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KOSTA CAVOSKI

THE HAGUE AGAINST JUSTICE REVISITED

The Case of Dr. Radovan Karadziee

BELGRADE 1997
It has long been known that a bad beginning is a sure sign that things will continue badly. There is even a valid legal principle that time cannot correct or make worthwhile that which, from the outset, was misconceived. As the famous Serbian jurist, Valtazar Bogisiee put it, in the form of a national proverb, "Time never straightened a hunch back."

The saying fits the International Criminal Tribunal at the Hague, to a tee. From the very beginning it was wrongly conceived and badly constituted and in the course of trying the first cases brought before it, has shown absolutely no sign of improvement.

Mistaken Identity At Arrest As has already been shown,1 the Tribunal created it's first great fiasco, in the case of General Djordje Djukiee. In the very next case, that of Goran Lajiee, the International Criminal Tribunal for the Former Yugoslavia shamed itself in even greater measure. It was obliged to release from custody, an individual arrested on the basis of mistaken identity.

The case in question was that of Goran Lajiee, who was arrested in Nuremburg on 18th March 1996 on the basis of a warrant and later confirmed indictment from 1995. At the time of his arrest Lajiee told the German authorities that it was a case of mistaken identity and that he was not the Goran Lajiee indicted by the International Criminal Tribunal. The German Police, usually so painstakingly conscientious in the case of German citizens, did not believe him. Neither did they find it necessary to determine whether the man in custody and the man accused were, in fact, one in the same. Instead they held him in remand for 56 days without legal justification and only on the 13th May, handed him over to the International Criminal Tribunal. The overzealous prosecutor, Grant Nimen, without making any attempt to check his facts, formally accused the defendant of being a guard at the Keraterm Camp near Prijedor and of murdering four prisoners, Jasmin Izairija, Drago Tokmanoviee, Emsud Bahoviee and Spijo Mesiee, as well as of the mistreatment of several other prisoners. When Goran Lajiee appeared before the court on 17th May, 1996 he again told the court that he was the innocent victim of a case of mistaken identity and that he did not even know where the Keraterm camp was. His council, Toma Fila said that, in the area where Goran Lajiee lived there were at least ten other people with the same first name and surname. After such a statement from the accused, the judge presiding, Claude Jorda, asked prosecutor Grant Nimen's representative for an explanation and was told that the man in the dock was the "real Goran Lajiee" one time guard at the Keraterm camp. Lajiee's lawyer, Toma Fila reminded the court that the indictment did not contain, either his client's date of birth or his father's name and asked that the court should arrange for a so-called line up in which the witnesses would be asked to identify the accused among a randomly selected group. Instead of this reliable method of identification, at the suggestion of Judge Jorda, and at Lajiee's acquiescence it was decided that the accused should be photographed and his picture, along with a larger number of pictures of randomly selected people, be shown to the witnesses who claimed to have seen the accused or been the victims of his crimes. Out of ten witnesses nine failed to recognize Lajiee at all among the photographs shown and the tenth said that he had seen this Goran Lajiee but that he knew nothing about the crimes he was accused of.

Thus shamed the prosecutor gave up the case for lack of evidence, without prejudicing the indictment against the real Goran Lajiee. The court had no option but to release Lajiee on 17th June 1996. Apart from the happy (for the accused) conclusion of this case there are hosts of doubts that bring into question the reliability and credibility of the Hague Tribunal and its prosecutors. Of course it is not impossible that people should occasionally be arrested and detained at police stations by mistake, because they resemble of or have the same name as the person for whom a warrant was issued. To avoid this the identity of the person detained is checked without delay and he is released if a mistake is found to have been made, that is, if his identity has been mistaken. In the case of Goran Lajiee the prosecutors of the Hague Tribunal and the law enforcement agencies waited two months to make the necessary checks, that is to establish identity, which normal practice obliged them to do at the very beginning. Worse even, this unforgivable delay was not the result of incompetence, but rather, of blatant prejudice against Serbs. As was the case in times of racial prejudice in Europe, when someone's wallet went missing on the bus and suspicion fell immediately on the nearest ragged, black gypsy. Today it seems, every suspicion that Serbs committed terrible war crimes is taken for granted as probable to the degree that, in most cases, it is unnecessary to make even the most cursory of inquiries.

