Marlise Simons on the Yugoslavia Tribunal: A Study in Total Propaganda Service

By  Edward S. Herman and David Peterson

 

This is the first time Spectre has ever published an article of this length. We do so because we believe it gives an excellent illustration of why websites such as ours are so necessary.

 

 

While the concept of a “party line” is usually associated with totalitarian parties and their offshoots, controlled by a state that imposes a politically serviceable version of history on its underlings and agents,  it is very common for something like a party line to emerge in the U.S. mainstream media as they deal with a demonized target accused of misbehavior. In such cases the media quickly jump onto a bandwagon that takes the official and politically convenient view as obvious truth, and they then devote their efforts to elaborating on that truth.

 

This was the case in the years 1981-1986, following the shooting of  Pope John Paul II in Rome in May 1981 by the rightwing Turk, Mehmet Ali Agca. These were years in which the Reagan administration was attempting to portray the Soviet Union as an “evil empire,” and it welcomed anything helpful in Soviet denigration. It was soon charged in the Readers’ Digest, NBC News, and elsewhere that the Bulgarians and KGB were behind the shooting, and this theme was latched onto and became a de facto party line with great speed. There was virtually complete closure on questions of the validity of the charge, and the media devoted all their efforts to filling in details and obtaining speculations on why the KGB did this and its political ramifications. The charge was in fact untrue, as came out in a Rome trial against the Bulgarians that ended in 1986, in CIA officer disclosures in 1990, and in the absence of any supportive evidence from the newly opened secret service files of the now allied Bulgaria.  The mainstream media quietly crept away from the story in which their performance had been outlandish in terms of adherence to theoretical news values--with the New York Times among the most outlandish--but outstanding in terms of propaganda service to ongoing state policy. (1)

 

A very similar process can be seen in the media’s treatment of the Balkan conflicts in the years 1990-2004. Here also a party line that conformed to the political aims of the governing elite gradually emerged and eventually hardened into unchallengeable truth. In a broad sketch of the official line—also the standard media version-- there was a bad man, a Communist holdover and dictator, who used nationalist appeals to mobilize his people, who were “willing executioners.” (2)  This bad man strove for a “Greater Serbia”  and in the process committed major crimes of  ethnic cleansing and genocide that were initiated and mainly carried out by him and his forces. The West, led by the United States, belatedly entered this fray, eventually bombing the bad man’s proxy forces in Bosnia, forcing the Dayton Agreement on him, but with the West still eventually compelled to war against him to protect the Kosovo Albanians. The West organized a Tribunal in 1993 to deal with his and others’ crimes, and that Tribunal, though hampered by sluggish cooperation from the West and more serious obstruction by the Serbs, has done yeoman service in the cause of justice and reconciliation. (3)

 

This party line, which is contestable on each facet of  its claims, (4) entered into the premises of journalists and editors at the New York Times, just as the line on the Bulgarian-KGB link to the Papal shooting gripped them for many years (followed by silence, without apology), with closure imposed in both cases. The Times reporter who was most familiar with Yugoslavia, but who failed to adhere to the party line, David Binder, was removed from the region in favor of  less knowledgeable but more accommodating journalists, just as Raymond Bonner was removed from reporting on Central America in the 1980s for his failure to adhere to the party line evolving there. (5)

 

We will illustrate this party line treatment in the Balkans wars by examining the work of  Marlise Simons in her coverage of  the International Criminal Tribunal for the Former Yugoslavia (ICTY, or simply Tribunal) for the New York Times. Simons has been the paper’s principal reporter on the Tribunal and one of the paper’s leading reporters on the Balkans in general, and as we would expect, and as we will show, she has been an undeviating adherent to the party line. Our analysis is based on the study of her entire output of 120 articles dealing with the Tribunal, extending from December 7, 1994 to December 14, 2003 (excluding only her articles with fewer than 200 words). (6)

 

 

Sourcing

 

A party line commonly takes its cues and information from official sources. The accompanying table shows how much Marlise Simons has depended on Tribunal and NATO officials for her information and as a guide to what was relevant (rows 1-6). These account for almost half of her sources (48.6 percent); and if we include the  human rights group officials cited by Simons, all of whom were entirely sympathetic with the Tribunal’s work, (7) and indictees who had agreed to plead guilty and cooperate with the Tribunal, we are over half (53.8 percent). If we remove the category “other,” most of whose members were supportive of  the Tribunal, the ratio rises to 60.1 percent. Virtually all of the sources cited by Simons that contest the party line are indictees and defense counsel (lines 8B and 9). She cites only a single witness for the defense, as compared with 32 witnesses for the prosecution and four prosecution experts.

