The Hague tribunal as a political agency

Vladimir Volkov, RIA Novosti, Moscow

The International Criminal Tribunal for the Former Yugoslavia was established by the UN Security Council in 1993 at the initiative of the then U.S. Ambassador at the UN, Madeleine Albright, at the height of ethnic and civil conflicts in Yugoslavia and anti-Serbian propaganda in the Western media. What has it done in the 11 years since then?

It has scored major achievements only in the development of its structure. It has a permanent staff of over 1,100 and its budget has grown from US$120 million in 2003 to $135 million in 2004. The Tribunal has spent approximately $1 billion since 1993. It should fold by late 2010, but by that time it will have spent about $2 billion. This looks like major investment, but the analysis of the Tribunal's operation shows that it has been in vain.

The largest figure the Tribunal tried was ex-president of Yugoslavia Slobodan Milosevic, who was turned over to the Tribunal in 2001 and charged with military crimes and Albanian genocide in Kosovo. The hearing began on Feb. 12, 2002 and the prosecutors' presentation lasted nearly two and a half years, until summer 2004. In the meantime, charges against Milosevic gradually changed. Though it listened to numerous witnesses and studied heaps of documents, the Tribunal failed to prove Milosevic guilt of genocide in Kosovo; the thorough search for proof of his crimes was as useless as the search for WMDs in Iraq. The center of gravity thus shifted towards charges of genocide in Bosnia and Herzegovina, especially the crime outside Srebrenica, where several thousand were killed.

This change of accent should have led to the recognition of three-party -- Serbian, Croatian and Bosnian Muslims -- responsibility for the ethnic and civil conflicts in the former Yugoslavia. But the leaders of the latter groups, Franjo Tudjman and Alija Izetbegovic, were not called to account. The Tribunal is hearing only the case of Milosevic. With the passing of time it became clear that the Tribunal was acting on political orders. The recognition of Milosevic as a military criminal was necessary to justify the barbarous 78-day bombing of Serbia.

At that stage in the process, Milosevic, a lawyer by profession, defended himself and tilted the scales in his favor. His confrontation with U.S. General Wesley Clarke, who led NATO troops against Yugoslavia in December 2003, was so dramatic that the U.S. authorities prevented the publication of the full text of the sitting, deleting the most important parts.

The self-defense by Milosevic promised to make public many facts about the reasons for the 1999 events. Milosevic openly said that he would build his defense on the negative role of the Western powers, which would have been useful for establishing the truth and serving justice. But the Tribunal decided to prevent this. Claiming that Milosevic was too ill to defend himself and his self-defense would draw out the process, it denied him the right. Protests by Milosevic and his demand for medical examination by an independent commission of doctors were rejected.

British lawyer Steven Kay was appointed the official defense counsel of Milosevic.He soon came across nearly insurmountable obstacles. To begin with, the impossibility of the defendant to defend himself encouraged many witnesses to refuse to testify. They provided plausible arguments. Former Canadian Ambassador to Yugoslavia James Bisset said the Tribunal's decision infringed on the basic rights of the defendant. The other witnesses provided similar arguments. The Tribunal treaded all over the principle of presumed innocence from the very beginning, because the judges acted on the presumption of Milosevic's guilt.

The sides' positions were unequal. The prosecutors had a big staff who processed materials, while the new defense counsel did not have such capabilities. The volume of documents was very large and many of them were in the Serb-Croatian language, which Mr. Kay does not speak. Milosevic refused to collaborate with the lawyer, viewing him not as his defense counsel but as a representative of the Tribunal and the prosecution. As a result, Steven Kay asked for a four-week delay for finding witnesses and studying the case.

The appointment of Kay had an opposite effect to the intention of the Tribunal to speed up the process. The commentaries by lawyers said the Tribunal violated not only Article 21 of its Statute (Rights of the Accused) but also the provisions of the International Covenant on Civil and Political Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Steven Kay found and heard the testimony of several defense witnesses, including Franz-Josef Hutsch, a German military observer in the OSCE verification commission in Kosovo in 1998- 1999, and James Jatras, who had been a policy analyst for the U.S. Senate Republican Policy Committee. But their testimony created many problems and, worse still, deadlocked the case.

Kay filed an appeal protesting against the method of his appointment and the refusal to grant the defendant the right to be his own counsel. Slobodan Milosevic said at the appeals hearing in mid-October 2004: "Personally, I have nothing against Mr. Kay, but this is a political process and no counsel can defend me better than I can." He certainly looked in good health, which proved that he was denied the right to defend himself for political reasons. Eventually, Milosevic was allowed to be his own counsel.

The "process of the century", as Prosecutor Carla del Ponte described it, saying that it would demonstrate the top values of international law and justice, did not live up to her expectations, though Milosevic is certainly no angel. People in Belgrade say that he should be tried at home for abuse of power, embezzlement of state funds through privatization frauds, and other real, not imaginary crimes.

Speakers at the autumn hearing of the murder in August 2000 of Ivan Stambolic, a prominent Yugoslav and Serbian politician, said Milosevic could be involved in that crime. But this crime is in the competence of Serbian justice rather than of the Hague Tribunal.

The writer is Director of the Institute of Slavic Studies, non-voting member of the Russian Academy of Sciences