It has become almost an article of faith these days that the failure to
arrest indicted Serb war criminals and send them to the International
Criminal Tribunal for the Former Yugoslavia (ICTY) in the Hague is the main
threat to peace in the region. Yet nobody seriously contends that deposed
Bosnian Serb leaders Radovan Karadzic and Gen. Ratko Mladic are plotting to
revive the war. Rather, failure to arrest Karadzic and Mladic can be a
threat to the peace only because Bosnian Muslim leaders, enjoying worldwide
support, may use unsatisfied demands for justice on their terms as a casus
belli.
Testifying before U.S. Senate hearings in August 1995, Professor Cherif
Bassiouni, who headed the U.N. commission that prepared the documentary
basis for the Hague tribunal, declared that there can be "no peace without
justice." Whatever the correlation between peace and justice, there are
different concepts of justice, and exacting punishment is only one. If the
slogan, "no peace without justice" means punishment for past offenses, it
amounts to a recipe for perpetual war in a place where one party's justice
is another's outrage, and each warring party claims to be pursuing justice
when it takes up arms against another.
Many of its champions present the ICTY as an instrument of peace and
reconciliation. Their most compelling political argument is that
individual responsibility needs to be established to replace the notion of
collective guilt, which fuels fear and hostility between population groups
tragically turned against one another by the recent conflicts.
That is the theory. In practice, the ICTY has been comforting notions of
collective guilt and thereby risks justifying future acts of collective
vengeance. The very fact the the U.S. government is supporting the
tribunal and arming the Muslims suggests a combination of judicial and
military means on behalf of one party to the conflict.
Moreover, the the ICTY set up on an Ad hoc basis by the U.N. Security
Council, has neither the budget nor the control of the terrain necessary to
serve up any more that an extremely selective justice, and the selection
from the start has centered on the Bosnian Serb leadership, pre-judged as
THE guilty party. Back in August 1992, German Foreign Minister Klaus
Kinkel, whose government led the drive to fragment Yugoslavia at the
expense of its Serb and Yugoslav citizens, called for creation of an
international court to prosecute leading Serbs for genocide. And German
courts have recently been prosecuting Serbs for alleged crimes against
humanity with a zeal they never demonstrated in pursuing crimes committed
by their own countrymen during the World War II Nazi occupation of
Yugoslavia. Indeed, condemning "Serbian genocide" is the current
psychological key to overcoming Germany's Nazi past in order to become a
"normal" Great Power again, able to project military power abroad.
Anything that helps promote a greater German role in NATO"burden sharing"
is clearly welcome in Washington.
In the early months of the war that raged across Bosnia and
Herzegovina in
1992, the Muslim-led government in Sarajevo, seconded by Croatian agencies
in Zagreb, presented Western media with reports indicating that the Serbs
were pursuing a deliberate policy of genocide. From that point on, a basis
principle of caution, essential to justice, was abandoned. That is the
principle that the more serious the accusation, the greater the need for
proof, since otherwise accusations will become an instrument of the lynch
mob. Most in need of proof is the fact that the crime in question was
actually committed.
Yet the principle that has prevailed in Western media and public
discussion
has been quite the opposite, namely that the more grave the accusation, the
less need there is for solid proof. One reason for this departure from
traditional judicial prudence lies in the consciousness of an entire
generation haunted by the Holocaust and afraid of failing to recognize a
new one. Between the error of jumping to the conclusion that a holocaust
took place when it did not, and the error of dismissing a holocaust that
later turns out to be real, the first error is felt to carry the smaller
risk, whether for journalists, politicians, commentators, or just private
citizens watching TV with friends and family.
Once the accusation of genocide was widely accepted, it became a
matter of
honor not even to listen to the other side, for fear of being the
contemporary equivalent of a Nazi sympathizer. Moreover, listening to the
other side was rendered considerably more difficult by the extremely
comprehensive U.N. sanctions against Yugoslavia (Serbia and Montenegro)
adopted at the end of May 1992. Sanctions made travel in and out of Serbia
difficult and prohibited Belgrade form hiring public relations firms like
the Washington-based Ruder Finn agency which kept journalists provided with
press releases reflecting the viewpoint of the Zagreb and Sarajevo
governments.
A circular process has developed in which the ideological framework of
"genocide" serves to provide a nearly unchallengeable corroboration of the
very allegations on which it rests, even when those allegations have not
been verified. Nowhere is this circular process more evident than
concerning the issue of rape. Today the public is largely convinced that
mass rape as a deliberate Serbian war strategy of ethnic cleansing is a
proven face. This past March a group of nine U.S. women senators sent a
letter to President Clinton demanding tougher prosecution of Serbian war
criminals and claiming that "investigators have documents rapes of over
50,000 women and girls and the use of rape as a weapon in a brutal campaign
of ethnic cleansing." Yet the oft-repeated figure of 50,000 is not base on
any documentation.