Hooded Testimony

While the infamous case of Goran Lajiee exposed the incredible carelessness of the Hague Tribunal prosecutors and the absence of reliable measures against the arbitrary imprisonment and three month detention of innocent people, the following case of Dusan Tadiee brought glaringly to light the fatal consequences of allowing evidence to be given from behind a mask or hood, a method much used in its time by the Holy Inquisition. This case started with some unusual expert testimony about the background and context to the crimes of which Dusan Tadiee stood accused. At the request of the prosecutor, one Dr. James Gow took it upon himself to show how the crimes - exactly the ones that Dusan Tadiee was said to have committed - were part of a wider, systematically executed plan. >From this expert witness, with the reputation of a respected academic, one would have expected a wholly unbiased account, equally critical towards all sides in the unhappy civil, that is, ethnic and religious war in the former Yugoslavia.

To the great surprise of the court and even to the prosecutors themselves, the defense showed that Dr. James Gow had written an article called, "Serbian Nationalism; the snake in the bosom of the International Community." In which he said, among other things, "from the ruins of Yugoslavia has slithered a snake that hisses and spits poison at international order. . . If you would tame it you will have to resort to arms."2 The important Dr. Gow had not, however, found it necessary to write similar pieces on Croatian, Muslim or Albanian nationalism.

The next problem that throws doubt upon the validity of the accusations was the fact that some of the witnesses had refused to give evidence at the trial itself, while the prosecution was unable to locate others. It was probably a case of individuals who had put themselves forward as witnesses in order to gain rights of residence in western European countries, then turned their backs on the gullible prosecutors.

For lawyers unfamiliar with the methods of the Holy Inquisition the greatest surprise was the giving of evidence from behind a screen, by means of a device that cloaked the appearance and the voice of the witness, thus disguising their identity. In this way anonymous people referred to by code letters such as "P" and "Q" gave evidence. However, when it came to the most serious crimes laid at Dusan Tadiee's door these secret, specially protected witnesses did not prove of much use to the prosecution. One of these crimes was the alleged rape of an inmate of Omarska, given the code letter, "F". The woman however, refused to appear before the court, going against her earlier promise, and left the prosecutors no choice but to abandon three points of their indictment. The second crime was even more horrific. It was said that a prisoner had been forced to castrate a fellow inmate with his teeth. Unfortunately witness "G", the prisoner who, in front of the garage at Omarska had been forced to bite off another man's testicles and who had previously agreed to give evidence, withdrew his testimony at the last minute. Then the next key witness, given the code letter "H", told the court that, on the 18th June 1992, outside the garage at Omarska, when the incomprehensible crime was committed, he had not seen Dusan Tadiee, because, for fear of being killed, he had kept his head lowered.

It quickly became clear, however, how dangerous and detrimental the institution of anonymous, specially protected witnesses is. As their last and most important witness the prosecution called "L" a young Serb who had allegedly been a guard at Trnopolje, at the end of 1992 and who, after a period of desertion, had been conscripted then wounded and captured by Muslim soldiers. According to his testimony Dusan Tadiee had been commander of the Trnopolje camp where, on several occasions, older Muslims had been put to death. According to "L" Tadiee had not only brought the victims out to be executed, but was present at the executions themselves and had, on occasion, killed prisoners himself. To add to the evil he claimed that Tadiee had been present at and had taken part in the rape of Muslim girls in the cellar of the so called White House at the camp. The testimony had great weight due to the fact that "L" according to his own admission, under the influence of drugs had taken part in the killing and rape, following Tadiee's orders, it is true, and under threat that he would be killed himself, if he failed to carry the orders out. So Tadiee stood accused by a witness who had raped and murdered with him.3 This evidence, given by one Serb eyewitness against another, was the most important evidence of the case. And then, like thunder from a clear sky came the news that Dragan Opaeiee, the star witness "L", had lied under pressure from the Muslim government in Sarajevo. Opaeiee admitted to the investigator, Robert Reid, that, under threat of death, the Muslim government had told him to bare false witness, and that, as "training" he had been shown videos of Tadiee and Trnopolje.

