Part 2:

Alternative Model of the Tribunal as a “ Rogue Court”

The ICTY was established by the Security Council under Security Council Resolution 827 on May 25, 1993, under the claimed authority of Chapter VII of the U.N. Charter. But the Charter’s Chapter VII gives the Security Council authority only on matters of security, and the argument that violations of hum anitarian law “constitute a threat to international peace and security” fails to provide a legally defensible basis for taking on a judicial function. (71) Ironically, Chapter VII requires all countries to cooperate with any ruling made under it, although it was only voted on by the Security Council. Meanwhile, the U.S. Congress, explaining why it was refusing to cooperate with the International Criminal Court, asserted that “it is a fundamental principle of international law that a treaty is binding upon its parties only and that it does not create obligations for nonparties without their consent to be bound. The United States is not a party to the Rome statute and will not be bound by any of its terms.” (72) But no problem in binding countries to aiding the (illegally constituted) ICTY because it was under U.S. control and it was others who were coerced to cooperate without their assent. Marlise Simons and the New York Times have never addressed these issues.

It is an even more spectacular irony that the Tribunal was established in 1993, just after Eagleburger’s public naming of Serb leaders to be brought to trial and during a period in which the United States had begun “the destruction of every single chance of peace, from the Vance-Owen in Bosnia to the farce of Rambouillet, to the bombing campaign itself.” (73) That is, the role of the Tribunal was to help the United States and its allies employ a purported “bringing justice” as part of the propaganda apparatus to fend off peace, help dismantle Yugoslavia, and put Serbia in its place by war. Most of the deaths in Bosnia, Croatia and Kosovo occurred after the decisions were made to pursue “justice” instead of peace. Recognition of the Tribunal’s role in a policy relying ultimately on force was implicit in the statement of former Tribunal President Antonio Cassese, who noted that “The political and diplomatic response [to the Balkans conflict] takes into account the exigencies and the tempo of the international community. The military response will come at the appropriate time.” (74) As Robert Hayden later observed, “Instead of being victor’s justice after the conflict, it [the Tribunal] is a tool meant to ensure victory during it.” (75) In fact, in the postwar phase, the Tribunal is serving to provide victors’ justice—and a final apologetic for the war--as well.

Marlise Simons has never mentioned the Eagleburger statement of December, 1993, and, of course, she has never hinted at the possibility that the Tribunal’s role was to facilitate war in the name of “justice,” although she repeatedly transmits the prosecution and other prosecution-friendly statements about the importance of justice to the victims. She fails to mention that the alleged “justice” objective is apparently not high on the priority lists of the populations in question, in contrast with U.S., NATO, Tribunal officials, as well as the media establishment. (76) And she consistently fails to address the matter of justice to victims outside the orbit of NATO interests, such as the ethnically-cleansed Serbs of the Krajina and Western Bosnian regions, the ethnically-cleansed Serbs and Roma from NATO-controlled Kosovo, and the refugees and beggared population of Serbia itself.

Most of the Tribunal prosecutors and judges have been drawn from the NATO countries, and all the important ones have been vetted by U.S. officials. (77) As the NATO powers are parties to the conflict, and even committed chargeable war crimes as well as engaging in the “supreme crime” in the 78-day bombing war, there is a major conflict of interest built into the judicial structure of the Tribunal. As Hans Koechler stated, “If the ‘Tribunal’ would have taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest for ’judges’ from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating ‘judicial’ action against the Head of State of the country under attack.” (78) Marlise Simons has never considered this an issue or problem.

