Human Rights Watch in Service
to the War Party: Including A Review of "Weighing the Evidence:
Lessons from the Slobodan Milosevic Trial" (Human Rights
Watch, December, 2006)
by Edward S. Herman and David
Peterson and George Szamuely
www.zmag.org, February 25, 2007
Part 1: Introduction: The Role and Biases
of Human Rights Watch
Human Rights Watch (HRW) came into existence in 1978 as the U.S.
Helsinki Watch Committee. Early documents affirmed that its purpose
was to "monitor domestic and international compliance with
the human rights provisions of the Helsinki Final Act."
But though a private U.S.-based organization whose vice chairman
once stated "You can't complain about other countries unless
you put your own house in order," its main focus was on
Moscow. Thus its literature also affirmed that founding the Committee
"was intended as a gesture of moral support for the activities
of the beleaguered Helsinki monitors in the Soviet bloc,"
and its early work was well geared to advance the U.S. government's
policy of weakening the Soviet Union and loosening its ties to
Eastern Europe. While the organization has broadened its horizons
and grown enormously since its $400,000 seed money from the Ford
Foundation, it has never sloughed off its close link to the Western
establishment, as evidenced by its leadership's affiliations,
its funding, and its role over the years. Because of its institutional
commitment to human rights and its broad purview, however, HRW
has done a great deal of valuable work, as for example in helping
to document the character and effects of the Reagan era wars across
Central America, where its Americas Watch reports on the U.S.
support for the Nicaragua Contras, the Salvadoran army and death
squads, and Guatemalan state terror were eye-opening and led to
intense hostility on the part of the Reaganites and Wall Street
But despite these and countless other constructive efforts, the
organization has at critical times and in critical theaters thrown
its support behind the U.S. government's agenda, sometimes even
serving as a virtual public relations arm of the foreign policy
establishment. Since the early 1990s this tendency has been especially
marked in the organization's focus on and treatment of some of
the major contests in which the U.S. government itself has been
engaged-perhaps none more clearly than Iraq and the Balkans.
Here, its deep bias is well-illustrated in a March 2002 op-ed
by HRW's executive director, Kenneth Roth, published in the Wall
Street Journal under the title "Indict Saddam." The
first thing to note about this commentary is its timing. It was
published at a time when the United States and Britain were clearly
planning an assault on Iraq with a "shock and awe" bombing
campaign and ground invasion in violation of the UN Charter.
But Roth doesn't warn against launching an unprovoked war-though
wars of aggression had been judged by the Nuremberg Tribunal to
be the "supreme international crime" that "contains
within itself the accumulated evil of the whole." On the
contrary, Roth's focus was on Saddam's crimes, and provided a
valuable public relations gift to U.S. and British leaders, diverting
attention from and putting an apologetic gloss on their prospective
supreme international crime.
Three years earlier, when the NATO powers had begun the bombing
of Yugoslavia on March 24, 1999, HRW said nothing critical about
that action; as we shall see, it focused mainly on the crimes
of the target country then under attack. In a 1998 commentary
for the International Herald Tribune, Fred Abrahams, an HRW researcher
whose major focus has been Kosovo, urged regime-change for Yugoslavia,
either through President Slobodan Milosevic's indictment or a
U.S. war to affect the same outcome. "At what point will
the Clinton administration decide that they have seen enough?"
Abrahams asked. "[T]he international community's failure
to punish Milosevic for crimes in Croatia and Bosnia sent the
message that he would be allowed to get away with such crimes
again. It is now obvious that the man who started these conflicts
cannot be trusted to stop them." This line also served
the United States and other NATO powers well, and both cases show
a clear adaptation of HRW definitions of human rights and choice
of worthy victims to the needs of the Western powers and institutions
that nurture the organization. (In Part 3, we deal with the mind-boggling
misrepresentation of history in Abrahams' statement about Milosevic's
unwillingness to stop these wars-in fact, Milosevic signed-on
to every major peace proposal 1992-1995, whereas Abrahams' favorite
state regularly sabotaged them.)
Roth's "Indict Saddam" starts as follows: "The
Bush administration's frustration with a decade of porous sanctions
against Iraq has led to active consideration of military action.
Yet one alternative has yet to be seriously tried-indicting Saddam
Hussein for his many atrocities, particularly the 1988 genocide
against Iraqi Kurds." This clearly implies that the sanctions
imposed on Iraq were ineffective ("porous") and that
the administration's alleged frustration on that account was real
and well grounded, establishment claims that were false and misleading
and that an unbiased analyst might have had some doubts about
at the time. We may note also the lack of concern with the "active
consideration of military action."
But equally important, Roth ignores the devastating sanctions
imposed on Iraq by the United States and Britain via the UN for
over a decade, which prevented the repair of Iraq's sanitation
facilities, water purification and agricultural irrigation systems,
all of which had been deliberately destroyed in the 1991 bombing
war. Through their power to magnify hardship, malnutrition,
and disease, this form of economic and political warfare "may
well have been a necessary cause of the deaths of more people
in Iraq than have been slain by all so-called weapons of mass
destruction throughout history," John and Karl Mueller write
in their aptly titled "Sanctions of Mass Destruction."
This would seem to constitute first-order war criminality, and
with a million fatalities should be worth great attention from
a human rights group. But as Madeleine Albright once told CBS
TV's 60 Minutes, the price of half-a-million Iraqi children's
deaths was "worth it," and Roth and HRW looked the
other way. HRW never produced a major report on the sanctions.
It never called attention to U.S. and British responsibility
for this death-dealing policy. And though HRW did point out that
the deliberate starvation of civilian populations is a war crime,
it never suggested that U.S. and U.K. officials were guilty of
these war crimes. And of course it never called for any tribunals
to try the responsible parties.
Also of interest is the fact that in this same Wall Street Journal
commentary, Roth describes in detail Saddam Hussein's crimes against
the Kurds, which he repeatedly calls "genocide," whereas
the number of Iraqis killed by Western sanctions were between
five and ten times the number of Kurds killed by Baghdad forces,
but don't get mentioned, let alone described as victims of "genocide."
Roth asserts that bringing Saddam to justice for his treatment
of the Kurds ran into difficulties because France and Russia each
had "extensive business interests" in Iraq, and China
was worried about comparisons with their treatment of Tibetans.
Nowhere does Roth mention the U.S. business dealings with Saddam,
loans to his regime, supplying it with helicopters, intelligence
and chemical weapons, and the Reagan administration's protection
of Saddam from Security Council actions. Instead, paralleling
HRW's condemnation and delegitimization of Belgrade during 1998-1999,
by this stage in early 2002, it was the condemnation and delegitimization
of the Iraqi regime that had become of paramount importance to
Roth. Although he noted that bringing indictments against Saddam
"would not guarantee his ouster," Roth added that they
"would certainly help build consensus that he is unfit to
govern, and thus that something must be done to end his rule."
The word "genocide" has also never been applied by
Roth or HRW to the enormous death toll caused by the U.S. invasion
and occupation of Iraq, 2003-2007, although the numbers of civilians
that have died as a consequence of that UN Charter violation now
exceed the Kurd "genocide" attributed to Saddam by a
multiple that may have reached six or more. But HRW has shown
little interest in these totals, and when the British medical
journal Lancet published an estimate of some 100,000 Iraqi civilian
deaths for the first 18 months following the March 2003 invasion,
HRW senior military analyst (and former Pentagon intelligence
analyst) Marc E. Garlasco quickly dismissed the findings as "inflated"
and the methods used as "prone to inflation due to overcounting."
Subsequently, Garlasco admitted to not having read the report
when he offered his initial assessment about it to the press.
Roth and HRW have shown no qualms over using the word "genocide"
frequently in reference to Serb conduct in Bosnia and Herzegovina
as well as in Kosovo, although there also the number of victims
falls far short of the numbers in Iraq, whether from the "sanctions
of mass destruction" or the invasion-occupation of 2003-2007.
Once again, this word usage is well geared to the support of U.S.
and NATO policy.
In all these cases the HRW focus has been on methods of fighting
and their impact on civilians. As noted, this bypasses any possible
challenge to cross-border attacks that constitute the "supreme
international crime," which HRW takes as a given (with exceptions
as described below). It may be argued, however, that if a war
itself is illegal, then any military or civilian killings that
follow from this crime cannot be defended on grounds that they
are the unavoidable consequence of war;  but this is not the
philosophy of HRW, which ignores that basic illegality. Instead,
HRW has repeatedly stated that it "does not make judgments
about the decision whether to go to war-about whether a war complies
with international law against aggression. We care deeply about
the humanitarian consequences of war, but we avoid judgments on
the legality of war itself because they tend to compromise the
neutrality needed to monitor most effectively how the war is waged."
But this is a disingenuous evasion on multiple grounds. The decision
to go to war is the one that assures there will be both military
and civilian casualties, as was stressed by the Nuremberg Tribunal
in explaining its own focus on the "supreme international
crime," and for that reason alone an unbiased human rights
organization would not ignore it. Given that HRW's own state
is the one that has been carrying out serial wars in violation
of the UN Charter, the exclusion of this primary cause of human
rights violations in itself compromises any neutrality the organization
may claim to observe.
