If ICTY Majority Judges Sat At Nuremberg, Most Nazi Leaders Would Be Free

Memorial cemetery for victims of Vukovar Hospital 1991 massacre Photo: Associated Press

Memorial cemetery for victims of Vukovar Hospital 1991 massacre
Photo: Associated Press

It is said that the ICTY will close shop in 2014. There are still cases pending completion both in Trial and Appeal Chambers. Judging from the length of time previous cases had taken to completion it’s obvious that one year is nowhere near enough for due process to be satisfied under same conditions. ICTY’s “exit plan” or completion strategy may involve referral of cases to other existing international jurisdictions, create new mechanisms for dealing with the remainder of cases, refer cases to “local” jurisdictions in countries of the region, etc.  Whatever happens one thing should be kept in mind: due process deserves and demands similar conditions to those provided to completed cases.

Besides delivering its farcical and grotesque judgment against the 6 Croats from Herceg-Bosna (and the long deceased Croatian leadership headed by Franjo Tudjman)  on 29 May, on 30 May the ICTY Trial Chamber proved that its reasoning and judgment are indeed as grotesque as grotesque can possibly get.

On 30 May it brought down its decision in the case of Jovica Stanisic and Franko Simatovic – Serbs who were charged with having directed, organised, equipped, trained, armed and financed units of the Serbian State Security Service which murdered, persecuted, deported and forcibly transferred non-Serb civilians from Bosnia and Herzegovina (BiH) and Croatia between 1991 and 1995.

The majority of Trial Chamber, Judge Picard dissenting, acquitted of all charges Jovica Stanisic and Franko Simatovic, former Chief of the Serbian State Security Service and former employee of the Serbian State Security Service.

The Chamber today found that those units committed the crimes of deportation, forcible transfer and murder at numerous locations in those two countries, and that they constitute persecution as a crime against humanity.
However, the Chamber found that Stanisic and Simatovic cannot be held criminally responsible for these crimes. After analysing evidence, the majority, Judge Picard dissenting, was unable to conclude that the accused shared the intent to further the common criminal purpose of the joint criminal enterprise. The Chamber also found that it was not proven beyond reasonable doubt that Stanisic or Simatovic planned or ordered the crimes. With regard to the allegations of aiding and abetting, the majority determined, Judge Picard dissenting, that in the instances that the two accused rendered assistance to the special units, this assistance was not specifically directed towards the commission of crimes”.

The decision (Judgment Summary PDF here) comes as a shock, to put it mildly.  It’s a second shock delivered by ICTY Trial Chamber within one week!

The records and evidence clearly show that Stanisic and Simatovic had been leaders in the ethnic cleansing enterprise of non-Serb population, had known that subordinates were committing crimes, and had done nothing to stop them.
The facts of the times covered by this case, the facts of Serb aggression against Croatia and Bosnia and Herzegovina are at distressing disagreement with this ICTY decision. The ICTY decision does not match factual history. It was actually forced deportations (ethnic cleansing) of non-Serb population that marked the start of the war. In Croatia these crimes were committed by Croatian Serb paramilitary forces and Jugoslav Peoples Army orchestrated and led by its Belgrade headquarters.

The ICTY Trial Chamber, amidst all the evidence pointing to Serbia’s involvement in the joint criminal enterprise against Croatia (and Bosnia and Herzegovina) and all the possible affirming conclusions it could have safely made from those facts, for its finding of exonerating Serbia of participating in joint criminal enterprise, evidently relied quite a bit on the fact that Serbia had not provided to the court any documentary or otherwise evidence as to the content of the meetings held in Belgrade between the accused and Serbia’s leadership, including Slobodan Milosevic!
The Chamber noted that it had not received evidence about what was discussed at the meeting called by Stanisic…”, at 27 min 41 sec in ICTY Trial Chamber video of 30 May 2013 below.

Yet, in the case against the 6 Croats of Herceg-Bosna on 29 May 2013 the ICTY Trial Chamber took it upon itself to convict defenceless dead men (Croatian leaders Franjo Tudjman, Janko Bobetko, Gojko Susak, Mate Boban) of “planning and executing a joint criminal enterprise against Muslims in Bosnia and Herzegovina”, even though ample evidence before them, the dissenting opinion of a judge on the panel, clearly shows this not to have been the case!

The ICTY Trial Chamber judges in both cases took it upon themselves, it seems, to take a gambit view of evidence they did not have. They maneuvered the non-existence for the court of discussion contents of meetings in Serbia organised by Stanisic to benefit Serbia and they took the non-existence of dead Croatian leaders testimony to maneuver it against Croatia!

The bias and the latitudes of inferences the ICTY Trial judges (except the dissenting ones) in both cases have given themselves are staggering and, to quote attorney Luka Misetic – grotesque.

This is really grotesque of the Hague tribunal. I was speechless that after 20 years the Hague tribunal arrived at this conclusion,” said Luka Misetic, who defended Croatian general Ante Gotovina before the UN court.

The madness emanating from the ICTY Trial Chamber, especially during the past couple of years, which can be taken as the years when politically motivated shaping of history of the war at the break up of former Yugoslavia has acquired and suffered from repeated panic attacks in pursuit of equating the aggressor with the victim, in pursuit of creating aggressors from those who defended themselves from aggression, ignoring to address aggression (such as employment of jihadist Mujahedins in Bosnia and herzegovina …, is so massive that it strikes one dumbfounded. And so, having that in mind, I cannot but agree with John Shattuck of the Boston Globe (War Crimes Whitewash)
The tribunal ruling eviscerated the doctrine of command responsibility, a central principle of international criminal law. This principle was first applied by the Nuremburg tribunal established after World War II to judge the responsibility of Nazi leaders for crimes committed by the Nazi regime. If the International Criminal Tribunal for the former Yugoslavia majority had been sitting at Nuremberg, few, if any, Nazi leaders would have been convicted”.

Engulfed by this madness, by this injustice, by the terrifying power many ICTY Trial Chamber judges have evidently given themselves in interpreting evidence to suit political agendas, one takes solace from the ICTY Appeal Chamber and its potential for truth worthy jurisprudence in these cases. That yet needs to come, but having in mind that the closure of ICTY is apparently imminent for 2014, with yet indefinite ways as to how the cases in progress will be dealt with thereafter, the fret for justice continues.   Ina Vukic, Prof. (Zgb); B.A., M.A.Ps. (Syd)

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