ICTY Judgments: a New Storm in the Balkans?

Two recent judgments handed down at the end of March by the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the Karadzic and Seselj cases, may turn out to have serious implications for peace and stability in the Balkans.

To be sure, most of the Karadzic trial judgment was standard ICTY prose –  “victors’ justice” unconvincingly disguised as legal, and even historical, analysis. The defendant Karadzic, first president and wartime leader of the Republic of Srpska in Bosnia between 1992 and 1996, was predictably found guilty on all counts – except for one. But there precisely lies the hidden explosive device built into the decision.

The accusation for which, surprisingly, Karadzic was found innocent is not trifling. It concerns seven municipalities in Bosnia and Herzegovina where – in a addition to Srebrenica – “genocide” is also alleged to have been committed by the Bosnian Serbs. After numerous genocide trials at the Hague, these municipalities (Bratunac, Focha, Kljuch, Prijedor, Sanski Most, Vlasenica, and Zvornik) were finally added to the Karadzic case as definitive proof of the widespread nature of “genocide” committed by the Republika Srpska forces. There is an important reason for that. The 20th anniversary spectacle staged in July of 2015 notwithstanding, Srebrenica genocide is now an essentially spent narrative. It has so far failed to accomplish the strategic objective of convincingly demonstrating why a supposed “genocide” that occurred at the very end of the war, with evidence supporting it coming increasingly  under critical scrutiny, should still serve as the basis for dismantling the Dayton Peace agreement and abolishing the Serbian state set up under it as a “genocidal entity.”

The addition of the seven municipalities where genocide is also supposed to have occurred, in areas under Serbian control other than Srebrenica and at various times during the conflict, was a logical step that would have greatly strengthened the general Bosnia genocide argument.

The court’s refusal in this instance to agree with the prosecution is unusual and at first glance very puzzling. By the low standards of proof of ICTY, if genocide occurred in Srebrenica it should have occurred in those other municipalities as well. But if it did not occur in those newly added places, since the basic elements of proof are very similar everywhere, did it really occur even in Srebrenica?

As is so often the case at ICTY, it is useless to look for clear juridical answers. A political analysis of ICTY verdicts is always more enlightening. The significant impact of these two decisions is that they leave all Balkan actors deeply frustrated and dissatisfied, each from their separate point of view. The Serbs are unhappy that their wartime leader of Republika Srpska was found guilty on most of the charges and sentenced to 40 years in prison, because their perception of the trial is that very little substantive proof of his responsibility for war crimes was submitted. Bosnian Muslims are furious because the extension of “genocide” to the seven additional municipalities – a vital legal component of their argument for the abolition of Republika Srpska – was rejected by a court they thought would be sympathetic to them. They are also upset by the very “lenient” 40-year sentence imposed on Karadzic, instead of the expected life imprisonment. The Croats are angry because they expected to be included as victims of genocide alongside the Muslims, but were deprived by the Tribunal of that honor. The fact that, only a few days after the Karadzic verdict, Serbian politician  Vojislav Seselj, whom they view as a vicious anti-Croat agitator, was acquitted after 12-year proceedings gave additional impetus to their anger.

It may be too early to draw definitive conclusions, but the impact of the inflammatory Karadzic and Seselj verdicts could be to rekindle in the Balkans a passionate atmosphere of intense mutual antagonism that is very reminiscent of the climate that prevailed in the early 90s and led to war. Once again, with emotions at boiling point, all that would be required to start a catastrophe, as in 1992, would be for someone to light the fuse.

Linking ICTY judgments to a political agenda is not as speculative as may seem at first sight. One of the former judges, Gabrielle Kirk McDonald, warmly referred to Madeleine Albright as no less than “the mother of the Tribunal.” American TV viewers best remember that  mother’s moral profile by her reaction, shortly after the successfully concluded first Gulf War, to the killing of half a million Iraqi children caused by international sanctions which, as Secretary of State, she eagerly promoted. With maternal sensitivity, Albright declared in front of the cameras that it was, of course, “a difficult decision” but, nevertheless, was “worth it.”

