The Best-Laid Plans Of Mice And Tribunals Go Oft Astray

by Stephen Gowans

March 11, 2002


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Critics of the The Hague Tribunal, before which former Yugoslav President Slobodan Milosevic stands accused of murder, deportation and crimes against humanity, say the tribunal is like no other court.

This isn't a trial in any normal sense of the word. It's a show trial. And it's all gone horribly wrong.

It all started when Milosevic, acting as his own defense council, twisted the first prosecution witness into knots. Then he managed to get the prosecution's lead witness thrown out. And other witnesses have wilted, trapped in corners of deceit of their own making, led there by Milosevic's deft questioning. So devastating has the former leader's cross-examination been, some witnesses are now refusing to take the stand.

The prosecution's case, weak from the beginning, is falling part, and that has the people who planned the Tribunal, and the Serb politicians who stand to benefit from it, in a flap.

Milosevic's questioning of Halil Morina, a retired farmer from the village of Landovica in Kosovo, is emblematic of how inauspicious the trial has been for the prosecution side.

Milosevic "tried to get (Morina) to admit soldiers (1) from the Kosovo Liberation Army (KLA) had killed four Serb soldiers before Serb forces burned about three-quarters of his village in March, 1999," reported Canada's The National Post, on March 2nd. "Mr. Morina, who has lived in Landovica all his life, denied any knowledge of the KLA, even though a monument was erected in the village to the guerrilla fighters after the bombing."

"How could a monument be built for dead soldiers of the KLA if there weren't any there in the first place?" Mr. Milosevic asked.

For ordinary Serbs, the hearings, broadcast on television, have renewed admiration for the former leader.

For Zoran Djindjic, the US-backed premier of Serbia, the hearings have been a disaster. He wishes they'd be called off. The sooner, the better.

Djindjic complains the prosecution is incompetent, the witnesses unbelievable.

"I am speechless when I see how much money has gone up in smoke to allow the court to take five years to unearth such insignificant witnesses," Djindjic told a German newspaper, according to the March 1 San Francisco Chronicle.

Taking five years to "unearth such insignificant witnesses" suggests the Tribunal has spent the last five years working backwards from a foreordained guilty verdict, with little success. If the witnesses are insignificant, why did the Tribunal decide to proceed?

"Djindjic complained," said The London Observer on March 3, "that before Milosevic's extradition to The Hague, tribunal officials had assured him that they had 'enough proof of his personal responsibility' and 'would show this within days'."

Not so. Instead, the prosecution has delivered witnesses Milosevic has quickly demolished. Promises that "a high-level witness from Belgrade would appear in court to testify that Milosevic had indeed given orders which led to massacres, mass deportations and ethnic cleansing," have been empty, the Observer reports. No such witnesses have been brought forward. Instead, the prosecution has put people like Halil Morina on the stand. And Morina and other "insignificant" witnesses are making it plain that the prosecution hasn't much of a case.

It's no wonder, the trial -- which Djindjic calls a "circus" -- has left the Serb leader "facing an awkward dilemma."

It was Djindjic who arranged to have Milosevic spirited out the country and delivered to Schvenigan, the former Nazi prison, at which Milosevic and other accused are held.

That action, Yugoslavia's highest court ruled, was illegal. Djindjic didn't have the authority to extradite Milosevic to The Hague. This everyone in the country knew, but Djindjic went ahead anyway, ordering masked men to kidnap Milosevic from his home.

The West was making noises that a donor's conference, at which aid to Yugoslavia would be discussed, would be cancelled unless Milosevic was handed over to UN authorities.

With Milosevic confined to a prison cell at Schvenigan, the donor's conference went ahead. But if Yugoslavs were expecting to be showered with aid money to help rebuild their shattered country, they were sorely mistaken. Or perhaps more accurately, cruelly misled.

The United States doesn't have friends; it only has interests, warned Milosevic's Socialist Party. They were right. Aid Yugoslavs were expecting to help pick themselves up became aid largely earmarked to pay old debts.

