An Insider’s View of the International War Crimes Tribunal at the Hague

There follows extracts from a conversation with someone who has recently observed the Hague Tribunal at close quarters. The person’s name and the proceedings observed have not been revealed. As the following article makes clear, no one who has had any dealings with the tribunal can feel entirely sure that its tentacles will not wrap themselves around him or her long after they have left the Hague behind them.

"The court is situated in the former headquarters of an insurance company in the outskirts of the Hague. There are three court rooms in the building all hermetically sealed. Of course, most courts are secure and airless places, but there seems to be something deliberate about the complete isolation of the Hague Tribunal from the environment.

The prisoners in its detention centre constantly complain that they are held without any access to the open air. They are brought to the Tribunal building from a life lived under artificial light in black-windowed cars (as are witnesses) and then they have to sit in the airless world of the court. The fact that no breath of fresh air ever reaches prisoners or their prosecutors seems symbolic. The Prosecution is bent on creating an artificial world where its ideology rules to the exclusion of all other ideas or even common sense.

As in Soviet courts of old, and French Napoleonic courts before the recent reforms, the prosecutor predominates. The judges are at his beck and call. Emphasis on the Prosecution is appropriate. The panels of three judges rarely seem in charge of the court. Whatever their individual merits – they are drawn from the second tier of courts around the world – there is little sense that they embody or uphold the majesty of impartial justice. The system is weighted in favour of the prosecution.

This dominance of the prosecution over the judges sitting on the bench is especially striking given the common-law provenance of the lawyers who drew up the ICTY’s procedures. In one recent case, the prosecutor wanted to introduce tape-recorded evidence into the proceedings even though it had not been shown to the judges, let alone the defence counsel. It was only when the witness and defence counsel objected that the judges intervened and ruled that such evidence could only be introduced later at the rebuttal stage.

Both the composition of the judiciary and the prosecution is dominated by people from the common law tradition. The code of procedure of the Tribunal was established when judges and lawyers from Great Britain, the US, South Africa and Australia were in charge. These people threw overboard large amounts of Common Law jurisprudence, especially when it came to the rights of the defendant and the rules of due process. It was almost as if, liberated from the constraints of Anglo-American justice, they fell for the joys of the inquisitorial procedure hook, line and sinker.

For example, anonymous witnesses and secret testimony are permitted so that the defendant cannot often identify his accusers. Rape victims can remain anonymous. The justification for this procedure is, no doubt, to encourage victims to come forward and give evidence. However, this strips away the defendant’s basic rights as malicious or false accusations are even more difficult to counter when the accuser’s identity is hidden from view.

The venom against defence witnesses recalls the question posed at the trial of Jose Antonio Primo de Rivera in Barcelona at the outbreak of the Spanish Civil War in July, 1936: "Do you hate the defendant?" If you didn’t, you went into the dock too!

Witnesses are attacked on ideological grounds. Anyone who calls into question the policies of the leading NATO states (even, or especially, when they colluded with Milosevic’s regime in the early 1990s) is denounced and hectored at as "extremist." Western academics appearing as expert witnesses have been subject to personal abuse as well as intrusive inquiries into their personal lives by the Prosecution’s allies in the NATO intelligence services. The intention seems to be to intimidate anyone not sharing the Prosecution’s purpose and to warn off others from giving evidence. The refusal to contemplate the idea that even individual NATO servicemen may have committed acts liable under the Tribunal’s charter vitiates its impartial character.

The Prosecution certainly, but in practice, the whole Tribunal structure acts as a revolutionary or ideological court. Opinion is as much on trial as actions. The Tribunal supports certain goals and national independence is not one of them. Whatever their differences, Serbs, Croats and Bosnian Muslims who believe in the independence of their states or peoples are viewed negatively by the ICTY ideology. It is against all nationalisms. Even British academics are routinely abused for being "Euro-sceptic" in their private views – though with what relevance to Balkan atrocities is not clear unless the Tribunal takes the view that any scepticism about large multinational political conglomerates is preparatory to crime.

