In my last post, I pointed to the claim by Henry Jackson Society Associate Director Douglas Murray, that ‘London has become a foreign country’ because ’in 23 of London’s 33 boroughs “white Britons” are now in a minority’, and that by remaining silent about mass immigration, ‘white Britons’ are ‘abolishing themselves’ and undergoing the ‘loss of their country’. I also pointed to the claims by HJS Executive Director Alan Mendoza, linking ‘anti-Israel feelings’ in Europe to the fact that the ‘European Muslim population has doubled in the past 30 years’, that ‘Muslims in Europe will likely speak out against Israel whenever any Middle Eastern news breaks’ and that ‘their voices are heard well above the average Europeans’ [sic]. I argued that it was not appropriate for the small number of Labour MPs on the HJS’s Advisory Council to go on supporting the HJS, given such views on the part of its leadership.

My post appears to have sufficiently rattled the HJS leadership to prompt a series of online attacks on me by Mendoza and one of his HJS subordinates, Raheem Kassam. They made no attempt to explain or justify the disgusting statements in question, but are apparently sufficiently embarrassed by what I am publicising of their nature that they are seeking to discredit me as a witness. I was a senior staff member of the HJS – from the days when it still had some claim to being a bi-partisan, centrist political organisation – and this is something Mendoza is trying to deny. He now claims ‘At no time since HJS’s establishment of corporate form [sic] in April 2006 was Hoare a staff member’.

Unfortunately for Mendoza, although he has done his best to erase all online traces of what the HJS once was and of whom its original senior members were, the internet has not allowed him to get away with it. Here is a link to the HJS’s website from around March 2008, in which I appear two places from the top of the HJS’s staff list: HJSStaff9Mar08 (a screenshot appears at the end of this post). Indeed, his comments in the discussion at the thread beneath my article at Left Foot Forward are well worth reading for the comical nature of his attempts to deny this evidence.

Mendoza also claims that my involvement in the decision-making process in the HJS in my last years there was ‘precisely zero’, and that I rarely visited the London office. This is true: as I explained in my original post exposing him and his record, he ended the practice of holding meetings of the founding members, excluded them from any opportunity to participate in the decision-making process, and effectively abolished democracy within the organisation, turning it into his personal fiefdom and cash cow.

Finally, Mendoza claims that I am ‘frustrated’ because the HJS website had been the ‘sole outlet’ for my work – even though I am a published author with a rather more extensive record of online and paper publication than Mendoza himself. Though I do not pretend I was happy when Mendoza’s efforts to cut off his new HJS from its past involved a ‘reorganisation’ of the website that erased seven years’ worth of my articles – articles that he and the HJS had used to build its reputation, such as it is, as a ‘think tank’.

But all these personal attacks on me do not make the HJS and its current political views – on race and immigration, Islam, Europe, Israel and Palestine – any less ugly. The funniest part of Mendoza’s response to me was this bit: ‘Is HJS a pro-Israel organisation? Yes, HJS is certainly pro-Israel, just as it is pro-UK, pro-USA, pro-Canada, pro-India, pro-Australia, pro-Japan, pro-Taiwan, pro-Brazil, pro-Chile, pro-Uruguay, pro-Ghana, pro-South Africa, pro-Mongolia, pro-South Korea. We think you get the picture.’ Does a single person exist who would buy the line that the HJS’s view of Israel is the same as its view of Mongolia ?!

However, I have never accused the HJS of being ‘pro-Israel’, just as I have never accused Hamas of being ‘pro-Palestine’. The HJS treats the Palestinians as unworthy victims who deserve only colonial subjugation, and the Israelis as cannon-fodder for its own warmongering agenda. Anyone who really does want to destroy Israel would do well to donate money to the HJS, as it seeks to fight Iran and the Arabs to the death of the last Israeli.

Just as the Soviet invasion of Hungary in 1956 was a final wake-up call to anyone who harboured any illusions in the ‘progressive’ character of the Communist movement, so Murray’s and Mendoza’s views on race, religion and immigration should serve as final proof of the complete degeneration and moral bankruptcy of the tiny neoconservative faction in British politics, for anyone who may once have harboured illusions in it.

PS Despite his spurious claim to have a ‘well-established track record of support for the Bosnian Muslim population’, Mendoza was removed a year ago from the International Expert Team of the Institute for the Research of Genocide Canada, which fights genocide denial over Bosnia, Srebrenica and the Holocaust. The IRGC’s director, Professor Emir Ramic, and its Governing Board were rather quicker than I was myself in correctly understanding him and taking appropriate action.

PPSS Contrary to what Raheem Kassam is claiming, I am not his ‘old acquaintance’; I have never met him, and only learned of his existence a few months ago. I have never submitted anything to The Commentator; as far as I know, it has republished just one of my articles – without asking my permission.

The right-wing pundit Douglas Murray recently wrote:

‘To study the results of the latest census is to stare at one unalterable conclusion: mass immigration has altered our country completely. It has become a radically different place, and London has become a foreign country. In 23 of London’s 33 boroughs ‘white Britons’ are now in a minority…

We long ago reached the point where the only thing white Britons can do is to remain silent about the change in their country. Ignored for a generation, they are expected to get on, silently but happily, with abolishing themselves, accepting the knocks and respecting the loss of their country. “Get over it. It’s nothing new. You’re terrible. You’re nothing”.

For what it is worth, it seems to me that the vindictiveness with which the concerns of white British people, and the white working and middle class in particular, have been met by politicians and pundits alike is a phenomenon in need of serious and swift attention.’

Such words, one might expect, should place their author beyond the pale of respectable political opinion, in the sole company of UKIP and the rest of the fringe anti-immigration right.

Continue reading at Left Foot Forward

In an opinion piece in the Guardian entitled ‘We eurozoners must create a United States of Europe’, the Cambridge historian Brendan Simms calls for ‘the immediate creation of an Anglo-American style fiscal and military union of the eurozone’ as a means of resolving the eurozone crisis. This should, Simms argues, involve ‘the creation of a European parliament with legislative powers; a one-off federalising of all state debt through the issue of union bonds to be backed by the entire tax revenue of the common currency zone (with a debt ceiling for member states thereafter); the supervised dissolution of insolvent private-sector financial institutions; and a single European army, with a monopoly on external force projection.’ Such a union should be modelled on the successful examples of the Anglo-Scottish union of 1707 and the United States of America: ‘The British and the American unions made history. If we eurozoners do not act quickly and create a single state on Anglo-American lines, we will be history too – but not in the way we had hoped’ (‘we’, because the author is Irish, as well as German on his mother’s side).

In a follow-up piece in the Evening Standard, subtitled ‘Only Germany can be trusted to restructure the failed eurozone into a democratic single European state’, Simms argues:

‘Last week, one British journalist described Frau Merkel as a potential European Abraham Lincoln. What we require, however, is not somebody to defend the current union — which is broken beyond repair — but to create a new one. The better analogy is with the 19th-century Prussian Chancellor Otto von Bismarck, who created the Second German Empire out of the ruins of the old and ineffective German Confederation. Today, the eurozone needs a democratic Bismarck, probably though not necessarily from Germany.’

This is a particularly interesting proposal, given that Brendan is the founder and titular president of the Henry Jackson Society (HJS), of which he is also a trustee. He founded the HJS as a centrist, pro-European political force, but it has since lurched in a right-wing and Europhobic direction, and its leading figures actively despise the pro-European principles espoused by those such as their own nominal president.

The HJS’s Associate Director, Douglas Murray, appointed in April 2011, is on record as having stated that ‘the EU is a monstrosity – no good can come of it… The best thing could just simply be for it to be razed to the ground and don’t start again [sic]‘).

Prominent HJS supporter William Shawcross, who was appointed as a trustee of the organisation in October 2011 and resigned a year later to avoid a conflict of interest, is on record as claiming that ‘New Labour has forced Britain to become a mere piece of the bland but increasingly oppressive Bambiland of the E.U., promoting such PC global issues as gay rights (except in Muslim lands) and man-made climate change.’ Furthermore, ‘The Lib-Dems are in many ways even more dangerously authoritarian than Labour. Clegg is an extreme Europhile. They want the Euro and total control by Brussels, amnesty for hundreds of thousands of illegal immigrants, disarmament, and attacks on wealth-creating businesses like Marks and Spencer.’

The HJS’s Executive Director Alan Mendoza – the real owner and controller of the HJS – attacked the EU at the conference of the American Israel Public Affairs Committee (AIPAC) in March of this year, accusing it of being hostile to Israel. As reported by the Washington Jewish Week‘s Suzanne Pollak, he blamed this on the EU’s supranational character and on its rising immigrant and Muslim population:

‘European countries should be electing economic experts, but instead they are “responding by moving toward extremism. Europe has lost its sense of greatness. They have lost faith in their abilities” to deal with their specific problems, he said. Immigration is also a reason for rising anti-Israel feelings. In 1998, 3.2 percent of Spain was foreign-born. In 2007, that percent had jumped to 13.4 percent, Mendoza said. In cities such as London, Paris and Copenhagen, 10 percent of residents are Muslim. “The European Muslim population has doubled in the past 30 years and is predicted to double again by 2040,” he said.