 

 

                                     TABLE 1

 

 

SOURCES USED BY MARLISE SIMONS IN REPORTING ON THE TRIBUNAL  (8)

 

 

     SOURCES                                NUMBER OF            PERCENT OF           PERCENT OF

                                                   ARTICLES               ARTICLES               TOTAL LESS

                                                                                                              “OTHER”

 

    1. ICTY Personnel:                          125                      30.9                      34.9

    2. Prosecution Witnesses:                 32                        7.9                        8.9    

    3. Prosecution Experts:                      4                         1.0                        1.1

    4. Indictments:                                11                         2.7                       3.1

    5. ICTY Court Judgments:                  7                          1.7                       2.0

    6. NATO Country Officials:                19                          4.7                       5.3

    7. Human Rights Group Officials:       14                          3.4                       3.9     

    8. Indictees:                                    41                        10.1                      11.5

        A) Class A:                                    6                          1.4                        1.7

        B) Class B:                                  35                          8.6                        9.8

           B-1 Milosevic alone:                  26                          6.4                        7.3

     9. Defense Counsel:                        37                          9.1                      10.3

   10: Defense Witnesses:                      1                           0.2                        0.3

   11. Defense Experts:                          0                           ---                         ---

   12. Experts With Dissident Views         0                           ---                         --- 

   13. Other:                                        49                         12.0                      13.7

 

  

      * Totals:                                      407                        100-                     100-

    ** Totals minus “other”                   358 

 

      

  *** Tabulations of interest:                                                Percentages of totals

                                                

 

      A: 1-6                                         198                          48.6                      55.3

      B. 7 + 8A                                      20                            4.9                        5.6

      C. A +B – 8A                               218                           53.6                      60.1   

      D. 8B + 9 and 10                           73                          17.9                       20.4

      E.  D – Milosevic                            47                           11.5                       13.1                      

 

 

 

 

These numbers understate the bias, because the prosecution is given more prominence, more space, and more friendly treatment. Indictee and defense counsel statements are briefer, more often paraphrased, come deeper in the articles, and often give the appearance of  a token inclusion designed to provide a nominal balance. Their words are sometimes in satire-intended quote marks highlighting their implausibility; and they are imbedded in articles in which Simons’ sympathy and identification with the prosecution is readily apparent.  (See Language and Tone, below.)

 

The most telling evidence of  Simons’ overwhelming bias in sourcing is the fact that in 120 articles she never cites a single independent expert who might have raised questions about the Tribunal’s purpose,  methods, or evidence. Among the informed critics ignored  were: Charles Boyd, David Chandler, Phillip Corwin, Tiphaine Dickson, Fiona Fox, Robert Hayden, Jon Holbrook, Diana Johnstone, George Kenney,  Raymond Kent, Hans Koechler, John Laughland, Michael Mandel, General Lewis Mackenzie, General Satish Nambiar,  Jan Oberg,  Walter Rockler, Alfred Rubin, Kirsten Sellars and Cedric Thornberry. One of these excluded experts, Robert Hayden, actually gave lengthy testimony during the Tribunal hearings on the case of  Dusko Tadic on September 10-11, 1996. Hayden was contesting the views of  James Gow, a prosecution witness.  Simons cited at length Gow’s testimony for the prosecution, and noted that Gow provided the courtroom a “history lesson” in the wars that consumed Yugoslavia, portraying these wars as the result of a “plan conceived in Belgrade.”   But Simons never cited Hayden’s testimony for the defense. (9)  We see here in miniature a pattern that has repeated itself throughout not only Marlise Simons’ reporting on the affairs of the Tribune for the Times---but throughout the Times coverage of the breakup of Yugoslavia overall. 

 

 

Framing

 

Framing and sourcing are closely linked, as the use of  a particular source  allows that source to define the issues and to fix the frames of reference, presumably those acceptable to or preferred by the journalist. Thus in the case of the Papal assassination attempt of 1981, the Italian government and  prosecutors took as their frame the certainty that the KGB and Bulgarians had hired Agca to shoot the Pope—and after 17 months in an Italian prison, and numerous indications by his interrogators that they would be pleased to find a KGB-Bulgarian connection, along with a variety of inducements, Agca, while also periodically claiming to be Jesus Christ, had “confessed” to the connection. The U.S. media took this as a truth around which the story was framed. Similarly, in Moscow in 1936, the prosecutor’s claim that Leon Trotsky had organized a conspiracy to overthrow the Soviet government, supported by documents and confessions, was the frame used by the  Soviet media as well as the prosecutor. In each of these cases there were alternative frames, but the media ignored them.

 

The frame within which the Tribunal worked  was in effect a morality tale, with a clear cut delineation of  good and bad players,  as described in the third paragraph above. As regards the Tribunal itself, in the Tribunal, NATO official, and establishment media frame (which are  identical) the Tribunal was obviously good—independent, without political bias and simply seeking justice,  adhering to Western judicial standards, and working under difficult conditions because of imperfect cooperation from the West and more severe obstructionism from Yugoslavia. This was Marlise Simons’ frame and she never once departed from or questioned it. She repeatedly made contestable assertions about recent Balkan history as unarguable truths, such as that Milosevic was “the man whom the world has seen stoke a decade of war and bloodshed in the Balkans,” a claim that she usually offers  in the form of  the charges by the prosecution—“chief architect,” “most responsible”—a simple-minded view that Lenard Cohen has described as the “paradise lost/loathsome leaders” perspective. (10)  Not once in 120 articles does Simons provide an analysis or discussion of the litany of prosecution charges and party line claims about  the Balkan wars that she regurgitates like a press officer of the Tribunal. For Simons the Tribunal is the agent of justice in the morality tale, so that she accepts its claims as assuredly true and its self-appraisal as independent and virtuous and feels no obligation to ask any hard questions or probe into areas that might suggest doubts about its role or methods.