What is more, there is evidence that HRW leaders have been pleased
with these aggressions. We will show later that it urged them
on in the case of the Balkans wars, and Roth's piece "Indict
Saddam" was a form of public relations support for the prospective
attack on Iraq. Roth even celebrates the breakdown of international
law against aggression, allegedly in the interest of "human
rights." He stated that "We will remember 1999 as the
year in which sovereignty gave way in places where crimes against
humanity were being committed." Of course, it is the
U.S. and British leadership which determines when "crimes
against humanity" are committed, but Roth has faith that
these leaders are the proper deciders and that the sacrifice of
a basic principle of international law is thus justified. This
is an only slightly veiled defense of recent U.S. aggressions,
and so the alleged refusal by HRW to make judgments about decisions
to go to war is in fact a form of apologetics for aggressive war.
HRW's professed neutrality is disingenuous for yet another reason:
The organization has never applied it to the armed conflicts within
the former Yugoslavia. There, HRW has treated the conflicts and
their impact upon civilian populations as the direct consequences
of cross-border aggression, and has held the ethnic Serb leadership
in Belgrade to be uniquely responsible for them. The entire first
half of HRW's Weighing the Evidence is devoted to a summary of
the Office of the Prosecutor's evidence that Belgrade provided
financial, material, and personnel support to ethnic Serb combatants
in Croatia and Bosnia-Herzegovina-treating this support as clear-cut
violations of the international law against aggression: "[H]ow
Belgrade orchestrated the vicious wars in Bosnia, Croatia and
Kosovo," as Weighing the Evidence author Sara Darehshori
put it. HRW has never done the same in other theaters of
armed conflict where it maintains an interest-say, documenting
how Washington's financial and material support "orchestrates"
Israel's 40-year-old military occupation of the Palestinian Territories
or Israel's cross-border attacks into Lebanon; and as already
noted, U.S. crimes of aggression are treated with "neutrality."
But HRW-style neutrality disappears when it is dealing with U.S.
targets such as Serbia, where HRW widens its human rights concerns
beyond mere methods of combat to include "who started it"
and the "accumulated evil of the whole."
In a closely related double standard-and point of illogic-throughout
their coverage of the Balkans conflicts, and in close accord
with the position of the International Criminal Tribunal for the
Former Yugoslavia (ICTY or Tribunal), Roth and HRW demanded that
the villains (Serbs) must be brought to justice if a true peace
is to prevail. This was allegedly required to help deter
future villainy and because the victims need the consolation of
justice. But this principle should clearly apply to villains
who commit the "supreme international crime," and it
was precisely such villains who were tried at Nuremberg. Wouldn't
we want "justice" brought to aggressors to teach potential
aggressors that such behavior doesn't pay? And isn't such justice
necessary to bring peace of mind to the victims of aggression
so that true peace can prevail? The point doesn't arise for Roth
and HRW, who not only are completely oblivious to this double
standard, but in their Balkans efforts have worked closely with
the perpetrators of the supreme crime in allegedly bringing
justice to the lesser criminals. Here again it is clear that Roth
and HRW are not neutral, but, having internalized the perspectives
of the Western powers, they serve aggression when carried out
under the right auspices.
HRW not only overlooks the rule of law as regards aggression,
it has never addressed the massive abuses of the judicial process
in the politicized work of the ICTY, apparently because it
is serving the same cause as HRW. In another illustration of its
cavalier attitude toward legality, HRW boasts that it "helped
pressure the Yugoslav government to turn Milosevic and his cohorts
over to the tribunal," in complete disregard of the fact
that this was done by a kidnapping and in straightforward violation
of the Yugoslav constitution and rulings of Yugoslav courts.
Among other forms of bias, HRW accepts the NATO-friendly view
that civilian deaths from high-tech warfare such as in aerial
bombings and missile strikes are not prima facie "deliberate"
as are face-to-face and low-tech killings of civilians. HRW holds
that while the former may involve war crimes if not carried out
carefully, the latter are war crimes per se. But this distinction
is invalid, as bombs dropped from on high on or near civilian
facilities are extremely likely to kill and injure civilians,
even if the individuals killed were not specifically targeted;
and this known high probability makes those killings deliberate
for all intents and purposes. Suicide bombers also sometimes
target military personnel and do not always just attack civilians.
Given that the actual civilian casualty totals of hi-tech bombings
and other weaponry are usually far greater than those of suicide
bombers and other face-to-face killings, this HRW bias places
the protection of U.S. and NATO methods of warfare ahead of human
Another form of bias is the HRW tendency
to offer low counts of U.S. and NATO victims, and high counts
for victims of U.S. and NATO targets. A study by Marc Herold
reveals a pattern in which HRW "reports figures which are
about one-third those of other reputable sources." Herold
points out that in the case of the NATO attack on Yugoslavia,
HRW estimated 500 civilian deaths in Serbia, whereas other credible
sources ran to 1,200-1,500 (and the Serbian official estimate
was 1,800); and for Afghanistan, HRW estimated that at least 1,000
civilians were killed whereas Herold's own studies yielded a total
between 3,000-4,000. Herold also shows that in the specific case
of a U.S. massacre at Chowkar-Karez in Afghanistan, HRW's thinly
based estimate of 25-35 dead was markedly below the figure of
90 reported in the media of Britain, India, Qatar and Egypt.
On the other side of the ledger, Richard Dicker, the director
of HRW's International Justice Program (IJP) and a consultant
on Weighing the Evidence, asserted that "hundreds of thousands
killed and millions [were] forced from their homes in the four
wars [Milosevic] lost while asserting Serbian nationalism."
Dicker's inflated rhetoric was not meant to be exact; nor did
it need to be, and his "hundreds of thousands" killed
has been drastically deflated by establishment sources, but without
explicit acknowledgement by Dicker or HRW. In dealing with Serbia's
exquisitely demonized "strongman," this human rights
lawyer knew that just about any charge could be made to stick,
whether at the ICTY or before the court of public opinion. In
a more subtle display of numbers-bias, HRW's World Report 2007
says that in February 2006, staff at the Sarajevo-based Research
and Documentation Center (RDC) "were threatened through an
anonymous phone call and warned to stop their analysis on war-related
deaths." The motive was the "center's downward revision
of the number of wartime casualties," which HRW stresses
"has drawn criticism from Bosnian Muslims, the war's principal
victims." In fact, the RDC has found documentable totals
of war-related deaths on all sides to be in the area of 100,000.
Thus HRW's use of the phrase "downward revision" mischaracterizes
the RDC's work, as it understates the dramatic reduction by one-half
to two-thirds of the much higher estimates of 200,000 to 300,000
that have been in circulation since late 1992, while HRW never
once gives the specific number in the revised estimate that shows
Dicker to have been guilty of inflation (and raises questions
about HRW's massive attention to an alleged "genocide"
Another revealing form of bias has been
HRW's regular denial that the United States commits war crimes.
Writing in late 2002, Kenneth Roth stated that "In recent
wars, U.S. forces have made mistakes and even violated humanitarian
law but have not committed war crimes." He admitted that
the use of cluster bombs where substantial civilian casualties
are "foreseeable" might be deemed by some court to be
a war crime, but he himself declared that none were committed-a
remarkable claim given that Roth and HRW have hardly examined
all uses of cluster bombs and determined that in each of those
cases civilian deaths were not "foreseeable." This
is the language of crude apologetics. Furthermore, there is the
matter of the use of depleted uranium, a civilian-deadly weapon
regularly employed by his country, which Roth ignores.
Michael Mandel has pointed out that during the war against Yugoslavia,
"NATO convicted itself out of its own mouth," its leaders
repeatedly acknowledging the goal of breaking civilian morale,
and targeting bridges, schools, factories, livestock, crops, power
grids, media centers, religious buildings, including early Christian
and medieval churches, chemical plants, and fertilizer factories.
Only a U.S.-war apologist could claim that this objective and
these targets did not point to intentionality as well as reveal
war crimes. Amnesty International had no trouble finding and
naming plenty of war crimes.
There are other forms of bias in HRW's work, such as an underplaying
of really major crimes and a false even-handedness in cases where
the preferred side does vastly more deadly and destructive things,
as in case of Israel in Lebanon and Gaza, or the United States
in Iraq, with the massive use of cluster bombs, the almost complete
destruction of sizable cities like Fallujah, hospital bombings,
and the use of phosphorus bombs as well as depleted uranium.
Roth did castigate the Israelis for their July 30 airstrikes on
the Lebanese village of Qana, saying and writing that the "IDF
effectively turned southern Lebanon into a free-fire zone,"
and for its use of cluster bombs. But HRW's treatment of
Israel or the United States in Iraq has never come near the passionate
intensity shown by their on-the-ground investigations and search
for witnesses, their acceptance of contestable evidence, and their
furious condemnations of Serb behavior in Bosnia and Kosovo and
calls for punishment.
And in contrast with their treatment of the Serbs, when dealing
with Israel and the United States, HRW has gone to great pains
to provide "balance" in even-handedly condemning Hezbollah,
the Gaza Palestinians and Hamas, and the Iraqi resistance. In
the case of Hezbollah and Israel, HRW even compared their missile
attacks in terms that were unfavorable to Hezbollah, whose missiles
HRW alleges deliberately targeted civilians, whereas Israel simply
was not careful enough. HRW ignored the fact of a major "supreme
international crime," the volume of bombings and ordnance
deployed, and the number of casualties, and it imputed an intent
to Hezbollah fighters for which HRW had no supportive evidence.
This parallels the apologetics in the HRW contrast between unintended
civilian casualties from high level bombing versus the "deliberate"
killing of civilians in close-quarters combat.