For all the benefits that immigration has brought, it has been difficult for European countries to absorb immigrants into their society given their failure to integrate newcomers. Regardless of their political views, Muslims in Europe will likely speak out against Israel whenever any Middle Eastern news breaks, just as they will against India in the Kashmir dispute. Their voices are heard well above the average Europeans, who tend not to speak out Mendoza said, adding that the Muslim immigrants do this with full knowledge that they would not be allowed to speak out like that in many Middle Eastern countries.

Yet another reason Israel is demonized is that it is a nationalist state, but Europe turned against that concept following World War II. “They are supernational, and Israel is just national,” he said.’

Thus, in the view of the people at the head of the HJS, the EU is a ‘monstrosity’; an ‘oppressive Bambiland’ containing too many Muslims and immigrants, whose ‘supernational’ character leads it to despise ‘nationalist’ states such as Israel, and that ought to be ‘razed to the ground’.

How is it possible for such an extremely anti-European outfit to retain, as its titular president, a visionary supporter of deep European integration; of a ‘United States of Europe’, no less ? After all, James Rogers, who along with Simms was the other leading creator of the HJS, was repudiated by the organisation because he published a letter in The Times calling for Britain’s signature of the EU constitution treaty, and signing it with his HJS affiliation. Part of the answer is that Simm’s articles, unlike those of other HJS staff members, simply do not appear on the HJS website. This is the case not only for articles arguing a position which for the HJS is anathema – such as greater European integration – but also for those with which it agrees, such as the need for intervention in Syria. Despite being an incomparably more serious intellectual figure than the other HJS staff members, as well as the organisation’s principal founder, his name does not even appear on its list of authors. Conversely, Simm’s articles do not mention his HJS affiliation.

The ‘Project for Democratic Union‘, which Simms established to promote his ideas about Europe, has a name that recalls the HJS’s ‘Project for Democratic Geopolitics’, but is otherwise entirely separate from – and unendorsed by – the HJS. The two organisations did jointly host a talk by Simms on the project of a ‘United States of Europe’, at which he apparently argued that ‘the Democratic Union should then work closely with the other great democracies, especially Great Britain and the United States… while British support for such a project is highly desirable, her involvement in the new state would be incompatible with national sovereignty, and in any case unnecessary. What is now required is not a European Britain but a British Europe.’ Arguing for deeper eurozone – as opposed to EU – integration may be a way of reconciling the HJS’s Europhobia with Simms’s Europhilia. Yet an alliance of convenience between hard-line British Eurosceptics on the one hand, and non-British Euro-federalist supporters of deeper integration for a geographically narrower Europe without Britain on the other, may not ultimately prove fruitful.

Brendan, in fact, supports a much deeper model of European integration than the HJS ever previously did, even at the time of its pro-European inception, when it favoured a broader, looser EU expanded to include Turkey and former-Soviet states such as Ukraine and Georgia. His new vision is not one that I share. The successes of the Anglo-Scottish and American unions were built upon radical measures that cannot feasibly be translated to the eurozone context: in the case of the first, the abolition of Scotland’s separate statehood and parliament; in the case of the second, the actual military conquest and crushing of the South by the North in a brutal civil war. As for the precedent of Bismarck and the German Second Reich – it should not need pointing out that their legacy has not been entirely positive. ‘Democratic Bismarck’ is an oxymoron, of course.

I feel relieved that Britain has avoided joining the euro, with the concomitant erosion of national sovereignty and democracy that this would have involved; a loss that Greece, Cyprus, Portugal and other South European states in particular are feeling. Yet the establishment of a United States of Europe incorporating only the eurozone and excluding the rest of the EU would consign Britain and other non-eurozone members to the geopolitical backwater of a second-tier Europe. Britain has traditionally sought to prevent the domination of Europe by any foreign power, and it is unclear why abandoning this policy now should be in our interest. While there may be Brits who love European unity so much that they are willing to sacrifice the national sovereignty of the Portuguese, Spanish, Italians, Greeks and others in order to save it, I cannot help but feel that the double standard will not pass unnoticed among these nations, and that they will be rightly reluctant to make a sacrifice that Britain, equally rightly, does not want to make itself. Finally, if Mendoza’s reasoning is correct, then the United States of Europe, as a ‘supernational’ state, will presumably be extremely anti-Israel, and may even criticise a West Bank settlement or two.

Nevertheless, Brendan is right that eurozoners, and leaders and citizens of the EU generally, have to think as Europeans, not as narrow nationalists, and take radical measures to rescue European unity. Absorption in a federal European super-state would not be in the national interest of Britain (or of any EU member), yet it is the anti-European separatists who pose a greater threat to Britain’s national interest, as they threaten to consign us to the status of an isolated, inward-looking geopolitical irrelevance – a UN Security Council permanent member aping Norway or Switzerland.

What a pity that the HJS, a think-tank established in part to promote a powerful Britain at the heart of a vibrant, expanding European Union, has been hijacked by those working for the opposite goal.

Update: Since this post was published, HJS Associate Director Douglas Murray has published, in The Wall Street Journal, what can only be interpreted as an outright rebuke of Simms: ‘For as Brussels and its foxes throughout Europe kept crashing the continent into walls, they also kept pretending that their way of ordering things—an undemocratic, increasingly expensive United States of Europe—was the only reasonable option.’ The article, which carries Murray’s HJS affiliation, lauds the UK Independence Party (UKIP), which favours Britain’s secession from the EU.

When I was growing up in the 1980s, Margaret Thatcher was the incarnation of evil. I came from a left-wing family and was an activist from an early age, joining the Labour Party Young Socialists at fifteen or sixteen. I was active in support of striking teachers and ambulance workers and against the poll-tax; I attended the great London demonstration against the poll-tax of 31 March 1990. In those days, political rights and wrongs were very simple: right-wing was bad and left-wing was good. Thatcher, along with the US’s Ronald Reagan, was the number one left-wing hate-figure; most demos involved the ritual chant of ‘Maggie ! Maggie ! Maggie ! Out ! Out ! Out !’ Her fall in November 1990 was a time of joy.

My two-dimensional political world began to collapse in 1991, when Serbia’s fascistic dictator Slobodan Milosevic launched full-scale war in the former Yugoslavia, from where my own mother came. The crimes of Milosevic’s forces, culminating in the genocide in Bosnia, made the real or supposed crimes of Thatcher and the Tories – the sinking of the Belgrano, the crushing of the miners, the poll tax, etc.  – pale in comparison.

Continue reading at Left Foot Forward

Lucy Meadows, a transsexual woman formerly called Nathan Upton, is believed to havecommitted suicide earlier this month, following a media witch-hunt. In December, Daily Mail columnist Richard Littlejohn published an attack on her that aimed to hound her out of her job as a primary school teacher. He claimed that having a woman teacher they had formerly known as a man would have a ‘devastating effect’ on Meadows’s pupils; apparently, she was trying to ‘project his personal problems on to impressionable young children’, while Meadows’s school, which supported her, was seeking to ‘elevate its “commitment to diversity and equality” above its duty of care to its pupils and their parents.’ Littlejohn concluded that if Meadows ‘cares so little for the sensibilities of the children he is paid to teach, he’s not only trapped in the wrong body, he’s in the wrong job’. The ensuing media frenzy involved personal pictures of Meadows being published in the national press, and paparazzi camping outside her home, forcing her to leave for work early and return late to avoid them. She complained to the Press Complaints Commission about the Littlejohn piece, but ultimately found the harassment unbearable.

Continue reading at Left Foot Forward

The International Criminal Tribunal for the former Yugoslavia has acquitted on appeal Momcilo Perisic, former Chief of Staff of the Army of Yugoslavia (VJ), who had previously been sentenced to 27 years in prison for war-crimes in Croatia and Bosnia-Hercegovina. He was one of only six officials from Serbia-Montenegro ever indicted by the ICTY for war-crimes in Bosnia. He was the only member of the high command of the Yugoslav People’s Army (JNA) or VJ ever indicted for war-crimes in Croatia or Bosnia, and the only former JNA officer from Serbia or Montenegro of any rank ever indicted over Bosnia. His acquittal means that, to date, no official or army officer of Serbia-Montenegro and no member of the JNA or VJ high command has been convicted by the ICTY for war-crimes in Bosnia. By any standards, this represents a monumental failure on the part of the Tribunal. Precisely what kind of failure, and whether it is a failure of the Prosecution or the judges or both, is open to debate.