 

There were alternative frames, however, among which we may distinguish: (1) the Tribunal as a  planned and effective political and public relations arm of NATO; and (2) the Tribunal as a “rogue court,” without legal standing, that has violated numerous Western judicial principles in its eagerness to achieve its assigned political goals. These alternative frames have been employed by most of the 20 independent  experts named above, so that their exclusion was obviously linked to the fact that the alternative frames were unwelcome to Simons and the New York Times. The alternative frames were allowed  only in statements by Slobodan Milosevic, who did denounce his incarceration and trial, and the work of the Tribunal in general, as strictly and unjustly political. This is a  fine illustration of a standard ploy in propaganda service: Confine the unwanted line of argument to the mouth of  somebody who has little credibility with the target audience, making it easy to dismiss without confronting serious argument and facts.

 

With the prosecution as her guide and almost exclusive source of information, Simons’ articles largely repeat prosecution charges, transmit the gist of evidence of the scores of  witnesses produced by the prosecution, and, absent any critical and independent counter-evidence and analyses, confirm and reinforce the prosecution case and  public acceptance of the morality tale. This replicates the performance of  the New York Times in the case of the attempted Papal assassination, where the reporters’ tacit assumption of the truth of the Bulgarian-KGB involvement, “news” featuring confidently stated official claims and purported corroborating evidence---e.g., “we have the evidence that Agca worked in close collaboration with the Bulgarians;” and “all the evidence suggests” (11)---and blacking out of inconvenient facts and dissident analysis, strengthened common belief in the “Bulgarian connection.”

 

In her reporting on the Tribunal, Simons repeatedly refers to prosecution “momentum,” confidence and exhilaration, claims that they have “solid” evidence, with hints that if they don’t have enough it is because of effective cover-up by the bad man. (12)  Scores of times she mentions  the numbers allegedly killed in Bosnia and at Srebrenica and charges of  Milosevic’s and Serb responsibility, with conflicting evidence, context that brings in the shared NATO-power and Bosnian Muslim and Croatian responsibility for the violence, and alternative analyses, blacked out. (13) She reports in detail numerous witness accounts of  alleged violence suffered at the hands of the Serb army and paramilitaries, extracting maximum emotional leverage from these testimonials. (14)

 

Apart from her uncritical treatment of these witness accounts,  Simons never once suggests that this kind of mistreatment of civilians occurs in every civil conflict and war, and that the Serbs could produce a very large number of civilian witnesses to similar abuses inflicted on them by Bosnian Muslims, Croats, and the U.S. Air Force. (15)  Early in his trial Milosevic spent two days showing slides that gave graphic detail on numerous civilian victims of the U.S. bombing of Serbia, and he suggested that a formidable case could be built against the United States and NATO by a Tribunal that had different political ends. Simons mentioned his evidence briefly, but she did not pause to reflect on his case or bring in an expert who might expand on it. (16)  When the issue of NATO culpability in its deliberate bombing of civilian facilities came up during and after the 78-day bombing, Simons and her paper evaded the issue and provided only NATO-Tribunal apologetics, as described below. 

 

 

Language and Tone

 

Marlise Simons’ language and tone clearly reflected her belief that the Yugoslavia conflict was a simple case involving “loathsome leaders” and their victims,  now seeking justice, with NATO and the Tribunal the forces for justice.  In this frame, the Tribunal, its prosecutors and judges, and its NATO supporters were good; Milosevic and his associates and Bosnian Serb leaders were evil.  With this “journalism of attachment” (17) the use of neutral or positive language—“purr words”--in describing  the good people, and negative language—“snarl words”--in describing the villains comes easily and appears completely natural to the biased journalist.  Conflicts between Good and Evil seem entirely obvious; and editors similarly biased do not complain.

 

                                                         

                                                         TABLE 2

 

                                       MARLISE SIMONS’ WORD USAGE

 

Slobodan Milosevic                                    Prosecutors Louise Arbour and Carla

                                                                     Del Ponte; Judge Richard May

 

Infamous                                                       Forceful (Arbour)

Sniped                                                           Resolute (Arbour)

Scoffed                                                          New assertiveness (Arbour)

Smirk on his face                                            Very capable (Arbour)

Speechmaking                                                No-nonsense style (Arbour)

Badgers the simple conscripts                          Tough crime fighter (Del Ponte)

Carping                                                          Unswerving prosecutor (Del Ponte)

Blustery defense                                             Natural fighter (Del Ponte)

Loud and aggressive                                       Unrelenting hunter (Del Ponte)     

Notorious                                                       Finding the truth (Del Ponte)

Defiant                                                          Keeping tight control (May)

Reverted to sarcasm                                       Patiently repeated questions (May)

Contemptuous                                                Sober, polite and tough (May)

Outbursts                                                       Expert on evidence (May)

Face often distorted with anger                        Among the best suited (May)   

 

 

This differential usage cannot be explained on the grounds that Arbour, but not Milosevic, was “resolute” and “forceful,” and that May was only “sober, polite and tough,” whereas Milosevic was “contemptuous” and “carping.”  Milosevic was frequently as resolute and forceful as Arbour, but Simons reserves such positive language for people she approves and always finds Milosevic to be defiant, loud, aggressive, and blustering.  The noted Toronto lawyer Edward L. Greenspan, attending the opening of  the Milosevic trial, was immediately impressed with the fact that May “clearly reviles Milosevic” and that he “doesn’t even feign impartiality, or indeed, interest.” (18) But Simons would never call this attitude, so obvious to Greenspan, “contemptuous.” Numerous trial observers have noted how May continuously interferes with Milosevic’s cross-examinations in a manner that could reasonably be called “carping” or far worse, as we discuss below.  Simons reserves such a word for the bad man.

