Ed Herman about the corruption of international justice

[Michel Collon <michel.collon at skynet.be>]

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Travesty
EDWARD HERMAN

Review of John Laughland, Travesty: The Trial of Slobodan Milosevic and the
Corruption of International Justice (London/Ann Arbor: Pluto Press, 2007).

[Z Magazine, forthcoming, April 2007]

John Laughland's superb new book , Travesty: The Trial of Slobodan
Milosevic and the Corruption of International Justice, is the fourth
important critical study of the issues pertaining to the Balkans wars that
I have reviewed in Z Magazine. The earlier three were Diana Johnstone's
Fools' Crusade (2002), Michael Mandel's How America Gets Away With Murder
(2004), and Peter Brock's Media Cleansing: Dirty Reporting (2005). It is an
interesting and distressing fact that none of the three earlier books has
been reviewed in any major U.S. paper or journal, nor, with the exception
of Z Magazine (and Swans and Monthly Review, which later ran a fuller
version of the Johnstone review), in any liberal or left journal in this
country (including The Nation, In These Times, The Progressive, or Mother
Jones). This is testimony to the power of the established narrative on the
recent history of the Balkans, according to which Clinton, Blair and NATO
fought the good fight, though coming in late and reluctantly, to halt Serb
ethnic cleansing and genocide managed by Milosevic, with the bad man
properly brought before a legitimate court to be tried in the interest of
justice.

This narrative was quickly institutionalized, with the help of an intense
propaganda campaign carried out by the Croatian and Bosnian Muslim
governments (assisted by U.S. PR firms), the U.S. and other NATO
governments, the NATO-organized and NATO-servicing International Criminal
Tribunal for the Former Yugoslavia's (ICTY, or Tribunal), and the Western
media, which quickly became co-belligerents in this struggle. This informal
collective focused on numerous stories and pictures of suffering victims,
on one side only and devoid of context. In commenting on the parade of
witness victims, Laughland notes that "Indictments [by the ICTY] are drawn
up with little or no reference to the fact that the acts in question were
committed in battle: one often has the surreal sensation one would have
reading a description of one man beating another man unconscious which
omitted to mention that the violence was being inflicted in the course of a
boxing match." But this stream of witnesses, that the defense could
duplicate in its turn if given the opportunity--and Milosevic did with a
video presentation of badly abused Serbs for several hours toward the
beginning of his trial--is effective in demonization and helped
mass-produce true believers who viewed any contesting argument or evidence
as "apologetics for Milosevic."

This consolidation of a party line has been reinforced by a virtual lobby
of institutions and dedicated individuals ready to pounce on both the
deviants who challenge the new orthodoxy as well as the media institutions
that on rare occasion allow a questioning of the "truth." The refusal to
review these dissenting books and to deal with the issues they raise is
also testimony to the cowardice and self-imposed ignorance of the media,
and especially the liberal-left media, unwilling to challenge a narrative
that is false at every level, as is spelled out convincingly in the three
books reviewed earlier and once again in Travesty.

Laughland's Travesty focuses on "The Corruption of International Justice"
displayed in the ICTY's performance in the seizure and trial of Milosevic,
but in the process the book covers most of the issues central to evaluating
the Balkan wars and the role of the various participants. The
institutionalized lies are dismantled one after the next. On the matter of
"international justice," Laughland stresses the fact that the ICTY is a
political court with explicit political objectives that run counter to the
requirements of any lawful justice.

This political court was organized mainly by the United States and Britain,
countries that now freely attack others, but seek the fiction that will
give their aggressions a de jure as well as quasi-moral cover. For this
reason the rules of the ICTY stood Nuremberg on its head. The Nuremberg
Tribunal tried the Nazi leaders for their planning and carrying out the
"supreme international crime" of aggression. But the ICTY Statute doesn't
even mention crimes against peace (although with Kafkaesque hypocrisy it
claims to be aiming at protecting the peace). Thus, Laughland notes,
"instead of applying existing international law, the ICTY has effectively
overturned it." The dominant powers now wanting to be able to intervene
anywhere, the new principles to be applied were a throwback to the Nazis in
disrespect for international borders. Laughland says that "the commitment
to non-interference in the internal affairs of states, reaffirmed as part
of the Nuremberg Principles in the United Nations Charter, is an attempt to
institutionalize an anti-fascist theory of international relations. It is
this theory which the allies destroyed in attacking Yugoslavia in 1999."
And it is this anti-fascist theory that the ICTY and humanitarian
interventionists have abandoned, opening the door to a more aggressive
imperialism.