Perisic’s acquittal follows the ICTY’s recent acquittals of Croatia’s Ante Gotovina and Mladen Markac, and of Kosovo’s Ramush Haradinaj. Those previous acquittals had provoked a veritable paroxysm of fury from Serbia’s politicians such as President Tomislav Nikolic, Prime Minister Ivica Dacic and UN General Assembly president Vuk Jeremic, who condemned them as proving that the ICTY was an anti-Serb and/or a political court. Commentators in the West widely agreed; an ill-informed rant by David Harland, former head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, upholding all the old Serb-nationalist stereotypes of the ICTY’s and West’s supposed anti-Serb bias, was published in the New York Times and received wide publicity even from reputable sources. People who had apparently been fairly satisfied with the ICTY’s not entirely glorious performance over the past two decades now emerged from the woodwork to denounce it in bitter terms.

The acquittal of such a high-ranking Serbian official, following the acquittal of two high-ranking Croats and one high-ranking Kosovo Albanian, provides further proof – if any were needed – that the ICTY is not ‘anti-Serb’. Perisic is, in fact, neither the first nor the most high-ranking senior Serbian official to be acquitted by the Tribunal; former Serbian President Milan Milutinovic was acquitted back in 2009 of war crimes against Kosovo Albanians.

Consequently, the Serbian government has now made a rapid U-turn in its view of the Tribunal. Prime Minister Dacic (also leader of the Socialist Party of Serbia founded by Slobodan Milosevic) had responded to the Gotovina and Markac acquittals by stating ‘This confirms the claims of those who say that the Hague Tribunal is not a court and that it completes political tasks that were set in advance’. Yet his reaction to the Perisic acquittal is that it ‘negates accusations about the alleged aggression of the Army of Yugoslavia against Bosnia and Croatia’. The latter conclusion is echoed by the Sense News Agency, which provides detailed overage of the activities of the ICTY and which claims that ‘Momcilo Perisic was the only senior official from Serbia and FR Yugoslavia convicted by the Tribunal and sentenced for crimes in Bosnia and Herzegovina. Slobodan Milosevic was charged with the same crimes, and the judgment can be considered as Milosevic’s posthumous acquittal for Sarajevo and Srebrenica.’

In these circumstances, there is naturally a temptation for those on the other side of the front-lines from the Serb nationalists – those who wanted to see the Serbian perpetrators of war-crimes in Croatia and Bosnia punished, and the victims receive justice – to cry foul, and to carry out a Dacic-style U-turn of their own. A temptation, that is, to say that the supporters of Milosevic, Seselj and Tudjman were right after all, and the ICTY is really just a kangaroo court whose verdicts are political. But this temptation should be resisted, both for pragmatic reasons and, more importantly, for reasons of principle.

Pragmatically, conceding that the ICTY is a kangaroo court whose verdicts are political means handing an enormous victory to those extremists – Serb and Croat, right-wing and left-wing – who supported the elements that carried out the war-crimes and that have always resisted the efforts of the ICTY to punish them. It is not for nothing that – both in the former Yugoslavia and in the West – ethnic cleansers, fascists and extremists have consistently opposed the Tribunal, whereas liberals, democrats and progressives have supported it. To reject the legitimacy of the ICTY and its verdicts means negating not only those verdicts we don’t like, but all the good that has been achieved by precisely this Tribunal, despite its undeniable numerous failures. The ICTY was the first international court to establish that the Srebrenica massacre was an act of genocide, paving the way for the confirmation of this fact by the International Court of Justice.

Immediately following the acquittals of Gotovina, Markac and Haradinaj, the ICTY in December of last year convicted Zdravko Tolimir, Assistant Commander of Intelligence and Security of the Army of Republika Srpska (VRS), for genocide, and in the process established that the group targeted for genocide by the VRS was the Muslim population of East Bosnia as a whole – not just of Srebrenica – and that the genocidal act extended to Zepa as well as Srebrenica. It is a tremendous breakthrough for the legal recognition of the Bosnian genocide beyond Srebrenica. If the Perisic acquittal is to be dismissed as a political verdict, it undermines the Tolimir verdict as well. You cannot have it both ways, and cheer the verdicts with which you agree while denouncing those you don’t like. Either the ICTY is a legitimate court or it is not.

Which brings us to the matter of principle: a genuine, legitimate court must have the right and ability to acquit, as well as to convict. If the ICTY were really a kangaroo court, all those accused would be convicted. Instead of which, we have proof of genuine pluralism, with panels of judges dividing 2-1 and 3-2 over major cases, and the Appeals Chamber reversing the decision of the Trial Chambers. Whatever his political views or personal inclinations, Judge Theodor Meron, presiding judge at both the Appeals Chamber that acquitted Gotovina and Markac and the one that acquitted Perisic, and currently under attack from critics for the acquittals, was in each case only one judge in a panel of five who came from different countries. He was the only judge who acquitted both Gotovina and Markac on the one hand and Perisic on the other, and was not even a member of the Trial Chamber that acquitted Haradinaj. The only other judge who was a member of the Appeals Chamber both for Gotovina-Markac and for Perisic was Carmel Agius, and he strongly opposed the acquittal of Gotovina and Markac but supported that of Perisic. Judge Bakone Justice Moloto was presiding judge both in the Trial Chamber that convicted Perisic and in the Trial Chamber that acquitted Haradinaj. In the first case, he dissented from the majority opinion but was outvoted – something that took place in September 2011, a mere year and a half ago. Hence, I must respectfully disagree with my colleague Eric Gordy, who argues that the acquittals all form part of a consistent policy on the part of the judges in this period.

The conspiracy theorists (among whom I do not include Eric) would either have us believe that the initial indictments of Gotovina/Perisic and their initial convictions were simply elaborate deceptions paving the way for the final, pre-determined acquittals. Or they would have us believe that whenever the ICTY convicts it is acting legitimately and whenever it acquits it is acting politically. But a court that only convicts and never acquits is not a genuine court. Even at the International Military Tribunal at Nuremberg that tried the leaders of Nazi Germany after World War II, three of the twenty-four defendants – i.e. one in eight of the high-ranking officials of Nazi Germany who were prosecuted – were acquitted. The whole point of a fair trial is that guilt is not assumed and defendants are assumed to be innocent until proven guilty.

The present author has, in the past, condemned the ICTY for retreating in the face of Serbian obstruction of its activities, citing such instances as the failure to indict most of the leading members of the Joint Criminal Enterprise from Serbia and Montenegro; the acquittal of Radovan Karadzic on one count of genocide; and the censoring of the minutes of the Supreme Defence Council. However, the acquittal of Perisic is not part of this pattern; he had already been arrested and convicted, so any Serbian resistance in his case had already been overcome.

It is one thing to accuse the Tribunal of shabby or unprincipled compromises and retreats, but quite another to accuse it of actually falsifying the guilt or innocence of suspects. Karadzic’s acquittal aside, the present author has never accused the Tribunal either of acquitting anyone guilty or of convicting anyone innocent. I did not, for example, condemn its initial conviction of Gotovina and Markac. Nor did I condemn its acquittal of Milutinovic or of Miroslav Radic (one of the three JNA officers indicted over the Vukovar hospital massacre). I am somewhat amazed that so many people, of all national backgrounds and political persuasions, have so little respect for the principle that it is ultimately for the court to decide who is innocent and who is guilty. Of course, it is entirely possible for a court to get things wrong and for a miscarriage of justice to occur. But a miscarriage of justice needs careful explaining as to how it was arrived at, not mere petulant denunciation.

In the case of Perisic, the essence of the disagreement between the Trial Chamber majority and the Appeals Chamber majority was that the first considered that ‘under the VRS’s strategy there was no clear distinction between military warfare against BiH forces and crimes against civilians/and or persons not taking active part in hostilities’, while the latter argued that ‘the VRS was not an organisation whose actions were criminal per se; instead, it was an army fighting a war’, albeit one that also engaged in criminal activities. Thus, the Trial Chamber considered that there was no clear distinction between the VRS’s lawful and its criminal actions, while the Appeals Chamber considered that there was.

Furthermore, the Trial Chamber ruled that though it could not be proven that the military assistance provided by Perisic to the VRS was specifically intended by him to support its criminal as opposed to its legal activities, nevertheless, since he clearly knew that his assistance would be used for criminal activities at Sarajevo and Srebrenica, as well as for legal military purposes, he was therefore guilty of aiding and abetting its criminal activities. The Appeals Chamber, by contrast, ruled that since it could not be proven that that he intended his military assistance to be used for criminal as opposed to legal military purposes, he could not be held to have criminal intent and therefore be held culpable for aiding and abetting the VRS’s crimes.