We have already mentioned the bias problems that follow from the Tribunal’s source of funding, and the likelihood that Tribunal activity will be directed toward areas politically serviceable to the United States and other NATO powers. But another feature of funding bias is that the prosecution is likely to be given ample resources and political support while the defense is scanted. As Sellars points out, “The defence is very much the poor relation at The Hague…the prosecution has been set up with a coordinating office and budget, the defence does not enjoy equivalent resources. It does not get much support from governments either.” (79)

As regards the judicial process more narrowly conceived, the Tribunal has violated Western judicial standards on a massive scale, as it has been free to create its own rules as it went along. Thus, its 1994 Yearbook states that “The tribunal does not need to shackle itself with restrictive rules which have developed out of the ancient trial-by-jury system” (80); and for Louise Arbour, “The law, to me, should be creative and used to make things right.” (81) Yes, due process and other “ancient” protections are inconvenient to aggressive prosecutors. John Laughland notes that “the Tribunal dips into a potpourri of different legal systems from around the world. In one case, the tribunal defended itself against charges that it had illegally seized documents from the Bosnian government by saying that its procedures were compatible with the law in Paraguay.” (82)

Before examining some of the Tribunal’s abuses, and Marlise Simons’ (non)-treatment of them, in more detail, let us enumerate Laughland’s non-exhaustive list of “rogue court” procedures: (1) no right to bail or speedy trial; (2) defendants may be tried twice for the same crime [Article 25 of the Tribunal’s statute]; (3) no right to a jury trial; (4) no independent appeal body; (5) admission of hearsay evidence; (6) confessions to be presumed free and voluntary unless the contrary is established by the prisoner [Article 92]; and (7) no definition of the burden of proof needed for a conviction, such as “beyond reasonable doubt.” (83) Nowhere in her 120 articles does Marlise Simons mention, let alone challenge, these procedures---all of which are in violation of long-established principles of Western jurisprudence.

Another very important feature of Tribunal practice has been the use of the indictment as a political tool. In the “ancient trial-by-jury” and due process systems of the West an indicted person is not by that fact a criminal but rather one for whom the evidence seems to justify a trial to determine guilt or innocence. For the Tribunal the indictment has been used to criminalize without trial, to remove the indictee from effective authority, and to discredit and demonize. As noted, Arbour used this weapon regularly as a political and propaganda tool, while piously claiming a belief that indictees are innocent till proven guilty. Even Geoffrey Robertson, a vocal supporter of NATO’s 1999 war, has recognized that “war required [Milosevic’s] criminalisation, so The Hague prosecutor, Louise Arbour, was summoned to London to be handed by UK Foreign Secretary Robin Cook some NSA/GCHQ intercepts she had long requested.” (84) Milosevic was indicted shortly thereafter. Back in 1995, Arbour’s predecessor, Richard Goldstone, admitted to purposefully indicting Karadzic and Mladic to exclude them from the imminent Dayton talks, (85) but not Milosevic, now under indictment as the alleged “architect” of the events for which Karadzic and Mladic were indicted. Marlise Simons has never acknowledged the ICTY’s politicization of indictments, nor has she expressed the slightest concern over their use for advance criminalization.

The Tribunal’s prosecutors have been very media oriented, with the criminalizing indictments central to their effort to mobilize the media in support of the Tribunal. Among other incidents, in June, 2001, Del Ponte announced that Milosevic would soon be indicted for additional crimes (86), an action that had no function except to keep Tribunal business in the public eye and create a public and moral environment biased against the defendant. Cassese openly employed the same tactic of going to the public about the “indicted criminals” in order to force political action. (87) Similarly, Richard Goldstone frankly acknowledged that journalists “responded to my calls for positive and supportive coverage” of the Tribunal. (88) Again, the violations of judicial principles in this call and mobilization were notorious, but entirely consistent with Tribunal procedures. Marlise Simons almost certainly didn’t need Goldstone’s call to follow the Tribunal party line, and she has never noticed any anomalies or departures from honorable judicial practice in publicity mongering or courtroom procedures. In fact, as far as she is aware, everyone working for the Tribunal bends over backwards to avoid publicity and the appearance of a conflict of interest! (89)

