And as long as you hold to the position that there is no venue in which he can be tried, his guilt or innocence doesn't have to be addressed, does it Kosta?
Since ICTY is based neither on internationally formulated principles (there has never been an international convention on the definition on crimes against humanity, let alone an agreement on what it represents), nor legal precedence of similar cases, it is incapable of arriving at Miloshevich verdict in a judicial sense as we understand justice today.
You can argue crimes from the ICTY Statute described in Aricle 5, Crimes against humanity, and selected crimes from Article 3, Violations of the laws or customs of war, based upon this tactic, but the rest of the crimes described in the ICTY Statute are firmly grounded in International Law and Treaties, to wit:
368. Yugoslavia was the second country in the world, immediately after Switzerland, to ratify the Fourth Geneva Convention (at the same time as the first three) and the fourth to ratify the Additional Protocols. By ratifying these instruments, Yugoslavia undertook to abide by them, as well as to implement the various peacetime measures they envisage. One of these measures is to incriminate all acts aimed at violating the Geneva regulations.
Additionally:
369. The Criminal Code of Yugoslavia punishes the criminal acts envisaged by the Geneva Conventions. Also, the Law on Total People's Defence, in article 93, makes it expressly incumbent on members of the armed forces to respect, in carrying out combat operations always and under all conditions the rules of international armed conflict and the humane treatment of the wounded and captured enemy, as well as to protect the population and observe other rules of that law, in accordance with the Constitution and the Law.
So not only are the Grave breaches of the Geneva Conventions of 1949 enumerated in the ICTY Statute in Article 2 proscribed by a document which Yugoslavia was a signatory to, they are proscribed by Yugoslav laws covering both the JNA and it's successor and Serbian civilians (read paramilitaries) as well.
(Milosevic's Yugoslavia claimed to be the successor state of the SFRY, see UN doc A/46/915 so non-signatory status for Belgrade is an unsupportable contention.)
As to the ICTY's Article 3, Violations of the laws or customs of war, the following acts in blue are proscribed by previously existing international treaty:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
See:
(a) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gasses, and of Bacteriological Methods of Warfare Text
(d) Convention and Protocol for the Protection of Cultural Property in the Event of Armed Conflict, ratified by Yugoslavia on February 13th, 1956
The ICTY's Article 4, Genocide, is taken directly from the Convention on the Prevention and Punishment of the Crime of Genocide, which the SFRY signed and ratified on on 11 December 1948 and 29 August 1950.
The ICTY's Article 5, as you suggested, matches pretty closely with the Nuremburg Tribunal's statutes, with the exception of imprisonment, torture and rape.
Article 7 from the ICTY, Individual Criminal Responsibilty, is drawn directly, again, from the Geneva Conventions, Part V, Section II:
Art 86. Failure to act
1. The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.
2. The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Art 87. Duty of commanders
1. The High Contracting Parties and the Parties to the conflict shall require military commanders, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities breaches of the Conventions and of this Protocol.
2. In order to prevent and suppress breaches, High Contracting Parties and Parties to the conflict shall require that, commensurate with their level of responsibility, commanders ensure that members of the armed forces under their command are aware of their obligations under the Conventions and this Protocol.
3. The High Contracting Parties and Parties to the conflict shall require any commander who is aware that subordinates or other persons under his control are going to commit or have committed a breach of the Conventions or of this Protocol, to initiate such steps as are necessary to prevent such violations of the Conventions or this Protocol, and, where appropriate, to initiate disciplinary or penal action against violators thereof.
So from your original claim as to the ICTY's not being formulated upon international principles - you are left with the following:
ICTY Article 3
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(e) plunder of public or private property.
ICTY Article 5
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
So is your position then that the above are not internationally prosecutable crimes by virtue of the fact that they've never been prosecuted in an international trubunal before? If so, that's pretty damn weak, Kosta - the initial iteration of any endeavor can be attacked on 'precedence' grounds, but look at the crimes you are attempting to circumvent and tell me that they're not supposedly crimes in Yugoslavia and that a change of venue from Belgrade to the Hague eliminates any chance for justice to be meted out or justifies the perpetrators going off scott free - which is exactly what was happening under Milosevic and continues to happen under the present regime when we rely on Yugoslavia to enforce both it's domestic laws and international obligations by treaty.
No one should escape justice.
And just because some have is no reason to let other perpetrators go free - Milosevic violated laws and is being tried for his transgressions, and your logic bites you in the ass here, for if we let Milosevic go based upon an unequal application of justice, then those whom you cite for past crimes can use the Milosevic case as precedent and gain immunity from prosecution as well.
But do not hide your prejudice and hatred behind a facade of judicial principles.
Whatever Kosta - if you're going to lose this argument, at least do so with dignity and spare me the faulty analysis of my motivations.
I don’t ever remember asking that Miloshevich be set free. You must have me confused with someone else.
My beef is not with the fact that he has been charged, but with the institution that charged him, as well as with the double standards involved, for many of the provisions of ICTY you mention are included in the International Criminal Court, which the United States flatly rejects.
In addition, ICTY uses secret indictments, secret witnesses, a judge and a prosecutor all in one and the same person, allows hearsay evidence (as deemed admissible entirely by the justices and by no other standards whatsoever), and other provisions of this tribunal that make it less than an accpetbale "court" in a judicial sense as we understand justice and certainly not the type of court you would want to be given a "fair" trial in.
My beef is also with the fact that the United States has been behind establishing ICTY, yet it doesn’t think its own creation is worthy enough to try its creator. Well, Hoplite, if it isn’t worthy of trying Americans, it’s not worthy trying Serbs either!
As long as we have war criminals in our Senate, as long as our “Arkans” are termed “heroes,“ as long as we pretend that Lt Calley is a simple murder and not a mass-murdering war criminal, set free after 3 years in house arrest, as long as all his 25 charged accomplices are innocent of raping and murdering 300 civilians in cold blood, as long as the US claims exemption from international justice for its citizens, I will object to ICTY as a legitimate body, and I don’t care under what charters , statutes and other man-made creations it has been given the “right” to do its ad hoc political business masquerading as “justice!”
FYI, there are no less than eleven international texts defining crimes against humanity, all slightly different in terms of definitions of the crime and legal elements. Originally known as the “crimes against the laws of humanity,” these provisions were introduced in 1919. The United States and Japan rejected them, on grounds that the “crimes against the laws of humanity” were violations of “moral and not positive laws.”
The US had a remarkable change of heart 26 years later at the Nüremberg Trial in 1945, when it supported inclusion of crimes against humanity [Article 6(c)] as positive international law. Since 1945, there has not been a single international convention ratifying them globally, but they find their way into the ad hoc tribunals for Yugoslavia and Rwanda (which, despite it grotesque horrors and sheer number of civilian deaths, is a stillbirth for all practical purposes because it‘s outside of our “strategic interest sphere“), as well as in the notorious International Criminal Court, which the United States -- once again -- rejects en toto, and not only in part.
If Miloshevich is guilty under “command responsibility” reaching all the way to a sitting head of state, then surely an equal and parallel responsibility rests with Tudjman, Isetbegovic, Hashim Thaci, Tony Blair, Bill Clinton, Lyndon B. Johnson, etc. for war crimes and crimes against humanity committed with or without their knowledge by people under their command.
If you are genuinely dedicated to seeing war criminals punished in principle, then your activism should extend beyond Miloshevich. So far you have given unimpressive lip service to other candidates in the Balkans (i.e. Izetbegovic and Oric, or Thaci and his gangs), and western leaders are out of the question.
This is not about Miloshevich, it’s about principles. Some people have them; others don’t. It's obvious who they are.