In other words, there is little disagreement between the two Chambers regarding facts of the case (so far as the Bosnian part of it is concerned) but principally over what conclusion should be drawn from them. The disagreement is not equivalent to that between the Trial Chamber and Appeals Chamber in the case of Gotovina and Markac, when the two chambers fundamentally disagreed over what the facts were; i.e. over whether the Croatian Army had deliberately shelled civilian targets with the intent of bringing about the removal of the Serb population from the so-called Krajina region. In the case of Perisic, the Appeals Chamber was not throwing out an unsafe conviction based upon a highly spurious interpretation of events, as was the case with the acquittal of Gotovina and Markac. Rather, it was expressing a different judgement on the nature of culpability to that of the Trial Chamber.

In this disagreement, my own sympathies are entirely with the Trial Chamber, and I applaud the dissent from the Appeals Chamber majority opinion of Judge Liu Daqun, who argued that by acquitting Perisic, the Appeals Chamber was setting the bar too high for convictions on grounds of aiding and abetting. However, personal sympathies aside and on the understanding that judges are supposed to be wholly impartial, the conclusions of either Chamber could legitimately be drawn from the facts. Unfortunately, the more conservative type of conclusion of the Appeals Chamber is the one I would have predicted judges at the ICTY usually to reach. My colleague Florian Bieber has made the reasonable point that ‘arguing that not all [the VRS's] activities were criminal is about as convincing as stating that the Mafia is not only involved in criminal activities and thus supporting it does not mean that one is “aiding and abetting” criminal activities.’ Following that analogy, Perisic could be compared to a powerful businessman who donates money, vehicles and properties to a charity known to be acting as a front for Mafia activities. Even if he clearly knew the charity’s true purpose, convicting him might not be so easy for the courts. Al Capone was, after all, only convicted for tax evasion.

This brings us to the ultimate reason for Perisic’s acquittal: the Prosecution’s case against him, resting as it did on a model of culpability that was judicially controversial, was not a strong one. The Prosecution was unable to prove his intent to commit crime, or that the assistance he provided to the VRS was intended to further its crimes. It was unable to link him directly to any specific crime. It could merely prove that he aided and abetted an army – the VRS – that he knew was engaging in criminal activities, but which was also engaging in lawful military activities.

The second reason why the Prosecution’s case was weak concerns the question of command responsibility. The Trial Chamber ruled that Perisic had no command responsibility over VRS forces, but that he did have such authority over the ‘Serb Army of Krajina’ (SVK – so-called ‘Croatian Serbs’), and in addition to aiding and abetting the VRS forces engaged in criminal acts as Sarajevo and Srebrenica, it convicted him for failing to punish the SVK perpetrators who shelled Zagreb in May 1995, killing and injuring civilians. But the Trial Chamber recognised that Perisic had ordered the SVK not to shell Zagreb and that it had disregarded his orders, choosing instead to obey the orders of Milan Martic, ‘President of the Republic of Serb Krajina’, to shell the city. This implicit recognition of Perisic’s lack of effective command responsibility over the SVK forces formed the basis for the Appeal Chamber’s overturning of his conviction for the war-crime at Zagreb – and even Judge Liu, who dissented from the majority over Perisic’s acquittal for Sarajevo and Srebrenica, agreed with the majority on this count. In other words, the Prosecution chose to indict someone who had no command responsibility over the Bosnian Serb forces guilty of crimes in Bosnia (Sarajevo and Srebrenica) and only ambiguous command responsibility over the Croatian Serb forces guilty of crimes in Croatia (Zagreb).

Having myself worked as a war-crimes investigator at the ICTY, I am not at all surprised that four out of the five judges (and one out of three in the original Trial Chamber) were not convinced by the Prosecution’s case. Generally speaking, cases involving high-ranking perpetrators far removed from the crime base are complicated to build unless their command responsibility is clear and unambiguous. Thus, it was relatively straightforward to build a case against Milosevic for war-crimes in Kosovo, where his command responsibility (as President of the Federal Republic of Yugoslavia) was clear. But more complicated to do so over Bosnia, where (as President of Serbia) it was not. In such cases where evidence of de jure responsibility is lacking, prosecutors need strong evidence of de facto responsibility.

But Perisic was not a Milosevic, Karadzic or Mladic. He was not a member of the top Serbian-Montenegrin-JNA leadership that planned and instigated the wars against Croatia and Bosnia, and his name is not listed among the principal members of the Joint Criminal Enterprise as laid down in the Milosevic indictments. He was commander of the Artillery School Centre in Zadar in Croatia, and in January 1992 became commander of the JNA’s 13th Corps, based in Bileca in Hercegovina. In these roles of less than primary importance, he participated directly in the wars in Croatia and Bosnia. Had the Prosecution chosen to indict him for war-crimes committed by his forces in this period, he would in all likelihood have been convicted. However, it did not.

The three principal phases of mass killing by Serb forces in the Bosnian war were the initial Serbian blitzkrieg of spring, summer and autumn 1992, resulting in the Serbian conquest of about 70% of Bosnian territory; the siege of Sarajevo, lasting from spring 1992 until autumn 1995; and the Srebrenica massacre of July 1995. The first of these claimed by far the largest number of victims; according to the figures provided by Mirsad Tokaca’s Research and Documentation Centre, more Bosniaks were killed in the Podrinje region (East Bosnia) in 1992 than in 1995, the year of the Srebrenica massacre. Moreover, the regular Serb army forces that undertook the initial blitzkrieg, until 19 May 1992, were formally part of the JNA and not only de facto but also de jure under the command and control of Serbia-Montenegro, in the form of the rump Yugoslav Federal presidency made up of members from Serbia and Montenegro, and of the high command of the JNA/VJ.

Had the ICTY Prosecution indicted the top JNA commanders and Yugoslav Presidency members (from Serbia and Montenegro) who commanded these Serb forces during the blitzkrieg, and prior to that the earlier assault on Croatia, they would no doubt have been successful and Serbia’s direct responsibility for the war in Bosnia would have been judicially established. A successful outcome would have been particularly likely, given that a couple of these war-criminals have been obliging enough to publish their memoirs or diaries in which they admit their planning of the war.

On 19 May 1992, however, the newly proclaimed Federal Republic of Yugoslavia (FRY), comprising Serbia and Montenegro, formally withdrew its forces from Bosnia, and a Bosnia Serb army – the VRS – formally came into being. Serbia’s political and military leadership thereby ceased to have de jure command and control over the Bosnian Serb forces. Furthermore, the Trial Chamber that convicted Perisic ruled that, in fact, the Serbian leadership in this period did not have even de facto control over the Bosnian Serb forces either – as did the International Court of Justice, in its own 2007 verdict in the case of Bosnia vs Serbia. The arrangement whereby the Bosnian Serb war-effort would be formally independent of Belgrade was put in place with the deliberate intention by Serbia’s leadership of avoiding accusations of aggression and involvement in the Bosnian war. Of course, Serbia continued to provide extensive financial and military support to the Bosnian Serb forces. But it should have been clear to any war-crimes investigator worth their salt that convicting FRY military commanders of war-crimes in Bosnia after 19 May 1992 would be a much more difficult task.

Momcilo Perisic became Chief of Staff of FRY’s army, the VJ, only in August 1993, and his indictment by the ICTY only covers his activities from this period. The policy of supporting the VRS had been put in place under his predecessors, and though he was a strong supporter of the policy and apparently institutionalised it, he was scarcely its architect. Even as regards the siege of Sarajevo – one of the two crimes in Bosnia for which Perisic was indicted – the Serb killings of civilians peaked in the spring and summer of 1992 and dropped considerably thereafter, dropping particularly from around the time that Perisic took over (according to Tokaca’s figures). Chief of Staff Perisic was therefore a singularly bad choice of individual to indict for war-crimes in the period from August 1993: though he was not a simple figurehead equivalent to President Milutinovic, and enjoyed real authority in a post of considerable importance, he was ultimately just one of Milosevic’s interchangeable officers; little more than a cog, albeit a large one, in the military machine, and moreover in a part of the machine whose culpability for actual war-crimes was secondary at the time, since the Milosevic regime had devolved most of the killing to a different part – the VRS.

Had the ICTY prosecutors ever really understood the chronology and organisation of the Serb aggression against Bosnia, they could have avoided such a poor decision. But it is clear from reading Carla del Ponte’s memoirs that she, at least, never had more than a muddled understanding of it. She nebulously attributes primary and equal responsibility to the war as a whole to two individuals, Slobodan Milosevic and Franjo Tudjman, but is unable to explain how that responsibility translated into the form that the war took. Although she deserves credit for eschewing a narrowly legalistic and lawyerly approach to war-crimes prosecutions and for attempting to view the big picture of the war – and therefore for insisting on genocide indictments in the face of conservative resistance from some of her colleagues – the big picture that she viewed was an erroneous one. Her starting point was not a global systemic analysis of the aggression, but apparently the big crimes with which she herself, as a non-expert on the war, was familiar – the siege of Sarajevo and the Srebrenica massacre.