The prosecutors were obliged by this, not only to withdraw the parts of their case that involved the murder, rape and mistreatment of prisoners at Trnopolje, but also to start an investigation against the Muslim government who had prepared Dragan Opaeiee and forced him into giving false evidence. In the meanwhile the prosecutors and the press4 continued doggedly to speak of the Bosnian Government, thus hiding the ethnic identity of those who had fabricated the false evidence, even though it was quite clear that the government contained neither Serbs nor Croats. When the storm broke and the actions of the Bosnian, that is the Muslim Government in Sarajevo, were cast into grave doubt they responded, via their representative, by saying that Dragan Opaeiee "had every reason to discredit the Bosnian Government and thus avoid serving the rest of his sentence."5 It seemed to have slipped their minds that, according to the prosecutors of the tribunal, in March 1995, they had themselves offered Dragan Opaeiee as a "potential witness" in the case of Dusan Tadiee. Instead of going into the real reasons why the Hague Tribunal had sustained this heavy blow, the prosecutor, Louise Arbour announced that the affair showed that the Tribunal was functioning properly and the discovery of the false testimony, far from undermining it, in fact raised its reputation. 6 She did not ask herself, however, why the Bosnian Government had fabricated evidence in the Tadiee case. If the accused had really committed all these appalling crimes, then surely no such lies would be necessary. Conversely, if those who have an interest in seeing Serbs judged before the Tribunal fabricate evidence then the case against Dusan Tadiee is weak indeed. Whatever the outcome of this difficult case there is no doubt whatsoever that the institution of secret testimony from anonymous witnesses has been completely compromised and discredited. When, with Rule 75 of the Tribunal, the possibility of secret testimony under pseudonym, via a device that altered the appearance and voice of the witness, was allowed, it was justified by the need, in judging cases of particularly brutal war crimes, to provide sufficient security for potential witnesses. However, those who drafted the rules lost sight of the fact that, the greater and more appalling the crime, the greater also is the need for guarantees that the judgment can be relied upon - these are the guarantees provided by due process of law. As a result the Judiciary and the prosecutors of the Hague Tribunal must, without delay confront the unavoidable question; would they, in their own countries - Great Britain, USA, France Italy etc. ever agree to pass judgment or appear in the role of prosecutor or defense lawyer if, for any reason, the possibility of secret testimony from anonymous witnesses, hiding behind pseudonyms was allowed?

Accusation In Response To Political Expediency The most interesting of pending cases is that of Dr. Radovan Karadziee, President of Republika Srpska, from its foundation to the elections of September 1996. Due to his position of command responsibility, Dr. Karadziee is held responsible for the alleged crimes of others. It seems that, from the very beginning, the indictment against Dr. Karadziee was not simply motivated by a noble desire to see justice done and the guilty punished, but also by reasons of short term political expediency. This is perhaps best confirmed by the statement of Antonio Cassese, president of the International Criminal Tribunal. Speaking when the indictment was issued Cassese expressed his opinion that the indictment of Dr. Karadziee would make it impossible for western leaders to countenance peace negotiations with the Bosnian Serbs' leader. "The decision represents a decisive step. Let us see who will sit down at the negotiating table now, with a man accused of genocide."7 Thus, concluded Cassese, the issuing of this indictment will bring about an important political result, that will have significant diplomatic consequences since, "That gentlemen will not be able to take part in peace negotiations."8

Although the judges and other officials of the International Criminal Tribunal angrily reject criticisms that they are "playing politics" and blithely assert that they are not at all interested in the political results of their work, but solely in the pursuit of justice, the president of the Tribunal dared make a statement as if he were not a judge, but a diplomat and a politician. The first thing that occurred to him, after issuing the indictment against Dr. Karadziee was not that it started a legal process, but that it would bring about an important political result with significant diplomatic consequences. It seems that he was correct on this point: at the peace negotiations in Dayton, Republika Srpska was not represented by Dr. Karadziee, but by the more flexible and "cooperative" Slobodan Miloseviee. Karadziee's Responsibility For Sixteen Serious War Crimes The astonishing statement quoted above, about a case yet to be tried and which, moreover, is due to come before Antonio Cassese himself, at the second level, was made at the time when indictments were issued against Dr. Radovan Karadziee and General Ratko Mladiee, on 24th July 1995. At first the indictment looked very convincing since Dr. Karadziee stood accused on sixteen counts for crimes of the most serious nature. Genocide, crimes against humanity, violation of the laws or customs of war, unlawful confinement of civilians, the shelling of a civilian gathering, destruction of sacred sites, extensive destruction of property, appropriation and plunder of property, sniping against civilian targets, the use of hostages as human shields, and other grave breaches of the laws or customs of law. The impression was given that, in a position of command responsibility, Dr. Karadziee was guilty for almost all the serious crimes committed by anyone of Serbian nationality during the civil, that is the ethnic and religious war in Bosnia. Simply to list these numerous and horrendous crimes creates a powerful impression and fosters the illusion that Dr. Karadziee's guilt is virtually transparent and easy to prove. In this way he is made to appear guilty for unlawful confinement, murder, rape, sexual assault, torture, beating, robbery and inhumane treatment, practiced against Muslim and Croatian civilians on a nationalistic and religious basis. These crimes were carried out in the Omarska, Keraterm, Trnopolje, Luka, Manjaea, and Susica camps and the penitentiary at Foea for a specified time of a few months for each camp. After a short description of the deportation of thousands of Muslims and Croats from Vlasenica, Prijedor, Bosanski Samac, Breko and Foea, at the order of and under the control of Dr. Karadziee and General Mladiee, Dr. Karadziee is accused of shelling a civilian gathering, in Srebrenica, Tuzla and eleven streets, that is quarters of Sarajevo, at precise dates from 3rd July 1992 to 24th May 1995, resulting in 361 innocent victims, a large number of dead and wounded.