 

Simons several times describes Carla Del Ponte interacting with one of her allies in the court room at something Milosevic says--“Del Ponte...occasionally shot a smile at other prosecutors in apparent incredulity” (19)---a journalistic device reinforcing the overall tone of good and reasonable on the prosecution’s side and evil and foolishness on the side of the defendant.  As we will also see below, “unrelenting hunter” Carla Del Ponte turned somersaults of evasion to deny petitions to pursue an investigation of possible war crimes by NATO--she has been “relentless” only in pursuing NATO-approved villains.  But when Simons interviewed Del Ponte and described her as the “unrelenting hunter,” she failed to ask Del Ponte about the Tribunal’s deflection of charges against NATO--and in fact, in the 120 articles that comprise this study, Simons never asked any Tribunal official a challenging question or raised one for somebody else to answer.  In short, Simons has been on the Tribunal-NATO “team” from the start of her coverage of its work in late 1994, reflected in sourcing, framing, word usage, and tone. The result has been deeply corrupt journalism that is de facto propaganda service.  

 

 

 

The Neglected Political Model: The Tribunal as the Pseudo-Judicial Public Relations Arm of NATO

 

By avoiding the alternative frames, Marlise Simons has been able to bypass or deflect inconvenient facts that interfered with her morality tale and that would put the Tribunal’s work in a less favorable light. Let us take a closer look at each of the alternative frames, and see how Simons dealt with some of the facts that lend those frames salience.

 

The first alternative frame—the Tribunal as the pseudo-judicial public relations arm of NATO---rests on structural facts, admissions by some of the principals, and, most importantly, on the Tribunal’s performance record.  The Tribunal was a creation of the U.N. Security Council, (20) with the United States, Britain and Germany playing lead roles, the United States most prominently and increasingly so.  It is of interest that the United States has refused any cooperation with the new International Criminal Court because of the alleged threat that charges might be leveled against U.S. citizens based on a “politically motivated” ICC agenda. (21)  The United States has never feared this of the ICTY, however, because of the crucial U.S. role in organizing the Tribunal, financing it (along with other close NATO allies), staffing it, vetting its judges and prosecutors, supplying it with its police force, providing it with information, and giving it political support.

 

During the 78-day bombing war, when moves were made by dissident legal experts and others to persuade the ICTY to investigate the NATO leadership for crimes related to their war, NATO public relations spokesman Jamie Shea responded to a question on the Tribunal’s jurisdiction over NATO’s conduct as follows:

 

 

I believe that when Justice Arbour starts her investigation, she will because we will allow her to….NATO are the people who have been detaining indicted war criminals  for the Tribunal in Bosnia…NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers...we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslavia nationality and I don’t anticipate any others at this stage. (22)

 

 

Neither Marlise Simons nor any other New York Times reporter has ever quoted Shea’s statement, which suggests NATO control of  the Tribunal—that “he who pays the piper calls the tune” (Kirsten Sellars) (23)—and which Shea indicates will surely exempt NATO officials from prosecution, as in fact it did.  Nor have Simons or her Times colleagues ever mentioned the hyperlink to the NATO web site conveniently placed on the ICTY home page throughout the period when it was supposedly considering a petition charging NATO with war crimes. (24) It should be noted that the Tribunal’s mandate does not limit its reach to Yugoslavs for prosecution for war crimes in Yugoslavia, a point never discussed by Simons (or other Times reporters).  Evasions such as this have been helped along by ignoring statements like Shea’s.

Simons also has never discussed the U.S.-dominant staffing and vetting of ICTY staff, and she has never mentioned the May 9, 1996 NATO-Tribunal “memo of understanding” that gave NATO the task of serving as the Tribunal’s police force.  She has acknowledged U.S. funding only in passing, without addressing its possible impact on Tribunal policy.  Article 16 of the Tribunal’s charter states that the prosecutor shall act independently and shall not seek or receive instruction from any government.  But can the prosecutor act independently if dependent on specific governments for funding, personnel, information, and police service? Simons never raises the question. Even within the establishment it is sometimes acknowledged that the ICTY was organized to serve NATO political aims.  As Michael Scharf, the man who wrote the Tribunal’s charter for Secretary of State Madeleine Albright, once explained, the Tribunal was “widely perceived within the government as little more than a public relations device and…useful policy tool….Indictments…would serve to isolate offending leaders diplomatically…and fortify the international political will to employ economic sanctions or use force.” (25)

 