In sum, HRW has done a great deal of valuable work on human rights,
enough to frequently arouse the ire of U.S. and U.S. client state
officials and their intellectual and media supporters. But like
the Christian missionaries of earlier empires, HRW has also performed
yeoman service in the advancement of U.S. foreign policy. Hans
Köchler says that "Human rights have become an instrument
of power politics in an environment in which no checks and balances
exist to restrain the arbitrary use of power." And in his
view, "In the war against Yugoslavia in 1999, NATO acted
as the 'Holy Alliance' of our times, trying to justify with moral
principles a campaign of war that was in complete contradiction
to the UN Charter and to international law in general."
HRW has been a servant of this new Holy Alliance.
In the beginning, as the U.S. Helsinki Watch Committee, it did
this by helping to publicize Soviet wrongdoing in Western capitals.
Later, and during the current and the last decade in particular,
it has made three principal contributions to U.S. policy interests.
First and most notably, HRW has refused to challenge U.S. wars
and interventions as such, taking them as givens and dealing only
with second-order human rights phenomena within the theaters under
attack. This refusal dates back to the Golden Age of the 1980s,
when under challenge over their handling of the Contra war against
Nicaragua and the Sandinista government's response to it, the
group's leaders avowed that "Americas Watch takes no position
on the military conflict as such," emphasizing that "we
condemn the human rights violations committed by the insurgents
as we condemn those committed by the government." Second,
HRW has tended to underplay and undercount U.S. and "allied"
human rights violations. At worst, it has found U.S. warmakers
responsible for very narrow mistakes and oversights, for taking
insufficient precautions in their methods of violence, for using
proscribed munitions, and for causing "needless deaths."
Third, and the most important from the standpoint of how atrocities
are recorded and publicized, HRW has placed the targets of U.S.
wars under the most demanding of human rights microscopes, invariably
finding their political leadership guilty of serious crimes and
calling for their removal and/or punishment.
Even when HRW applies its microscope to U.S. conduct, as in the
related cases of the prisoner of war camp at Guantanamo Bay, Abu
Ghraib, and "rendition" to foreign states, it never
calls for the prosecution of the political leadership responsible
for these practices, much less treat this conduct as something
more grave than bad publicity, tarnishing America's image abroad.
Thus HRW began 2007 with a PR campaign calling for Guantanamo's
closure. But although HRW labeled Guantanamo a "shameful
blight on US respect for human rights," and Kenneth Roth
called it "utterly counterproductive," a "symbol
of the Bush Administration's lawlessness when it comes to fighting
terrorism," a "tool for terrorist recruiters,"
and a "disaster for America's standing in the world and a
disaster for the effectiveness of the fight against terrorism,"
no mention was made of the direct chain-of-command that runs from
the White House to Guantanamo. Nor of the fact that Guantanamo
is but one node in a network of similar U.S. practices that circle
the globe-the reality of which is a U.S. Gulag. Instead, early
2007 found HRW adopting the posture that Guantanamo is yet another
"mistake," and chiding Washington on grounds that its
larger objectives in the so-called "war on terror" would
be better served were it to shut the camp down.
Throughout HRW's work runs the presumption
that the United States is the global lawgiver, with special rights
that call for special treatment, including in particular the non-reciprocal
right to interfere in the sovereign affairs of other states and
peoples, militarily if its leadership so decides. And this remains
equally true whether HRW is documenting Washington's "mistakes"
across various theaters of war or, as we show below, HRW is decrying
what it called Slobodan Milosevic's "coordinated and systematic"
campaigns to terrorize, kill, and expel ethnic non-Serbs from
the territories he sought to dominate. Can one imagine HRW
referring to George Bush's "coordinated and systematic"
campaign to organize a global torture gulag? Or calling a Serb,
an Iraqi, or a Sudanese action "unproductive" and a
"tool for recruiters against U.S. imperialism"?
Part 2: HRW as a Campaigner for the NATO
Wars in the Balkans
From the very beginning of the contests
over the fate of the Socialist Federal Republic of Yugoslavia
(SFRY), HRW challenged its territorial integrity and supported
the dismemberment of the unitary state, a militarized response
to the armed conflicts that ensued, and most vocally of all,
the meting out of "justice" to the wrongdoers. In a
commentary in the November 10, 1990 New York Times, Helsinki Watch
Executive Director Jeri Laber and Kenneth Anderson urged SFRY's
breakup and the provision of Western aid to any breakaway republics
that might "protect the rights of all their citizens."
These authors failed to give the slightest weight to the fact
that the declarations of independence within the breakaway republics
were contrary to both federal and republican constitutions, not
to mention international law-including the Helsinki Final Act.
Most important, Laber and Anderson were blind to the fact that
pressures for independence within the republics and provinces
expressed a surge of nationalism, rather than any concern for
the rights of "all their citizens." Writing about
the Republic of Bosnia and Herzegovina , Robert Hayden observed
that "the free elections that marked the end of Communism,
in November 1990,[were] essentially an ethnic census. Given the
chance to vote as Bosnians, the population of Bosnia and Herzegovina
chose instead to vote, overwhelmingly, as Muslims, Serbs, and
Croats." Obviously, this did not bode well for the rights
of minorities. In a letter responding to Laber and Anderson's
call for the dismemberment of the SFRY, Hayden pointed out that
"Those who would break up the country are strong nationalists,
not likely to treat minorities within their own borders well."
Instead, it was only the unified federal state of Yugoslavia that
provided protection for minorities-and very possibly would have
continued to do so, had it not been attacked, delegitimized, and
dissolved. "It seems truly bizarre," Hayden noted presciently,
"that 'human rights' activists so cavalierly advocate policies
that are likely to turn Yugoslavia into the Lebanon of Europe."
Hayden's warning was vindicated by history.
The kind of recommendations made by Laber and Anderson, and more
important but similar pressures from foreign states, most notably
Germany and the United States, proved immensely destructive of
human rights. However, although damaging to human rights, HRW's
policies were closely aligned with those of the U.S. government
and George Soros, both major drivers of the neoliberal restructuring
of Eastern Europe following the collapse of the Soviet bloc, with
Soros himself deeply interested in the Balkans, helping to found
and to fund media organizations in Kosovo and elsewhere that focus
on the Balkans, as well as a major contributor to HRW. Both
of these state and non-governmental actors steadily supported
the dismemberment of a semi-socialist Yugoslavia and its transformation
into mini-states that in turn would be Western clients and open
to foreign investment.
The formation of the ICTY, created and effectively controlled
by the United States and its allies, has played a vital role
in this process as well, and there has been a long tacit mutual
support and commonalty of policy and practice among these parties.
An important mechanism of dismantlement of Yugoslavia was to make
the Serbs the unique arch-villains and to forestall settlement
in the alleged interest of "justice." This demonization
was strictly politically based-the villainy was broadly based,
as many analysts and participants have noted, but the critics
of demonization could make no headway against the winds of power
and propaganda, to which HRW was a major contributor. It was Milosevic
and the Serb drive for a "Greater Serbia" that allegedly
explained all, even though Milosevic signed on to each and
every peace proposal advanced in the key years 1992-1995,
and even though the Clinton administration and Izetbegovic sabotaged
them all until Dayton, with the Clinton team eventually using
the 1999 Rambouillet Conference strictly as a means of clearing
the ground for war.
In December 1992, U.S. Deputy Secretary of State Lawrence Eagleburger
called for a "second Nuremberg" tribunal to bring justice
to the embroiled Yugoslavia, naming Milosevic, six other Serb
officials, and three Croats as its proper targets. "We know
that crimes against humanity have occurred," Eagleburger
said, "and we know when and where they occurred. We know,
moreover, which forces committed those crimes, and under whose
command they operated. And we know, finally, who the political
leaders are and to whom those military commanders were-and still
are-responsible." Within less than three months, the
Security Council adopted the first of its resolutions during 1993
that established an "international tribunalfor the prosecution
of persons responsible for serious violations of international
humanitarian law committed in the territory of the former Yugoslavia
Later that same year, HRW also called for the prosecution of no
fewer than 29 different individuals by name, ranging "from
the lowest prison guard to the former Yugoslav Minister of Defense
and the Chief of Staff of the Yugoslav National Army."
Of course, the Nuremberg tribunal had focused on the "supreme
international crime," but just as HRW has ruled out this
crime-of aggression-as part of its list of human rights crimes,
so did the founding Statute of the Tribunal, understandably
as that Statute was drafted by U.S. officials who wanted to be
free of any obstruction to their own cross-border attacks. The
point was to focus on the target Serbs and stave-off a negotiated
settlement in the alleged interests of "justice," until
a proper political result could be obtained.
Michael Scharf, a former State Department insider, acknowledged
that the ICTY was organized as "little more than a public
relations device," a "useful policy tool," that
could "fortify the international political will to employ
economic sanctions or use force." But this only acknowledges
what should be obvious from the ICTY's origins, structure and
performance: Namely, that the ICTY was an integral part of war-planning
and war-making operations, and that it is neither independent
nor designed to produce anything but a strictly politicized "justice"
for Yugoslavia. As Michael Mandel argues, the ICTY was used by
the U.S. policymakers "to justify their intention to go to
warby branding their proposed enemies as Nazis," and by
this means to "derail the peace process." HRW has
also been a part of this war-making apparatus; as we have seen,
its leaders have steadily called for "justice" and if
need be war to bring the villains-at least the Arch Villains-to
pay for their sins.