Convincing evidence is also provided in the form of a list of 29 towns, villages and hamlets in the municipalities of Bosanski Samac, Deventa, Bosanski Brod, Odzak, Modriea, Orasje, Gradaeac, Vlasenica and Prijedor in which, at exactly specified dates, the houses and other property of Bosnian Muslims and Croats, were systematically destroyed. The same can be said of the list of 16 mosques and 11 Roman Catholic churches and monasteries, again with exact dates, which were destroyed or damaged. The lists of about twenty people killed and fifty wounded by sniper fire from positions around Sarajevo (four of those killed and fifteen of those injured were children) also represented a heavy burden of guilt on the accused. Finally Dr. Karadziee stood accused of taking prisoner 284 members of the peace keeping forces of the United Nations, in order to use them as a human shield to deter further aerial bombardment by the North Atlantic Treaty Organization. Command Responsibility The most important part of this first indictment of 24th July 1995 was the pattern by which Dr. Karadziee was to be held personally responsible for war crimes obvioussly committed by others. To do this the position of Dr. Karadziee in his party and as a state functionary from 1992 to 1995 was first described. He was the founder and president of the Serbian Democratic Party of the Serbs in Bosnia and Herzegovina. As first President of Republika Srpska he was constitutionally responsible for command of the armed forces in war and peace and had the power to promote or dismiss the officers of the armed forces. According to the law on national defense he had the authority to supervise territorial defense in war and peace and order the use of the police force in case of war, immediate danger of war or other emergency situations, and also to enlist police officers in emergency situations. In this position, among other duties, he took part in international negotiations and personally negotiated cease fire agreements and humanitarian aid.

After this description of the constitutional and legal rights of the President of Republika Srpska and his chief military officer, before each criminal act described, the prosecutor said that Dr. Radovan Karadziee by his own "acts and omissions, and in concert with others" had himself committed the crimes. The crimes themselves had been committed "By the Bosnian Serb military, Bosnian Serb police and their agents, under the direction and control of Radovan Karadziee. . ." and after a thorough description of the crimes committed the prosecutor unequivocally concluded that, "Radovan Karadziee and Ratko Mladiee individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of persecutions on political and religious grounds or knew or had reason to know that subordinates were about to do the same or had done so and failed to take necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof." And that, as a result they had committed as many as 16 serious war crimes, any one of which deserved the harshest penalty allowed by law. Additional Indictment On 14th November 1995 Richard Goldstone issued a new indictment against Dr. Radovan Karadziee and General Ratko Mladiee. In this second indictment the prosecutor has partially avoided reference to the principle of command responsibility, in so far as he has attempted to ascribe to Dr. Karadziee, the direct command of Serbian forces in the battle for Srebrenica, and in that way make him appear an accomplice in the planning, encouragement and ordering of terrible war crimes after the fall of the town. He achieves this by mentioning Dr. Karadziee only once when describing the military operations and alleged crimes carried out from 6th to 23rd July 1995 in and around Srebrenica. "Thousands of Muslims were captured by or surrendered to Bosnian Serb Military forces under the command and control of Ratko Mladiee and Radovan Karadziee." In this way Richard Goldstone tries to create the impression that Dr. Karadziee, President of Republika Srpska, and a civilian was directly in command of military operations and the following summary execution of Muslim prisoners. And when it seems to him that the impression is convincing, in the brief descriptions of the crimes Dr. Karadziee is accused of he repeats the assertion five times, that the Serbian forces were "under the command and control of Ratko Mladiee and Radovan Karadziee." This completely unsupported assertion, that Dr. Karadziee was directly in control of the military operations around Srebrenica and the war crimes that followed, was quite sufficient grounds for Goldstone to reach the unequivocal conclusion that Dr. Karadziee is individually responsible for, "committing, planning, instigating, ordering or otherwise aiding and abetting in the planning, preparation or execution of any crimes," he was accused of in the indictment. After this individualization of Dr. Karadziee's guilt, the prosecutor adds that he is "also or alternatively, criminally responsible as commander, for the acts of his subordinates."