There have been other statements by Western officials that imply that the Tribunal will do what they want it to do. Thus, the New York Times reported in July, 1999 that “Washington has threatened Mr. Draskovic with indictment by the international war crimes tribunal in the Hague for the activities of his short-lived Serbian Guard, a paramilitary group, in Croatia in 1991.” (26)  An U.S. government fact sheet stated that “We will make a decision on whether Yugoslav actions against ethnic Albanians constitute genocide…The ICTY will indict those responsible for crimes against humanity and genocide.”  British officials have also made similar statements implying they possess the power to bring the ICTY into action. (27)

 

Simons gets around the structural and other evidence of the external control and associated political bias of the Tribunal by confining the discussion of this issue to ICTY prosecutors. Her complete exclusion of dissident experts is important here—most of these experts have featured the Tribunal as a “political court” (Edward Greenspan) and “means of effecting policy” (Christopher Black), an “instrument of revenge rather than justice” (Jon Holbrook) whose indictments are of a “purely political nature” (Hans Koechler), at once the “judicial arm of NATO” (Kirsten Sellars) and the “propaganda arm of NATO” too (Michael Mandel), politics flowing from the purpose, organization, funding and staffing of  the Tribunal.  Not surprisingly, the ICTY prosecutors claim to be completely independent, with no agenda but pure justice, and they complain about how hard it is get cooperation from their organizers, funders, information- and staff-providers, and police agents in their unbiased search for justice. (28)  It never occurs to Simons that this claim of foot-dragging might be a  self-serving  and disingenuous effort to obscure the high degree of Tribunal dependence and de facto agency function, a claim and effort advantageous to both the ICTY and its principals.  She has never discussed the difference between the U.S. treatment of the ICTY and International Criminal Court, which suggests an inordinate U.S. fear of judicial independence and would raise questions about ICTY independence that Simons steadily evades. For Simons and the New York Times, the official view simply is the truth and enters the “news” as such.  Thus, in a summary on the “Tribunal: How It Works,” the paper affirmed that “The Office of the Prosecutor operates independently of the Security council, of any state or international organization and of other organs of the tribunal.” (29)  And that was the end of it.  The ICTY’s truth is the whole truth, and nothing but the truth.

 

Perhaps even more important,  Simons avoids mention or the slightest hint of critical analysis of the many manifestations of political service rendered to NATO by the Tribunal.  As early as June, 1998, NATO began planning for its springtime 1999 war over Kosovo to coincide with the Alliance’s 50^th Anniversary celebration, scheduled to be held in Washington, D.C., in April, 1999.  Almost immediately, the Tribunal followed in NATO’s wake with an intensified focus on the Serbs, and a steady stream of press releases on Serb conduct in the province.  Thus, for example, Marlise Simons reported in August 1998 that “The United Nations war crimes tribunal is stepping up its investigations of war crimes in the Serbian province of Kosovo,” notwithstanding “Serbian claims that events in the province…are an internal affair.” (30)  The propaganda barrage escalated immediately following the claim of a Serb massacre in the ethnic Albanian village of Racak in January 1999, an incident which Arbour declared, on the basis of unverified information supplied her by U.S. official William Walker, was “a massacre of civilians,” one that therefore “falls squarely within the mandate of the ICTY” (31); Arbour also generated considerable publicity by rushing to the scene of the alleged crime with Western cameramen in tow.  This massacre claim was welcomed by U.S. officials, providing them with the eagerly sought pretext for the bombing war. When the U.S. Secretary of State Madeleine Albright first learned of Walker’s allegations about the Racak incident, the Washington Post reported, she phoned National Security Adviser Sandy Berger. "Spring has come early to Kosovo," she told him. (32) Arbour’s performance here was in serious violation of  prosecutorial ethics, and her own claim that “we certainly will not be advancing a case against anybody on the basis of unsubstantiated, unverifiable, uncorroborated allegation” (33), but it was beautifully geared to NATO propaganda service.

 

The same was true two months later, when Arbour announced an indictment of Serb paramilitary leader Zeljko Raznjatovic (Arkan), prepared in September, 1997, but not released until March 31, 1999, one week after the beginning of NATO’s bombing war, and giving the war a further propaganda boost.  Arbour’s alleged reason for releasing this information at this particular time was that she wanted to put on notice anyone who “might retain his [Arkan’s] services or obey his orders,” and who “will be tainted by their association with an indicted war criminal.” (34)

 

Then in April, as described by Kirsten Sellars, “midway through the Kosovo conflict, Arbour made a whistle-stop tour of NATO capitals, collecting promises of  assistance wherever she went.”  Her trip to London “seemed to be expressly designed to highlight the tribunal’s support for one side of the war. She joined Robin Cook and chief of staff General Sir Charles Guthrie at a press conference held at the Ministry of Defence, the department responsible for Britain’s attacks on Serbia.”  At this press conference Arbour was publicly promised a major release of British intelligence material featuring alleged Serb atrocities. “Answering a question put to her at the press conference, Louise Arbour stated that it was ‘inconceivable’ that the tribunal was ‘servicing a political agenda.’ Yet her presence at this publicity stunt, designed to add to the swelling tide of atrocity stories already doing the rounds in the British media, belied her words.” (35)  Marcus McGee, writing in the Toronto Globe and Mail, pointed out that “It is part of NATO’s war strategy to portray the leaders of Yugoslavia as war criminals who must be stopped. By accepting the documents, critics say, Judge Arbour risked becoming part of that strategy and losing her impartiality.” (36)

