Milosevic's Trial

Gandhi was once asked what he thought of Western civilization. He responded: "I think it would be a good idea." Western civilization in all its triumphalist, moth-eaten glory is currently on display at the show trial of former Yugoslav President Slobodan Milosevic at the Hague. The elected leader of a European country is being forced to defend himself against ludicrous charges manufactured by the intelligence agencies of the very same countries that waged aggressive war against his nation. The man who tried to keep multinational Yugoslavia together in the face of Western-sponsored nationalist secession is the one accused of rabid nationalism.

Milosevic has refused to recognize Carla del Ponte’s little circus as an independent and impartial tribunal of justice and has elected to represent himself. Therefore he is not permitted to meet any attorneys or indeed anyone who might offer him legal advice. Whenever he sees anyone–and he is allowed to see very few people–a tribunal official is always in attendance. He is kept under 24-hour video surveillance. All his meetings are videotaped and transcribed. He is permitted to see his wife once a month, and even during those meetings an official is always in attendance. When she comes to the Hague there are severe restrictions on her movements. She can stay at her hotel or visit the prison. That’s it.

The other day the Dutch authorities even denied her a visa, citing some nonsense about not having been given adequate notice of her visit. The Dutch like to raise visa problems. It’s their little contribution to the Alliance effort and Western civilization. The Dutch, as Gen. Michael Short so eloquently explained to Congress in October 1999, "are small dogs but they want to have a seat at the table." Short has a knack for blurting out such truths. At the height of the 1999 bombing he revealed NATO strategy: "If you wake up in the morning and you have no power to your house and no gas to your stove and the bridge you take to work is down and will be lying in the Danube for the next 20 years, I think you begin to ask, ‘Hey, Slobo, what’s this all about? How much more of this do we have to withstand?’’’ Sounds awfully like a war crime confession to me.

Milosevic is being denied bail even though there is no likelihood whatsoever of his fleeing. Moreover, the International Covenant on Civil and Political Rights is quite explicit that if you have not been convicted of anything there has to be a damn good reason why you should be in custody. Being in custody means Milosevic is unable to prepare properly for trial. He is not permitted Internet access. His only means of communication with the outside world is a public payphone. All of his telephone calls are monitored and transcribed. The prison authorities can pass this material on to the prosecutors. Any books or articles that are sent to him can be withheld and confiscated by the prison authorities. But then the tribunal is notorious for all sorts of fascinating legal innovations that must make any prosecutor drool. It was bad enough that Milosevic was extradited even though the Yugoslav constitutional court had ruled his extradition to be illegal. The prosecutors then piled on a whole lot of additional nonsensical charges, thereby violating yet another international law according to which a defendant can only be tried for the crimes he was specifically charged with in the extradition request. Prosecutors can also appeal an acquittal and insist on continued detention during the appeal. Hearsay evidence can be introduced without a complaint from the judge. The court has the power to demand the arrest and indefinite detention of defendants, yet has no power to subpoena defense witnesses. One of the witnesses against Milosevic was an employee of the tribunal–someone in the pay of the prosecutors.

Yet the organizations that are normally so vociferous in their indignation about human rights violations have been remarkably silent. Fraudulent NGOs that are really agencies of Western governments, like the George Soros-financed Human Rights Watch, have been positively gleeful at the treatment meted out to a former head of state. Amnesty International anguishes about the plight of Al Qaeda prisoners at Guantanamo, yet stays silent about this abuse of a political prisoner.

Extraordinarily, even with all these handicaps Milosevic has easily been getting the better of the prosecutors. Kosovo Albanians troop into the courtroom recounting absurd scripted tales of babies being knived, paralyzed women being burned to death and children being roasted. The moment Milosevic mentions the KLA, they all declare they know nothing about the organization. The prosecution is already demanding that the court clamp down on Milosevic’s lengthy cross-examinations lest they "deter future witnesses from testifying against him."

The tribunal is under orders to find Milosevic guilty. It won’t be hard for it to do so. According to its notion of "command responsibility" a leader is responsible for any atrocity by anyone unless he had taken active steps to stop it. This means Lyndon Johnson was personally responsible for the massacre at My Lai, George Bush the Elder for the slaughter of retreating Iraqis at the end of the Gulf War and George Bush the Younger for the butchery at Mazar-e-Sharif. Western civilization really would be a good idea.

Why you should trust George Szamuely

Ok, in addition to his being a book stealing scofflaw:

Szamuely is misrepresenting the Statutes of the ICTY here, hoping that nobody has the gumption to look them up and see for themselves.

Alas, so far, so good.

What the statutes actually say is:

Article 7
Individual criminal responsibility

1. A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute, shall be individually responsible for the crime.

2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 5 (see footnote) of the present Statute was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.

4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires.

Ergo, in addition to not taking active steps to stop it, a leader must first have had prior knowledge of the crimes, in effect making the leader a co-conspirator, and all three of George's examples (Gulf War? Mazaar-i-Sharif!?!) are moot.

For completeness' sake, below is the actual text of the Kosovo Indictment in question.

Article 7(1) of the Statute of the Tribunal

16. Each of the accused is individually responsible for the crimes alleged against him in this indictment under Articles 3, 5 and 7(1) of the Statute of the Tribunal. The accused planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of these crimes. By using the word "committed" in this indictment, the Prosecutor does not intend to suggest that any of the accused physically perpetrated any of the crimes charged, personally. "Committing" in this indictment refers to participation in a joint criminal enterprise as a co-perpetrator. The purpose of this joint criminal enterprise was, inter alia, the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an effort to ensure continued Serbian control over the province. To fulfil this criminal purpose, each of the accused, acting individually or in concert with each other and with others known and unknown, significantly contributed to the joint criminal enterprise using the de jure and de facto powers available to him.

Article 7(3) of the Statute of the Tribunal

19. Slobodan MILOSEVIC, Milan MILUTINOVIC, Nikola SAINOVIC, Dragoljub OJDANIC and Vlajko STOJILJKOVIC, while holding positions of superior authority, are also individually criminally responsible for the acts or omissions of their subordinates, pursuant to Article 7(3) of the Statute of the Tribunal. A superior is responsible for the criminal acts of his subordinates if he knew or had reason to know that his subordinates were about to commit such acts or had done so, and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators.

(footnote - see?)
2. Grave breaches of the Geneva Conventions of 1949
3. Violations of the laws or customs of war
4. Genocide
5. Crimes against humanity

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