In her own memoirs, del Ponte’s former spokeswoman Florence Hartmann recalls that del Ponte insisted, among other things, that Milosevic himself be indicted for Srebrenica and Sarajevo, in the face of resistance from Geoffrey Nice and others, who feared that they would not be able to convince the judges of the validity of the charge. Del Ponte was thus motivated by the commendable desire to ensure that Serbia’s leadership would not escape responsibility for the killing in Bosnia, but her analytical confusion ensured her plan would not go well. In light of Perisic’s acquittal, Nice’s caution, as recalled by Hartmann, appears entirely vindicated. That said, it is worth restating that Perisic’s indictment covered only the period from August 1993, when he was Chief of Staff, not the period when the Serbian aggression was actually launched and the largest part of the killings occurred. Thus, the claims made by Dacic and by the Sense News Agency, that the verdict exonerates Milosevic and Serbia of aggression against Bosnia and Croatia and of culpability in the siege of Sarajevo, are unfounded. Furthermore, as noted above, the Appeals Chamber has not actually changed the facts as established by the Trial Chamber: that the VRS was engaged in criminal activity, at Sarajevo and Srebrenica, and that Serbia’s army was aiding and abetting it while it was doing so.

On Twitter, Luka Misetic, the lawyer who successfully represented Gotovina, has succinctly referred to ‘Carla Del Ponte’s dark legacy: Perisic, Haradinaj, Oric, Gotovina, Cermak, Markac, Boskoski, Halilovic all indicted by CDP, all acquitted.’ The failure at the ICTY is that of a Prosecution that has repeatedly failed to secure the convictions of those it has indicted, not of the judges who were unconvinced by its cases.

The Sunday before last, Britain’s leading liberal Sunday paper, The Observer, published an article by professional troll (‘columnist’) Julie Burchill, consisting of anti-transsexual hate-speech (‘a bunch of dicks in chick’s [sic] clothing’; ‘a gaggle of transsexuals telling Suzanne Moore how to write looks a lot like how I’d imagine the Black & White Minstrels telling Usain Bolt how to run would look’; ‘But they’d rather argue over semantics. To be fair, after having one’s nuts taken off (see what I did there?) by endless decades in academia, it’s all most of them are fit to do.’; ‘a bunch of bed-wetters in bad wigs’; ‘Shims, shemales, whatever you’re calling yourselves these days – don’t threaten or bully we lowly natural-born women, I warn you.’; etc.)

A barrage of complaints ensued from readers, not all of them trans. Lynne Featherstone, a Liberal Democrat member of the British government, tweeted that Burchill should be sacked. The Observer removed the article from its website, with the editor, John Mulholland, apologising for ‘the hurt and offence caused’. Burchill’s ‘censored’ article was then republished by Toby Young, a columnist for the conservative Daily Telegraph. The readers’ editor of The Observer then published a fuller statement, which again stressed the ‘offence’ caused by the article. A counter-barrage then ensued from right-wing and libertarian elements in the commentariat, who claimed that the removal of Burchill’s article from The Observer‘s website proved that Britain is a totalitarian state on the model of the Soviet Union, with its very own Thought Police to persecute the Politically Incorrect.

Vile, bigoted and hateful as Burchill’s article was, it was actually the least shocking element in this whole sorry story, which reveals the full extent of the moral degeneration of the British chattering classes. Much more shocking was the fact that one of our leading liberal newspapers would publish hate-speech directed against a vulnerable and widely persecuted minority. Not only did The Observer commission Burchill to write the piece in the full knowledge of what she was likely to say, it allegedly encouraged her to make the article more extreme and offensive than she might otherwise have done, in order to provoke a greater storm and increase its own viewing figures.

Perhaps still more shocking was the fact that many supposed liberals who should know better, seemed to be less concerned that The Observer had done this, than that the article was removed, since this was supposedly a grave violation of ‘freedom of speech’; moreover, of the ‘right to offend’. The real villain of the piece, some of them felt, was Featherstone, on the grounds that a government minister calling for a columnist to be sacked was a step towards Britain becoming North Korea.

This being so, it’s time to deal with a few of the straw men that the right-wing-libertarian commentariat-mafia has thrown up:

1) Burchill’s column was not ‘offensive’; it was hate speech. The principal problem was not that it ’caused offence’ to transsexual people (though this factor should not be dismissed as unimportant) but that an article of this kind, appearing where it did, served to legitimise and encourage persecution and harassment of transsexual people, thereby hurting much more than their feelings. For if our leading Sunday newspaper considers it acceptable to speak of trans people as ‘dicks in chick’s [sic] clothing’ or ‘a bunch of bed-wetters in bad wigs’, readers may draw the conclusion that this is a minority which it is right to ridicule and despise. And that when, for example, members of this minority are harassed in the streets by transphobic thugs, it is legitimate for bystanders to stand back and do nothing or even cheer on the attackers.

2) Repackaging hate speech as something that is ‘offensive’ is deliberately to prettify and sanitise it. The word ‘offensive’ has positive connotations; it makes one think of young people in the 60s growing their hair long and listening to rock and roll; or lesbian kissing on prime-time television; or sex scenes graphic enough to upset Mary Whitehouse; or punk haircuts and the Sex Pistols’ single ‘God Save the Queen’; or anything that might once have affronted the conservative mainstream.

Now that liberal values have conquered the mainstream, right-wing columnists would like to present themselves as mere iconoclasts challenging prudish liberal conformity. Whereas what they are really trying to do is to turn the clocks back to an era where it was acceptable to call black people ‘gollywogs’ and gay people ‘poofs’ and sexually emancipated women ‘tarts’. They would like to rehabilitate discourse that disempowers women, ethnic minorities, immigrants, gay people, transsexual people, and so on. If they succeed in making it acceptable once more to employ bigoted language against such categories of people in the mainstream press – the liberal press, no less – it will become acceptable once more to persecute them. Decades of legislation against discrimination and harassment in the workplace and public sphere will be undermined.

3) The ‘freedom of speech’ argument in defence of Burchill is a red herring. To the best of my knowledge, nobody has suggested that the state should take action to censor her or prevent her from writing or publishing wherever she is able. Protesters were, rather, urging that The Observer should not be hosting such articles. It should not need spelling out that in a democracy, in which people enjoy freedom of speech, they have the right to urge newspapers or other media outlets not to publish or host material that they consider inappropriate; and that the media outlets in question have the right not to publish or host material that they do not wish to publish or host. What the so-called champions of ‘freedom of speech’ seem to be arguing is that an independent newspaper like The Observer has no business removing an article from its website, and that its readers have no business urging it to do so. They are, in other words, a bunch of hypocrites.

4) Britain is not a totalitarian state or a state in which government ministers have the power to have journalists or columnists sacked from newspapers. Since Featherstone had no power to threaten The Observer or bring about Burchill’s dismissal (Burchill is, incidentally, a freelance writer rather than a sackable Observer employee), her call for Burchill to be sacked cannot be interpreted as an attempt to control the media, but was simply her expression of her personal opinion, which she has the right to give, since we live in a democracy in which even elected politicians enjoy freedom of speech. Again, the so-called champions of ‘freedom of speech’ are not as unequivocal in their defence of this right as they would like to pretend.

5) There is, probably, no group of people in the world who enjoy greater freedom of speech than British professional columnists of the Burchill variety, who are actually paid to write what they like and guaranteed vast audiences, irrespective of how little research and effort they put in (usually very little). The idea that members of this – in freedom-of-speech terms – ultra-privileged minority is in any way restricted in their freedom of speech is a joke. Their whining, on this score, is like the claims of persecution and exploitation made by members of the Republican mega-rich in the US at suggestions that they pay a higher rate of tax. Newspapers like columnists who ’cause offense’ because they create controversy, draw attention to the newspapers and sell more copies. Therefore, columnists boost their own market value by ‘causing offence’. Their talk of ‘freedom of speech’ in this case is simply a fig-leaf masking their defence of privilege and vested interests.

6) In mounting their assault on liberal values under the cover of defending ‘freedom of speech’ and the ‘right to offend’, the right-wing and libertarian commentariat is not so much seeking to restore traditional conservative values – which are largely dead, and in which they themselves do not particularly believe – but to promote a valueless society, in which every opinion is as valid as any other. They want a society in which well-off people pay as little tax as possible and are free to pursue self-enrichment and self-gratification with the fewest possible restraints, unfettered by any responsibilities or obligations to the wider society. For them, ‘freedom of speech’ is not so much about people being allowed to say what they think, but more about the entertainment provided by ‘offensive’ columnists and their own right to be so entertained. Public discourse is just a game to them.