HRW regularly cites ICTY findings as unquestionable truth, and
it is proud to have helped the ICTY to collect data on Serb crimes,
publicize those crimes and the ICTY's good work-and "to influence
the U.S. government to condition financial aid for Yugoslavia
on cooperation with the tribunal." Of course HRW has
treated the ICTY as an arm of genuine justice, just as the ICTY
has depended on nongovernmental organizations such as HRW as well
as NATO officials for supposedly unbiased information. In a commentary
titled "Human Rights, American Wrongs," Kenneth Roth,
while assailing the U.S. rejection of the International Criminal
Court, stated that "Washington says it would never deploy
US troops where they would be subject to an international tribunal.
ButUS troops in Bosnia and Kosovo have been subject to the jurisdiction
of the Yugoslav war crimes tribunal. So were US bombers over Bosnia
in 1995 and Serbia and Kosovo in 1999. The crisis over the International
Criminal Court is a manufactured one." This is a clear
illustration of Roth's convenient self-deception, as he fails
to recognize that the ICTY was U.S.-controlled and that its failure
ever to indict any U.S. officials was a foregone conclusion.
Even Jamie Shea, NATO's chief of public relations during the 1999
war, admitted that "NATO countries are those that have provided
the finance to set up the Tribunal,are amongst the majority financiers.I
am certain that when Justice Arbour goes to Kosovo and looks at
the facts she will be indicting people of Yugoslav nationality
and I don't anticipate any others at this stage." But
nowhere was the truth of this point more dramatically evident
than in the ICTY's own performance, as when Chief Prosecutor Carla
Del Ponte refused to open an investigation of possible NATO war
crimes on the grounds that the 495 dead Serbs documented by the
ICTY's investigation were an insufficiently large number-"there
is simply no evidence of the necessary crime base for charges
of genocide or crimes against humanity," in the words of
the Prosecutor's Final Report. But under the ICTY's Statute,
the Prosecutor is obligated not only to investigate but to prepare
indictments where a prima facie case for crimes against humanity
exists. There is also the awkwardness that Milosevic's initial
indictment rested on a "crime base" of 344 dead Kosovo
Albanians, and of these, only 45 were reported to have died prior
to the start of NATO's war.
But even more remarkable, the indictment of Milosevic et al. for
Kosovo was hastily put together based on unverified information
supplied to the ICTY by the U.S. and U.K.; and it was issued two
months into NATO's war, just as NATO had begun stepping up its
bombing of Serb civilian facilities and was in need of a public
relations boost to offset what Amnesty International (but not
HRW) called war crimes. So in a tacit alliance with HRW as
well as the attacking (and ICTY-funding) countries, the ICTY actively
supported commission of both the "supreme international crime"
and its plain vanilla derivatives.
Michael Mandel shows that during 1998, just as NATO was building
up its forces in preparation for the 1999 military attack on Yugoslavia,
the ICTY greatly intensified its investigations and charges against
the Serbs. HRW did exactly the same: It had already written
to Louise Arbour by early March, 1998, urging the Office of the
Prosecutor to open an investigation into Serb-perpetrated atrocities,
and HRW was very quick to place monitors on the ground inside
Kosovo in early 1998, and to step up its accumulation of evidence
against Belgrade. It worked alongside the ICTY as a PR-arm of
NATO, helping to create the moral environment for NATO's commission
of the supreme international crime on March 24, 1999. It should
be noted that, despite a period of intense anti-Serb propaganda
that lasted some 12 to 15 months before the bombing war began,
NATO Secretary General George Robertson told the British House
of Commons that, "until Racakthe KLA were responsible for
more deaths in Kosovo than the Yugoslav authorities had been."
And it is now well established that during that period the KLA
was getting funds and training from the CIA. These were points
of no concern whatsoever to the ICTY and HRW.
In sum, HRW's performance in the Balkans has been perfectly geared
to serve the aims of U.S. policy, but as that policy was one of
keeping the pot of armed conflict boiling in order to dismantle
the SFRY and to weaken Serbia by putting an alleged pursuit of
"justice" ahead of settling a series of grave internal
conflicts, the effect of HRW policy has been extremely damaging
to human rights. The same was and remains true in the cases of
Iraq and Afghanistan. In each instance HRW has not challenged
the privileges enjoyed by the aggressor states in their regular
commission of the supreme international crime, thereby giving
its tacit approval to this most fundamental of human rights violations-and
in the case of the SFRY, actively urging aggression. By virtue
of biases which regularly underrate U.S. and allied human rights
violations and inflate those of their targets, HRW facilitates
the supreme international crime.
Part 3: HRW "Weighs the Evidence"
Weighing the Evidence: Lessons from the Slobodan Milosevic Trial
(hereafter, WTE) was drafted under the auspices of HRW's International
Justice Program (IJP). Principal author Sara Darehshori is a
Senior Counsel with the IJP. The document acknowledges the help
(among others) of ten current and former HRW staff members, including
the IJP's Director Richard Dicker. Gratitude is expressed toward
the ICTY prosecutor Dermot Groome "for reviewing the evidence
sections of the paper;" Groome's main responsibility at the
Milosevic trial was to make the charge of "genocide"
stick to the defendant. Thanks are also given to the Milosevic
trial's chief prosecutor Geoffrey Nice, who "was especially
generous with his time and insights and deserves special mention."
To Diana Dicklich, the Prosecution's case manager during the
Milosevic trial. And to Alexandra Milenov, a Registry Liaison
Officer for Serbia and Montenegro. Also, WTE acknowledges the
help of unidentified "members of the Office of the Prosecutor,
Chambers, Registry, Outreach, and Defense." Finally, it
mentions but does not identify by name the "assistance and
leads given us by several journalists who covered the trial closely
and provided us with insights from an observer's perspective."
The IJP's promotional literature tells us that its purpose is
"to promote justice and accountability for genocide, war
crimes, and crimes against humanity in countries where national
courts are unable or unwilling to do so." But whenever
we look at the IJP's work, no matter where we turn, we find the
former Yugoslavia occupying center stage. Of the 49 full-length
"Reports" to have been archived on the IJP's website
through December 2006, roughly one-third of them (16) deal with
the conflicts over the former Yugoslavia. Similarly, of the
481 documents that the IJP archives "by Region," 31
percent of them focus on "The Balkans" (i.e., on matters
related to the former Yugoslavia, including the performance of
the ICTY). In keeping with this focus, the single longest
document ever published by HRW (861 pages) was devoted to publicizing
the work of the ICTY; as its Preface tells us, it was "intended
as an accessible reference tool to assist practitioners and researchers
as they familiarize themselves with ICTY case law."
Indeed, HRW's longest-ever study of a particular theater of conflict
(623 pages) was devoted to the Serbian province of Kosovo. More
precisely, it stated that its aim was "to document the war
crimes committed by Serbian and Yugoslav government forces in
Kosovo between March 24 and June 12, 1999-the period of the NATO
bombing of Yugoslavia." No other theater or theme besides
the former Yugoslavia and the work of the ICTY weighs anywhere
near as heavily in the IJP's scales. It would not be unfair to
say that the former Yugoslavia has served HRW as a kind of real-world
laboratory against which to test certain conceptions of human
rights and international justice. WTE thus belongs to a lineage
that has been years in the making, and this report exhibits the
same overall pattern of advocacy and bias that has characterized
HRW's treatment of Balkans issues from 1990 onward.
Surely this extraordinary attention is not justified by the scale
of the atrocities. As we noted earlier, HRW avoided reporting
current estimates of war-related deaths in Bosnia, even though
it acknowledged their "downward revision"-the unacknowledged
numbers falling from 200,000 - 300,000 to 100,000 on all sides.
Although estimates of the deaths caused by the Indonesian invasion
and occupation of East Timor are commonly in the order of 200,000,
the IJP archives only one major report on East Timor, but 16 on
Yugoslavia. Clearly, this degree of contrast in levels of
attention cannot be correlated with the scale of atrocities under
investigation, and flies in the face of HRW's claim that its aim
is "redressing the more grievous human rights crimes."
The contrast can, however, be linked to U.S. foreign policy priorities.
Thus, Indonesia was immensely important to Washington, and the
U.S. supported its military attack on East Timor, with HRW favorite
Richard Holbrooke serving first as the Carter and later the Clinton
point man on East Timor, providing cover for Indonesia's genocidal
performance. But in the former Yugoslavia, Washington supported
Croatia and the Muslims of Bosnia, and assailed the Serbs; and
it can hardly be a coincidence that HRW was deeply interested
in atrocities committed by Serbs, with Holbrooke again serving
as the Democrats' point man, but this time by advocating hard-line
policies toward the alleged Serb aggressors. (Holbrooke has been
a guest speaker at multiple HRW events held in the United States
and abroad. His wife, Kati Marton, serves on the HRW Board
In another dramatic illustration of HRW's adaptation to the U.S.
foreign policy agenda, we may contrast HRW's treatment of Serb
conduct in Croatia, Bosnia, and Kosovo, on the one hand, to which
HRW gives priority, documents extensively, and denounces with
great indignation and generous use of the word "genocide,"
with HRW's treatment of the Croatian slaughter and ethnic cleansing
of Serbs during Operations Flash and Storm in 1995, on the other.
These operations were carried out by Croatian forces with the
active support of the Clinton administration. Flash itself was
a substantial ethnic cleansing of Serbs from Western Slavonia,
carried out in May 1995, in which at least 450 Serbs were killed
and an estimated 12,000 expelled. As described by Brendan
O'Shea, "This was conquest and a 'land grab'. This was precision
ethnic cleansing supported and condoned by the United States."