The first case tried by the Tribunal, involving the Bosnian Serb Dusko Tadic, affords us an excellent illustration of both the Tribunal’s unjudicial practices and Marlise Simons’ extreme bias. Only one witness ever testified to having actually seen Tadic commit an atrocity, an anonymous Bosnian Serb sent to the Tribunal after his seizure by the Bosnian Muslims. The defense was able to show that the witness lied, at which point he confessed that he had been forced to lie, and was trained on his testimony, by his Bosnian Muslim captors. The prosecutor withdrew the witness’s testimony, but the Trial Chamber never asked why the prosecutor had failed to discover the basic facts about the witness; Robert Hayden, who was an expert witness in this case, claims that “some p arts of the witness’s story seem to indicate the Prosecutor’s office might also have been involved in training him to give false testimony.” (90) The Tribunal then denied the witness’ appeal for refuge and sent him back to the Bosnian Muslim government, where he was given a ten-year sentence for “genocide” based on a confession he says was extracted by torture.

The Tadic case involved charges under Article 2 of the ICTY statute, which applies only to persons “caught up in an international armed conflict.” In a preliminary hearing, the ICTY Appeals Chamber found the Bosnian conflict to be both internal and external, and argued that if it was found to be solely “international” (i.e., external), an “absurd” conclusion would follow: That only Bosnian Muslims, not Bosnian Serbs, could be “protected persons” under the statute. The Trial Chamber, following the reasoning in the International Court of Justice in its 1986 decision Nicaragua v. United States of America., found that the Bosnian Serbs were not de facto organs or agents of Belgrade. The prosecutor appealed the decision, and won, with the Appeals Chamber now accepting precisely the conclusion that it had earlier found “absurd,” and arguing that mere “participation” in planning and supervising military operations constitutes “overall control.” It justified this position on the grounds of the need to protect civilians and “realism…which disregards legal formalities.” Apart from the brazenness of this self-contradiction and rewriting of legal rules, “The ICTY Appeals Chamber has thus clearly indicated that fairness of the proceedings for defendants is not high in its concerns,” Robert Hayden concludes. (91)

Hayden also points out that this ICTY ruling and disregard of “legal formalities” would not only make the United States responsible for all the crimes of the Nicaraguan contras, it would also make it responsible for its “de facto agents” in the Croatian army’s Operation Storm, the assault on the Krajina Serbs in August, 1995, carried out with the approval and participation of U.S. officials and closely affiliated “private” firms. (92) Naturally, the Tribunal, which couldn’t even open an investigation into NATO’s direct war crimes, would never make this connection involving mere de facto agents killing the wrong victims.

In her reports on the Tadic trial, Simons devoted a great deal of space to summarizing the prosecution’s charges and description of the Omarska prison camp as a “concentration camp.” (93) But reading Simons, one would never be aware of the fact that Tadic was sentenced to 20 years, although acquitted of personal responsibility for any murders. There is no mention of the fact that the one witness who claimed to actually see Tadic kill was eventually withdrawn by the prosecution after having been found to be fabricating evidence, and after confessing to having been coerced and trained on what to say. Reporting this would throw unfavorable light on Tribunal processes, and Simons regularly ignores such negatives.

On the issue of whether Tadic would be subject to Article 2 charges based on the finding of the conflict in Bosnia as internal or external, Simons does not evaluate the arguments on the difference between “control” and “participation,” nor does she discuss the facts about the relation between the Yugoslav and Bosnian armed forces. The struggles between Milosevic and the Bosnian Serbs and their conflicting interests in the peace efforts in the years 1992-1995---as described, for example, in Lord David Owen’s Balkan Odyssey (94)---are of no interest to Simons. She doesn’t mention the arguments given by the Tribunal judges who at first disputed the control claim, and there is no evidence that she ever bothered to hear or read them or the testimony of Robert Hayden. (95) She just takes it for granted that the NATO-friendly position is correct: She says that “most Western governments” would claim that the Bosnian Serb warfare was “orchestrated from Belgrade.” (96) So any contrary findings brought before the Tribunal are ipso facto wrong and perverse.