Readers of this blog will be disappointed if I don’t somehow bring this issue back to the former Yugoslavia. So I’ll note that among the pioneers of this model of cynical and offensive commentary as entertainment masking an assault on liberal values was the magazine Living Marxism, which during the Bosnian genocide supported the Serb perpetrators, whose atrocities, it claimed, were fabricated by the Western media. Living Marxism and other such publications and individuals helped to make genocide denial acceptable in the mainstream media, and helped to ensure that the West would not intervene to halt the Bosnian genocide. Living Marxism was forced to close in 2000 after it was bankrupted in a libel case brought by the British media company ITN, over its accusation that the latter had deliberately deceived viewers in its coverage of the Serb concentration-camp Trnopolje, which Living Marxism claimed was not a camp at all, but a ‘detention centre’.

Among Living Marxism‘s supporters at that time was a certain Toby Young – today, the republisher of Burchill’s anti-transsexual rant. After being forced to close, Living Marxism re-emerged as ‘Spiked Online’, a website whose hallmark is to denigrate every liberal value as a reflection of racism or elitism (e.g. opposition to the far-right English Defence League is merely an expression of liberal-elitist hatred of the working-class; opposition to Japanese whale-hunting is an expression of Western anti-yellow racism; and so on). Spiked Online has also republished Burchill’s article, retitled as ‘Hey trannies, cut it out – Where do dicks in terrible wigs get off lecturing us natural-born women about not being quite feministic enough ?’ Burchill herself supported the Serbia of Slobodan Milosevic against NATO at the time of the 1999 Kosovo War (‘gorgeous, integrated, independent Yugoslavia’), in an article sprinkled with racist comments about Germans and Croats (‘scratch a Croat, find a Kraut’). She threw in a defence of Fidel Castro’s Cuba against ‘Uncle Sam’ for good measure.

From support for murderous regimes and genocide denial to anti-transsexual hate-speech; the progression is a natural one. I really don’t give a damn about the ‘right to offend’ of this pampered, privileged, malicious clique of paid loudmouths. Just as, thanks to people like them, ‘anti-imperialism’ became the defence of fascists and ethnic-cleansers, so they are turning ‘freedom of speech’ into the legitimisation of bigotry, hate-speech and abuse.

Stuff freedom of speech. As far as I’m concerned, the Politically Correct Thought Police can arrest a few of them and toss them in a gulag for a few years; it will give them something real to write and complain about for a change.

I have long looked at Bulgaria as a successful example for Serbia to follow. The two countries have much in common; speaking closely related Slavic languages and sharing the Christian Orthodox religion, both nations were shaped by the experience of centuries of Ottoman rule. The Ottoman Empire wholly destroyed the medieval Serbian and Bulgarian states, so their modern successors had to be built from scratch as they were carved out of the decaying Empire during the nineteenth and twentieth centuries. The uncertainties, among the nationalists of both people, as to where their true national borders lay, were part of the reason for the confused strategies for expansion and consequent military catastrophes experienced by both.

Until the 1990s, one could have been forgiven for thinking that Serbia had been luckier in the outcome of its wars. Serbia and Bulgaria were on opposite sides in the Second Balkan War of 1913 and in the First and Second World Wars. Though it would be a gross oversimplification to say that Serbia had been victorious and Bulgaria defeated on the battlefield in these three wars, yet Serbia certainly ended up on the winning and Bulgaria on the losing side in all three of them. Bulgaria then suffered the misery of a Communist regime imposed by the Soviet Union – one of the most brutal in the Soviet bloc – while Serbia enjoyed the comparative liberalism and prosperity of Tito’s independent model of socialism, so that particularly from the 1960s, Serbia appeared to move far ahead of its eastern neighbour. I recall being told in Belgrade how, for visitors from Bulgaria and Romania, Serbia was the West.

For all that, Bulgaria achieved a victory in defeat. Definitely confined within its actual state borders after its final defeat in World War II, further expansionism was no longer an option. Serbia, on the other hand – its political and intellectual classes suffering from the illusion that its borders with its Yugoslav neighbours, by virtue of supposedly being ‘administrative’, were not set in stone –  embarked upon a final, catastrophic expansionist adventure in the 1990s. Consequently, the repressive and impoverished Bulgaria of the 1980s joined NATO in 2004 and the EU in 2007, while the relatively prosperous and liberal Serbia of the 1980s became the new Balkan loser and outcast in the twenty-first century. Bulgaria has generally pursued a responsible foreign policy since the end of the Cold War, recognising the independence of Macedonia under its constitutional name of ‘Republic of Macedonia’ in 1992, recognising the independence of Kosovo in 2008, and avoiding anti-Western nationalist outbursts of the kind characteristic of Serbia and Greece. Bulgaria has contributed troops to the allied forces in both Iraq and Afghanistan.

However, Bulgaria’s record was not perfect; a trace of its former irredentist ambitions remained in its refusal to recognise the existence of a Macedonian nation or language. This has involved also the refusal to recognise the existence of the ethnic-Macedonian minority in Bulgaria and undemocratic restrictions on the minority’s freedom of expression: the ethnic-Macedonian party ‘OMO “Ilinden” – Pirin’ was ruled unconstitutional by the Bulgarian Constitutional Court in 2000. This, in turn, resulted in the censure of Bulgaria by the European Court of Human Rights, which ruled that the ban was in violation of the European Convention on Human Rights.

This caveat aside, the Bulgarian lesson for Serbia appeared clear: keep the country tightly confined within its own legal international borders and shut off all outlets for irredentist activity, and it will evolve into a responsible member of the international community. Unfortunately, membership of the EU, far from acting as a framework in which Bulgaria would continue to evolve harmonious relations with the rest of the Balkan region, has breathed new life into the weakened body of Great Bulgarian chauvinism. In December 2009, despite Bulgaria’s continued defiance of the European Court of Human Right’s refusal to permit the registration of OMO ‘Ilinden’-Pirin, the EU’s Committee of Ministers decided to end the monitoring of the execution of the 2005 ECHR judgement regarding the matter.

That month, Bulgarian prime minister Boyko Borisov of the Citizens for European Development in Bulgaria (GERB) held a joint news conference  with his ally Volen Siderov, leader of the fascist party National Union of Attack (‘Ataka’) to announce a referendum on the abolition of Turkish-language news broadcasts on Bulgaria’s BNT1 public television channel, despite the fact that nearly 10% of Bulgaria’s population of nearly eight million is ethnic-Turkish and has a long experience of persecution in Bulgaria, particularly in the Communist era under Todor Zhivkov. Borisov was, however, forced to abandon the plan for a referendum in the face of international and domestic opposition, including from the Bulgarian president and parliamentary opposition.

Image: Bulgarian Prime Minister Boyko Borisov

Now, Great Bulgarian chauvinism has reappeared on the international stage: Bulgaria has abused its EU membership to veto, at a meeting on 11 December of the General Affairs Council of the EU, the setting of a date for the opening of talks with Macedonia on its EU accession – despite the fact that the European Commission and Enlargement Commissioner Stefan Fule recommended that, since Macedonia has met all the necessary criteria, it should be permitted to start accession negotiations. This was the fourth time that the start of accession negotiations with Macedonia has been vetoed – by Greece on each previous occasion.

Whereas in 2009, the then Bulgarian President Georgi Parvanov helped to block Borisov’s anti-Turkish referendum, on this occasion, current Bulgarian president Rosen Plevneliev – GERB’s candidate for the post – has joined Borisov to lead the nationalist assault. The veto was apparently coordinated with Greece – the country that has consistently obstructed Macedonia’s Euro-Atlantic integration and with which, back in 1912-1913, Bulgaria joined to dismember the historical region of Macedonia. It is as if Germany and Austria had banded together for nationalistic reasons to block Poland’s or the Czech Republic’s EU accession. Greece (population nearly 11 million) and Bulgaria (population over 7 million) are now openly collaborating against Macedonia (population 2 million) in a manner reminiscent of the collaboration of Serbia’s Slobodan Milosevic and Croatia’s Franjo Tudjman against Bosnia-Hercegovina during the 1990s.

Bulgaria’s new hostility to Macedonia focuses on its attempt to dictate to its smaller neighbour an official version of history that accords with the Bulgarian-nationalist viewpoint – including the way history is taught in schools and the way national anniversaries are celebrated. Thus, Plevneliev had proposed in October that Macedonia and Bulgaria celebrate certain historical anniversaries jointly, in order to stress the supposedly Bulgarian character of Macedonia and the Macedonians. Macedonian President Gjorge Ivanov rejected this, responding that Macedonia would only jointly celebrate anniversaries concerning the two states’ contemporary friendship: Europe Day; the date on which Bulgaria recognised Macedonia’s independence; and the date on which the two states established diplomatic relations.