Djindjic feigned outrage. "In August we should be getting the first instalment, 300 million Euro. Suddenly we are being told that 225 million Euro will be withheld for the repayment of old debts which in part were accumulated during Tito's time. Two thirds of that sum are fines and interests, accrued because Milosevic refused for ten years to pay back these credits. We shall get the remaining 75 million Euro in November at the earliest. Such are the principles in the west, we are being told. This means: A seriously ill person is to be given medicine after he is dead. Our critical months will be July, August and September." (2)

"Fears are growing in Belgrade that the trial of former Yugoslav president Slobodan Milosevic at The Hague is going horribly wrong, turning him in the eyes of the public from a villain charged with war crimes into a Serbian hero," says The Observer.

But who exactly is afraid?

It isn't ordinary Serbs, who are said not to blame Milosevic for fighting a war, but for losing it. Now, they admire Milosevic for fighting back at the tribunal.

As a result, Djindjic and his NATO backers are panicking.

"Far from revealing to Serbs the enormity of the crimes committed in their name, the trial has so far only served to reinforce the widespread Serbian prejudice that the tribunal is an anti-Serb kangaroo court and that Milosevic will emerge, as he has already declared, as the 'moral victor'," The Observer noted.

Language like that could make you believe the purpose of the trial is not to examine the evidence, but to manufacture it, put it on the public record, and convince the world of the charges. With help from newspapers like The Observer making it stick.

Why else would the conclusion that "the tribunal is an anti-Serb kangaroo court" be dismissed as prejudice, when so much of what's transpired so far points to the conclusion as true, and when the prosecution has failed to reveal "the enormity of the crimes committed?"

Wouldn't any sensible person conclude, in the wake of the Tribunal's lawyers being unable to bring forward credible witnesses after five years, that the Tribunal is indeed a kangaroo court?

In damage-control mode, the Western powers -- they set up the Tribunal, hired the staff, appointed the head prosecutor, and provide much of the funding -- are talking of hamstringing Milosevic. If Milosevic is picking the prosecution's case apart, he'll have to be stopped.

"Irritated by the Serbian leader's rambling questions, often laced by commentary and political polemics, the three judges have asked for arguments on whether to curb the scope and length of his cross-examinations," said an AFP report on March 3.

This on top of making it almost impossible for Milosevic to conduct his own defense. While the prosecution has almost limitless resources, Milosevic has a pay telephone in a prison, which half the time isn't working.

It's all reminiscent of Scots songwriter Ewan MacColl's song Legal-Illegal.

To picket is one of your rights....But to picket effectively, that is a crime.

For Milosevic, to cross-examine is one of his rights, but to cross-examine effectively, that will soon be a crime.

With The Hague's square pegs not fitting into round holes, far-fetched explanations are being pressed into service to explain the prosecution's dismal performance.

The Belgrade weekly, Nedeljni Telegraf, confirming reports heard by The Observer, says that "Milosevic ordered the entire archives of the Yugoslav army's military intelligence to be transferred to his office."

Continuing, The Observer notes:

"After he fell on 5 October 2000 none of these was found and, says the paper, 'the assumption is that Milosevic personally hid all that somewhere safe in preparation for his meeting The Hague tribunal and its prosecutor.'"

In other words, the prosecution doesn't have a case, because Milosevic hid the evidence.

This, of course, is the baldest form of question begging. The truth of the claim to be proved (that Milosevic is guilty) is assumed, and therefore anything that contradicts the claim (the absence of evidence) has to be explained away (Milosevic hid the evidence.) That the claim is false can never be admitted.

And then there's another little bit of trouble. If Milosevic hid the evidence, how does the prosecution know that Milosevic did anything wrong?

That's why Djindjic is troubled and the US government is complaining about the Tribunal. Not because the prosecution doesn't have a case. That, one suspects, Djindjic already knows. The trouble is the prosecution has done such a bad job of concealing the fact it doesn't have a case. Now the damage Milosevic has done to the legitimacy of the charges against him has to be repaired.

For Djindjic, it's embarrassing. He trampled the law to have Milosevic sent to The Hague. The donor's conference, which, it was said, wouldn't go ahead without Milosevic's arrest, didn't deliver. You'd think the least the West could do is vindicate him by using its tribunal to show Milosevic to be a monster. But even on this, the West can't deliver.