Prevention And Removal Of Command Responsibility

It is hardly necessary to say that this other kind of responsibility for the acts of one's subordinates is only possible and applicable in the case of Dr. Karadziee. Clearly the prosecutor had this in mind when he transferred, from the first to the second indictment, the detailed description of the public and state position which Dr. Karadziee filled and the constitutional and legal powers he thus acquired. According to the Constitution and the law, the Armed Forces of Republika Srpska in war and peace are under the command of the President of the Republic and, in accordance with the law he has the authority to promote and dismiss officers of the Armed Forces (Article 106. of the Constitution). The prosecutor correctly concluded that Dr. Karadziee, as President of the Republic had, "a position of superior authority to Ratko Mladiee and every member of the Bosnian Serb army and all units and personnel assigned or attached to the Bosnian Serb army." Hence it is possible to raise the question of Dr. Karadziee's command criminal responsibility constituted by: "the responsibility of a superior officer for the acts of his subordinate if he knew or had reason to know that his subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof." So, in the same way that the issue of command responsibility can always be raised, likewise the raising of the issue can be prevented by taking timely "necessary and reasonable measures" that can relieve that command responsibility. As President of Republika Srpska Dr. Karadziee did just that. In the indictment the prosecutor says that Dr. Karadziee became President on or about 13th May 1992. On that very same day Dr. Karadziee, as President of the Serbian Republic of Bosnia and Herzegovina, issued an order (published in the Official Gazette) to the effect that the rules and international conventions of war should be implemented by the Armed Forces of the Serbian Republic of Bosnia and Herzegovina (see Document no. 1) which makes the commanders of the Armed Forces and every member thereof responsible for adherence to the international conventions of war in armed conflict. In addition, every officer is personally responsible for the initiation of prosecutions invoking the full sanctions of the law against individuals under their command who offend against the international conventions of war. The order also provides for regular training sessions so that the international conventions of war are understood by the members of the Armed Forces. As a part of this order made by Dr. Karadziee, instructions are provided for the treatment of prisoners (Document no. 3) which were soon after published by the Minister of Defense, Colonel Bogdan Subotiee. Among other things these rules forbid any kind of repression whatever to be used against prisoners, and provide for the humane treatment of prisoners and their protection from any kind of force, insult or intimidation. Prisoners are also allowed to send a message to their families and to the Red Cross Central Agency for Prisoners of War. Finally the commanders of the Serbian Republic Army are made responsible for organizing appropriate accommodation in the camps. The Defense Minister's instructions also confirmed that representatives of the International Red Cross and other humanitarian organizations should be assisted and given free access to prisoners. Since there were probably difficulties in the practical implementation of these instructions Dr. Karadziee, as President of the Presidency, sent further orders to all local and police authorities (Document no. 8 ) in which he warned that all delegates of the International Committee of the Red Cross were authorised to travel throughout the whole of Bosnia and Herzegovina and visit all prisons, police stations and military camps under Serbian control. To insure that the instructions were carried out, every soldier was warned that he would be punished if he failed to do so. It seems that this was not sufficient since, on 19th August 1992 Dr. Karadziee issued a further order to the Military Command Headquarters of the Serbian Republic, the Ministry of Internal Affairs and all the offices of the security forces (Document no. 11) The order repeated the requirement that international humanitarian law should be abided by, and gave instructions to all fighters and police officers to respect prisoners, civilians, medical institutions, the emblem of the Red Cross and representatives of the United Nations. The forced expulsion and maltreatment of the civilian population was also expressly forbidden and it was made clear that all deeds of sale of property or declarations that refugees would not return had no legal validity. Finally every army or police commander was obliged to make a thorough investigation of any suspicion or sign that international humanitarian law had been violated in the zone under their jurisdiction. Special attention should be paid to the order issued by Dr. Karadziee on 22nd October 1992 to General Ratko Mladiee, Mieea Stanisiee and Momeilo Mandiee (Document no. 13) informing them that certain local police, military and civilian authorities were ignoring his authorization for the delegates of the International Committee of the Red Cross, to visit prisons and prisoners of war freely. The recipients are also informed that they should warn their commanders to respect all authorizations given to the delegates of the International Committee of the Red Cross, baring Dr. Karadziee's signature under threat of, "a thorough investigation into all cases of lack of respect for the above demand." Finally, on 11th March 1993, as President of Republika Srpska Dr. Karadziee