Operation Storm was a larger-scale action that involved the brutal
and carefully planned ethnic cleansing of the entire Serb civilian
population of Croatian Krajina, some 250,000 people. Carried out
within a month of the Srebrenica massacre in eastern Bosnia, Storm
may well have involved the killing of more Serb civilians than
Bosnian Muslim civilians killed in the Srebrenica area in July:
Most of the Bosnian Muslim victims were fighters, not civilians,
as the Bosnian Serbs bused the Srebrenica women and children to
safety; the Croatians made no such provision and several hundred
women and children were slaughtered in Krajina. The ruthlessness
of the Croats was impressive: "UN troops watched horrified
as Croat soldiers dragged the bodies of dead Serbs along the
road outside the UN compound and then pumped them full of rounds
from the AK-47s. They then crushed the bullet-ridden bodies under
the tracks of a tank."
HRW went to great pains to deny that Operation Flash involved
serious human rights violations, and its report on the subject
chastised the UN for rushing to a hasty negative judgment.
In this case, HRW called for great care in dealing with witness
evidence of human rights violations, a point that it never once
makes in WTE as regards the ICTY's eminently problematic acceptance
of witness evidence of Serb actions. It also singled out
for reprimand the UN official Yasushi Akashi for public statements
that HRW found "controversial" and unfairly critical
of the Croatian military campaign. "[W]e believe that criticism
of a government's human rights record should be commensurate with
the level of abuse," HRW countered; "exaggerated and
imprudent remarks can potentially be counterproductive and damaging
to respect for human rights." This report used the phrase
"ethnic cleansing" three times, but only in reference
to Serb actions, not Croat; and HRW never applies the word "genocide"
to Operation Flash or Storm, though it uses this word liberally
in remarks about Serb behavior. Keeping to the same line, a much
longer 1996 report on Operation Storm limited its use of the phrase
to "bureaucratic ethnic cleansing," and then only in
relation to laws enacted by Croatia to discourage the return of
Serbs driven out by its military campaign. "The Croatian
government hasargued that 'Operation Storm' did not constitute-nor
can it be compared to-the abuses associated with the policy of
'ethnic cleansing' of non-Serbs as practiced in Serbian-controlled
territories in Croatia and Bosnia since 1991 and 1992," this
report noted. "Unless the Croatian government reverses its
recent actions by allowing the safe return of Serbian civilians
to the Krajina areait will also have to answer to the charge of
'ethnic cleansing' that is often levied against Serbian forces."
As regards Serb actions, HRW never makes the use of the phrase
"ethnic cleansing" dependent on Serb failure to reverse
what has already been done.
Even more dramatic were the gross apologetics for Operation Storm
provided in August 1995 by Holly Cartner, then Executive Director
of Human Rights Watch/Helsinki. Cartner explained the vast
exodus of Serbs from Krajina as resulting from "intensive
military operations," Serbs "encouraged to go by their
own leaders," and Croatia's anti-Serb propaganda. She writes
that Serbs "were able to collect their belongingsand leave
in semi-orderly fashion." She never acknowledges the high-level
deliberate planning of this cleansing operation-it was just an
inexplicable "military operation"-nor does she mention
the active U.S. support for Operation Storm. She calls upon Croatian
President Tudjman to send trained people to care for the remaining
Serbs, to permit the return of those who fled, and to prosecute
soldiers guilty of war crimes. But she doesn't demand trials
for the Croat leaders in the interest of "justice"-these
leaders are apparently good folks who had made a little mistake
but can get their own house in order. "While all parties
to the wars in the former Yugoslavia have committed war crimes,"
Cartner asserted, "only one side-the rebel Serbian forces
in Bosnia and Croatia-has attempted to eliminate 'in whole or
in part' a people on the basis of their ethnicity." Pushing
out 250,000 Serbs while killing over a thousand of them in just
a few short days doesn't qualify as eliminating on the basis of
Shortly before, Peter Galbraith, U.S. Ambassador to Croatia, had
also denied that Operation Storm constituted a case of "ethnic
cleansing," telling a BBC radio interviewer that "Ethnic
cleansing is a practice sponsored by the leadership in Belgrade,
carried out by the Bosnian Serbs and also by the Croatian Serbs,"
not by Croatia-a position condemned throughout much of the world.
But though Storm was one of the clearest cases-and the largest-of
cleansing a geographic space of its people on the basis of their
ethnicity during the Balkan conflicts, neither the U.S. Government,
HRW, nor Holly Cartner could bring themselves to use such a term
to describe this Croatian action. The HRW double standard in word
usage as well as in the selection (and misuse) of evidence follows
closely the official agenda. Twice over the course of three months
in 1995, Croatia had militarily emptied Serb population centers,
and HRW principals attacked the critics of Croatia's offensives
for their insensitivity towards the perpetrators, truly a remarkable
chapter in the history of this human rights organization.
While WTE pretends to be fair-minded on the Milosevic trial, it
is not: It hews closely to the Prosecution's case against Milosevic,
takes for granted all the premises of the Prosecution and establishment
narrative, and selects and massages evidence on a regular basis
to support that narrative. Thus WTE takes it as a simple truism
that the ICTY is pursuing justice, and it never addresses ICTY's
political origins, purpose, integration into NATO plans and operations,
problematic rules and rule-making, staffing, and selectivity.
According to a celebrated maxim: "Justice must not only be
done, it must also be seen to be done." But both the ICTY
and WTE postulate Serb and Milosevic guilt; and WTE sees no contradiction
between presuming guilt and conducting a fair trial, much less
between the integration of the work of the ICTY and U.S.-NATO
policy, on the one side, and the likelihood or even the possibility
of its rendering justice, on the other. WTE does not find it
problematic that Richard May, the Presiding Judge until a fatal
illness forced his resignation in late February 2004, Geoffrey
Nice, the lead prosecutor, and four of the five amicus curiae
appointed by the court heralded from countries that participated
in the NATO war against Yugoslavia, or close allies. Similarly,
of the 25 judges now serving at the ICTY, 12 are from NATO members;
one is from South Korea, a close U.S. ally; three from Jamaica
and Guyana, countries having close relations with Great Britain;
three from Austria, Sweden and Switzerland, countries generally
supportive of NATO in the Balkans; two from Pakistan and Senegal,
which are Muslim countries. ICTY President Fausto Pocar is from
Italy, a NATO country; and Vice President Kevin Parker is from
Australia, a close U.S. ally. One proposed judge from Russia
was vetoed on the basis of a potential "pro-Serb bias"!
The ideas stressed in John Laughland's Travesty, that legal justice
requires a lawful base in an enabling statute, a separation between
prosecution and judges, a stable body of rules not changeable
by the judges in accord with passing convenience, an appeals
process outside the body of appointed judges themselves, qualified
judges, and independence from powerful interests with a political
agenda, are outside HRW's and WTE's orbit of thought. This
failure to question structured bias is remarkable for a body that
claims to support the rule of law-which HRW seems to regard as
something that an advanced civilization needs to impose upon backwards
peoples. But while HRW allegedly seeks the rule of law and "accountability"
in these backward areas, it is extremely cavalier about the lack
of rigor of the law, judicial practice, and accountability, in
an institution pursuing "justice" in accord with U.S.
and NATO priorities. As we have stressed, with HRW's principals
regularly violating the UN Charter prohibition of aggression,
that area of justice is set aside, and although it accepts the
urgency of the ICTY principle that one can hardly hope to "restore
the rule of law [etc.] if the culprits are allowed to go unpunished,"
HRW fails to see the necessity of applying this in the case of
those committing the "supreme international crime,"
such as Richard Holbrooke, Madeleine Albright, Bill Clinton and
The most important achievement of the Milosevic trial, WTE declares,
was that it "showed how Belgrade enabled the war to happen."
The "JNA, the Serbian Ministry of Interior and other entitiesarmed
Serb civilians and local territorial defense groups in Krajina
and Bosnia prior to the start of conflict." To support
this line, WTE cites NATO commander Wesley Clark: "We knew
that the Serb military had beencarved out of the Yugoslav military."
But the armed forces of Bosnia and Herzegovina, Croatia, and even
Macedonia were carved out of the JNA no less than were the Serb
forces. In a series of civil wars, each rival sought and acquired
arms, allies, and sponsors-some more successfully than others.
If the JNA helped to create the military formations of the Serbian
Krajina and Republika Srpska, it did likewise for the Bosnian
Muslim and Bosnian Croat armies, for Fikret Abdic's Muslim troops
in Bihac, and for countless paramilitary groupings. Unlike Berlin,
Vienna or Washington, however, (or Riyadh, Tehran, Islamabad or
Ankara,) Belgrade was not a foreign power. This point is lost
on WTE. As is the fact that if aid to the Croatian and Bosnian
Serbs "enabled the war to happen," so did aid to the
Croats and Muslims, with decisive consequences as the wars dragged
But the Milosevic trial shed little light on which rival inherited
what from the JNA, including its arms, organizational knowledge,
plant and infrastructure. The Prosecution showed no interest in
this line; nor does WTE. During cross-examination of Morton Torkildsen,
a financial "expert" whose testimony figures prominently
in WTE (the document cites Torkildsen's name 20 times), Milosevic
asked whether the analysis he produced had covered "not just
[the] weapons and equipment but entire military factories"
left behind in territories "under control of the Croats and
Muslims?" "No," was Torkildsen's reply. His mandate
went only as far as "evidence relative to the indictment
of the accused." But no further.
