Date sent: Thu, 12 Oct 1995 14:01:54 -0400 From: INDIRA KAJOSEVIC To: iskoric@igc.apc.org Subject: TRIBUNAL on TWATCH -Forwarded Ivo, hvala za izvjestaj Europske misije, a u prilogu je tekst sa TWATCH-a. Received: from UBVM.CC.BUFFALO.EDU by UBVM.cc.buffalo.edu (IBM VM SMTP V2R3) with BSMTP id 1965; Tue, 03 Oct 95 14:57:52 EDT Received: from UBVM.CC.BUFFALO.EDU (NJE origin LISTSERV@UBVM) by UBVM.CC.BUFFALO.EDU (LMail V1.2a/1.8a) with BSMTP id 9876; Tue, 3 Oct 1995 14:04:34 -0400 Received: from UBVM.CC.BUFFALO.EDU by UBVM.CC.BUFFALO.EDU (LISTSERV release 1.8b) with NJE id 5529 for TWATCH-L@UBVM.CC.BUFFALO.EDU; Tue, 3 Oct 1995 14:04:25 -0400 Received: from UBVM (NJE origin SMTP@UBVM) by UBVM.CC.BUFFALO.EDU (LMail V1.2a/1.8a) with BSMTP id 9672; Tue, 3 Oct 1995 14:02:17 -0400 Received: from gn.apc.org by UBVM.cc.buffalo.edu (IBM VM SMTP V2R3) with TCP; Tue, 03 Oct 95 14:02:00 EDT Received: from [193.37.35.129] (ppp2.gn.apc.org) by gn.apc.org (4.1/Revision: 1.30 ) id AA17661; Tue, 3 Oct 95 19:03:59 BST Mime-Version: 1.0 Content-Type: text/plain; charset="us-ascii" Message-ID: <9510031803.AA17661@gn.apc.org> Date: Tue, 3 Oct 1995 19:03:57 BST Reply-To: Tribunal Watch List Sender: Tribunal Watch List From: Vanessa Vasic-Janekovic Subject: TRIBUNAL on TWATCH To: Multiple recipients of list TWATCH-L The Institute for War&Peace Reporting (a conflict monitoring charity based in London) has recently started a Tribunal Monitoring Project. As part of the project we are publishing a supplement to our regular publication WarReport, called Tribunal. Tribunal will be available on TWATCH, whenever it comes out, but if you wish to receive it in print, please contact me. The first issue to appear is from August 1995. I hope you will find the material useful. If you wish to contribute or propose a contributor, or a topic, please let me know. Vanessa Vasic-Janekovic project coordinator Institute for War&Peace Reporting Lancaster House 33 Islington High Street London N1 9LH tel: 0171 713 7130 fax: 0171 739 9779 If you wish to e-mail me, please use the following address: indigochild@gn.apc.org. TRIBUNAL no 1/August 1995 Angling for the Big Fish by Vanessa Vasic-Janekovic War Crimes Prosecutor Justice Richard Goldstone's declared strategy of building up cases from "small fish" to the leaders is now solidifying. As the Tribunal heard a preliminary motion on jurisdiction filed by Dusan Tadic's defence, Goldstone announced five new indictments on July 25, bringing the number of accused to 46. The indictments also target three leaders - Radovan Karadzic, Ratko Mladic, and rebel Croatian Serb leader Milan Martic.The remaining 21 individuals indicted range from camp commanders charged with genocide to "visitors" to the camps and guards. The indictment against Karadzic and Mladic relies, among other things, on all the previous Indictments for crimes committed in Bosnia. By signing international cease-fire agreements for example, they confirmed themselves to be in power, and so they are accused of planning, instigating, ordering and helping the crimes, since they were in position to know, and did nothing to prevent them or to punish the perpetrators. The crimes include the recent attack on Tuzla, which resulted in 195 dead and wounded as well as events in Srebrenica. Filling up the charge sheet are the sniping campaign against civilians in Sarajevo, the destruction personal and real property of Bosnian Muslims and Croats, of the sacred sites, unlawful deportation of thousands of civilians and finally, taking UN personnel hostage and using them as human shields. Meanwhile, the hearings in the pre-trial phase of the case against Dusko Tadic were held.The first defendant to be brought before the Tribainal on war crimes, he faces 132 charges including rape, crimes against humanity, grave breaches of the Geneva conventions, and violations of the no laws of war. Preliminary motions by both the defence and prosecution have been filed, as well as most responses.The presiding judges have also granted leave for the filing of two briefs written by amici curiae, "friends of the court" with interests in specific legal issues. The motions seek clarification of key legal points and present some fundamental challenges for the court. On June 23, and July 3, the defence filed four motions: one on the jurisdiction of the Tribunal, another l on the non bis in idea (principle of not trying the same case twice, a third on the form of indictment and a fourth asking for the exclusion of German evidence. On July 25 and 26 the judges listened to arguments and will give their decision on August 10, while the dates for hearings of the two remaining motions are yet to be set.The prosecution demanded protection for witnesses in a motion filed on May 18.The hearing was held in cameraJune 21. The defence's jurisdictional motion raises issues that have been the subject of debate among lawyers and scholars for a long