And in a remarkable and stupid ad hominem attack, Simons smears the dissident judges as tools of Milosevic, claiming that their finding of only participation rather than control was a Milosevic “stratagem” and “victory”: “Mr. Milosevic has now by some accounts hoodwinked two of the tribunal’s judges.” For these “some accounts” she seems to be relying on “diplomats” and an unnamed “international lawyer.” The heroine in her morality tale here is Judge Gabrielle Kirk McDonald, the Clinton State Department’s contribution to international justice, and former (and post-Tribunal) director and counsel of the notorious human rights violator Freeport-McMoRan Copper & Gold Inc., who stood firmly by the NATO position in this voting. Simons also quotes Gow, who is NATO-friendly, but completely ignores Hayden’s extensive arguments supporting the position of the “hoodwinked” judges.

We might also note that the argument accepted by McDonald and Simons, that the participation of the Yugoslav government with the Bosnian Serbs in the form of funding support and occasional joint operations was proof of Yugoslav control, would point to U.S. and NATO-power control of the Tribunal itself. Not surprisingly Marlise Simons has never made this analogy or drawn this inference.

Over the course of the prosecution’s seemingly endless parade of witnesses, which totaled 296 in all before it rested its case on February 25, 2004, almost 25 months after the case opened, the prosecution frequently cultivated a sense of anticipation that this witness, or that, would be the one to serve up the coup-de-grace for Milosevic. One such witness was the three-time President of an independent Slovenia, Milan Kucan---the man who “led the Slovene delegation out of a Communist Party congress in 1990,” Simons notes, and declared independence from Yugoslavia the summer of the following year. (97) Simons’ relatively brief coverage of Kucan’s single day before the Tribunal (98) touched on a key moment of Milosevic’s cross-examination, when Milosevic asked Kucan, “Why did you need this war? You opted for violence….” But such a question Simons balanced with Kucan’s testimony that Slovenia was acting in response to Milosevic’s threats that “borders might be redrawn by force,” along with her own gloss on Kucan’s testimony that “it had become clear to him that Mr. Milosevic would use every means, even violence, to keep all Serbs in a Yugoslav state.” Simons failed to report the one question to which Milosevic returned, over and over again: “Why did you attack the JNA in Slovenia?” (99) That is, why did the Kucan Government’s forces attack the forces of the Federal Government, given the latter’s constitutional responsibility to defend the territorial integrity of Yugoslavia, and ensure domestic order? (100) Simons also failed to report the extensive documentation that Milosevic tried to present on the violence that the Slovene Territorial Defense Units and paramilitaries had perpetrated against the regulars of the JNA and family members after the declaration of Slovenian independence, (101) or Milosevic’s claim that the Yugoslav Constitutional Court had ruled no less than 27 times that the route adopted by Slovenia’s political leadership towards independence was incompatible with the Federal Constitution. (102) Nor did Simons mention Milosevic’s contention that before and after Slovenia’s so-called Ten Day War, the Kucan Government was involved in the shipment of arms to the far more hotly contested breakaway republics of Croatia and Bosnia-Herzegovina, and the Serbian province of Kosovo. (103) Indeed, as far as Simons was concerned, each of the antagonists accused the “other of warmongering as they relived their fight of more than a decade ago”---and that was it. In keeping with her standard practice, however, Simons did remind Times readers that Milosevic “is widely held to be most responsible for leading the Serbs into conflicts in Croatia and Bosnia that took more than 200,000 lives.” (104)