In any case, how the rivals acquired their weapons is secondary
to who took up arms first, and for what purposes. Also prominent
in WTE (mentioned 15 different times) is the testimony of the
former JNA General Aleksandar Vasiljevic. Prosecutor Nice asked
Vasiljevic about the JNA's "goals." "[T]he first
and basic objective wasfor the JNA to separate the parties in
conflict," Vasiljevic explained, referring to court documents.
"Later, the objectives were to protectthe JNA units which
were thenin facilities and barracks that were under blockade in
the territory of Croatia. And sometime from August or September
onwards, 1991the protection of endangered peoples is referred
to, the people in those areas that were attacked by either side,
any side. Specifically in that period of time that we're referring
to, that is to say September 1991, this had to do with the protection
of the Serb people in some areas." Nice then asked a follow-up
question: "Was there, in your opinion, any question of the
JNA forcing a political solution to the crisis?" Vasiljevic
replied: "Never. Not in any period of time. The JNA never
imposed a solution or ways of getting out of the crisis."
But these aspects of Torkildsen's and Vasiljevic's testimony
do not interest WTE, and none of it "enabled the war to happen."
Instead, the Serbs were most responsible for the wars in Yugoslavia.
The Serbs committed crimes far more horrendous than their rivals.
The Serbs, alone, were guilty of genocide.
WTE commits many errors, each invariably supportive of its biased
treatment of the issues. For example, following the ICTY and
party line narrative, WTE reports that the Serbs "expelled"
800,000 Kosovo Albanians by June 1999. But large numbers
fled from fear of NATO bombs and fighting, some were pushed out
by the KLA, and literal expulsions by the Yugoslav army were concentrated
in areas of strong KLA presence. What is more, the larger
fraction of Kosovo Serbs than Kosovo Albanians who fled during
that bombing war were hardly "expelled," although
some may have been pushed out by, or fled in fear of, the KLA.
In addition to offering an error-laden history, WTE stops short
in its descriptions of events when the story might appear to contradict
the benign version of NATO's and the ICTY's supposed campaign
for justice. Thus WTE writes that since the end of the bombing
war and the withdrawal of FRY and Serb forces from Kosovo on June
20, 1999, the "United Nations has administered Kosovo with
support from a NATO-led peacekeeping force, although it formally
remains part of Serbia." But that is all. No mention
of the fact that under UN and NATO auspices there were over a
thousand killings and disappearances, that over 150,000 Serbs
and tens of thousands of Roma were driven out of Kosovo in what
Jan Oberg has called the "largest ethnic cleansing [in proportionate
terms] in the Balkans," and that it is a state dominated
by fear and chronic low level terror and with a thriving drug
and sex trade, but with a huge U.S. military base planted in its
HRW's bias and blasé acceptance of abuses of a supposedly
judicial process were quickly made evident in their putting forward
the "Scorpion video" as a case in which an "important
item" of "evidence" came into view through the
work of the ICTY. This video, "which showed members
of the notorious 'Scorpion' unit, believed to have been acting
under the aegis of the Serbian police, executing men and boys
from Srebrenica at Trnovo. Although the video was never admitted
as evidence, it was shown at the trial and would not have become
public but for the trial. It had enormous impact."
Contrary to WTE, the statement that this group was "believed
to be operating under the aegis of the Serbian police" was
convincingly refuted during the Milosevic trial (see Appendix).
WTE's and HRW's contempt for the rule of law is also displayed
by WTE's failure to mention that the video was shown by the prosecutor
during Milosevic's defense, free of cross-examination, despite
its lack of authentication and the absence of any connection between
it and the knowledge and testimony of the witness on the stand.
As amicus curiae Steven Kay objected in court, it was "sensationalismnot
cross-examination," an unjudicial propaganda contribution
to the imminent 10th anniversary memorial to the Srebrenica massacre,
and clear evidence of the ICTY's political role.
But why was this evidence deemed "important" by WTE?
There has never been any doubt that Serb paramilitaries executed
"men and boys" during these years of fighting in Bosnia,
just as there is no question but that Croat and Bosnian Muslim
(and imported Mujahadeen) did the same. Naser Oric, the Bosnian
Muslim commander at Srebrenica until shortly before its fall to
Bosnian Serb forces in July 1995, proudly showed Western reporters
videos of beheaded Serbs that forces under his command had killed
during their operations. Back in May 1993, the Yugoslav government
submitted to the UN Secretary-General an extensive 132-page dossier
titled War Crimes and Crimes and Genocide in Eastern Bosnia...Committed
Against the Serb Population from April 1992 to April 1993, listing
by name and place hundreds of Serbs killed by Muslim and Mujahadeen
forces in that early period. More recently, the Tabeau-Bijak
report estimated some 16,000 Serb civilians killed in Bosnia during
the 1992-1995 wars. In civil wars people are killed, sometimes
using the most heinous methods. So a video record of the execution
of six young Bosnian Muslim males is only important for identifying
particular individuals as engaging in criminal acts or for propaganda
The Prosecution's evidence in the Milosevic trial consisted heavily
of witnesses who claimed killings and other abuses by Serb forces,
and WTE follows in the same well-worn path. As Laughland notes,
however, "Indictments [by the ICTY] are drawn up with little
or no reference to the fact that the acts in question were committed
in battle: one often has the surreal sensation one would have
reading a description of one man beating another man unconscious
which omitted to mention that the violence was being inflicted
in the course of a boxing match." At the opening of
his trial Milosevic devoted several hours to showing video evidence
of deaths and injuries to Serbs from NATO violence, and there
is every reason to believe that he could have called several hundred
witnesses, and presented a great deal more video evidence of crimes
against Serbs. That would have represented a different agenda
and political purpose than the trial in place, but only committed
partisans like the ICTY and HRW could believe that civil war atrocities
were unique to one side and that a video showing six executions
was "important" evidence.
In early August 2006, Serbian and Croatian television began playing
videotapes that allegedly depict scenes shot at various stages
of Operation Storm. One shows the "Croatian army's 'Black
Mamba' unit and the Bosnian military's 'Hamze' squad killing and
abusing Serb soldiers and civilians," Agence France Presse
reported. A second shows the Army of Bosnia and Herzegovina Fifth
Corps Commander Atif Dudakovic "ordering his troops to torch
Serb villages in northwestern Bosnia in September 1995. 'I'm
ordering the village to be torched.Torch everything without exception',
Atif Dudakovicshouted in the film that showed houses in flames."
A BBC report translated Dudakovic ordering: "[B]urn that
village.Burn, burn everything.Go on, burn everything in your wake!"
The State Department's information bureau acknowledged that "One
tape reportedly shows Croat and Bosnian troops harassing and attacking
convoys of Serb refugees, in one scene killing a Serb who has
surrendered. Another tape shows a prominent Bosnian general apparently
ordering his troops to burn Serb villages."
Bosnia-Herzegovina's Foreign Minister Mladen Ivanic (a Serb) called
for an investigation, and said authorities needed to show that
they would "treat all war crimes the same way."
But when asked during its weekly press briefing whether the Office
of the Prosecutor "was conducting an investigation"
into these matters, spokesman Anton Nikiforov "stated that
it was regrettable that the tape had surfaced now just as the
OTP had finished its investigative mandate."[l30] Through
early 2007, the ICTY had not indicted Dudakovic. Is it not interesting
how videotapes such as these, and Naser Oric's, are not "important"
to WTE or the ICTY, and allegedly come too late for action, just
as the long-awaited (and perhaps nonexistent) indictments of Tudjman
and Izetbegovic were never served during their lifetimes?
WTE suggests that the Milosevic trial has served a truth commission-like
function on behalf of the historical record, both in its having
assembled evidence, decisions, and transcripts of proceedings,
and for the news accounts of journalists who reported on what
transpired in the courtroom. The "Milosevic trial may be
one of the few venues in which a great deal of evidence was consolidated
about the conflicts," WTE affirms. As a result, it "should
help shape how current and future generations view the wars and
in particular Serbia's role in them." But this is history
according to the Office of the Prosecutor, whose lawyers and staff
can at least claim that their job was to win a conviction at trial.
Not so HRW or its IJP; and yet throughout WTE, the only history
that is recounted for future generations is one of countless criminal
acts perpetrated by ethnic Serbs. WTE shapes this version of
history by reference not to the work of historians, but to the
charges and the language adduced by ICTY indictments.
For WTE, the record is not weakened by the Serb-only focus and
political aims and structuring of the trial. Nor is it damaged
by the fact that the ICTY corrupted the record by allowing hearsay
evidence, anonymous testimony, closed sessions, the use of unauthenticated
evidence such as illegal interceptions of telephone conversations
or diaries that witnesses transcribe from memory; and frequently
refused to allow full cross-examination of prosecution witnesses.
When NATO's wartime General Wesley Clark testified, strict limits
were placed on the questions Milosevic could ask him, and the
ICTY permitted the transcript of his testimony to be redacted
by U.S. officials, contrary to the ICTY's own rules. When
Milosevic cross-examined William Walker, a career U.S. Foreign
Service Officer who as head of the Kosovo Verification Mission
during the pre-war period was suspected of working at cross-purposes
with it, and promoting a war-agenda, the court placed a three-hour
limit on Milosevic, and Judge May interrupted him "over 60
times," while never once interrupting the Prosecution.