issued a directive to the Military Command Headquarters (Document no. 14), ordering that unhindered passage and protection of parcels, equipment and personnel who give help to the civilian population of the enemy should be provided; forbidding the misuse of foodstuffs, crops and water installations, reservoirs of drinking water and dams or hydro-electric systems for military purposes and demanding that the Geneva Conventions in regard to victims of war and their protocols 1 and 2, as well as the Hague Convention on the laws and customs of warfare on land from the year 1907 and other international regulations for the conduct of war be strictly adhered to. Finally he made clear that all army units should be informed of the directive. The Prohibition Of Paramilitary Units These five rules and regulations issued consecutively in the first year of the war bare witness to Dr. Karadziee's dedicated perseverance, as President of Republika Srpska, to forestall war crimes that members of the military of police forces might commit, and, in the event that they were committed - which, in the context of a civil or ethnic and religious conflict, is hard to avoid - to hold responsible all military and police commanders under his command. However much these rules and regulations were desirable and effective they were not sufficient because, in the context of civil strife and war it is rare for members of the regular military and police forces under unified command to commit such crimes; they are far more often carried out by members of paramilitary units and particularly by rebels. Dr. Karadziee had just this fact in mind when, on the 13th June 1992, - the thirtieth day after he became President of the Serbian Republic of Bosnia and Herzegovina - he signed the decision on the prohibition against paramilitary units (Document no. 2) which was then published in the Official Gazette. By this decision the paramilitary units then operating, were given the option, either of submitting to the unified command of the military and police force of the Serbian Republic of Bosnia and Herzegovina, which implied strict adherence to the international conventions of war, or to disband. If they continued to operate independently, in defiance of this instruction their members would face the harshest of punishment. On the same day Dr. Karadziee informed ( Document no. 4) the General Secretary of the United Nations, Mr. Boutros Ghali, of the decision to disown all paramilitary groups that are not ready to submit to unified command. Dr. Karadziee was not, however satisfied to let the matter rest with a general prohibition of paramilitary units. On two occasions he personally ordered inquiries into the operations of such groups. He did this first on 3rd July 1992 with the order to the Ministry of Internal Affairs (Document no. 5) asking for an investigation to be carried out into the operation of paramilitary units in the municipalities of Gacko and Nevesinje. On 6th August 1992 he informed the media ( Document no. 9) that the general subordination of paramilitary units to unified command cited above had been successfully carried out except in the region of Kljue where recalcitrant groups and individuals who had continued to burn and rob in defiance of the law, had been arrested by the police. Individual Warnings And Orders For Investigation The only other thing to be done to halt or punish war crimes was to become personally involved in investigating particularly serious breaches of international humanitarian law. In his position as President of Republika Srpska Dr. Karadziee did this frequently. For example, on 6th August 1992 (Document no. 10) he instructed the Ministries of Internal Affairs and Justice to compile a report on the treatment of prisoners of war and their living conditions, to be submitted within ten days. On many occasions when there was a danger that a war crime might occur Dr. Karadziee issued orders and warnings. At the very beginning of the war on 14th July 1992 he sent a warning to the mayors of Gorazde, Foea, Han Pijesak, Sokolac, Rogatica, Visegrad, Rudo and Eajniee (Document no. 7) to the effect that Croats and Muslims who surrendered their weapons had to receive the full protection of the Serbian Republic, and made them personally responsible for the execution of the order. On 12th March 1993, after the first attack on mosques and other Muslim religious sites he ordered the Banjaluka Police ( Document no. 15) to strengthen protective patrols round all the religious buildings in that town and to take measures against frequent terrorist attacks. In similar fashion he intervened in the case of Croatian soldiers who crossed, under arms, into territory controlled by Serbian forces. He ordered the Republika Srpska Military Command (Document No. 16) to escort the Croatian soldiers, with all their armament, to Vares, and to provide for the safe conduct of civilians who wished it, to go, either to Herceg-Bosna or to the Croatian Republic. In spite of everything, serious crimes were committed. One of these was the murder of five Muslims in the village of Bastasi near Eelinac. Immediately after he received the dreadful news on 19th August 1992, Dr. Karadziee ordered ( Document no. 12) a most detailed investigation and the punishment of those found responsible, and ordered the police to take all necessary measures to ensure the safety of the civilian Muslim population in the municipality of Eelinac. Sole Possibility Of Individual Criminal Liability Although the prosecutor tried to associate Dr. Karadziee personally, with the planning, execution and command of military operations around Srebrenica, it proved difficult. All that remained, then, was