Zoran Lilic and Borisav Jovic, two ethnic Serbs and former close colleagues of Milosevic whose appearances as prosecution witnesses received the same kind of promotion as Kucan’s, also gave testimonies that proved equally deflating. Indeed, Lilic’s three days before the Tribunal happened to coincide with what appears to have been a maneuver by the increasingly desperate Office of the Prosecution to divert attention away from Lilic’s actual testimony, in which the former Yugoslav President (1993-1997) rejected the core of the prosecution’s contention that Milosevic’s guilt for “genocide” in Bosnia-Herzegovina rests with his “command responsibility” for the alleged massacre of some 7,000 Bosnian Muslims following the evacuation of the Srebrenica “safe area” in July 1995. “I am sure he could not have issued an order of that kind,” Lilic said during his extensive first day’s testimony. “I am quite certain [Milosevic] didn’t have influence on a decision of that kind.” (105) But Simons reduced the whole of Lilic’s three days of testimony to a total of 16 quoted words spread over two short paragraphs at the very end of her article. Instead, Simons swallowed the Office of the Prosecutor’s bait, its revelation of a document that “may prove to be crucial evidence in support of their case that the former Yugoslav president is guilty of genocide.” First published on the webpage of the highly-compromised Institute for War & Peace Reporting, the alleged document “not only puts Serbian special police at the massacre site but also provides a direct link to Mr. Milosevic,” Simons reported. “[T]his is the first such document relating to the July 1995 massacre,” an anonymous “official in the prosecutor’s office” told her. (106) In this manner Simons and the New York Times helped the prosecution salvage the Lilic bust by rushing to print news about an alleged secret document proving Serb perfidy, a document whose shelf life proved to be exceedingly short, once its real purpose had been served.

As for Borisav Jovic, the former Serbian representative on the collective Federal Presidency for Yugoslavia during the period the Federation dissolved into wars, neither Simons nor any of her colleagues with the New York Times reported his three-days of testimony before the Tribunal in November 2003, which also hurt the prosecution case by denying Milosevic command responsibility for Bosnian killings but which also scoffed at the crucial prosecution claim of a plan for a “Greater Serbia.” (107) Jovic also discussed the matter of “ethnic cleansing,” agreeing that the practice existed, but denying that Milosevic’s policies ever supported it. (108) Jovic gave his testimony despite the fact that in its indictments of Milosevic, Jovic’s name appears right alongside those “individuals participating in [the] joint criminal enterprise.” (109) This should make Jovic “clearly wary of incriminating himself,” in the view of one observer, (110) with the Tribunal holding the threat of his potential indictment over his head, actionable at any time. (111) But as with Lilic’s earlier testimony, this was not news fit to print on the pages of the New York Times.

In one of the most remarkable moments in the trial of Milosevic, the prosecution brought on as a witness Radomir Markovic, the former head of State Security of Yugoslavia, who came to the Hague after having been held for 17 months in a Serb jail. On cross-examination, he completely repudiated the testimony he had made to his jailers, contending that Milosevic had not only had nothing to do with any crimes committed in Kosovo but had tried to curb them and punish any violators. Most interesting, he testified that he had been threatened with criminal prosecution unless he agreed to testify against Milosevic, and was offered bribes for cooperation. Marlise Simons mentions that Markovic was a prosecution witness in her first article on his testimony, (112) but when in cross-examination he exonerated Milosevic from criminal activity and described the bribe-threat combination that he had faced, Simons’s follow-up article is very short and evasive. (113) She no longer mentions that he was a prosecution witness, and she completely suppresses his bribe-threat claims. He is now portrayed as a friend of Milosevic who “has sided with his boss.” In both articles dealing with Markovic’s testimony, Simons gets in sentences on “shocking details about atrocities against ethnic Albanians” that have no connection with the main topics of the articles.

In many cases the bribe-threat combination that Markovic describes and Simons cannot acknowledge in his case has been effective. The threat was increasingly effective as targets became aware of the fact that the deck was stacked against them—that Tribunal rules were flexible, that traditional rules against hearsay, double-jeopardy and rights of appeal were inoperative, that NATO-agent judges and prosecutors were free to pursue and punish Serbs without constraint as “the fix was on.” (114) Under these conditions, and with the post-Milosevic Serbian government now both cooperative and under intense pressure to cooperate without limit, resistance to the blandishments of “confessions” and “plea-bargaining” weakened. A major problem, however, has been whether the confessions might be false and the newly-minted claims of the (almost invariably) Serb villain were true or whether he was saying what he felt would diminish his sentence. In the Bulgarian Connection case, Agca confessed to Bulgarian and KGB guilt, after many months of interrogations and disclosure of the desired line of confession. It is now clear that he was lying, but the New York Times and its colleagues lapped up the lies with uncritical zeal.