In one remarkable instance, Milosevic asked Presiding Judge Richard
May, "are you prohibiting me from calling in question or
challenging the credibility of this witness?" And May replied:
"Yes, I am. Now, move on." When Milosevic was
questioning former U.S. Ambassador to Croatia Peter Galbraith
about his and U.S. co-responsibility for the ethnic cleansing
of Krajina Serbs during Operation Storm-a point well-established
in the historical record-Judge May declared that this was
"a preposterous question" and terminated the inquiry.
This trial was engaged in no truth-search under May's and the
WTE continues the HRW double standard of allowing NATO to do things
for which it condemns Serbia. As noted, the main thrust of WTE
is its attempt to summarize the ICTY's records that show that
Belgrade provided both the Bosnian and Croatian Krajina Serbs
with financial, material, and administrative support. But
the United States supplied weapons, training, logistic and diplomatic
support to the Bosnian Muslims and Croats; and it created a network
for the delivery of weapons and Mujahadeen to the Bosnian Muslims
from foreign states such as Iran and Saudi Arabia-all in
violation of a Security Council "embargo on all deliveries
of weapons and military equipment to Yugoslavia." These
U.S. actions which would seem to be the counterpart of those
engaged in by Serbia somehow fall out of the HRW-WTE orbit of
the condemned; only one side is guilty of supplying arms and
of keeping the war going. Thus, in an Orwellian process, the crime
of aggression, which both the ICTY and HRW purport to exempt from
their human-rights and war-crimes province, is allowed to come
to life when the Belgrade Serbs allegedly do it, and WTE is indignant
over this further example of Serb perfidy, although in this case
the "aggression" occurred within a disintegrating Yugoslav
state and, hence, was civil warfare. On the other hand, massive
U.S. support for the Bosnian Muslims and Croats is exempted from
the term here, just as the ICTY (and HRW) exempted from any condemnation
the 1999 U.S. and NATO attack on Yugoslavia, which was a pure
example of aggression across internationally recognized borders.
In portraying the Milosevic trial as "groundbreaking"
and a "watershed moment for justice," WTE states that
"With the establishment of the International Criminal Court,
no government official, on the basis of his or her position, is
beyond the law. The time when being a head of state meant immunity
from prosecution is past." This is untrue. Like the
ICTY Statute, the Rome Statute that created the ICC also exempts
the "supreme international crime" from its jurisdiction,
so U.S. invasions in violation of the UN Charter are beyond the
ICC's reach, and U.S. Government officials enjoy complete immunity
from prosecution for acts of aggression. Nowhere does WTE
mention that the United States refuses to join the ICC, and in
fact has formally notified the UN Secretary-General and ICC that
it "does not intend to become a party to the treaty,"
and therefore "has no legal obligations arising from its
signature on December 31, 2000." What is more, the
United States has exploited Article 98 to reach bilateral agreements
with over 100 different states, securing their pledges never to
surrender U.S. citizens to ICC custody, or to transfer U.S. citizens
to states that have not reached similar agreements with the U.S.
This behavior, and the different U.S. treatment of the ICTY, might
plausibly be seen as based on lesser U.S. power over the ICC as
compared with the U.S.-controlled and properly "politicized"
ICTY, points not in accord with WTE and HRW biases.
Trying to suggest an even handedness on the part of the ICTY,
after having had to concede that many Serbs were ethnically cleansed
from Croatia in 1995, and suffered from "violations of international
humanitarian law" in Bosnia as well, WTE notes that these
"are the subject of ICTY proceedings." WTE supports
this assertion with footnotes that refer to three additional ICTY
cases: Prosecutor v. Ante Gotovina et al. (Croatia), Prosecutor
v. Oric (Bosnia), and Prosecutor v. Naletilic and Martinovic (Bosnia).
What neither text nor footnotes point out, however, is that only
the Serbian head of state, Milosevic, was brought to trial, in
accord with the Serb-oriented priorities indicated by U.S. officials
from late 1992 onward, just prior to the creation of the ICTY
The massive trial of Milosevic, with 295 witnesses and 49,191
pages of testimony, failed to produce a single credible piece
of evidence that Milosevic had ordered any killings that might
fall under the category of war crimes. But the so-called Brioni
Transcript of talks that Croatian President Franjo Tudjman held
with his military and political leadership on July 31, 1995, show
Tudjman instructing his military leaders to "inflict such
a blow on the Serbs that they should virtually disappear."
What followed in Operation Storm in the next month was a massive
blow that made the Krajina Serbs "virtually disappear."
Imagine the windfall that a statement such as Tudjman's would
have provided Carla Del Ponte, Geoffrey Nice, Dermot Groome, and
HRW, had it been Milosevic instead who uttered a statement linking
him directly to criminal activity of this magnitude! But Tudjman
was a U.S. ally, and Operation Storm was approved and aided by
the United States and some of its corporate mercenaries.
As Chief Prosecutor Del Ponte explained in an address before Goldman
Sachs-London, "These crimes were committed in the course
of a military operation, undoubtedly legitimate as such, aimed
at re-taking the part of the Croatian territory which was occupied
by Serb forces." That its clear purpose and result was
a major ethnic cleansing is covered over by making it merely
a "military operation" that is "legitimate as such,"
while avoiding the critical language reserved for Serb military
Were the ICTY honest in its devotion to justice and accountability-and
not a political-public relations-"judicial" arm of NATO-then
not only Tudjman, but also Bill Clinton, Madeleine Albright, Richard
Holbrooke, and Peter Galbraith would have been indicted as "co-perpetrators"
of a "joint criminal enterprise," the clear purpose
of which was the forcible and permanent removal of the majority
of ethnic Serbs from large areas of Croatia. But given political
realities, Del Ponte finds Operation Storm "legitimate,"
and Tudjman would die in bed unindicted, while his co-perpetrators
never would be brought to trial either. In the judgment of the
ICTY as well as HRW, they were all too busy bringing "justice
and accountability" to the Balkans!
But don't the indictments of the Croatian General Ante Gotovina
and the notorious Bosnian Muslim fighter Naser Oric show that
the ICTY is even-handed? No, they do not. Gotovina's indictment
was not publicized until shortly after the kidnapping of Milosevic,
almost surely as a public-relations demonstration of the ICTY's
even-handedness. This was necessary, given the scale of Operation
Storm-ignoring it altogether would have been an admission of extreme
bias, perhaps too much even for the ICTY to manage. Not only
was Tudjman never indicted, in a kindly gesture Carla Del Ponte
informed Croat leaders of the still-sealed indictment of Gotovina,
giving other Croats time to wash their hands of Gotovina and Gotovina
a chance to flee-a gesture that is never extended to Serbs, where
very frequently the target of the secret indictment has been seized
in raids by NATO troops. Nevertheless, the Croats have been
very angry with the ICTY for "betraying" them in the
interest of apparent balance, especially in light of the fact
that the patron of the ICTY (the United States) was itself an
active participant in Operation Storm, and Gotovina's counsel
is sure to raise this close alliance if Gotovina is ever actually
In the case of Naser Oric, it took the ICTY a decade before it
got around to indicting him, although his murderous record
was clear and the videos he showed reporters of his beheaded Serb
victims had belonged to the public record, along with much other
evidence, for the entire period. Furthermore, the indictment charged
Oric only with abusing eight prisoners, although the evidence
of his command-role in hundreds of killings of civilians was solid
and long known. His term of imprisonment was modest, although
he was an active and direct killer who as General Philippe Morillon
said in his testimony to the ICTY, didn't take prisoners (i.e.,
he executed all captives).
The key legal concept used by the ICTY to deal with Milosevic's
alleged criminality over not only Kosovo but also-belatedly-Croatia
and Bosnia, is the "joint criminal enterprise" (JCE).
This concept does not appear in the ICTY Statute or in law tradition-it
was an original concoction to fit the needs of this trial. WTE
states that "A joint criminal enterprise is a doctrine of
liability whereby the accused is individually responsible if he
acts in concert with others pursuant to a common criminal purpose
with the same criminal intent." In the ICTY version,
the individual doesn't have to jointly plan with his fellow criminals,
and doesn't even have to know what they are doing, let alone control
their activities. The common purpose can be inferred from the
fact that they are all fighting a common enemy, and those doing
so are collectively guilty. The common "criminal purpose"
can even be imputed from this-in the Milosevic trial the alleged
quest for a "Greater Serbia," which can be inferred
from the efforts Milosevic made to help Serbs who were losing
the protection of a Yugoslav nation to join together in a lesser
entity. Thus, if Milosevic was despised by the Bosnian Serbs
for his willingness to accept a string of proposed agreements
that would have left them outside Serbia, and for even imposing
a boycott on them to induce them to sign one such agreement,
and the Croatian Serbs were furious at him for failing to help
them as they were ethnically cleansed under Operation Storm, still
he was occasionally supporting them, along with the Serbs in Kosovo.
Hence he was guilty of acting in concert with these other Serb
It is obvious that this wonderfully expansive concept makes soldiers
who are part of an army engaged in warfare potentially all guilty
of being members of a joint criminal enterprise, and they have
been found collectively guilty, but only when the Serbs do it.
Laughland points out that a strong supporter of the Tribunal,
William Schabas, "has ridiculed 'JCE' as standing for 'just
convict anybody.'" Thus, as we have pointed out, there
could be no clearer case of JCE than the commonly planned and
executed Operation Storm, as well as the JCE of NATO leaders in
attacking Yugoslavia in violation of the UN Charter. These are
a much better fit to the JCE concept than the case against Milosevic.