 

But Arbour’s maximal performance as a NATO public relations agent took place in the midst of the bombing war, on May 22, 1999, when NATO, in order to hasten a Yugoslav surrender, began to bomb Serb civilian facilities,  including bridges, factories, electric power and water facilities, and even schools and hospitals. This elicited growing criticism even in the NATO countries.  At that juncture, Arbour rushed into action with an indictment of Milosevic (as well as four of his closest aides) for crimes against humanity and violations of the laws or customs of war, all based, once again, on unverified information provided her by U.S. and British officials. U.S. Secretary of State Albright and State Department public relations boss James Rubin quickly cited this latest indictment as a justification for the bombing campaign (37)---an example of the Tribunal’s propaganda service that was not only crude, but in defense of NATO actions which themselves were clearly war crimes. (38) 

 

At the same time that U.S. Government officials were citing the Tribunal’s indictment of Milosevic as evidence of the justness of NATO’s war, Arbour herself was explaining that, while individuals are "entitled to the presumption of innocence until convicted," the indictments of the Serb leadership "raise serious questions about their suitability to be guarantors of any deal, let alone a peace agreement." (39)  In addition to contradicting herself by undertaking an action that presumed guilt, based on information as yet unverified by the Tribunal, Arbour took on the role of "surrogate politician," in Hans Koechler’s words,  announcing her personal political determination that Milosevic was to be ruled out as a negotiator. (40)  On many other occasions, indictments were used by the Tribunal to criminalize and effectively remove individuals from the negotiating process. Milosevic had to depend on the Russians to negotiate on Yugoslavia's behalf to end the bombing war, and Bosnian Serb leaders Radovan Karadzic and Ratko Mladic were also removed from any diplomatic process in Bosnia by indictments. Former Tribunal president Antonio Cassese acknowledged this purposeful exclusion by indictment with pride. (41)  By this route, also, all were effectively demonized before trial and conviction, and any NATO violence was justified in the media and public consciousness by Tribunal indictments.

 

On the other hand, in earlier years, when Milosevic was deemed useful to NATO as a negotiator in Bosnia, neither he nor Croatian leader Tudjman were indicted by the Tribunal for any crimes, although Milosevic was already well demonized, and in the ongoing Milosevic trial his alleged responsibility for crimes in those earlier years are a key focus of the prosecution case.  U.N. diplomat Cedric Thornberry noted this politically based exemption of Milosevic and Tudjman, “wooed diplomatically lest they pull the rug out from under the peace process,” and he objected that “no political offer should be made that would suggest that any leader, credibly implicated in grave criminal activity, be immune from judicial prosecution.” (42)  In effect, Thornberry was criticizing the Tribunal back in 1996 for serving as a political arm of NATO.

 

Another huge political act carried out by Arbour, as well as her successor, Carla Del Ponte, was exempting NATO from any war crimes charges.  The Security Council conveniently excluded from the war crimes subject to Tribunal jurisdiction what the Nuremberg tribunal had declared to be the “supreme crime”--waging a war of aggression. (43)  NATO could therefore attack Yugoslavia in violation of the U.N. Charter without thereby automatically committing a crime subject to Tribunal authority. Nevertheless, Article 5 of the Tribunal's Charter did make illegal "crimes against humanity," which includes "murder" and "other inhumane acts;" and Article 3 includes "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering," and "attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings." Articles 1 and 16 of the Tribunal's governing statute oblige it to prosecute any such illegal actions. (44)

 

How Arbour and Del Ponte wriggled out of even investigating NATO's war crimes, and the contrast with their rapid service for NATO, is amusing in the grossness of the difference between the two. Canadian law professor Michael Mandel describes how in May, 1999, he and a group of lawyers from North and South America filed a well-documented war crimes complaint against 68 NATO leaders, and traveled to The Hague to make the case to Arbour and then Del Ponte. (45)  "[L]ike literally thousands around the world,” he said, “we demanded that Arbour and Del Ponte enforce the law against NATO." But Mandel says he eventually gave up when it became clear that, in his words, “the tribunal was a hoax." (46)

 

It took Del Ponte more than a year to announce, on June 2, 2000, that NATO was guilty of no crimes, "and that (rather illogically) she was not opening an investigation into whether they had committed any." (47)  At that point she released a pre-investigation report of her Office of the Prosecutor (OTP), openly based on the belief that "NATO and NATO countries' press statements are generally reliable and that explanations have been honestly given." However, the OTP did acknowledge that NATO sometimes refused to answer questions---"failed to address the specific incidents," as they put it. (48)  In which case, NATO not wanting an investigation, the OTP chose to not look any further, and simply dropped the subject. How is that for an independent judicial assessment?