The Bulgarian government is also attempting to curb freedom of expression in Macedonia. It has cited, as a reason for its veto, the production of a film in Macedonia, The Third Half, that highlights Bulgaria’s role in deporting the Macedonian Jews to their deaths in the Holocaust, at a time when the land that is today the Republic of Macedonia was under Bulgarian occupation. According to the website of Yad Vashem:

In February 1943 the Bulgarians signed a pact with Germany, in which they agreed to deport to the east 20,000 Jews from their territories. Since nowhere near 20,000 Jews lived in the newly annexed territories of Macedonia and Thrace combined, the Bulgarian authorities intended to include Jews from Bulgaria itself in the deportations. In March 1943 almost all of the Jews in Bulgarian-occupied Thrace (some 4,000) were arrested and surrendered to the Germans, who then deported them to their deaths at Treblinka. Another group of about 1,200 Thrace Jews was moved to Salonika and then sent to Auschwitz. At the same time, all of the Jews of Macedonia were rounded up by the Bulgarian authorities; all but 165 were deported to Treblinka. Some 200 Macedonian Jews survived the war, along with some 250 Jews from Thrace, who either joined the Partisans or hid with their Christian neighbors. Other Thrace Jews managed to escape to Italian-held territories during 1941–1942.

In his attack on Macedonia over the film The Third Half, Borisov whitewashed the Nazi-allied Bulgarian regime’s role in deporting the Macedonian Jews: ‘If we could save all Jews in the world, we would have, but we couldn’t and saved the 50,000. Other countries couldn’t do much and didn’t do much, maybe one two countries that saved 300-400 people. And Bulgaria deserves to see movies made against Bulgaria? Why? Because of its friendliness, its love, its openness … this is the same as accusing someone that there are thirsty people in Africa.’

Thus, Macedonia’s EU accession has been further obstructed because a film was made in Macedonia highlighting the role of the Bulgarian occupiers in deporting Macedonia’s Jews to their deaths in the Holocaust, and the Bulgarian government wishes to suppress the memory of Bulgaria’s participation in the Holocaust. The EU has enabled Bulgaria to do this, just as it has enabled the resuscitation of Great Bulgarian irredentism vis-a-vis Macedonia. As the film’s director Darko Mitrevski said, ‘To call “Third Half” anti-Bulgarian is analogous to calling “Schindlerˈs List” anti-German. My movie is anti-fascist. The fact there are EU parliamentarians who classify anti-fascism as “hate speech” is a European Parliament problem as well as a problem for the country they represent, not mine.’

The EU this year received the Nobel Peace Prize. It was already undeserved, but in light of the EU’s currently active role in undermining peace and stability in the Balkans, it is definitely time that this award be revoked.

David Harland, Executive Director of the Center for Humanitarian Dialogue and head of UN Civil Affairs in Bosnia-Hercegovina in 1993-1995, recently published, in the New York Times, a polemic against the International Criminal Tribunal for the former Yugoslavia (ICTY). Responding to the recent acquittals of Croatia’s Ante Gotovina and Mladen Markac and Kosovo’s Ramush Haradinaj, he accused the Tribunal of ‘selective justice’ on the grounds that it has essentially only convicted Serb perpetrators, acquitted non-Serb perpetrators and failed to punish crimes against Serbs. This is, of course, the claim that hardline Serb nationalists and supporters of Slobodan Milosevic have been making for about the last two decades. Instead of carrying out any research into the actual record of the ICTY in order to support his thesis, Harland simply repeats a string of cliches of the kind that frequently appear in anti-Hague diatribes by Serb nationalists.

1) Harland writes: ‘More Serbs were displaced — ethnically cleansed — by the wars in the Balkans than any other community. And more Serbs remain ethnically displaced to this day.’

Harland doesn’t provide any statistical evidence to support this claim, but he appears to be conflating being ‘displaced’ with being ‘ethnically cleansed’, and to count all Serbs displaced by all the wars in Croatia, Bosnia and Kosovo as having been ‘ethnically cleansed’ – as opposed to being evacuated by the Serb authorities themselves, for example, or fleeing Sarajevo to escape the siege. The Appeals Chamber of the ICTY, in acquitting Gotovina, Markac and Haradinaj, rejected the prosecution’s claims that a Joint Criminal Enterprise (JCE) existed, on the part of either the Croatian or the Kosovar Albanian perpetrators, to bring about the removal of the Serb population from either ‘Krajina’ or Kosovo. Harland has not attempted to address the Appeal Chamber’s conclusions. He has simply re-stated a falsehood after two panels of judges carefully explained why the claims on which it was based are false.

2) Harland writes ‘Almost no one has been held to account [for these crimes against Serbs], and it appears that no one will be… Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics.’

It is untrue that nobody has been convicted by the ICTY for crimes against Serbs, or that no non-Serbs have been convicted. Bosniaks, Croats and Albanians convicted of crimes against Serbs include Rasim Delic, the top Bosnian army commander in 1993-1995; Enver Hadzihasanovic, former commander of the Bosnian army’s 3rd Corps; Amir Kubura, former commander of the 7th Muslim Mountain Brigade; Zdravko Mucic, Hazim Delic and Esad Landzo, former commanders and guard for the Celebici prison-camp; and Kosova Liberation Army camp guard Haradin Bala. Former Croatian Army major-general Mirko Norac was indicted by the ICTY for crimes against Serb civilians in the Medak Pocket in September 1993; his case was transferred to the Zagreb District Court, which convicted him.

3) Harland writes: ‘Altogether, almost all of the West’s friends have been acquitted; almost all of the Serbs have been found guilty.’

Harland appears here to be following the example of the extreme Serb nationalists who divide all former Yugoslavs into ‘Serbs’ on the one hand and ‘friends of the West’ on the other, and who claim that the ICTY ‘persecutes’ Serbs because they are independent of the West. Yet two of the most senior Serb officials to be convicted by the ICTY, former Republika Srpska president Biljana Plavsic and former Yugoslav Army chief of staff Momcilo Perisic, had pursued friendly relations with the West in the second half of the 1990s. On the other hand, being unfriendly to the West is scarcely something of which other prominent Serb indictees can be accused, since Western and Serb officials spent the best part of the 1990s collaborating with one another.

Ratko Mladic and Britain’s Michael Rose

Slobodan Milosevic and the US’s Richard Holbrooke

Ratko Mladic and the Netherlands’ Thom Karremans

Milosevic and Holbrooke again

4) Harland writes: ‘Convicting only Serbs simply doesn’t make sense in terms of justice, in terms of reality, or in terms of politics. The Croatian leaders connived in the carve-up of Yugoslavia, and contributed mightily to the horrors on Bosnia and Herzegovina. I witnessed for myself the indiscriminate fury of the Croatian assault on the beautiful city of Mostar.’

Harland either does not know, or chooses not to mention, that the ICTY is currently prosecuting a group of prominent Bosnian Croat perpetrators for crimes carried out in Bosnia: Milivoj Petkovic, Jadranko Prlic, Slobodan Praljak, Bruno Stojic, Valentic Coric and Berislav Pusic. They are specifically being tried over the Croatian attack on Mostar. The ICTY has already convicted a large number of Croat perpetrators, including Dario Kordic, wartime leader of the Croatian Democratic Union in Bosnia and vice-president of the Croat Community of Herceg-Bosna, and Tihomir Blaskic, former commander of the (Bosnian) Croat Council of Defence (hence equal in rank to the Bosnian Serbs’ Ratko Mladic) and inspector in the General Inspectorate of the Croatian Army. NB Blaskic spent longer in prison than any Yugoslav army officer sentenced over the 1991-1992 Croatian war, except Mile Mrksic.

5) Harland continues: ‘The Bosnian Muslim leadership had deeply compromising links to the international jihahist movement, and hosted at least three people who went on to play key roles in the 9/11 attacks on the United States. I witnessed attacks by foreign mujahedeen elements against Croat civilians in the Lasva Valley.’

The accusation regarding the Bosnian government’s supposed links to the international jihadist movement and 9/11 attackers is sheer Islamophobic defamation. As regards the mujahedin, Harland either does not know, or chooses not to mention, that Rasim Delic, commander of the Bosnian army from June 1993 until the end of the war, was convicted by the ICTY over crimes carried out by the mujahedin against Serb civilians. On the other hand, the ICTY Appeals Chamber found in the case of Bosnian army 3rd Corps commander Enver Hadzihasanovic that he could not be held culpable for the crimes of the mujahedin, since ‘the relationship between the El Mujahedin detachment and the 3rd Corps was not one of subordination. It was quite close to overt hostility since the only way to control the El Mujahedin detachment was to attack them as if they were a distinct enemy force.’

As with the Croatian attack on Mostar, so with the Bosnian government and the mujahedin, Harland’s portrayal of the ICTY as simply having ignored the crimes in question reflects either an extraordinary degree of ignorance regarding the ICTY’s record, or is deliberately deceptive of his readers.

6) Harland continues: ‘And the Kosovar Albanian authorities deserve a special mention, having taken ethnic cleansing to its most extreme form — ridding themselves almost entirely of the Serb and Roma populations. Kosovo’s ancient Christian Orthodox monasteries are now almost the only reminder of a once-flourishing non-Albanian population… Haradinaj has been cleared of the charges brought against him, but the fact remains that hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians.’