time. Although the U.N member states agreed to the establishment of the ad hoc Tribunal, unsurprisingly, the Federal Republic ofYugoslavia later declared that it did not recognize it. No one can accuse defence lawyers Michael Wladimiroff and MilanVujin and their support team of not taking their task seriously. In fact, they have raised much more substantial issues than the much better paid defence in the more heavily publicised trail of O.J. Simpson on Los Angeles. The question of state sovereignty has been a crucial plank of the defence team's procedural arguments. They contend that the Tribunal has no legal foundation, firstly, because it was not established by an international treaty and so is an infringement of state sovereignty. Furthermore, the defence claims, the Security Council has no power to establish such a body, since the. General Assembly is the only international organ which could legitimately establish such a tribunal. The prosecution has responded that its establishment was a legitimate exercise of Security Council powers. The Council founded the tribunal under Chapter VII of the UN Charter, based on the argument that war itself and violations of international law during it represented a threat to international peace and security. However, the defence claims that the war in Bosnia is an internal conflict, and so the Security Council has no power under other provisions of the UN Charter to establish a body to deal with it. If the conflict is internal, they argue, the ICTY cannot prosecute "grave breaches" of the Geneva conventions of 1949, which they claim, are only applicable in international conflicts. Similarly, they challenge the court's powers to handle vio1ations of humanitarian law,- -which they say is a neutral body of law that the Security Council is not empowered to enforce. The defence also argues that if the overall aim is to establish peace in Bosnia, why not rely on amnesty, rather than punishment? According to them the decision to establish the tribunal-was highly political and so it is impossible for a subsidiary organ of the Security Council to act independently. They also claim that the Security Council had no justification in claiming that circumstances in the former Yugoslavia were exceptional, since similar violations occurred in recent history elsewhere. Focusing on the formerYugoslavia, therefore, "amounts to...discrimination." Finally, the defence brief is that individuals cannot be prosecuted by the Tribunal because international law has no authority over individuals, only states. The second defence motion claims that the principle of non bis in idem was violated when the Tribunal requested the deferral of the case against Tadic already under-way in Germany. The Tribunal, thus, has no jurisdiction to try the accused and the defence has demanded the prosecution be dismissed, or some of the charges dropped. The prosecution has responded with the argument that non bis in idem does not apply, since the accused was not convicted or sentenced. In the third motion the defence finds the indictment vague and full of overlapping qualifications. It has demanded further clarification and redrafting of the indictment by the prosecution.The prosecution counter-argument has been that Tadic's counsel stated during his initial appearance that he had read the indictment in his own language and understood the charges. A small fish,Tadic's importance is, of course, his timing as the first in the dock in the Hague. But the court's determinations on these procedural issues will prepare the frying pan for the bigger fish that Goldstone is now angling for. SIDEBAR: All the indictments handed down by the prosecutor on July 26 were confirmed by the Trial Chambers and arrest warrants were issued. Four of the indicted were charged with genocide: Radovan Karadzic, Ratko Mladic, Dusan Sikirica, the commander of the Keraterm camp near Prijedor,.and Goran Jelisic, the commander of the Luka camp in Brcko. Karadzic and Mladic are also charged with crimes against humanity, violation of the laws and customs of war and grave breaches of the Geneva conventions. Milan Martic is charged with war crimes, for the cluster bomb attacks on Zagreb in May this year, which followed the Croatian Army offensive on western Slavonia. The investigation into alleged abuses by the Croatian forces is under-way. The remaining three indictments are linked to crimes committed in the Keraterm camp, in the town of sosanski Samac in North- ern Bosnia and in the Luka camp in Krakow The indictment linked to Ker- aterm names 13 the commander Dusko Sikirica; three shift Pomanders, Damir Dosen, Dragan Fustar and Dragan Kulundzija; four guards, Nenad sanovicf Predrag sanovict Goran Lajic and Dragan Kondic; as-well as five frequent visitors Nikica Janjic, Dusan Knezevic, Dragomir Saponja, Ned- jeljko Timarac and zoran zigic They are all charged with crimes against humanity, violations