But in these cases NATO or NATO allies were doing the killing
or cleansing, so that in this Alice-in-Wonderland tribunal's quest
for justice, while the JCE doctrine is perfectly applicable to
these major cases in logic, it does not apply in practice. WTE
does not have a word of criticism of this doctrine. Nor does
it advance any reason of its own to accept it, other than the
fact that the Prosecution happened to make it, and the Appeals
Chambers ultimately accepted it.
WTE displays its bias further by alleging Milosevic's "frequent
courtroom grandstanding," a charge that the establishment
narrative has always used to help explain the length of the trial
as well as to denigrate the villain. Carla Del Ponte's periodic
wild public statements condemning the man still to be tried, or
her appearance before Goldman Sachs-London, begging for money
on the grounds that ICTY-style justice will help create a favorable
climate of investment, and her apologetics for Operation
Storm, are of course unmentioned. The repeated showing of
a BBC film The Death of Yugoslavia, "on which the prosecution
relied very heavily to make its case" (Laughland), is ignored,
and WTE fails to note the numerous times that Geoffrey Nice orated
at length without relevance to the charges-Laughland points out
that in his opening statement, Nice "had a highly emotive
and unverifiable story about a baby crying itself to death during
the Bosnian war, absurdly claiming that 'of course' Milosevic
knew about this." Nice was given a free hand, while
Milosevic was subjected to a stream of interruptions and arbitrary
cut-offs by an extremely hostile and impolite Judge May.
Most important, May allowed the prosecution to bring on a vast
number of witnesses and "experts" offering hearsay or
irrelevancies at great length. This resulted from the fact that
this was a highly political case, not one dealing with soldiers
committing war crimes (the main thrust of laws of war), with the
Milosevic indictment almost surely extended to Bosnia and Croatia
for fear that with Kosovo alone it would be difficult to answer
why NATO's war crimes in its bombing war did not constitute a
"joint criminal enterprise" as much as the Serb war
that followed the NATO attack. But the prosecution had not tied
Milosevic to the Bosnia/Croatia wars previously, and were grievously
unprepared in this political proceeding in which they found guilt
first-in fact, knew it back in 1992!-but then a decade later still
struggled to find the evidence. _
While it has often done valuable service, HRW has failed badly
in dealing with the disintegration of Yugoslavia. It supported
that dismantlement, its leaders arguing that this would help minorities.
They were wrong and thus their stance contributed to an escalation
of human rights abuses. Their claim that justice must be given
greater weight than peace-making fed into the interests of those
eager for war and had disastrous effects on all the "nations"
of the former Yugoslavia. Their claim that justice must come first
in order to deliver peace of mind to the victims and as essential
for peace and reconciliation, which follows the ICTY party line,
is untenable and hypocritical in the light of ICTY and HRW practice.
A focus on justice merges easily into vengeance and feeds antagonism
and hostility, particularly when carried out in a one-sided fashion.
The first Milosevic indictment listed 344 Kosovo Albanian victims,
so presumably their relatives needed "justice, " but
as noted earlier the ICTY found that 495 Serb victims of NATO
bombing did not provide a sufficient "crime base" for
any action, so how are the families of these victims to obtain
justice? Where is the justice for the victims of Operation Storm,
or the scores of thousands of Serbs and Roma ousted from the Kosovo
under NATO control? (Serbia has had to deal with more refugees
than any other area in the former Yugoslavia.)
If the Serbs feel-and we believe are fully justified in feeling-that
they have been victims of a Great Power assault based on geopolitical
considerations, and subjected to extreme and politicized discrimination
in the workings of the ICTY, the show trial of their leader will
hardly make them more peace-minded. That show trial was also a
"travesty" in terms of substance. If it was to educate
Serbs by instructing them about their leaders' guilt, it failed
abysmally, and not just because it was managed incompetently.
It failed because, at bottom, it was a political trial in which
the political case was not only unsustainable, but was shown to
be trying the lesser villains-the bigger ones being those guilty
of the "supreme international crime"-and it revealed
itself throughout to be a "rogue court" serving the
bigger villains, violating every legal principle, and moving inexorably
toward the pre-determined finding of guilt.
Sadly, HRW has played an important role in this travesty and has
therefore been an important contributor to human rights violations
in the former Yugoslavia. HRW helped stir up passions in the demonization
process from 1992 onward and actively and proudly contributed
to preparing the ground for NATO's "supreme international
crime" in March 1999. It has conveniently assumed "neutrality"
on matters of aggression, though WTE focuses on Serbia's cross-border
aid to the Bosnian and Krajina Serbs as something to be strongly
condemned-so it ceases to be neutral on aggression when the Serbs
can be targeted, although, with a droll application of the double
standard, U.S. and Croatian aid to their allies in Bosnia are
exempt from criticism. There are no holds barred in finding against
the bad guys, just as our side only makes regrettable mistakes.
This human rights group is even completely oblivious to the violation
of Slobodan Milosevic's human rights as a prisoner. Indicted
Croatians are exempted from being put on trial for ill health,
indicted Kosovo Albanians are released from Hague incarceration
to return to campaign for office in Kosovo, but Milosevic,
a very sick man, was not released to get medical attention in
Moscow even with Russian assurances of his return. His death
just 16 days after this rejection was regretted by Carla Del Ponte
because "It deprives the victims of the justice they need
and deserve"-but WTE and HRW have no word of criticism
for this improper treatment. They are on the team with Carla Del
Ponte and the Western establishment.
In the past, two of the present authors have compared the Milosevic
trial to the Moscow show trials of the late 1930s. Recalling
the Dewey Commission of Inquiry's conclusion that the Moscow trials
"served not juridical but political ends," we observed
that, among the parallels between these trials and the bodies
conducting them, one that stands out is their public-relations
function, and, more broadly, their drafting of a historical record
that serves the needs of the dominant political faction, even
if executed in juridical form. Here we add the observation that
Human Rights Watch's Weighing the Evidence concludes its summary
of the Prosecution's case against Milosevic in the same place
where it begins, with the affirmation that, going forward, "Trials
of high-level suspects will be important for the documentation
of events and the role and responsibility of various actors, irrespective
of any conclusion relating to the defendant's guilt or innocence."
If this is true, and if we allow the Milosevic trial and the
ICTY to become our models for "international justice,"
then both the historical record and human rights will suffer damaging
_Appendix: The "Scorpions" and the Serbian Police
Neither the execution videotape[A1] nor any of the other evidence
presented during the trial of Slobodan Milosevic substantiated
the prosecution's claim-now repeated by WTE-that the Scorpions
were "acting under the aegis of the Serbian police."[A2]
In fact, the most detailed evidence about the Scorpions to have
emerged at the trial occurred nearly two years earlier, during
the testimony of prosecution witness Milan Milanovic, a former
deputy defense minister of the Republika Srpska Krajina.
Milanovic is a witness on whose word HRW attaches great weight.[A3]
When asked by the Prosecution under whom the Scorpions served
(i.e., "were subordinated") during the period they were
active in the Bihac Pocket, Milanovic replied: "They were
subordinated to the command of the army of the Republic of Serbian
Krajina."[A4] Asked for a second time under whom the Scorpions
were subordinated when they subsequently went to Trnovo in eastern
Bosnia, Milanovic replied: "To the MUP of the Republika Srpska."[A5]
Later, during Milanovic's cross-examination by Slobodan Milosevic,
the following exchange took place:[A6]
Milosevic: Did you engage them [the Scorpions] in your area?
_Milanovic: I proposed to the director of the oil company that
they secure the oil fields that were on the separation lines.I
proposed Slobodan Medic as the person who should be in charge
of that security, and then they were under the director of the
Milosevic: So this was a security unit for the oil company, the
head of which you yourself proposed?
Milosevic: But you also sent them to Bosnia and Herzegovina, didn't
Milanovic: I didn't send them. The command of the corps sent them
to accomplish various assignments, and most of those units that
went outside the area I would visit very frequently.
Milosevic: Very well. So the government sent them.
Milanovic: Yes, the government and the army command.
So the Scorpions were recruited by the government of the Republika
Srpska Krajina to protect the oil fields. Milanovic, a prosecution
witness with no love for the government of Serbia, made no claim
about the Scorpions serving under the command of (or having been
"subordinated" to) the Serbian MUP. It was the Srpska
Krajina government that sent the Scorpions into Bosnia.
Shortly thereafter, Milanovic explained that in 1999, while NATO
was bombing Serbia, the Scorpions wanted to go to Kosovo. According
to Milanovic's testimony:[A7]
[A]fter the NATO attack on the Federal Republic, seven, eight,
or ten days after that he [Slobodan Medic] called me up and told
me that he'd rather not go as a reservist to the army of Yugoslavia
but as a member of MUP. At the same timeI was called up by General
Djordjevic, the head of the public security, saying that he needed
volunteers. So I didn't know what to do for three or four days,
whether to send him or not, because everything was being monitored.
I didn't know whether I should get in touch with the two of them,
and three or four days later I did establish-link the two of them
up, and two or three days later he went to Kosovo.
Milosevic then asked Milanovic: "Was he returned from there
following General Djordjevic's orders? He demanded that he return?"
And Milanovic replied: "Yes. He was returned, but he went
back and stayed until the end of the bombing raids."[A8]
Again, we emphasize that Milanovic never made any claim about
the Republic of Serbia's MUP. Were the Scorpions already a unit
of the Serbian MUP, it would have made no sense for the Scorpions
to ask Milanovic to arrange for them to be sent to Kosovo as members
of the Republic of Serbia's MUP.
Edward S. Herman page