Joan Phillips

The Nation, Feb 1995.

As the International Criminal Tribunal for the Former Yugoslavia prepares for its first war crimes trial in the Hague, Joan Phillips accuses the United Nations of staging a political showtrial using the methods of a kangaroo court Dusko Cvjetkovic went on trial in October, charged with genocide. The 26year old Serb appeared in an Austrian court, accused of committing arson and murder in the village of Kucice in Bosnia. The genocide indictment is based on the charge that Cvjetkovic killed one or more people because of their ethnicity or religion. He denies the charges.

The trial opened in Salzburg, where Cvjetkovic has lived as a refugee since April 1993. Before the day was over it was obvious that the prosecution had no case. The testimony of the chief prosecution witness, a Bosnian Muslim, diverged considerably from his own affidavit. Evidence offered by other witnesses included thirdhand hearsay. The affidavits of some witnesses identified people other than Cvjetkovic as the murderers. Police records of statements made by Cvjetkovic and the chief prosecution witness were inaccurate and contained translation errors.

Asked during a break in the case whether he had a leg to stand on, the prosecutor, Hubert Maringele, replied, 'not at this stage. The judge apparently agreed. But instead of throwing the case our of court, he adjourned the trial until 5 December to allow the prosecution to find a leg. Perhaps witnesses will now come forward, unaffected by the media coverage of the trial, to testify that Cvjetkovic is indeed a genocidal killer.

The Cvjetkovic case should ring alarm bells about impending war crimes prosecutions to be held under the authority of the United Nations in the hague. In its first public hearing on 8 november, the prosecutor's office of the International Criminal Tribunal for the Former Yugoslavia requested permission to ask the german authorities to hand over Dusan Tadic, a suspected Serbian war criminal held in Germany. If Germany allows the case to go to the international court, the trial is expected to start in spring 1995. Tadic is alleged to have beaten, tortured, raped and killed Croats and Muslims in the Prijedor region of northern Bosnia.

Many questions can be asked about what the UN is doing staging war crimes trials. For a start, what criteria are used to define a war crime? If genocide means killing one person or more because of their race or religion, then any number of American cops or Loyalist gunmen in Northern Ireland could be so charged. This sensationalisation of ordinary acts of war has become routine. For example, the UN Commission of Experts talks about a 'mass grave' of three or more people. Three might sometimes be a crowd, but since when has it bee a 'mass'?

This type of tabloid sensationalism is nothing new to the discussion of the civil war in the former Yugoslavia. For three and a half years, lurid tales of ethnic cleansing, death camps, systematic rape, Mengelestyle experiments on human beings and genocide have been the staple of media coverage of the war.

And it is not just journalists who have sensationalised the war and been selective in attributing guilt. Stories about atrocities committed by Serbs have been given the stamp of authenticity ny international bodies such as the UN and the EU human rights groups such as Amnesty international, and women's organisations like Maris Stopes. In their resolutions, factfinding missions (which usually manage to find no facts) official reports, advertisements and leaflets, these bodies have added to the popular perception that acts of extreme bestiality unseen for half a century have been carried out in Bosnia and Croatia, and that the Serbs have been responsible for most of them.

In an extraordinarily presumptuous statement in its final report to the Security Council. the Commission of Experts declared that the Serbs had committed war crimes in northern Bosnia and would probably be found guilty of genocide in court: ' It is unquestionable that the events in Opstina (county) Prijedor since 30 April 1992 qualify as crimes against humanity. Furthermore, it is likely to be confirmed in court under due process of law that these events constitute genocide.' What implications this will have for Dusan Tadic, who is charged with committing war crimes in Prijedor, is not hard to guess.

A consensus already exists that genocidal crimes against humanity have been committed in the balkans, and that one side in the conflict is more guilty than the others. In this lynchmob atmosphere the idea of the accused in war crimes trials being presumed innocent until proved guilty, or of all persons being equal before the law, goes out of the window. When such a strong impression has been created of the entire Serbian people as a race of bestial, genocidal killers, any individual Serb who ends up in the dock will not stand much of a chance even if the prosecution does not have a leg to stand on.

