ICTY: “Something smells pretty fishy about this institution”

The International Criminal Tribunal for the former Yugoslavia (ICTY) announced at 21 December 2017 that it will be closing at year’s end and transferring its outstanding caseload to the UN’s International Residual Mechanism for Criminal Tribunals (MICT). ICTY was set up by the UN in 1993 at the height of the Yugoslav wars, which raged from 1991 to 2001. The Tribunal’s chief objective is the prosecution and punishment of war criminals. However, it has faced a barrage of criticism for its work in practice, including Dutch criticism. Political scientist Alfred Vierling, for instance, lodged charges at ICTY against three ministers of the then Dutch government. Below are his responses to some questions posed by Sjors Remmerswaal.

Your website states that you lodged charges against three members of the Dutch government of the time. What exactly prompted you to take that step?

Yes, I lodged them on 12 October 1999. I did so in collaboration with Christopher Black, whom I knew from an international coterie of lawyers who had rallied to support Slobodan Milošević. He was lodging charges against members of his own government in Canada, and there were some Greek judges involved, seeking to prosecute the Greek government. We were motivated by NATO’s unlawful bombing of Yugoslavia, whose impact was described by documents which, although contemporaneous, served as ready-made evidence, by the Yugoslavian Embassy in The Hague. These comprised two white papers, one on the victims and one on the material damages of the bombing. The bombs were still falling at that time, but a great deal of the damage was documented at that time and so I was able to append them to my case. This constituted war crimes, because the NATO bombing had no UN Security Council approval at all, nor of course approval by the Government of Yugoslavia, and several international treaties were flagrantly breached. Now, as to the background to my involvement: to my shame, I’m a resident of The Hague, the city which plays host to this total CIA puppet of a tribunal and other international bodies.

Bear in mind that if we look at the emergence of this tribunal, we find that the money for it was largely put up by George Soros, and if you take a look at the tribunal’s casework, you’ll read no end of shortcomings that mean that it has nothing in common with a regular criminal court.

I’m referring to provision — financial provision — being made for the prosecution witnesses but not for the witnesses which the defence calls; that’s at their own expense. If you compare it with a regular court, a national court, you’ll be struck by endless procedural failures. To begin, the Tribunal’s procedural criminal law is common law, which has very little to do with Continental procedural law. So, clearly, it’s a court of Anglo-Saxon victors’ justice. Of course, I was well aware when I lodged my charges that I was complaining to the devil, but I’d never have imagined at the time that even my document, once submitted to Tribunal employee Gavin E. Ruxton, would be hushed up. I say this because I’ve never so much as had an official response to it, not even acknowledgement of receipt, even though I hand-delivered it. But mine is hardly the only document to have gone missing there.

What do you have to say about how your submission was handled? It sounds as though it was not even booked in. Am I right about that?

Yes, correct. Articles 18.1 and 18.4 of the Statute of the International Criminal Tribunal for the former Yugoslavia state that anyone can lodge charges for determination, and mine were not considered. But, first and foremost, they weren’t even accepted. ICTY held two open days, on both of which I called in to ask what might have become of my documents, and I was politely referred to their archive, where they were nowhere to be found. Please bear in mind that even then, when Carla del Ponte was their Chief Prosecutor, she said in terms that it was not within ICTY’s terms of reference to examine whether NATO had committed war crimes. So there was, of course, no obligation to prosecute. In fact, we have the same in Dutch law, with its principle of prosecutorial discretion. So ICTY simply refused to look at the possibility of war crimes having been committed by NATO member states. Besides ICTY, and not to be confused with it, there is of course also the International Court of Justice, also located in The Hague, at the Peace Palace. At the time, the ICC likewise rejected out of hand motions lodged by the Yugoslav state.

The Tribunal claims that its objective is the prosecution and punishment of war criminals. Has it been meeting that objective, in your view?

