circumstances surrounding Milosevic's death stating simply that, "Milosevic died before his trial was over," thus ignoring the fact that the tribunal denied him proper medical treatment and ignoring as well the rumor that he had been deliberately poisoned. It would be highly amusing, except for the potentially serious consequences, to see Simons break her pattern of support for the ICTY, only to attack that same institution for failing to be sufficiently useful to the needs of NATO's interventionist propaganda! Even if we are to believe all this, there is yet another flaw in the Del Ponte cover up thesis: The tribunal chambers, not Del Ponte, decide on the admission of evidence and the classification of documents.

Throughout the piece Simons refers primarily to anonymous "lawyers" or "lawyers and others" who had allegedly seen these documents from the archive. It is somewhat difficult not to think that these anonymous individuals are connected with the Office of the Prosecution trying to justify their failures in the Milosevic trial.

Those actually named in the article, all skeptics of the ICJ decision, are hardly impartial: Phone Van Biessen, a member of Bosnia's legal team at the ICJ; William Schabas, a longtime supporter of the ICTY, former senior fellow at the US State Department's Institute for Peace, whose work on Rwanda has been a case study in bias; and Natasha Kandic, director of the Humanitarian Law Center in Belgrade, who has long played a key role in dispensing anti-Serbian propaganda, supported the NATO bombing of her country and was given the award of the National Endowment for Democracy in 1999. (9)

When she comes down to specifics, Simons can do little more than cite the fact that Serbia gave support to Bosnian Serb forces, a fact which the ICJ acknowledged. The same thesis was played up by Human Rights Watch in their outrageously biased propaganda work on the Milosevic trial, "Weighing the Evidence." (10) To put the stamp of judicial authority on her insinuations Simons quotes two dissenting judges, (al Khasawneh of Jordan and Mahiou of Algeria) from the ICJ's panel to prove the falsity of the court's reasoning.

As in her other work, Simons does not allow the other side to be heard. Her only attempt at balance seems to be a call to one lawyer for Serbia, Vladimir Djeric, who said he couldn't discuss his former duties. There must have been others who would have discussed the case and did after Simons's piece came out. For instance, Sasha Obradovic who represented Serbia and is quoted in the Serbian media (Politika, April 17), "Why do you need these documents when you have the man [Sir Richard Danatt] who Bosnia invited to act as their witness, who is the military expert for the Prosecution of the Hague Tribunal and who knows all the documents. His conclusions were crucial in bringing the decision in favor of Serbia. How can we lose this case? Had there been any documents they would have been out in the open during the Milosevic trial."

Radislav Stojanovic, Serbia's lead representative in the case, stated in the same article, "For a revision of the verdict brought on February 26 they would have needed new evidence that would paint a completely new picture regarding the one the U.N. had had when they brought the verdict. Such documents do not exist." (11)

Simons never tells the reader that there are other judges on the panel who questioned the court's decisions in a different way. Among these is Judge Skotnikov, who disagreed that the ICJ had jurisdiction in the case and disagreed with the ICJ's decision to use the ICTY's rulings to prove Srebrenica was a case of genocide:

In the view of Judge Skotnikov, the only findings by the ICTY of the commission of genocide-related crimes in the former Yugoslavia, in the Krstiæ and Blagojeviæ cases, have not been made in conformity with the Genocide Convention. In both cases the defendants were convicted of a crime not recognized in the Genocide Convention, but rather one which is established in the ICTY's Statute, namely "aiding and abetting" genocide without having genocidal intent.

In addition, these cases determined that genocide had occurred in Srebrenica by making findings about the genocidal intent of unidentified persons, not before the ICTY. For these reasons, Judge Skotnikov considers that the Court should have disregarded these findings and concluded that it had not been sufficiently established that the massacre in Srebrenica can be qualified as genocide.

Consequently, Judge Skotnikov also disagrees with the finding of the Court that the Respondent breached the provisional measures ordered in 1993. (12)

Judge Kreca also disagreed with the ICJ's legal reasoning and the designation of the Srebrenica massacre as genocide: "Judge Kreæa finds not only that the reasoning and findings of the majority are unfounded, but run counter in more than one element to cogent legal considerations and, even, common sense, thus assuming the aroma of argumentum ad casum:

The majority view on the res iudicata rule, exempli causa, is similar to an ode to infallibility of Judges rather than to a proper legal reasoning about the characteristics and effects of that rule in the milieu of the law which the Court is bound to apply. The interpretation of the res iudicata rule in the circumstances surrounding the case inevitably led to the nullification of the relevance of ius standi of the Respondent being an essential condition for the validity of any decision taken by the Court in casu.

It appears that the determination of the tragic massacre in Srebrenica as genocide is, both in the formal and the substantive sense, well beyond the real meaning of the provisions of the Genocide Convention as applicable law in casu. Hardly any of the components of the special intent as a sine qua non of the crime of genocide as established by the Convention is satisfied in the relevant judgments of the ICTY as regards the massacre in Srebrenica. Judge Kreæa is of the opinion that the massacre in Srebrenica, according to its characteristics, rather fits in the frame of crimes against humanity and war crimes committed in the fratricidal war in Bosnia and Herzegovina.