of laws and customs of war and grave breaches of the Geneva conventions, for committing murders, torture, sexual assaults, beatings, etc. In addition, the commander is charged with genocide. For the crimes allegedly committed in Bosanski Samac, six were charged. Blagoje Simic, who is president of the local Serbian Democratic Party, Ste- van Todorovic, Chief of Police, Simo Zaric, organiser and leader of the mil- itary force, Slobodan Miljkovic, Miroslav Tadic and Milan Simic. Charges in- clude crimes against humanity, grave breaches and violations of the laws and customs of war. Simic is held responsible also for the crimes commit- ted by Todorovic, the chief of police . Their charges include unlawful de- portation, sexual assaults, torture, killings and beatings. The fifth indictment charges Goran Jelisic, Luka camp commander with genocide, and Ranko Cesic with killings and beatings. Both are charged with crimes against humanity, violations of the laws and customs of war and grave breaches of the Geneva Convention. Mocking the Dead by Srdja Popovic The most important contribution to international law derived from the Nuremberg trials of Nazi officials after the Second World War was the concept that launching an aggressive war was criminal. For the first time in history the Charter of the International Military Tribunal made "planning, preparation, initiation or waging a war of aggression or participation in a common plan of conspiracy for the accomplishment of any of the foregoing" a crime against international law. In preparation for those trials Justice Robert H. Jackson argued for the inclusion of the crime of "illegal war of aggression" in the statute. According to Justice Jackson " the crime which comprehends all lesser crimes is the crime of making unjustifiable war." To free the planners and perpetrators of an aggressive war "would mock the dead and make cynics of the living." The Statute on War Crime in former Yugoslavia omits to include crimes against peace and thus leaves off the hook the so-called "big fish", the likes of Serbian President Slobodan Milosevic and General Veljko Kadijevic, the perpetrators of "the crime which comprehends all lesser crimes." It mocks the dead and makes cynics of the living. This is the main reason that the Hague Tribunal has been largely seen as nothing more than a fig leaf for the faint-hearted passivity of the "international community" in the face of Serbian aggression. There could be no doubt in anybody's mind that Milosevic as President of Serbia, together with Borislav Jovic, "President" of the non-existent "Yugoslav Presidency", and "General" Kadijevic, "Chief of Staff" of the non-existent Yugoslav Army, planned, prepared, initiated and waged war against the states of Croatia and Bosnia. In his book "The Dissolution of Yugoslavia", published in Belgrade in 1993, General Kadijevic described quite openly the conspiracy to perpetrate these crimes long before 1991. The reasons for omitting the crimes against peace from the Statute usually rest in interpretations of "civil war theory." While there is no doubt that after the Serbian aggression against Croatia and Bosnia, rebel minority Serbs joined, or rather, had no choice but to join the aggressors from Serbia, this does not alter the fact that the attacks on Croatia and Bosnia were planned by conspirators from Serbia, professionals from what had been the "Yugoslav Army", the Serbian police and criminal groups, organised, armed and led by the "Yugoslav Army" and the Serbian police. The "civil war" that ensued was an unavoidable consequence of the aggression. The other argument put forward by the adherents of the "civil war" theory has been that Croatia and Bosnia were not recognized as independent states at the outset of hostilities. True, but irrelevant. The independent states of Croatia and Bosnia have existed since the day they declared independence (June 1991 and April 1992, respectively). The act of subsequent recognition and subsequent admission to the membership of the United Nations does not change the fact that these states existed independently from June 1991 and April 1992. By the way, this is why Milosevic has such a hard time recognising Croatia and Bosnia. He knows that the act of recognition would validate the legitimacy of these states "as of" June 1991 and April 1992, resp., which would amount to admitting to aggression. The Socialist Federal Republic of Yugoslavia, as defined in its own Constitution (Article 2), ceased to exist after Slovenes left Yugoslavia on June 27, 1991. After that date, there was no Yugoslavia, and consequently there was no Yugoslav Presidency and no Yugoslav Army. Orders issued by the presidency to the army" to act against Croatia and Bosnia were acts of the Serbian Government headed by Milosevic, who conspired with former Yugoslav officials from the presidency and army to attack the independent states of