The commission to investigate war crimes in the former Yugoslavia -
set up
by the Security Council to prepare the documentary basis for the ICTY -
received reports of more than 1,600 cases of rape, and interviewed 223
victims who reported up to 4,500 cases. But at the conclusion of its work
in May 1994, the commission had gathered exactly 575 affidavits with
precise identifications. One can reasonably assume there were more rapes
than those documented, although the full extent is hard to evaluate. This
is the first conflict in which investigators have searched for instances of
rape and encouraged women to overcome their reluctance to report it. In
the absence of comparative studies, it is impossible to know whether what
was unusual about the war in Bosnia was the frequency of rape or the
attention finally focused on this odious crime, which flourishes freely in
the chaos of war.
In testimony before a Senate committee in August 1995, commission
chairman
Bassiouni said 20,000 rapes was a "sustainable projection." Indeed, all
larger figures and "projections" based not on victim's complaints but on
hearsay, form a conflict where rumors and vivid accusation have been every
bit as much a "weapon of war" as was rape, and no doubt more so.
Professor Bassiouni, a Muslim, took personal charge of the commission's
investigations of sexual assault reports in an effort to prove that rape
was a part of Serb strategy. But he has sought to base the case of the
clearly inadequate number of proven cases than on what he considers
"patterns", from which he deduced a "policy."
Another member of the commission, Dutch criminologist Christine Cleiren,
testified before the Hague tribunal in July 1996 that five patterns of rape
and sexual assault had been identified: (1) sexual violence with looting
and intimidation, (2) sexual violence during fighting, (3) sexual violence
in detention facilities, (3) sexual violence in special rape camps, (5)
sexual violence in brothel houses. But first she insisted on "expressing
some reservations and caution" about drawing conclusions from the findings:
The "reliability and the credibility of reports and testimonies could not
be verified." Professor Cleiren noted:
"Individuals, as well as groups, may be driven by political revenge or by
encouraging groups to report sexual violence that they state hearsay
stories as their own experience. There are indications that sexual
violence was reported by parties in the conflict as an element of
propaganda. The information in the reports was second or third hand, and
much of this was very general."
Do five different "patterns" of rape prove a "pattern" that in turn
proves
a "policy", or do they simply show that the crime of rape takes different
forms? If there was a policy of deliberate rape, exactly who adopted such
a policy, on what occasion, where and when? This question can be answered
with prevision regarding Nazi genocide against the Jews. In the case of
the Serbs, so far there is only one side's interpretation of facts that are
not fully established.
The projected numbers and supposed pattern act in a reinforcing
cycle. The
initial impression that rapes were "massive" suggests a deliberate policy
and thus a pattern. When, later, the evidence does not support such large
numbers, then the "pattern" implies a "policy" that in turn implies that
the numbers must have been massive.
The fact that the tribunal is sitting in The Hague, not far from the
venerable International Court of Justice, leads public opinion to believe
that this is being sorted out in the best possible way, by an impartial
judicial body. Alas, that is hardly what is happening. The tribunal has
so far convicted two people. The meagerness of this result could be
excused of the procedures were exemplary as first steps towards the "world
justice" sought by many visionaries. The facts suggests that the ICTY
risks discrediting that noble goal.
First conviction: Last November Drazen Erdemovic, a Croat who fought
in the
Bosnian Serb Army, was given a ten-year sentence for crimes against
humanity. This was heralded as a great "first" in the establishment of
global justice. His case is considered to be of great importance to the
tribunal since his confession of taking part in executing more than a
thousand Muslims after the Serb capture of Srebrenica is now prime evidence
on the tribunal's "main event." the future trial of Karadzic and Mladic.
However, inasmuch as he confessed to his crimes, there was no formal trial
and no presentation of material evidence to corroborate his story. In any
case, because he turned "state's evidence," there would have been no
rigorous cross-examination form either a contented prosecution or a
complaisant defense regarding the discrepancy between the number of Muslims
he testified to having helped to execute at a farm near Pilica - 1,200 -
and the number of bodies actually found there by the tribunal's forensic
team: 150 to 200.
If they were massacred, this is indeed a serious crime. But the
discrepancy in the figures casts doubt on he reliability of the
prosecution's star witness, Edremovic. The problem here is that the
tribunal accepted unsubstantiated testimony instead of using the trial to
present material evidence. No material proof is needed once everyone is
certain that "genocide" has indeed been committed. The circle works again:
The greater the crime, the less need for evidence. To insist on evidence
may suggest complicity.
Second conviction: On May 7 the tribunal convicted its first Serb, Dusan
Tadic, of "persecution" and beatings, and of killing two Muslim policeman
during the Bosnian Serb seizure of Tadic's hometown of Korarac. But he was
acquitted of other serious charges after the testimony of the main
persecution witness was discredited by Tadic's court - appointed Dutch
defense lawyer. The witness, who had recited grisly tales of torture and
sexual mutilation that he ascribed to Tadic, confessed on the stand that he
had never been in the places that he described but instead had been coached
on the details by Muslim jailers in Sarajevo. The horror stories have been
endlessly recounted around the world as proof of Serb bestiality.