The ICTY was established not by passage of any law or signing of an
international agreement (as in the case of the International Court of
Justice) but by the decision of a few governments dominating the Security
Council, and Laughland shows that this was beyond the authority of the
Security Council (also shown in another outstanding but politically
incorrect and neglected work, Hans Kochler's Global Justice or Global
Revenge? [Springer-Verlag Wien, 2003]). It was also established with the
open objective of using it to pursue one party in a conflict, presumed
guilty in advance of any trial. The political objectives were allegedly to
bring peace by punishing villains and thus serving as a deterrent, but also
to serve the victims by what Laughland calls "the therapeutic power of
obtaining convictions." But how can you deter without a bias against
acquittal? Laughland also notes that "The heavy emphasis on the rights of
victims implies that 'justice' is equivalent to a guilty verdict, and it
comes perilously close to justifying precisely the vengeance which
supporters of criminal law say they reject." "Meanwhile, the notion that
such trials have a politically educational function is itself reminiscent
of the 'agitation trials' conducted for the edification of the proletariat
in early Soviet Russia."

Laughland features the many-leveled lawlessness of the ICTY. It was not
created by law and there is no higher body that reviews its decisions and
to whom appeals can be made. The judges, often political appointees and
without judicial experience, judge themselves. Laughland points out that
the judges have changed their rules scores of times, but none of these
changes have ever been challenged by any higher authority. And their rules
are made "flexible," to give efficient results; the judges proudly noting
that the ICTY "disregards legal formalities" and that it does not need "to
shackle itself to restrictive rules which have developed out of the ancient
trial-by-jury system." The rule changes have steadily reduced defendants'
rights, but from the beginning those rights were shriveled: Laughland
quotes a U.S. lawyer who helped draft the rules of evidence of the ICTY,
who acknowledges that they were "to minimize the possibility of a charge
being dismissed for lack of evidence."

Laughland notes that the ICTY is a "prosecutorial organization" whose
"whole philosophy and structure is accusatory." This is why its judges
gradually accepted a stream of rulings damaging to the defense and to the
possibility of a fair trial--including the acceptance of hearsay evidence,
secret witnesses, and closed sessions (the latter two categories applicable
in the case of 40 percent of the witnesses in the Milosevic trial). ICTY
rules even allow an appeal and retrial of an acquitted defendant--"in other
words, the ICTY can imprison a person whom it has just found innocent."

Laughland's devastating analysis of the Milosevic indictment and trial is a
study in abuse of power in a politically-motivated show trial,
incompetence, and faux-judiciary malpractice. The first indictment, issued
in the midst of the NATO bombing war, on May 27, 1999, was put up in close
coordination between the ICTY and U.S. and British officials, and its
immediate political role was crystal clear--to eliminate the possibility of
a negotiated settlement of the war and to deflect attention from NATO's
turn to bombing civilian infrastructure (a legal war crime, adding to the
"supreme international crime," both here protected by this body supposedly
connected to "law" and protecting the peace!). The later kidnapping and
transfer of Milosevic to the Hague was a violation of Yugoslav law and
rulings of its courts. The ICTY's NATO service and contempt for the rule of
law was manifest.

The original indictment of Milosevic dealt only with his responsibility for
alleged war crimes in Kosovo. But as Laughland points out, the wild claims
of mass killing and genocide in Kosovo were not sustainable by evidence,
and NATO bombing may have killed as many Kosovo civilians as the Yugoslav
army. This accentuated the problem that if the Milosevic indictment was
limited to Kosovo it would be hard to justify trying him for Kosovo crimes
but not NATO leaders, a point even acknowledged by the ICTY prosecutor. So
two years after the first indictment, but after Milosevic's kidnapping and
transfer to The Hague, the indictment was extended to cover Bosnia and
Croatia. A bit awkward, given that back in 1995 when Mladic and Karadzic
were indicted for crimes in Bosnia, Milosevic was exempted. There was also
the problem that the Bosnian and Croatian Serbs were not under Serb and
Milosevic authority after the declared independence of Bosnia and Croatia,
and Milosevic fought with them continuously in an effort to get them to
accept various peace plans 1992-1995 (documented in Sir David Owen's Balkan
Odyssey, another important book neglected perhaps because of its
contra-party line evidence).