Other judges gave the opinion that the ICJ should not be ruling on genocide as a state could not commit the act but rather individual perpetrators. Several judges among them, Ranjeva, Shi, Koroma, Skotinov, noted that the ICJ's decision that the court has jurisdiction in this matter is not compatible with the ICJ's earlier decision to reject Serbia's claims against NATO member states for the 1999 bombing by claiming that Yugoslavia was not a member of the U.N. at that time. The thesis, supported by far more evidence, that the ICJ is biased far more towards Bosnia (and ultimately the NATO powers behind the standard Bosnian narrative) than against it is ignored.

It is grim to see that not only has the standard of justice been changed from innocent until proven guilty to guilty until proven innocent, but in this case not even an acquittal at the International Court of Justice is deemed sufficient to end the presumption of guilt.


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1.  For an excellent look at the role of the NATO powers and secessionist forces in the Yugoslav tragedy see among others Diana Johnstone, Fools' Crusade (Pluto Press, 2002). For a shorter look see also Diana Johnstone, "Seeing Yugoslavia Through a Dark Glass" Covert Action Quarterly # 65 Fall 1998
http://ourworld.compuserve.com/homepages/grattan_healy/johnston.htm  (back)

2.  For a close examination of the problems of the standard Srebrenica narrative see the findings of the Srebrenica Research Group available at http://www.srebrenica-report.com/ see also Edward Herman and David Peterson, "Marlise Simons and the New York Times on the International Court of Justice Decision on Serbia and Genocide in Bosnia: A Further Study in Total Propaganda Service"
http://www.zmag.org/content/showarticle.cfm?ItemID=12321  (back)

3.  See Edward Herman and David Peterson, "Marlise Simons on the Yugoslavia Tribunal: A Study in Total Propaganda Service"
http://www.zmag.org/simonsyugo.htm  (back)

4.  Although the ICTY which relies on the NATO powers for support has hardly tried to hold them accountable. For a look at the Office of the Prosecution's whitewashing of NATO war crimes see

Also Herman and Peterson ibid. note that NATO refused to answer specific questions from the ICTY.  (back)

5.  For Nikolic's confession see IWPR "Key Srebrenica Witness Apologises for Lies," Oct. 4, 2003

This article is actually a censored and rewritten version of the earlier IWPR article by Chris Stephen, "Key Srebrenica Witness Admits Lying." For a critical examination of IWPR's censorship in this case see Cali Ruchala, "Institutional Breakdown: Censorship, Bias and Politics at the Institute of War and Peace Reporting (IWPR)," Dec. 16, 2003 Sobaka
http://listserv.acsu.buffalo.edu/cgi-bin/wa?A2=ind0312&L=justwatch-l&D=1&O=D&P=50939  (back)

6.  See Table 2 "Marlise' Simons Word Usage" in Herman and Peterson, "Marlise Simons on the Yugoslav Tribunal"  (back)

7.  Meron also noted and praised the NATO powers pressuring of Serbia. Meron's comments are available at
http://www.pbs.org/newshour/bb/europe/jan-june05/meron_6-14.html  (back)

8.  For instance, William Montgomery, the US Ambassador to Serbia and Montenegro from 2000-2004, and British journalist Misha Glenny, both supporters of the standard narrative, have criticized Del Ponte for her excessive zeal.  (back)

9.  For Schabas's background and a link to resume see

For a critical look at the role of Schabas and other human rights promoters in supporting the Rwandan Patriotic Front in 1993 see Robin Philpot, Colonialism Dies Hard Chapter 4, "Scouts at Her Majesty's Service," available online at

For a look at Natasha Kandic's NED award see NED News and Events 2000

"A lot of what we [NED] do today was done covertly 25 years ago by the CIA" according to Allen Weinstein, one of those involved in the organization's creation. See "Innocence Abroad: The New World of Spyless Coups," by David Ignatius, Washington Post, September 22, 1991.  (back)

10.  For a critique of HRW's work, particularly on Yugoslavia and the Milosevic trial see Edward Herman, David Peterson, & George Szamuely's "HRW in the Service to the War Party"
http://www.zmag.org/content/showarticle.cfm?ItemID=12200  (back)

11.  "BiH Nema Cime Da Obori Presudu" J. Cerovina "Bosnia and Herzegovina has nothing to revise the verdict"
loose translation done by a friend (Z.G.)  (back)

12.  see the Annex to Summary 2007/2 at
http://www.icj-cij.org/docket/index.php?sum=667&code=bhy&p1=3&p2=3&case=91&k=f4&p3=5  (back)


Internal Resources

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About the Author

Dimitri Oram is a writer and researcher based in Western Massachusetts. He was born and raised in Northampton and graduated from the University of Massachusetts in 2000. He woke up to the realities of the US Global Empire back in 1999 during the NATO bombing campaign against Serbia.



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Published June 4, 2007