All the signs are that the sort of legless evidence presented in Salzburg will be the stuff of cases at the Hague. No forensic evidence is likely to be presented; prosecutions will rely on personal testimonies, flimsy evidence given in the magnitude of the alleged crimes. in a civil war in which all sides have suffered grievously, the danger of people testifying in order to exact revenge is considerable, The chances of hearsay evidence, which has been a recurring feature of media reporting of alleged atrocities in Bosnia, being used to damn the accused are high.

This danger is illustrated by the tens of thousands of pages of evidence about alleged crimes submitted to the UN by governments, international bodies, human rights organisations, journalists and individuals. Many of these submissions have come from unreliable sources, such as the various war crimes commissions established by the three parties to the conflict. Some have come from prejudiced sources, such as human rights bodies which have taken sides in the conflict. Others have come from media reports which themselves are based on hearsay evidence.

On top of all this, the war crimes tribunal is in danger of elevating secrecy into a principle, with its secret database of testimonies, anonymous submissions, protected witnesses and in camera proceedings. Secrecy is antiethical to the pursuit of justice. Anybody who wants to know the truth should be demanding that nothing is secret and everything is out in the open.

The UN seems to be making up the law as it goes along and trying to cover its tracks with legal mumbo jumbo. For example, in order to justify the war crimes process, it has decided to classify the war in Yugoslavia as an international rather than an internal conflict. The UN insists that the 'character and complexity' of the conflicts in Croatia and Bosnia justify the international designation, and therefore the application of the law applicable in international armed conflicts.

This is arrant nonsense, designed to disguise an unprecedented interference in the affairs of small states. By waving a magic wand and turning a civil war into an international conflict, the major powers on the UN Security Council have given themselves the authority to sit in judgement on the rest of the world. The spectacle of the great and the good lecturing lesser peoples about how to behave is a throwback to the days of Empire.

Which brings us to the most important questions of all what is a war crime, and who decides? Atrocities are committed in all wars, but they are not always classed as war crimes, In practice, whether an atrocity is defined as a war crime depends on who is doing the killing and who is doing the judging.

Many ugly things have happened in Croatia and Bosnia, Atrocities have been committed by all combatants. But why should they be singled out as war crimes? The war crimes lobby argues that the atrocities in Bosnia and comparable to those of the Nazis. There is no evidence to support this view. The crimes for which people will stand trial in the Hague are not peculiar to the war in Yugoslavia. They are the staple of most wars in the twentieth century which begs the question why a Serbian soldier can be prosecuted as a war criminal for committing atrocities, while a British soldier who executes an Argentinean prisoner and outs off his ears as trophies is regarded as a hero?

This double standard should make us suspicious of the motives of those staging the war crimes trials. It is not strange that we had to wait until the Cold War was over (and all those atrocities committed by the British and the Americans and their allies in Korea, Kenya, Malaya, Vietnam, Cambodia, El Salvador and a hundred other places were forgotten) before somebody was put on trial for war crimes? The concept of war crimes appears to be an ideological construction of New World order politics, used to legitimise the international packing order by branding some as criminals and casting others in the role of judges.

All the evidence suggests that the war crimes trials are politically motivated. They reinforce a moral division in the world between those few nations qualified to sit in judgement and the other races fit only to stand in the dock. If this moral and racial divide has not already become obvious in the case of the Serbs, it will certainly become clearer if and when the proposal to put Rwandans in the dock for war crimes is carried out. And even if no case ever comes to court, the war crimes process will have served its purpose for those who set it in motion. The Western powers which have appointed themselves to sit in judgement on less civilised peoples will be sitting pretty, their authority to dictate to the rest of the world strengthened by the legal trappings of an international tribunal.