And now, with a new problematic on confessions, it is notable how similarly uncritical Simons and her Times colleagues are on plea-bargaining. Not once in 120 articles does she suggest the possibility of coaching and systematic false witness based on the plea-bargaining process. She treats it as a purely innocent and excellent innovation designed to speed things up a bit, and she asserts that the new cooperation on the part of the indictees is based above all on their new sense that the Tribunal is fair! (115) Any other possible explanation is unmentioned.

The issue was posed once again in the case of Bosnian Serb intelligence officer Momir Nikolic, who confessed to Serb crimes at Srebrenica in exactly the form desired by the prosecution: “with cool precision,” as Simons described, quoting directives that “the life of the enemy must be made unbearable,” and describing the actions taken in preparation for mass executions, although it turns out that Nikolic himself didn’t witness any executions. (116) He and a colleague helped organize digging mass graves, and later digging up bodies and reburying them in secret sites---though no explanation is offered as to why they didn’t bury them in secret sites in the first place, or how a site is made “secret.”

A problem arose in Nikolic’s testimony, however, when on cross-examination it was demonstrated, and he himself acknowledged, that he had lied in claiming his presence at a particular massacre. Simons mentions this incongruous fact, very briefly, placing it near the end of a long article that paraphrased Nikolic as saying that “he accepted more guilt, fearing that the plea agreement might fall through.” (117) This might suggest the possibility that Nikolic’s other claims could have been equally untrue and dictated by the demands of those offering him his plea bargain. But this, along with the possibility of witness coaching, are not discussed by Simons, as she hastened on to more important matters.

Prosecution witness protection was one of the specialities of Milosevic trial judge Richard May. From the beginning, instead of leaning over backward to help the unrepresented accused, May not only displayed open hostility toward him, he limited and interfered with his cross-examination, while giving great freedom and protection to the prosecution and its witnesses. The experienced Canadian trial lawyer Edward Greenspan was outraged at the fact that May violated “the well-known principle that no judge can arbitrarily set a time limit on, or interfere with, a cross examination.” Within an hour-and-a-half of the beginning of Milosevic’s first cross-examination, “May impatiently asks: ‘How much longer do you think you’re going to be with this witness’?...The first witness of what is to be a lengthy trial, and the judge is putting time limits on the accused. May doesn’t even feign impartiality, or, indeed, interest.” Greenspan is also shocked at May’s admonition to Milosevic not to cross-examine “as a way of harassing or intimidating witnesses.” Brutality is “calculated to unnerve, confuse, but ultimately to expose. Cross-examination is a duel between counsel and the witness. The only weapon the defendant has is the right to ask questions.” (118)

One observer of Judge May’s methods in the first week of June 2002, the British paralegal Ian Johnson, noted that “at no time during this process did the judge…stipulate a time limit on the prosecution. Yet when it was the turn of Mr. Milosevic to cross-examine the witness, Judge May would instruct that a time limit be put on the proceedings.” Johnson reports that when the prosecution witness Mr. Buyo, a KLA commander in the Racak area, was put under pressure by Milosevic, who caught him in a contradiction and with the witness clearly in trouble, Judge May instructed: “Move on Mr Milosevic, you have laboured this point enough.” As Johnson points out, “Mr Buyo was off the hook.” In the cross-examination of another claimed eyewitness to a massacre of civilians, who said that the Serb forces had separated the women and children from the men and then proceeded to execute all of them, Milosevic asked him why they bothered to do the separation if they were going to kill them all. But Judge May interjected: “I don’t think you can expect the witness to know that,” when of course Milosevic was probing possible false testimony. This probe was terminated by the judge.