 

In the indictment of Milosevic, Arbour used evidence about events that took place only six weeks earlier from a war zone, provided by an interested party (NATO), unverified by Tribunal personnel, and in conflict with her claim that she would never proceed on the basis of “uncorroborated” evidence.  But neither she nor Del Ponte could even "open an investigation" into NATO’s conduct during the war, after a year, with overwhelming evidence in the public domain pertaining to NATO actions that had killed many more than the numbers presented in the initial indictment of Milosevic (May 22, 1999).  That indictment and the charge of "crimes against humanity" were based on an alleged 385 killings for which Milosevic is said to have borne “command responsibility;” but the OTP Report found that the 500 deaths attributable to NATO’s actions were too few to rate--"there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity." (49)  (It should also be noted that the first chief prosecutor of the ICTY, the sainted Richard Goldstone, vigorously defended the Tribunal’s handling of the NATO charges in a debate with John Laughland, saying that the Tribunal simply “held that there was not sufficient evidence against individuals to warrant further investigation,” when as we have indicated there was no serious initial investigation and the 500 deaths conceded by the OTP exceeded the total charged to Milosevic.) (50)

 

In examining possible NATO war crimes, time after time the OTP investigators would consider the evidence and then choose an interpretation favorable to NATO, as in the bombing of Serbian broadcasting facilities, or simply decide arbitrarily that since "another interpretation is equally available" no investigation is needed (here in reference to NATO's April 12, 1999 bombing of a train crossing a bridge over the Grdelica Gorge, south of Belgrade). (51). Michael Mandel gives a number of illustrations of this mode of exoneration, which, he says, "comes as close as possible to being an actual NATO press release that might have been issued by Jamie Shea or James Rubin." (52)

 

After Del Ponte took over from Arbour in mid-September 1999, she announced that the "primary focus of the Office of the Prosecutor must be the investigation and prosecution of the five leaders of the Federal Republic of Yugoslavia who have already been indicted," implicitly conceding that she didn't have enough evidence, but once again making clear her NATO-service priorities. (53)  Despite the furious claims of  “genocide” in Kosovo by the NATO/Tribunal/media collective during the 78-day bombing war, the fewer than 5,000 bodies (from all causes and on all sides) found after the historically unprecedented postwar forensic search would hardly sustain a genocide charge against Milosevic. (54)  Therefore, after his June 28, 2001 seizure and transport to The Hague, Del Ponte announced that charges against Milosevic would be expanded to his command responsibility for deaths in Croatia and Bosnia.  The search was then on for evidence of deaths and, especially, proof of  Milosevic’s “master plan.”  This was a common Tribunal formula: Indict; flamboyantly publicize the charges; and then look for the evidence.

 

Further evidence of the Tribunal’s service on behalf of NATO has been the fact that, from the very first, the Serbs were NATO’s target, hence, the Tribunal’s target as well.  As early as the summer of 1992, German Foreign Minister Klaus Kinkel began accusing the Serbs of "genocide;" (55) and in December 1992, just as the Tribunal was in process of formation, Acting U.S. Secretary of State Lawrence Eagleburger publicly named four Serb leaders---Milosevic, Karadzic, Mladic and Arkan---as targets of the imminent Tribunal, even invoking the need for a “second Nuremberg.” (56) Tribunal President Gabrielle Kirk McDonald referred to Serbia as a "rogue state," and another Tribunal President Antonio Cassese expressed gratification that "indictments" had made it impossible for Serb leaders to participate in negotiations.  Cassese was not bothered by the Tribunal’s abuse of indictments as a political instrument, and even Kosovo war supporter Geoffrey Robertson has observed that Cassese’s “presumption of their guilt, and agitation for their arrest, would have disqualified him for bias in many domestic legal systems.” (57)

 

The double standard in the Tribunal’s dealing with the Serbs and others has been blatant.  Serb paramilitary leader Arkan’s indictment was made public in March 1999, but his Bosnian Muslim counterpart Naser Oric, who had bragged to the media about his killing of Serb civilians, (58) was not indicted until 2003, with only modest charges levied and its timing suggesting an attempt to create the appearance of  balance. (59)  The Republic of Serbian Krajina President Milan Martic was indicted as early as July 25, 1995 for---among other charges---a rocket-launched cluster-bomb attack on military targets in Zagreb in May 1995, on the ground that the rocket was "not designed to hit military targets but to terrorize the civilians of Zagreb."  In Martic’s case, the Tribunal went to some pains to investigate the nature, effects and anti-civilian character of cluster bombs, concluding that their use was inherently criminal---“an anti-personnel weapon designed only to kill people.” (60)  But NATO’s cluster-bombing of Nis on May 7, 1999, which repeatedly hit a market and hospital far from any military target, killing at least 15 civilians in the process, produced no indictments.

 

Bosnian Serb General Stanislav Galic was found guilty by the Tribunal of “inflicting terror on a civilian population,” (61) but the numerous admissions by NATO leaders that their bombing of Serbia in April and May 1999 was to inflict pain on—that is, to terrorize--that population and force surrender, carried out on a much larger scale than Galic’s operations around Sarajevo, was of no interest to the Tribunal.  And the massive ethnic cleansing of the Krajina by U.S.-advised Croatian forces in August, 1995, with many hundreds killed, led to no indictments until May 21, 2001 (though announced only in late July), when Del Ponte, aggressively pursuing the new Yugoslav government to extradite Milosevic and other Serb indictees, and apparently feeling a need to demonstrate her even-handedness, belatedly indicted a single Croatian military officer for his role in Operation Storm, General Ante Gotovina, along with General Rahim Ademi, an ethnic Albanian who served in the Croatian military and was involved in the slaughter of Serbs at Medak back in 1993 (62). (Before these indictments, no Croatian with command responsibility for Operation Storm had ever been indicted, and only Serbs had been indicted for their actions in Croatia’s Krajina region.)