Bosnia and Croatia in an attempt to bring down their governments and reintegrate them forcibly into a new Yugoslavia. It is now almost forgotten that although Milosevic cynically claimed that "Serbia is not at war", he personally co-signed (with Kadijevic) at least three cease-fire agreements. The proponents of the "civil war" theory go on to argue that minority Serb populations feeling under threat opposed the governments of Croatia and Bosnia, as well as their independence. Maybe true, but let us quote Justice Jackson again: "It is important that the trial not become an inquiry into causes of the war. It cannot be established that Hitlerism was the sole cause of the war, and there should be no efforts to do this. Nor, I believe, should there be any effort or time spent on apportioning out responsibility for causing of the war among the many nations and individuals concerned. The question of causation is important and will be discussed for many years, but it has no place in this trial, which must rather stick rigorously to the doctrine that planning and launching an aggressive war is illegal, whatever may be the factors that caused the defendants to plan and to launch. Contributing causes may be pleaded by the defendants before the bar of history, but not before the tribunal." Why then were not crimes against peace included in the Statute of the Hague tribunal? For the simple political reason that this would compromise the UN's "neutrality" and its "search for a political solution". Members of the Security Council with little appetite for fulfilling their international obligations of "peacemaking" and prevention of genocide were extremely careful from the very beginning to avoid any mention of "aggression" or "genocide". Faced at home with criticism of their complicity in crimes against peace and genocide, they found it useful to endorse Milosevic's self-serving civil war theory - a civil war which erupted "spontaneously" as a result of "centuries-old hatreds between various ethnic groups", or "blind forces of history". What can you do to stop "blind forces of history"? This leads to describing the aggressors and their victims as "warring parties" and adopt a "neutral stance." From the very beginning the intention was to amnesty Milosevic and press for the "political solution" in return for the amnesty. At the very least, this was bad diplomacy. Milosevic realised early on that the amnesty would be granted in the self-interest of the permanent members of the Security Council and that it would hold regardless of whether he delivered on his part of the bargain or not. International neutrality thus amounted to taking the Serbian side: they were forgiven their aggression and their genocide with nothing given in return. This encouraged and still encourages the inflexible stand taken by the Serbian side. They have absolutely no incentive to negotiate or look for a "political solution". The latest developments in Bosnia clearly show that the UN mission based on these appeasement premises has failed. The Serbs are clearly telling the UN to get out. They do not care and have never cared about "UN resolutions", when the world evidently has no stomach for stopping aggression and genocide. The whole "peace process" has been exposed for what it has been from the beginning, a fig leaf for inaction and complicity. The Security Council could not decide to punish the crimes it did nothing to prevent. The only possible solution was denial. The Statute of the Hague Tribunal and the omission of crimes against peace therefore represent a serious step back from the principles of Nuremberg. Justice Jackson wrote: "We are put under a heavy responsibility to see that our behaviour during this unsettled period will direct the world's thought toward a firmer enforcement of the laws of international conduct, so as to make war less attractive to those who have governments and the destinies of peoples in their power." Western leaders have been put under the same heavy responsibility and have miserably failed. Srdja Popovic is a lawyer from Belgrade based in the USA The Enemy on trial by Tanja Tagirov and IWPR Serbian authorities persist in claiming to be perfectly able to try war criminals.The International Criminal Tribunal in the Hague (ICTY) is therefore, unnecessary, besides being discriminatory and without jurisdiction to try crimes committed in the formerYugoslavia. The resentment runs deep. Toma Fila, a well-known Belgrade attorney, has even demanded that Serbian lawyers who agree to defend the accused Serbs in the Hague be treated as quislings. His uncompromising stance is even more radical than that of attorneys supporting the authorities.All agree that it is up to the national judiciary to try such cases. In Serbia, there already have been war crimes trials, but who or what was tried? "These authorities are not trying the crime, but the enemy" says Nikola Barovic, a