With another witness, who claimed to have overheard threatening conversations by Serb commanders from his position hidden in an attic, Milosevic got him into difficulties based on noise and distance, in the midst of which Judge May says: “Move on Mr. Milosevic, the witness has told you his position,” protecting the witness from serious embarrassment and from being discredited.

In another case, where the witness claimed her town had been hit by Yugoslavia airplanes, and displayed a knowledge of technical names of weaponry that was implausible and suggested coaching, when Milosevic tried to press this point, May simply cut him off: “She has answered your question [about who told her to say what she did]. She said nobody did and that is what she saw, and that’s her evidence. No point arguing about it.” (119)

Even more dramatic was Judge May’s handling of the testimony of William Walker on June 11-12, 2002. Although Walker ranged far and wide, even covering his estimate of Milosevic’s “general attitude,” May never interrupted him once in nearly two hours of testimony. Although the “Racak massacre” claim was the basis of 45 charges of murder against Milosevic in the indictment for Kosovo, and although Walker’s credibility as the main driver of that claim was important and relevant, May announced in advance a limit of three hours to cross-examination, and then proceeded to interrupt Milosevic’s questioning over 70 times. His deference to “Ambassador” Walker, as May called him, was striking, as May actively prevented a serious cross-examination that might have challenged Walker’s credibility and exposed his lies. If Walker simply dodged a question with “I don’t recall,” May protected him from any further questions. May refused to allow Milosevic to contrast Walker’s immediate conclusion that the finding of the bodies at Racak constituted a massacre with Walker’s foot-dragging in the case of murders in El Salvador, when he served as the U.S. Ambassador to the country in 1989: “Your attempt to discredit this witness with events so long ago the Trial Chamber has ruled as irrelevant,” May insisted. (120) In short, this episode of witness protection and judicial abuse would by itself provide very strong grounds for throwing out the trial as unfair in a court system of integrity.

May frequently allowed prosecution witnesses to testify at length about personal experiences, and to attack Milosevic, usually without supportive and verifiable evidence, and to recite hearsay experiences. In Mahmut Bakali’s testimony on February 18, 2002, the witness cited what a local Serb official claimed to have heard Milosevic might have said about Kosovo—twice-removed hearsay—without judicial interference. (121). By contrast, Judge May would not allow Milosevic to cite articles from Le Monde and Le Figaro that raised serious doubts about the nature of the Racak incident in his cross-examination of William Walker—our meticulous judge insisted that the reporters themselves would have to be brought to testify, rather than the articles they had written. Because of the absence of any ban on hearsay, and judicial bias, it has been estimated that “over ninety percent” of the evidence cited in the Tribunal proceedings is from hearsay sources. (122) The Tribunal has also decided that in cases of rape or sex crimes, “no corroboration of the victim’s testimony shall be required.” (123)

We should also mention that Judge May repeatedly told witnesses that they should not communicate with others during the period when they were testifying, as in the hearing on November 13, 2003: “Lieutenant Colonel, could I remind you, please, as we remind all witnesses, not to speak to anybody about your evidence until it’s over.” But with General Wesley Clark, he allowed the U.S. government to force a closed session and to redact the testimony before release, and Clark was permitted to speak to others during the course of his testimony. Clark could even phone Bill Clinton in the midst of his testimony, get him to send a fax letter, and read that letter in court. As noted, May would not allow Milosevic to introduce articles from Le Monde and Le Figaro, requiring from him the physical presence of the reporters. In response to one simple question by Milosevic on a statement about Clark by his superior General Henry Shelton, Clark launched into a ten minute monologue of self adulation, without any interruption by Judge May. May would also not allow Milosevic to ask questions about NATO’s intervention, whether the attack on Yugoslavia was legal, or whether it was a war. He could not ask questions challenging Clark’s credibility, or anything not directly responsive to Clark verbal claims. Again, as with the William Walker testimony, this would be the basis for declaration of an unfair trial in an honest judicial system. But Marlise Simons and her Times colleague Elaine Sciolino never noticed, (124) and never sought comment from anybody who would challenge this almost humorous travesty of the judicial process. (125)