According to long-time ICTY spokesperson Florence Hartman (currently disgraced in the institution she faithfully served) in her book “Peace and Punishment,” US and British intelligence agencies were quick to begin implanting their agentur in all pores of this “independent” legal institution in mid-1994, soon after it was formed. Hartman illustrates the degree of external influence over the operation of ICTY by quoting the self-assured remark of prosecutor Jeffrey Nice, who was asked whether he thought the Tribunal might ever criminally indict the perpetrators of the bombing of the Federal Republic of Yugoslavia in 1999:
“I assure you that we, NATO and leading Western states, are the same as the Tribunal … I know for certain that Louise Arbour [at the time the Head ICTY Prosecutor] will be indicting only Yugoslav citizens, and nobody else.”

About Nice himself, Hartman claims that he is a longtime MI6 collaborator, and also revealed in her book that Bill Stubner, an aide to former Chief Prosecutor Richard Goldstone, was associated with the US “Defence Intelligence Agency”.

  NATO spokesman during the 1999 Kosovo bombing campaign, Jamie Shea, responded with similar self-assurance, which later events did not prove groundless, when asked whether he feared that ICTY might go beyond Milosevic and his associated in indicting war criminals:

“NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, and of course we want to see war criminals brought to justice ... but I am certain that when Judge Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality and I don't anticipate any others at this stage.”

The political nature of ICTY was also publicly confirmed by Italian judge, and former ICTY president, Antonio Casese, who praised the well-timed genocide indictments of Radovan Karadzic and General Ratko Mladic on  27 July 1995 (only two weeks after Srebrenica, when most of the facts could not have been known) as a “remarkable political result”, with the hardly unbiased clarification that “the indictments mean that these two gentlemen will be unable to take part in the peace negotiations,” a political rather than legal position, if there ever was one.

But in terms of brutal frankness, it is probably difficult to surpass the vulgar boasting of “Bosnian peace negotiator” Richard Holbrooke. He stated to the BBC, no less, that “the war crimes tribunal is an invaluable tool. We used it to exclude Europe’s most wanted war criminals from the Dayton process and to justify everything that follows.”

Distinguished British journalist Neil Clark may not have been far off the mark when he asked recently: “Can we really talk about 'international justice' when those responsible for far more bloodshed than Karadzic are still at liberty and are most unlikely ever to be prosecuted?” He went on to list the untouchable personalities to whom he was referring – George Bush, Dick Cheney, Paul Wolfowitz, Tony Blair and Hillary Clinton – whose “humanitarian interventions” in contravention of international law, many of them to prevent another “Srebrenica-style genocide,” by a conservative estimate have cost at least 1,3 million lives so far.

“Far from proving that no-one is above the law”, Clark concludes with some apparent justification, “the trial and conviction of Karadzic proves the opposite.”

While it is certainly a good thing that the trial chamber in Karadzic refused to extend the dubious Srebrenica genocide rationale to more Bosnian locales, and that Seselj’s judges acted with professional integrity by discarding the prosecution’s hollow evidence and acquitting the defendant, it is the political repercussions that will ultimately determine the significance of these verdicts. In light of the history of ICTY’s past behaviour, a political agenda cannot be excluded. Its influence will become apparent if these destabilizing verdicts prove to be among the detonators of a new Balkan conflict, incited by using the tools of hybrid warfare and within the context of intense Anglo-Atlanticist rivalry with Russia in that geopolitically critical region.

Whatever the ultimate consequences of the latest ICTY judgments, it is already noticeable that they have failed to convince their Balkan audience that justice was not only done, but can also be seen to have been done. Diana Johnstone was therefore right that if the main mission of the Hague Tribunal was to facilitate peace and reconciliation, its failure to accomplish those goals is not just apparent but – monumental.