Their objective was, of course, set more broadly than that. They began with the shortcoming that the great powers of the United States and the People’s Republic of China, although they helped set up the Tribunal, exempted their own citizens from prosecution at it. Put it this way: US war criminals, such as Madeleine Albright and Bill Clinton, remain outside the scope, so that’s why I speak of the Allies having an entitlement to victory. The US has even enacted a law that if their citizens ever taken as prisoners to a tribunal at The Hague, they reserve the right unilaterally to storm the beach at Scheveningen and free them. I’d say this was a toothless body from the outset. One might also wonder whether international criminal tribunals that are launched in such limiting circumstances and partiality actually administer international law or international criminal law. I’m not the only critic. Geert-Jan Knoops has written, in a Dutch book entitled Blufpoker [Bluff Poker], that the tribunal cases on which he himself worked in Africa were so highly partial that it calls into question whether you’re serving the interests of international criminal procedure by assisting them.

Quite a few pieces of documentation went missing. Milošević, whom we can at the very least say died during detention under the Tribunal’s responsibility, was denied medication, or may even have been given the wrong medication.

Milošević opted to defend himself, and his defence speech disappeared. It was never posted to the Tribunal’s website, though I have a copy which I obtained from his lawyer. Now that ICTY has effectively shut its doors, or at least has announced that it will not be taking on any new cases, my sources have given me an overview of the current status of the 161 people whom it has prosecuted. Well, twelve of them are awaiting final sentencing; six are pending transfer to another body; four haven’t been heard yet; ten are on appeal; and 80 have already been found guilty, four of whom — remarkably — died while awaiting sentence. That list misses something out: the pronouncement in Mr Milošević’s case was he was actually cleared of all war crimes charges, but rather than admitting that frankly in open session, they buried it en passant in a ridiculously thick sheaf of papers produced for the trials of Radovan Karadžić and Ratko Mladić. That alone ought to tell you that they could produce no case at all for Milošević to answer. So something smells pretty fishy about this institution.

Was there something else you wanted to say about the Netherlands’ participation in the NATO bombing?

The Dutch involvement in bombing Yugoslavia came as part of a NATO operation. My prosecution case describes missions. Do remember that the Netherlands never publishes where its armed forces engage in bombing; we don’t to this day. We’re involved in bombing Pakistan and Afghanistan right now but we never make known where we do so. The Americans, however, do sometimes publish such details, along the lines of, “We bombed a hospital by mistake.” A terrible shame, such an error, but at least they’ll admit to it. We don’t. We keep it quiet, but during Operation ALLIED FORCE, we launched 1,300 missiles and fired 800 bombs and rockets. Now, just to take you back to the scene of a bridge outside Varvarin: NATO had determined the primary bombing targets at a ministerial, but bombers can’t fly unused bombs back to base — otherwise the crews would blow themselves up — and so they have to make a second sortie to dispatch the payload somewhere.

Standing at that bridge outside Varvarin was a girl called Sonja Milenković — I’ve spoken to her parents and spoken in their defence, because that girl was tending to the wounded of the first round of bombing when the second round of Dutch F-16 attacks bore down and she was blown to smithereens. The F-16 pilots were given medals for that operation, but her parents came to The Hague, and Jozias van Aartsen — who had been Foreign Secretary during the bombings and had since become Mayor of The Hague — refused even to meet them. So that says enough about the real attitude of Dutch politicians who can’t stop going on about human rights.

Besides him, I lodged charges against the then Prime Minister, Wim Kok, and the then Defence Secretary, Frank de Grave.

Bear in mind, too, that this conflict started out being about Bosnia, and the Kosovo War ensued later. But what occasioned the war? A film clip filmed through the barbed wire of a supposed concentration camp. Yet we have the filmed evidence that that clip was a total set-up. That barbed wire had actually been arranged by the journalists themselves around an emaciated healthcare patient who happened to be walking by, and we have the footage of how that was done. A casus belli, an occasion for war, is always set up like this. In the end, though, pretty much an entire country was bombed as a result.