Marlise Simons’ treatment of Judge May and his courtroom practice was entirely favorable and without a single note of criticism. Sober, polite, patient, giving Milosevic more time than the prosecution. Simons found that “a consensus is growing that Mr. Milosevic is being treated fairly in the courtroom,” although once again she provides no source or evidence for the alleged consensus. (126) The idea that, as Edward Greenspan indicated, it was outrageous to arbitrarily limit cross-examination time, never struck Simons, nor did she ever mention the failure of May to interrupt Walker once while doing it incessantly with Milosevic. She never once found his protection of witnesses or acceptance of hearsay from them, but much harsher treatment of Milosevic, problematic. Milosevic, on the other hand, is repeatedly criticized by Simons for “filibustering,” “stalling,” “playing to an audience,” “often trying to bend the rules” and even for “demanding as much time to question a witness as the prosecution”---a display of profound ignorance about the judicial process. (127) Given the facts, even in the summary form presented here, this apologetic for May, along with steady carping at Milosevic’s courtroom performance, reflects deep bias.

Concluding Note

In February, 2004, it was reported that the United States and other NATO powers were now pressing the Tribunal to remove the authority to initiate prosecutions from prosecutor Carla Del Ponte, and transfer this authority to the Tribunal judges; and that in the interim, the judges were not giving approval to Del Ponte’s requests to commence further prosecutions. It was alleged that Del Ponte had been too aggressive in seeking indictees, whereas the United States was eager to scale down Tribunal operations and would be satisfied to just dispose of Milosevic, along with the Bosnian Serb wartime leader Radovan Karadzic and General Ratko Mladic, and close the Tribunal down. (128) Does this mini-struggle and need to constrain Del Ponte demonstrate Tribunal autonomy? No, it does not. Puppets frequently get an inflated view of their importance, and have to be slapped down by their principals. (129) Moreover, it is clear in this case that the principals are well on their way to revamping the decision-making structure of the Tribunal to meet their latest priorities.

Anybody reading Not Guilty: Report of the Commission of Inquiry Into the Charges Made Against Leon Trotsky in the Moscow Trials (1937),written by a group chaired by John Dewey, (130) can only be struck by the frequent parallels between Soviet and ICTY principles and court procedure. The Dewey Commission stressed the political and public relations function of the Moscow trials, (131) and the "prearranged scheme" and plan to prove that a single bad man (Trotsky) was guilty. (132) The Commission argued that there was no real effort to establish truth, but merely to prove guilt. (133) It stressed the self-interest of the accusers. (134)

We have tried to show that the International Criminal Tribunal for the Former Yugoslavia has been a thorough-going servant of NATO, and that the political model of the ICTY fits its history and record very closely. We have also tried to show that its judicial practice has continuously violated traditional Western standards almost across the board, even apart from its selective and politicized (and hyper-publicized) indictments and trials.

The New York Times’s Marlise Simons, however, has portrayed the Tribunal as a marvel of Western justice, by denying or (mainly) evading the evidence of its political role and judicial malpractice. We find it hard to believe that the Soviet media at the time of the Moscow show trials in 1936 could have done a better job on behalf of the Soviet prosecutor than Simons has done for the ICTY’s prosecutors. In fact, Simons has almost surely done the better job, because she does quote Milosevic, even if briefly and with derisive comments; and while hugely biased, she is not frenzied and hysterical in her abuse of the villains. There is even a very small trickle of inconvenient facts within the overwhelming barrage of Tribunal-supportive propaganda. But this is effective propaganda---not propaganda that ordinary people will easily see through. As evidence gradually breaks through the “coercive consensus” that now prevails, and upsets claims of the Tribunal that have been conduited by Simons (though she is far from alone), we believe that, as with the Bulgarian Connection, Simons and the New York Times will not rush to straighten out their brain-washed readers.

To part 3 - Footnotes.

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