New media work too fast to establish historical truth, but the
international tribunal is using methods that resemble the media's, notably
reliance on "unidentified sources." As with the star witness against Tadic
who turned out to be a perjurer, most of the tribunal's evidence is
furnished by the same Muslim authorities in Sarajevo who provided Western
journalists with gruesome stories that may or may not be true. On the
pretext that they must be protected from reprisals, witnesses are granted
anonymity. They can not be cross-examined or charged with perjury. This
is particularly grave in proceedings where verbal testimony rather than
material proof is the basis for conviction.
Without its own police, with a skimpy budget dependent on voluntary
contribution from interested governments, the tribunal is scarcely in a
position to scrutinize too closely the aims of and methods of Alija
Izetbegovic's government in Bosnia. Those methods are clearly
questionable, as is shown by that government's own judicial procedures. In
March 1993, in the first instance of Serbian "genocide" brought before a
Sarajevo court, a Serb, Sretko Damjanovic, was convicted of murdering two
Muslim brother's largely on the basis of his own confession, which he
retracted in court, saying that he had been tortured by Muslim police into
signing it. Four years later, the New York Times reported that the two
"victims," Kasim and Asim Blekic, were alive and well and living in a
Sarajevo suburb. The Sarajevo court has not considered the fact that his
"victims" were never murdered as grounds for granting Damjanovic a new
trial.
In a war where Muslims, Serbs and Croats, not to mention people who were
never interested in such labels, have all suffered from territorial war
between ethnic leaders claiming to "protect" them by herding them into
their respective sheepfolds, almost all the killing has been alone ethnic
lines. Therefore, all sides should be charged with "genocide' under the
extremely broad definition contained in the 1949 Convention on Genocide,
which includes "causing serious bodily or mental harm to members of (a)
group," if committed "with the intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group." Form this definition,
harming a single member of a rival group may be considered "genocide"
depending on the supposed "intent." The broadness of this definition was
sited as a reason for the U.S. Senate to postpone ratification for
thirty-seven years. Americans needn't worry - the system of ad hoc
tribunals set up by the Security Council insures that the United States
will not end up in the dock.
Such influential leaders of the Orthodox bishop of northwestern Republika
Srpska stress that importance of enabling tall refugees to return to their
homes. There are more obvious obstacles to this resettlement plan that the
presumed diabolical influence of Karadzic. One is lack of Housing.
Available housing in Republika Srpska is filled with Serb refugees form
Croatia. The Krajina, form which most of them came has the region's
largest amount of empty housing, but so far Croats have obstructed the
return of non-Croats to the regions they control, And while reconstruction
is booming in Croat areas, Republika Srpska received only about 2 percent
of the $900 million in international reconstruction aid to Bosnia in 1996.
And this year aid is again being withheld from Serbs for "noncompliance"
with Dayton. Is such compliance materially possible? Per capita income is
about five times higher in the Muslim-Croat Federation than in Republika
Srpska.
Meanwhile, Muslim leaders are massing Muslim refugees along most
strategically sensitive points -notably the narrow strip that contains the
two parts of Republika Srpska near the city of Brcko. International
observers are aware that Serbs have reason to fear that refugees returns
could be a prelude and pretext for a military offensive. And the Croats
have been blocking the return of Serb refugees to the city of Drvar
(formerly about 90% Serb) in the traditionally Serb-inhabited stretch of
the Bosnian Krajina. The Croats have held this territory since they
captured it in 1995 along with the neighboring Croatian Krajina. Now the
U.S. "equip and train" program for the Muslim-Croat Federation Army has
reportedly designed some 280 square miles of this formerly Serb region
as a
proving ground for 116 heavy artillery pieces with a nine-mile range. Last
May, in announcing acquisition of these big guns for anti-Serb forces,
James Pardew, the U.S. diplomat who is in charge of the program, told a
Sarajevo press conference that the extra firepower should "help the
federation defend itself if peace breaks down." The only threat to peace
that he could see was "the Republika Srpska's failure to comply" with the
Dayton accords.
Yet it is the Muslims and Croats who now have the weapons and the excuse to seize more territory-once they agree between themselves on how to divide the spoils. Maps are circulating in Sarajevo showing Muslim territory expanded to include Banja Luka, the largest town in Serb-held Bosnia. The dominant Muslim, Croat and Serb parties have all been doing their best to consolidate power over their respective fiefdoms in Bosnia, ignoring Dayton provisions when necessary. Obsessively blaming the Serbs for this deplorable situation has encouraged Croat and Muslim ambitions. Having established themselves before an indulgent court of public opinion as victims, the Bosnian Muslims may believe that they can never commit crimes, only punish those of others.