Hence, you hear a lot of complaining about incompetent prosecutors, another instance of question begging. If the prosecution can't show Milosevic to be guilty, it must be because the prosecutors are dunderheads who have fumbled the ball, not because the charges are false.

Are the prosecutors incompetent?

Maybe, but the odds seem against it.

Lead prosecutor Geoffrey Nice was rebuked by Milosevic for not knowing that Kosovo is part of Serbia. The National Post said Milosevic was being pedantical. Was he, or was Nice shockingly ignorant? Nice referred to Kosovo as a neighbour of Serbia, tantamount to calling Rhode Island a neighbor of the United States.

It seems more likely that Nice's ignorance is contrived, in the same way PR firms contrive ignorance in knowingly propagating a deception in the service of their client's interests. It's not that they're stupid, it's that they're playing at being stupid, with a purpose.

In the West, it has been part of the deception that portrays Milosevic as an ultranationalist to portray Kosovo as a sovereign state, a neighbour of Serbia, that Serb forces under Milosevic's command invaded in an effort to establish a Greater Serbia. Would a prosecutor working for a tribunal charged with trying crimes for the former Yugoslavia not know Kosovo is part of Serbia? That's hard to believe. Would he portray Kosovo as a neighbor of Serbia because it fit the Tribunal's case? That seems more likely.

Which means the prosecutors aren't bunglers, in the sense of not knowing which way is up or down, but bunglers in the sense of not being able to lie very effectively. Or so it must seem, from Djindjic's and Washington's perspective.

Nice and company also trotted out Milosevic's 1989 Kosovo Field speech. It was at Kosovo Field, NATO-nurtured legend has it, that Milosevic transformed himself from Communist Party apparatchik, to ultranationalist Serb demagogue, whipping Serbs into a frenzy of hate against Muslims and Croats, and launching his campaign of ethnically inspired murder and deportation.

But anyone who reads the transcript of the speech (a US government version of the address, uncovered by researcher Gregory Elich, can be read on Swans) will quickly see the speech is anything but what the prosecution says it is. On the contrary, a speech filled with such lines as "equal and harmonious relations among Yugoslav peoples are a necessary condition for the existence of Yugoslavia" and "equal and united people can above all become a part of the civilization toward which mankind is moving" can hardly be called an ultranationalist diatribe.

Are we to believe that the prosecution hasn't access to the speech, didn't read it, and doesn't know what Milosevic actually said? Or is it more likely the Tribunal knows exactly what Milosevic said, but has decided the legend is more congenial to their task of portraying Milosevic as "a villain charged with war crimes" and "revealing to Serbs the enormity of the crimes committed in their name," as The Observer defines the task?

Odds are it's the latter, unless you accept that the prosecutors are criminally stupid, which is always possible. Never underestimate the role stupidity plays in the affairs of the world, we're warned. But either way, the implications are plain. The whole thing is a farce.



1.  The KLA is hardly a regular army whose members can be called soldiers. As late as 1998 the US State Department called the KLA a terrorist organization, and noted it had connections to Osama bin Laden. Were there any consistency in the way the media labels members of irregular armies, members of the KLA would either be called terrorists, or members of al-Qaeda would be called soldiers. Clearly, there's little to distinguish al-Qaeda and the KLA, except for the side they fight on, and even there, Islamist terrorist groups, the Mujahadeen being the most famous, have acted as proxy armies of Washington. Milosevic and his supporters complain the United States, on no authority but its own might, can wage a war of dubious legality against al-Qaeda, killing thousands of innocent civilians, and ignoring the Geneva Conventions in the process, while Milosevic is dragged before a tribunal for waging, within his own country, a legal operation against terrorists linked to al-Qaeda.  (back)
2.  Der Spiegel, cited in "If I Fall the West Loses $10 Billion," http://www.tenc.net/docs/warn.htm  (back)



       Stephen Gowans is a writer and political activist who lives in Ottawa, Canada.

       Please, DO NOT steal, scavenge or repost this work without the expressed written authorization of Swans, which will seek permission from the author. This material is copyrighted, © Stephen Gowans 2002. All rights reserved.

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Published March 11, 2002
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