 

In the same mode of political bias, only Serb leaders have been charged with "genocide" and the kind of top-down criminal responsibility for the acts of subordinates that we see in the Tribunal’s charge that Milosevic masterminded a “joint criminal enterprise” to ethnically cleanse non-Serbs from large areas of Croatia and Bosnia.  Numerous mass killings by Bosnian Muslims--including imported Mujahedin whose specialty was beheading civilian victims (63)--and by the Croatian army and paramilitaries never caused the Tribunal to use the word ‘genocide’ or to attribute responsibility to, or indict, the late Croatian President Franjo Tudjman or his Bosnian Muslim counterpart Alija Izetbegovic. (64)  And during her pretended look at NATO crimes, Del Ponte considered only the responsibility of  NATO pilots and their immediate commanders, not the NATO decision-makers who decided to target the civilian infrastructure and population.  The double standard here is dramatic.

 

How did Marlise Simons treat these manifestations of a Tribunal political agenda closely geared to U.S. and  NATO public relations needs? Simons did not report on the Racak incident, but she did have an article on Arbour’s March 31, 1999 announcement of the indictment of  Arkan. (65)  She transmitted Arbour’s explanation for the belated release of the indictment—to warn those who might “retain his services or obey his orders” and thus be “tainted by their association with an indicted war criminal.”  But Simons did not question this explanation, which is not compelling, and which treats an indicted but not-yet-convicted person as a “criminal.”  Nor did Simons mention that the release of the indictment was a public relations gift to NATO.  Simons failed to call attention to the absence of any indictment of Naser Oric, Arkan’s paramilitary counterpart serving the Bosnian Muslim side, and in fact she never mentioned Oric’s name in any of the 120 articles that form the basis for this study. (66)

 

This convenient naiveté was even more dramatically evident in Simons’ treatment of the May 22, 1999 indictment of Milosevic. (67) Here again, Simons gives Arbour’s explanation of the rush to indict—the fear that “we might miss out” on getting him as a result of a peace deal—which she passes along without raising any question. Simons does not mention the Tribunal’s failure to indict Milosevic in 1994-1995, when as Thornberry noted, Milosevic was seen by the leading NATO powers as a useful partner in a “peace deal.”  This allows her to suggest that “only now do…American and European politicians...use the tribunal as a political weapon, threatening to hold perpetrators of atrocities accountable in The Hague,” which also makes it sound as if the Tribunal is an autonomous body being used by alien parties! The sheer injudicial character of rushing to indict, with a presumption of guilt even before the evidence is in, doesn’t strike Simons.

 

Simons quotes Arbour acknowledging that NATO’s aims here meshed with her own (“a coincidence of interests,” Arbour calls it), and this aura of independence is maintained and never challenged by Simons. She asserts that “The indictment is now seen as a tribute to the tribunal’s firmness,” without telling us who it is that has this vision and offers this tribute.  Simons never hints that the timing of the  indictment might be regarded as public relations service to NATO, although she mentions that U.S. and NATO officials welcomed Arbour’s action. This was just a coincidence, as Arbour explained to her.  As with Arbour’s exploitation of the Racak incident to perform a public relations service on behalf of NATO, or Arbour’s unsealing of the indictment of Arkan right after the start of the war, or Arbour’s appearance with Robin Cook at a London press conference later in the war, or Arbour’s rush to indict Milosevic as the war dragged on and began to go sour for NATO---Simons treats each as an isolated event, because connecting the dots between them, or performing any kind of serious analysis, would prove incompatible with peddling the official line.

 

Simons never deals with the Tribunal’s exemption of NATO, and her colleagues at the New York Times treat that exemption with extreme brevity, featuring U.S. “impatience” with this challenge, which never even reached the investigatory state. The Times reporters ignored the charges themselves and never referred to the comical Del Ponte and OTP Report’s basis for rejecting even an investigation of NATO war crimes. (68) Only once does Simons approach the substance of  the charges of NATO war crimes, when she says that NATO bombs “hit the Chinese Embassy, a few bridges, a train full of civilian passengers, and a TV station.” (69)  But no mention of the electrical and water facilities, marketplaces, nine hospitals, and over 300 schools damaged or destroyed.  No mention of the innumerable factories producing civilian goods, museums, religious buildings, including early Christian and medieval churches.  And no mention of the 500-3000 civilians killed during the bombing war.  Simons’ bias displayed in this aborted listing is dramatic, but her editors clearly didn’t object.

 

Simons several times reported Tribunal developments that could be interpreted as showing that the Tribunal was not a political arm of NATO. (70)  But she never once allowed this interpretation to be challenged or the neglected political model to be expounded, aside from a few phrases attributed to Slobodan Milosevic. 

 

 

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 humanitarian 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 parts 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 “