So the prosecution sought to make the case for "genocide" by belatedly
making Milosevic the boss in a "joint criminal enterprise" (JCE) to get rid
of Croats and Muslims in a "Greater Serbia." The initial indictments that
confined his alleged crimes to Kosovo never mentioned any participation in
a JCE or drive for a "Greater Serbia." So the prosecution had to start over
in collecting evidence for the crimes, JCE, and Greater Serbia aims in
Bosnia and Croatia and tying them to Milosevic. Guilt decision first, then
go for the evidence, was the rule for this political court. The trial moved
ahead while the "evidence" was still being assembled. Most of it was the
testimony of scores of alleged witnesses to alleged crimes, a large
majority with hearsay evidence, and almost none of it bearing on
Milosevic's decision-making or differentiating it from what could have been
brought against Izetbegovic, Tudjman or Bill Clinton. Laughland shows very
persuasively that the inordinate length of the trial was in no way related
to Milosevic's performance--a lie beloved by Marlise Simons and the
mainstream media in general--it was based on the fact that this was a
political trial that inherently demanded massive evidence, and the
prosecution, unprepared and struggling to make a concocted charge
plausible, poured it on, trying to make up for lack of any documentation of
their charges of a Milosevic-based plan and orders with sheer volume of
irrelevant witnesses to civil warfare and Kosovo-war crimes and pain.

A key element in the prosecution case was the belated charge that Milosevic
was involved in a "joint criminal enterprise" with Serbs in Croatia and
Bosnia to get rid of non-Serbs by violence, looking toward that Greater
Serbia. The concept of a JCE is not to be found in prior law or even in the
ICTY Statute. It was improvised to allow the finding of guilt anywhere and
anytime. You are part of a JCE if you are doing something bad along with
somebody else, or are attacking the same parties with somebody who does
something bad. With that common end you don't even have to know about what
that somebody else is doing to be part of a JCE. Laughland has a
devastating analysis of this wonderfully expansive and opportunistic
doctrine, and his chapter dealing with it is entitled "Just convict
everyone," based on a quote from a lawyer-supporter of the ICTY who finds
the JCE a bit much. Milosevic probably would have been convicted based on
this catch-all, or catch anyone, doctrine. Of course it fits much better
the joint and purposeful Clinton, Blair, NATO attack on Yugoslavia, or the
Croats U.S.-supported ethnic cleansing of Serbs from Croatian Krajina in
August 1995, but there is nobody to enforce the JCE against them, whereas
we have the ICTY to take care of U.S. and NATO targets!

Laughland has a fine chapter on Greater Serbia, which shows that Milosevic
didn't start the breakup wars (even quoting prosecutor Nice admitting
this), that he was no extreme nationalist and that accusations about his
speeches of 1987 and 1989 are false, that his support of the Serbs in
Croatia and Bosnia was fitful and largely defensive, and that he was not
working toward a Greater Serbia but at most trying to enable Serbs in a
disintegrating Yugoslavia to stay together. During Milosevic's trial
defense, Serb Nationalist Party leader Vojislav Seselj claimed that only
his party sought a "Greater Serbia," as the Croats and Bosnian Muslims were
really Serbs with a different religion and his party fought to bring them
all within Serbia--Milosevic only wanted the Serbs stranded in the
breakaway states to be able to join Serbia. At that point the prosecutor
Geoffrey Nice acknowledged that Milosevic was not aiming for a Greater
Serbia, but, in Nice's words, only had the "pragmatic" goal of "ensuring
that all the Serbs who had lived in the former Yugoslavia should be
allowed...to live in the same unit." This caused some consternation among
the trial judges, as Milosevic's aggressive drive for a Greater Serbia was
at the heart of the ICTY case. You never heard about this? Understandably,
as the New York Times and mainstream media never reported it, just as they
never tried to reconcile Milosevic's support of serial peace moves with his
alleged role as the aggressor seeking that Greater Serbia.

There is much more of value in Travesty and I can't do it justice even on
the issues discussed here. This is a wonderful book that should be on the
reading list of everyone looking for enlightenment on the confused and
confusing issues involving the Balkan wars and "humanitarian intervention."
It helps shred the notion that the NATO attacks were based on a morality
that justified over-riding sovereignty and international law, and it shows
decisively that the ICTY is a completely politicized rogue court that is a
"corruption of international justice."

As Laughland emphasizes (and Johnstone and Mandel do as well), the NATO war
and the work of the ICTY in running interference for that war, were very
helpful in setting the stage for George Bush's wars in Afghanistan and Iraq
and possibly also, Iran. It was treated then, and remains treated today, as
a "good war," a "humanitarian intervention." So those who swallowed the
standard narrative, built on lies, at best failed to see the continuity
between Clinton and Bush, and the service of the former and the publicists
of the "good war" in removing the protection of the "anti-fascist theory of
international relations" that protected small countries from Great Power
aggression and unleashing the rule of the jungle.