Dr. Karadziee's responsibility for the actions of his subordinates according to the principle of command responsibility. However, he had discharged his responsibility as head of state and commander in chief of the armed forces in good time, by issuing standing orders and instructions that the international conventions of war and humanitarian law should be obeyed to the letter and by constantly warning his commanders that they were personally accountable before the law, in the areas under their control. He had also issued orders that thorough and immediate investigations should be carried out into particular instances where war crimes had been committed, and the culprits brought to justice, something that, incidentally, was not in the sphere of his duties as head of state. All that remained for the prosecutor, in these circumstances, was to show that Dr. Karadziee did one thing in public and another in secret; that he publicly demanded respect for the international conventions of war and humanitarian law, and secretly gave orders for massive war crimes to be carried out. The prosecutor provides absolutely no evidence for the latter. Loss Of Control Over the Military And Its Commanders Besides Dr. Karadziee's alleged command responsibility, special attention deserves the prosecutor's attempt to make him individually accountable for twenty horrible war crimes committed after the fall of Srebrenica. Whereas earlier Dr. Karadziee did have a degree of control over the military top brass and the field commanders of the Serbian army, at the time of operations around Srebrenica and immediately after, these field commanders rebelled completely against civilian control and, for practical purposes, ceased to obey their nominal commander-in-chief - the President of Republika Srpska. These misunderstandings between the civilian and military commanders (the origins of which we will soon explain) had existed earlier, but had remained hidden until July 1995 when they burst into view. It was this that led Dr. Karadziee, on 2nd August 1995, to call General Ratko Mladiee to Pale, to become his special advisor, thus removing the General from his position as Head of Military Command Headquarters. On 4th August of the same year the necessary order was issued (Document no. 29). General Mladiee responded immediately by leading a coup d'etat: He called together all his generals and, from 5-6th August 1995, in letters to the Parliament (Document no. 30) and to the President of Republika Srpska, openly declared that he did not accept Dr. Karadziee's order even though he was head of state and constitutional Commander-in-Chief. The letters were signed by Ratko Mladiee and seventeen other generals; Manojlo Milovanoviee, Milan Gvero, Djordje Djukiee, Zdravko Tolimir, Petar Skrbiee, Jovo Mariee, Momir Taliee, Bosko Keleeeviee, Vladimir Arsiee, Momir Zec, Radivoje Tomaniee, Novica Simiee, Radoslav Krstiee, Radovan Grubae, zivomir Ninkoviee, Bozo Novak i Grujo Boriee. In this way he called into question the authority of the civilian government and showed that Dr. Karadziee, as Head of State, no longer controlled the Military Command of Republika Srpska. In defiance of the Constitution the letter called on the Parliament to reject dr. Karadziee's order for General Mladiee's transfer, as if the highest representative body of the Serbian state had any authority to confirm such commands. Of particular weight in this conflict between the civilian and military command of Republika Srpska was the fact that the authorities in Belgrade (for this read Slobodan Miloseviee) was on the side of Ratko Mladiee and against Dr. Karadziee. A fact that is confirmed, among other things by the reporting at the time from state controlled television and press in Belgrade. This was a reliable sign of who, at that moment and probably throughout the whole war in Bosnia, to a greater or lesser extent, held the Military High Command of Republika Srpska under control, and who, after the fall of Srebrenica, encouraged General Mladiee to publicly defy Dr. Karadziee. Although this clash between the civilian and military authorities was hushed up it continued to simmer and in the middle of October 1995 again burst into the public domain. The trigger was the Parliament's suggestion that the President of Republika Srpska should fire Generals Milan Gvero, Djordje Djukiee, Zdravko Tolimir, Grujo Boriee and colonel Milutinoviee. On 17th October the Headquarters of the Military High Command issued a statement (Document no. 31) which unequivocally challenged the authority, not only of the President of the Republic, but also of the Parliament, as the highest constitutional and legislative body, for which, this time, it received the public support of the Belgrade authorities. While on 6th August 1995, they had asserted that the presidential decision to transfer General Mladiee to new duties required the confirmation of the Parliament, they now pronounced the decision of the Parliament to be unconstitutional and politically damaging. The generals failed only to explain which organ of Republika Srpska had the authority to control in any way or to dismiss the Military Command, if it was not the head of state or the legislature. Naturally, questions remain and Prosecutor Goldstone must face them. Who was in political control of the Republika Srpska top brass in the summer of 1995 and later if it was not Radovan Karadzieez It is interesting that Judge Fouad Riad, who confirmed the second indictment of 14th November 1995, hinted at an answer to this question. Although it had nothing to do with the indictment itself which Prosecutor Goldstone had issued after exhaustive investigation and extensive testament, Judge