Judge Meron has harmed the Hague Tribunal’s public standing

By virtue of its very establishment by the UN Security Council, the Hague Tribunal became a legal fact.  Despite opposition from “patriotic forces”, the Republic of Serbia has been cooperating with the Hague Tribunal’s Prosecution, both by handing over (some of the) documents demanded by the court, and by extraditing indicted fugitives and providing security for the witnesses.  The acquittals of Gotovina, Mrkač and Haradinaj will not put an end to the cooperation between Serbia’s state authorities and the Hague Tribunal, despite “patriotic” demands.

Thanks to the pragmatic reasoning of the Prime Minister and Deputy Prime Minister, the cooperation continues as before, despite being downgraded to a “technical level”, whatever that may mean.  However, the “patriotic wing”, having grown stronger than ever, has now raised its voice.  I am not referring just to far right activist groups, such as Obraz, 1389, Dveri and others.  One example is Branko Rakić, a professor of law, who chanted slogans about the Tribunal being “criminal” during recent student protests in Belgrade.  And in an article published in Politika on December 4, 2012, Radmila Nakarada, a professor of peace studies at the Faculty for Political Science, warned the public that the acquittals have increased the potential for conflict, and that the Hague Tribunal now openly supports the “demonization of the Serbian people”, and therefore perpetuates the conflict.  What can we expect from their students?  After such public addresses by university professors, no less, I cannot rule out the possibility that some group from the “patriotic wing” would try to storm the central prison in Belgrade and free the “Serbian heroes” serving time for the murders of more than 150 ethnic Albanian civilians in the villages of Qushk, Pavlan and Lubeniq, all of them crimes committed during NATO’s air campaign.

Independent legal experts and NGO activists, myself included, labelled by the far right as both ‘’traitors’’ and  ‘’lobbyists for the Tribunal’’, have expressed very serious concerns about the recent acquittals of the two Croatian generals,  both of whom had been indicted and found guilty in the first instance of masterminding and carrying out state-sponsored ethnic cleansing of Serbs in Krajina.  However, despite the many legal omissions contained in the text of this verdict, we, the “traitors and lobbyists”, consider the Tribunal’s general legacy to be of immense importance in coming to terms with the past, and believe that facts established by the court can have a significant impact on the public’s understanding of events from its recent past, which led to more than 130,000 lives being lost.  Over the course of its proceedings to date, the court has established a huge number of facts and legal and factual findings, which no one in Serbia now disputes.  The Hague Tribunal convicted almost all of the senior officials of Milošević’s Serbia.  Other than the defense counsel, no one else disputed the evidence upon which the verdict in the first instance was built.  No one even tried to dispute the forensic truth that the remains of 800 Kosovo Albanians, including women and children, had been buried under police training grounds in Batajnica.  No one in Serbia defends Vlastimir Đorđević, the police general convicted on account of the aforesaid mass grave, and of the cremation of the murdered Albanians’ bodies so that more could be fitted into the grave.  The Hague Tribunal’s archives – available to the public over the internet and containing, among other things, numerous documents from the state institutions of Serbia, Croatia, Bosnia & Herzegovina, Montenegro and Macedonia, as well as evidence exhibits from other state, NGO and private sources – make it possible for everyone to conduct their own research and analysis, and determine for themselves what really happened during the wars in the former Yugoslavia.  The factual findings in the verdicts against Milan Babić and Milan Martić, along with all the facts the Chamber established in the Gotovina, Markač and Čermak case, although not sufficient to form a complete factual picture of the war in Croatia, do narrow the public space for lies, manipulation and deception.  These facts show unequivocally that ethnic Croats were exiled from Krajina while it was under the control of insurgent ethnic Serb forces (1991 – 1995), and that at least 300 of them were killed.  Similarly, the Brioni transcripts stand as proof of the state’s plan to exile ethnic Serbs from Krajina, despite the fact that the Appeals Chamber in the Gotovina and Čermak case chose not to deal with that crime.  Testimonies concerning the numerous murders of ethnic Serbs that took place while they were fleeing Croatia, as well as the murders of those who chose to stay in their homes, along with exhumation reports, paint a complete forensic picture of the crimes the aforesaid verdict did not bring into question.  Besides, the Hague Tribunal has paved the way for domestic war crimes trials, which carry significance even when they are motivated by political reasons, or fail to deliver justice to the victims.  Domestic courts, too, gather and establish facts, and those facts do shed light on the harm suffered by the victims from other ethnic communities.  Without that, there can be no regional acknowledgement of one’s “own” victims and their suffering.  And without the Hague Tribunal’s standard and procedure for proving sexual violence, domestic war crimes trials would allow the perpetrators to use the proceedings to abuse their victims further, as was the case in the 1994 trial against members of the Yellow Hornets unit, when the accused tried to force the plaintiff, a victim of rape, to “admit” that she had wanted and enjoyed having sex with him.  In short, the Hague Tribunal has shed light on the “secrets” of our past.  Without knowing these secrets, we cannot know the context in which more than 130,000 people lost their lives.  To conclude: as a “Hague lobbyist and  traitor”, I consider the Tribunal’s legacy to be a distinct advantage in our efforts to rebuild peace and prevent future wars and crimes.

The verdict now in force against the two Croatian generals, however, seems politically motivated.  It is simply not convincing enough in legal terms.  By passing this verdict, the Tribunal’s President and future President of the Mechanism for International Criminal Tribunals, having been appointed Chair of the Appeals Chamber and Presiding Judge in the aforesaid case, has personally caused great harm to the Tribunal’s standing.  Dr. Damaška, an esteemed Yale Law School professor from Croatia, said in an interview given to Večernji list on November 24, 2012, that Judge Meron should have been clearer on how the “absence of illegal shelling refuted all of the arguments put forward by the court of first instance”, and was careful to point out that the verdict is  not convincing enough legally.  Some other esteemed lawyers and members of the Chamber of Appeals, namely Judges Pokar and Agius, believe that Judge Meron discarded the standard of proof in order to remove any mention of joint criminal enterprise from the verdict.  His approach and ruling created the impression that no crimes had been committed during or immediately following Operation Storm.  But the question that remains is, Why did Judges Pokar and Agius choose to give separate dissenting opinions, rather than veto Judge Meron’s verdict?

Nataša Kandić

Humanitarian Law Center, Founder