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, 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."[1] 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,"[2] 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.[3] 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,[4] its funding,[5] 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 Journal editors.[6]

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."[7] 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."[8] 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."[9] 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.[10] 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."[11] 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,"[12] 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.[13]

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."[14] 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.[15] 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."[16] Subsequently, Garlasco admitted to not having read the report when he offered his initial assessment about it to the press.[17] 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.[18] 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; [19] 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."[20]

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."[21] 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.[22] 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.[23] 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,[24] 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.[25]

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.[26] 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,[27] this HRW bias places the protection of U.S. and NATO methods of warfare ahead of human rights.

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.[28]
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."[29] 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."[30] In fact, the RDC has found documentable totals of war-related deaths on all sides to be in the area of 100,000.[31] 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" in Bosnia).

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."[32] 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.[33] 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.[34]

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.[35] 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.[36] 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."[37] 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."[38] 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."[39] 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.[40]
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,[41] 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,"[42] 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,"[43] 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.[44] 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.[45] 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."[46] 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.[47]
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."[48] 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."[49]

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.[50] 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.[51]

The formation of the ICTY, created and effectively controlled by the United States and its allies,[52] 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."[53] This demonization was strictly politically based-the villainy was broadly based, as many analysts and participants have noted,[54] 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,[55] even though Milosevic signed on to each and every peace proposal advanced in the key years 1992-1995,[56] and even though the Clinton administration and Izetbegovic sabotaged them all until Dayton,[57] with the Clinton team eventually using the 1999 Rambouillet Conference strictly as a means of clearing the ground for war.[58]

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."[59] 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 since 1991."[60]

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."[61] 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,[62] 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."[63] 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."[64] 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."[65] 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."[66] 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."[67] 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.[68] 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.[69] 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.[70]

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.[71] 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.[72] 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,[73] 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."[74] And it is now well established that during that period the KLA was getting funds and training from the CIA.[75] 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.[76] 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."[77]

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."[78] 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.[79] 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).[80] 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."[81] 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."[82] 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.[83]

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.[84] Although estimates of the deaths caused by the Indonesian invasion and occupation of East Timor are commonly in the order of 200,000,[85] the IJP archives only one major report on East Timor, but 16 on Yugoslavia.[86] 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."[87] 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.[88] 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.[89] His wife, Kati Marton, serves on the HRW Board of Directors.[90])

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.[91] 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."[92]

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.[93] 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."[94]

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.[95] 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.[96] 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."[97] 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.[98] "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."[99] 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.[100] 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 ethnicity!

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.[101] 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.[102] 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.[103] One proposed judge from Russia was vetoed on the basis of a potential "pro-Serb bias"! [104]

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,[105] 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.[106] 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,"[107] 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 George Bush.

The most important achievement of the Milosevic trial, WTE declares, was that it "showed how Belgrade enabled the war to happen."[108] 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."[109] To support this line, WTE cites NATO commander Wesley Clark: "We knew that the Serb military had beencarved out of the Yugoslav military."[110]

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 on.

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.[111]

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."[112] 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.[113] 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.[114] What is more, the larger fraction of Kosovo Serbs than Kosovo Albanians who fled during that bombing war were hardly "expelled,"[115] 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."[116] 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,"[117] 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 center.

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.[118] 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."[119] 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,"[120] an unjudicial propaganda contribution to the imminent 10th anniversary memorial to the Srebrenica massacre, and clear evidence of the ICTY's political role.[121]

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.[122] 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.[123] More recently, the Tabeau-Bijak report estimated some 16,000 Serb civilians killed in Bosnia during the 1992-1995 wars.[124] 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 service.

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."[125] At the opening of his trial Milosevic devoted several hours to showing video evidence of deaths and injuries to Serbs from NATO violence,[126] 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!"[127] 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."[128]

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."[129] 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?[131]

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."[132] 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.[133]

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.[134] 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.[135] 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.[136] 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."[137] 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[138]-Judge May declared that this was "a preposterous question" and terminated the inquiry.[139] This trial was engaged in no truth-search under May's and the ICTY's auspices.

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.[140] 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[141]-all in violation of a Security Council "embargo on all deliveries of weapons and military equipment to Yugoslavia."[142] 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."[143] 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.[144] 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."[145] 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.[146] 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).[147] 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 in 1993.

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."[148] What followed in Operation Storm in the next month was a massive blow that made the Krajina Serbs "virtually disappear."[149] 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.[150] 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."[151] 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 operations.

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.[152] 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.[153] 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 tried.

In the case of Naser Oric, it took the ICTY a decade before it got around to indicting him,[154] 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).[155]

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."[156] 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,[157] 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 leaders.

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.[158] Laughland points out that a strong supporter of the Tribunal, William Schabas, "has ridiculed 'JCE' as standing for 'just convict anybody.'"[159] 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,[160] and the Appeals Chambers ultimately accepted it.[161]

WTE displays its bias further by alleging Milosevic's "frequent courtroom grandstanding,"[162] 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,[163] and her apologetics for Operation Storm, are of course unmentioned.[164] 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."[165] 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.[166] 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. _

Concluding Note

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,[167] indicted Kosovo Albanians are released from Hague incarceration to return to campaign for office in Kosovo,[168] but Milosevic, a very sick man, was not released to get medical attention in Moscow even with Russian assurances of his return.[169] 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"[170]-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.[171] 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."[172] 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 blows.
_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 oil company.

Milosevic: So this was a security unit for the oil company, the head of which you yourself proposed?

Milanovic: Correct.

Milosevic: But you also sent them to Bosnia and Herzegovina, didn't you?

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.

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