Belgrade lawyer.War crimes trials have been going on since the beginning of the Yugoslav conflict, but the principle was to"try the enemy", Barovic says."In the beginning of the war in 1992, people captured in Vukovar were tried in groups of 10 to 40 prisoners. Some were indicted and tried in absentia. In some cases, at the Military Court in Belgrade, the accused were found guilty.What happened though, is that they were exchanged, according to an agreement reached in 1992. The signatories did not oblige themselves to continue the procedures started. "Thus, cases prosecuted in Croatia have not been continued once the accused were exchanged and in Serbia. Both sides will claim many war crimes trials, but these are not of 'their own' criminals." Ironically, Barovic notes, authorities involved in these procedures are demonstrating their ability to obtain evidence from territory not under their control. They know what was done and who did it. But when it comes to interpreting the mass of information related to such crimes, their hands are tied they claim not to be aware of it, or are unable to discover who the perpetrators were. In fact, the authorities are not prosecuting these crimes as such, but merely trying to prove the propagandists' thesis that Croats and Muslims have not only been shelling thernselves, but also killing Serbian civilian and imposing the war on Serbs. So far, only one war crimes trial against a Serb has been held in Serbia. It involved DusanVuckovic, a member of the paramilitary group Yellow Wasps, a unit commanded by his brother,VojinVuckovic. Operating around Zvornik, the unit is thought to be responsible for the ethnic cleansing in the area. Vuckovic was charged with 16 murders, one mutilation and rape. He admitted to having mutilated a prisoner and shooting at some, "because they made him angry". The trial, held in Sabac has been postponed indefinitely. Vuckovic's case has been described as a propaganda trial. The accused, who was apparently an unstable personality and prone to alcoholism, has served to prove an important point: war crimes committed by Serbs were isolated phenomena, primarily attributable to the personality of the perpetrator. Meanwhile, some 70 members of the Yellow Wasps, as well as the commander,Vuckovic, although briefly in custody, were not charged with anything. Later,Vuckovic boasted of his military successes near Zvornik and claiming his brother, Dusan, only "obeyed orders...and was an example to his soldiers." Whilst the activities of the Yellow Wasps may well have been approved of by the au-thorities, those of a Yugoslav People's Army general,Vlado Trifunovic, who commanded the Varazdin Corps,were not. Trifunovic surrendered his besieged barracks to the Croats in the fall of 1991 and managed to secure safe passage for his men. Croatian authorities tried Trifunovic in absentia for war crimes. Without proving he ordered the destruction of Varazdin, without even specifying which objects were destroyed or hit, Trifunovic was sentenced to 5 years imprisonment. In Serbia, the general was tried for treason and subversion three times, and was twice acuitted. But the judges who acquitted him were replaced and he is now-appealing against a sentence of 11 years mprisonment. The trial itself was rife with irregularities. Trifunovic was tried by the Military Court of he Army of Yugoslavia, which he never belonged to and which was not in existence during that period of the Croatian war. Moreover, he was tried for treason and subversion in a war which was never declared. Is there any readiness on the part of Serbian authorities to co-operate with the Hague Tribunal and change their attitude towards war crimes? Attorney Rajko Danilovic thinks not, "because in Serbia, those in power and those who co-operated on the Greater Serbia project, are rejecting the Tribunal as a court with one aim: exclusively to try the Serbs and Serbia." The few war crimes trials in Serbia against Serbian forces and paramilitary members have brought some secrets to light. Firstly, it is evident that the authorities - those who can initiate procedures are involved. Secondly, despite the collapse of the Greater Serbia project, the authorities consider that the tribunal in the Hague does not have serious backing from the international community and that it will be abandoned after a peace is declared. The third is that trials would be dangerous, not only for members of the Serbian army or paramilitary units, but also for the Serbian leadership. Finally, in Serbia there arc no ethical or political forces ready to honestly face the consequences of the war - the war crimes and their perpetrators. A damning comparison with the Nuremberg trials by lawyer Barovic illustrates the situation: "The Third Reich died with the presence of the war crimes tribunal. These states are being established in the presence of a war crimes tribunal." Vanessa Vasic-Janekovic