Riad said, "It is worth noting that it appears from the witness statements that not only Bosnian Serb soldiers, but also soldiers from the Federal Republic of Yugoslavia (Serbia-Montenegro) were present during the take-over of Srebrenica. These soldiers where easily distinguishable by their clean-cut appearance, distinctive uniforms and use of Serbian dialects. Elements of the Yugoslav People's Army ("JNA"), including the Novi Sad Corps and "Uzice" Corps, as well as irregulars loyal to "Arkan", were seen by a number of witnesses in and around Srebrenica. Either these additional troops were also under the command of the suspects (Ratko Mladiee and Radovan Karadziee, K. E. ) or they were under the control of a different commander." Judge Riad almost said it all, only neglecting to name that different commander who could be no other than Slobodan Miloseviee. As a rule armies never have two commanders so if the Serbian forces at Srebrenica were not under the control of Dr. Karadziee this means they had to be under the control of that different commander. Riad's "addition" to Goldstone's indictment exposes fully its political background and the practical political aim with which it was issued. With it, for the same thing, Dr. Karadziee was persecuted and Miloseviee was threatened. The former because he had failed to "cooperate", the latter so that he would be even more "cooperative", which meant not simply bending but crawling, particularly at Dayton. Politically this can, of course, be understood. The only problem is that the drawing of such distinctions and the arbitrary indictment of Dr. Karadziee, that is the temporary amnesty of Slobodan Miloseviee, has no connection at all with Justice, which, if nothing else, demands the same approach in the same or similar circumstances. Fatal Faults That Are the Consequences Of Perfection After the shameful episode of General Djordje Djukiee whose status was changed several times from that of defendant to witness and again to defendant, and whose death was greatly hastened thereby, the International Criminal Tribunal for the Former Yugoslavia proceeded to make unheard of and unforgivable procedural mistakes. In this way an innocent man, Goran Lajiee, spent three months in jail because the Tribunal's prosecutors in particular, failed to make the most basic check of identity immediately after his arrest. Next, the trial of Dusko Tadiee exposed the dangers and inadequacies of secret witness, which the Tribunal itself had allowed. The case of Dr. Radovan Karadziee reminded us again to what paradox the arbitrary indictments of 24th July and 14th November 1995 could lead, all in the name of short term political expediency. In his famous GULAG, Alexander Solzhenitsyn, perceptively noted that the Cheka, that drawn sword of revolution, was, "the only punitive organ in human history that combined in one set of hands, investigation, arrest, interrogation, prosecution, trial and execution of the verdict." This kind of perfection can also be seen in the International Criminal Tribunal for the Former Yugoslavia. 9 It establishes the rules under which it operates then frequently adjusts and changes those rules, according to the cases that are pending; it then studies accusations itself and constructs a case, which is the job of the police. On its own it issues warrants of arrest and interrogates witnesses and those arrested. By itself, it issues indictments (the prosecution being an indistinguishable part of the Tribunal), passes judgment in its own, and it has not been ruled out that it will carry out its own sentences. In fact the greatest problem with this court as it is presently conceived and instituted, is its all-encompassing perfection. It is to be hoped that these cases in which the International Criminal Tribunal has made shameful and unforgivable mistakes will lead to a more serious consideration of its real function. Uncritical supporters of the Tribunal most often express the opinion that it must satisfy the needs of justice, without which a peace is impossible. Its judgments to date show this to be an important misconception. As Alfred P. Rubin warns, "those who believe that a legal tribunal is useful to assure justice, and that justice is a prerequisite to peace, would do well to ponder the alternatives and whether all those who speak publicly of the need for such one-sided 'justice' really have in mind justice as seen by outsiders. The Tribunal's role seems much more closely related to a struggle for authority over parts of the former Yugoslavia, or, indeed, control by Great Powers or UN officials or lawyers over international affairs, in disregard of the imperatives and risks of representative democracy. In sum, whatever one thinks of it in other respects, the Dayton Accord's emphasis on Security Council authority and an international tribunal to enforce a misunderstood version of the laws of war should not be supported. The Tribunal in The Hague should be disbanded."10 To add something of our own to the above conclusion it can be said that this should be done immediately so that, in the place of a badly constituted politically manipulated and, to some extent prejudiced ad hoc tribunal for a particular area and with predetermined targets, the attempt can be made to found a permanent International Criminal Tribunal that would satisfy Kant's requirement for universality, that is to have equal jurisdiction over all those who commit war crimes, no matter what country they come from. The first sign that such a court is really functioning properly will be the readiness of the greatest powers to surrender their own citizens to its jurisdiction.

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