The Prosecution’s use of conspiracy as a charge recalls the great Soviet show trials of 1936-38. In one case, the Orwellian proportions of the Prosecution mindset was revealed as the accused was charged with conspiring, despite the admitted lack of evidence. But "lack of evidence can in fact be proof of conspiracy."!! It is not the destruction of evidence but its very absence which can be used to convict! Even Vyshynsky never reached that advanced stage of terror in 1937.

Miscarriages of justice aplenty threaten but there is no genuinely independent appeals procedure. Quite to the contrary, appellants do not face a separate tribunal and, as in Soviet law, they risk getting an increased sentence as well as new charges leveled against them if they challenge the original verdict.

It will come as no surprise to learn that certain states and their servants are privileged by the court. Needless to say, it is the NATO states who pay the Tribunal’s bills and whose personnel are treated as beyond error, let alone perjury. Ignoring the damning precedent set in the English courts in the mid-1970s when the then leading Appeal Court judge, Lord Denning, ruled that British policemen in the Queen’s uniform could not possibly have perjured themselves to frame the so-called Birmingham Six (alleged IRA pub bombers in 1974), the tribunal has repeatedly shown deference to the testimony and persons of British troops who had served in UNPROFOR in Bosnia. No questioning of the British government’s cynical policy there is permitted.

On the point of financing it is quite extraordinary that this would-be international even global judicial system depends on private finance. As with many UN agencies the member states have not been enthusiastic about paying for the ICTY. But that has not stopped the Tribunal accepting money from clearly biased private sources. George Soros has made no bones about his attitude to many of the indicted and yet the Tribunal takes his cash. Similarly Islamic donors are prominent.

How can there be equal justice when the stipends of the court officials are paid by advocates of the guilt of some of the defendants?! It is an outrage but one which has gone by default because so many of the human rights NGOs depend on the same sources of funding as those giving to the Tribunal. The intermeshing of NATO governments, the tribunal and so-called NGOs and private donors means that the whole system is not under any kind of independent review.

All this raises the alarming prospect that the proposed International Criminal Court will follow the same pattern on a global scale. Even if the US Senate is unwilling to ratify it, nonetheless the same sort of US personnel (frequently actually the same people) who helped establish the Hague Tribunal’s appalling procedures have been active in determining those of the future International Criminal Court.

Far from being an abstract entity judging criminal cases impartially without fear or favour, the proposed International Court is going to be a glorified version of the ideological court in the Hague but with a global agenda. Judicial activism – this time led by prosecutors rather than Supreme Court judges – threatens to extend its reach around the world criminalizing anyone or any party who dissents from the "consensus" established by the secret diplomacy of states and their allies among the so-called NGOs.

The failure of human rights groups to question the procedures and presumptions of the ICTY is striking. If the courts and prosecution in any individual EU state acted as the ICTY does, then appeals would soon be flying to the European Court of Human Rights in Strasbourg. Imagine the Strasbourg Court permitting unseen evidence to flit into court without prior disclosure to the judges, let alone the defence counsel! The prolonged periods of detention before trial would also raise doubts in Europe. But of course the Hague Tribunal is an international body, immune to the rule of law that everyone else in Holland is subject to.

The ICTY sets an interesting and dangerous precedent. It used to be a principle of English law "Be you ever so high the law is above you," yet today in this age of human rights rhetoric, the new international courts’ system is being established immune from judicial review. Under the cry of "Stop impunity" the advocates of international courts urged the establishment of tribunals like that in the Hague as a way of bringing to justice those too powerful to face trial in their own states. Ironically, the impunity bestowed upon the Prosecution and Tribunal sets a much more dangerous precedent. Under the guise of global justice a judicial monster unfettered by common law restraints is coming into being.

2500 years ago Plato saw that "no-one commits a worse injustice than when it is done in the name of justice." For the sake of punishing a few Balkan butchers, human rights activists colluding with cynical governments are unleashing on the world a new kind of tyranny: the international tribunal."