Again, Harland does not attempt to address the ICTY judges’ refutation of the claim that Kosovar Albanians had engaged in a ‘Joint Criminal Enterprise’ to remove the Serb and other non-Albanian population from Kosovo. His claims that the Kosovar Albanian authorities have succeeded in ‘ridding themselves almost entirely of the Serb and Roma populations’ and that ‘hundreds of thousands of Serbs — mostly the elderly, women and children — were ethnically cleansed from Kosovo by the Kosovar Albanians’ are further falsehoods: of the roughly 200,000 Serbs living in Kosovo before 1999, roughly half are still there.

7) Harland concludes: ‘What has happened at the tribunal is far from justice, and will be interpreted by observers in the Balkans and beyond as the continuation of war by legal means — with the United States, Germany and other Western powers on one side, and the Serbs on the other.’

To which one can reply: only by anti-Western Serb-nationalist politicians and ideologues and their fellow travellers.

Perhaps the most disgraceful statement in Harland’s tissue of falsehoods is his claim that ‘I lived through the siege of Sarajevo.’ In fact, as the UN’s head of Civil Affairs in Bosnia from June 1993 until the end of the war, Harland was scarcely a victim of the siege. Following the Markale massacre in Sarajevo of 28 August 1995, when Serb shelling killed 37 civilians, Harland engendered the myth that the Bosnians themselves might have been responsible; as he testified, ‘I advised [UN commander] General Smith on that one occasion to be a little unclear about what we knew about the point of origin of the mortar shell that landed on the Markale market-place in order to give us time, give UNPROFOR time, to get UNPROFOR and UN people off Serb territory so they couldn’t be harmed or captured when General Smith turned the key to authorise air-strikes against the Serbs. That is true. That was less than fully honest.’

Indeed, the UN in Bosnia collaborated with the Serb besiegers of Sarajevo and helped to maintain the siege. It obstructed any possibility of outside military intervention to halt the genocide. It maintained an arms embargo that prevented the victims of the genocide from defending themselves properly. It was complicit in the murder of Bosnian deputy prime-minister Hakija Turajlic by Serb forces in January 1993. It abandoned the ‘safe areas’ of Srebrenica and Zepa to Mladic’s genocidal operations. Romeo Dallaire said of the UN, ‘Ultimately, led by the United States, France and the United Kingdom, this world body aided and abetted genocide in Rwanda. No amount of its cash and aid will ever wash its hands clean of Rwandan blood.’ The same could be said of the UN with regard to Bosnia and Bosnian blood. Yet no former UN or other international official has been prosecuted by the ICTY or any other court for complicity in genocide or war-crimes. That is a real scandal of selective justice about which Harland has nothing to say.

This is a guest post by Dunja Melcic

First reaction

The judgment of the Appeal Chamber, presided over by the eminent lawyer and Tribunal President Theodor Meron, to quash on all counts the first instance convictions handed down against two Croatian military commanders in connection with the so-called ‘Operation Storm’ (August 1995) is to be welcomed all round. This decision helps to repair the damage done to the Court’s reputation by the first instance judgment. Western agencies and media have generally reported this ruling as ‘surprising’. It is not; it is absolutely sound, as anyone will agree after rapidly reading through the summary of the judgment.

The five-member Appeal Chamber panel unanimously agreed that the Court had erred in its original conclusion that the attack on four towns in the area controlled by the Serb rebels was unlawful. The premise on which this finding was based was the Trial Chamber’s application of a principle which deemed all shots landing more than 200 metres from the target to be unlawful artillery attacks; the Trial Chamber’s conclusions gave no explanation for the adoption of this principle, the previously unknown ’200 Metre Standard’. ‘The Trial Judgement contains no indication that any evidence considered by the Trial Chamber suggested a 200-metre margin of error, and it is devoid of any specific reasoning as to how the Trial Chamber derived this margin of error’. Because all of the Court’s other findings were dependent on this finding, now proved incorrect, they were set aside by the majority at Appeal Chamber, two members dissenting. Since as a consequence there was no unlawful attack against the four towns, the Trial Chamber’s judgment that the Serb population were deported must fall.

The verdict of the Trial Chamber presided over by the Dutch lawyer Alphons Orie, handed down on 14 April 2011, was wrong and its finding of guilt absurd; highly so, even, the terse summary of the Appeal Chamber’s conclusion would suggest. The verdict had to be quashed because the good name of the International Tribunal would have been damaged beyond repair and along with it the reputation of a Court which has achieved historic advances in the field of international criminal law as a result of the investigations it has carried out since 1995, numerous soundly-crafted verdicts and important ground-breaking decisions. The prattling, ill informed international media may not have realised that the outstanding lawyer that Meron is, was unwilling to jeopardise his own reputation, his judicial prestige and his moral integrity by allowing such a defective judicial finding to stand unchallenged.

Some events during the trial and the evaluations of the Trial Chamber

Many negative reactions to the Appeal Chamber’s decision suggest that the critics were not aware of what was really happening at the trial against the three accused Croatian commander, nor did they look into the original verdict of the Trial Chamber with due commitment. According to this verdict, i.e. after a close reading of the full text of it, the Trial Chamber points to no satisfactory proof for the allegations made by the prosecution. The alleged criminal cases are extremely contradictory. One example is the case of the death of a Mrs Stegnajic, who was found dead in a well by her husband. UNCIVPOL and Jacques Morneau, the Battalion Commander of Canbat who testified at the Court, had found on the spot that it was a suicide. The Trial Chamber inferred from the ‘relevant evidence with regard to the alleged murder of Ljubica Stegnajic’ that it ‘does not allow for a conclusion that Ljubica Stegnajic was killed’. So the Court establishes that this was not the alleged murder and that ‘the Trial Chamber will not further consider this incident in relation to Count 1 of the Indictment.’ But there is more to the story. In mid-August 1995, Mrs Stegnajic remained alone in her house in Benkovac because her husband had been compelled to leave home by some marauding troops; he told the staff of the Canadian camp that ‘two Croatians, dressed in civilian clothing, with long hair, carrying AK-47 rifles, had come to his house and told him to go away’. It is difficult to understand why the Trial Chamber was discussing this case in extenso in the first place. And even less understandable is the Chamber’s relying on this case of indeed appalling harassment of civilians as a ‘finding’ of ‘deportation and forcible transfer’ of Serb population committed by the accused.

This example may serve as a demonstration of the Chamber’s method: where there was no proof, the Chamber invented constructions as ‘findings’: the prosecution did not prove the alleged unlawful artillery attacks, so the Chamber invented the 200-Metre Standard. Another curious invention by the Trial Chamber is the ‘whole towns’ theory. In the indictment, the prosecutors interpreted Gotovina’s orders to put the towns of Knin, Benkovac, Obrovac, and Gračac under artillery fire as a strategy ‘to treat whole towns as targets’ concocted by ‘members of the Croatian political and military leadership’. This is in open contradiction to the orders of the Croatian president from the same minutes the prosecutor was using, albeit skipping the passage stating that all targets should be precisely defined – every spot, direction and line. The Trial Chamber disregarded this; it dismissed the testimony of the Croatian artillery officer Marko Rajcic, involved in implementing that order, concerning ‘previously selected targets with specific coordinates in these towns’ to be ‘put under constant disruptive artillery fire’ because it deemed this testimony to contradict their conclusion about the disproportionate attack on Knin. This conclusion was drawn on the basis of the testimony by expert Harry Konings, whose expertise was disputed at the trial; the Trial Chamber was ready ‘to accept certain parts of witness’s testimony while rejecting others’. So it accepted the expert’s sagacious opinion that ‘firing twelve shells at Martic’s apartment’, had ‘created a significant risk of a high number of civilian casualties and injuries, as well as of damage to civilian objects’ because ‘civilians could have reasonably been expected to be present on the streets of Knin near Martic’s apartment and in the area’ (emphasis added). Such purely hypothetical inferences are highly characteristic of the Chamber’s argumentation. Since the hypothetical ‘significant risk’ that could have caused civilian casualties was enough to diagnose ‘deliberate firing at areas in Knin’, the Chamber was not troubled by any doubt when it declared this ‘finding’ ‘inconsistent with Rajcic’s explanation of the HV artillery orders’.

The Chamber repeated its mantra of ‘whole towns’ over and over again, but lacking proof on the ground, it turned to synonymy like ‘towns as such’, ‘towns themselves’ or ‘on the whole’. This did not help much, and resulted in peculiar formulations such as: ‘the Trial Chamber considers that even a small number of artillery projectiles can have great effects on nearby civilians’ (emphasis added). There are numerous episodes of the same type in the verdict; it would take hundreds of pages to discuss all of the cases of faulty conclusions.

There is one additional matter I would like to address. Apart from the dubious 200-metre standard, the Chamber deemed the panic among the civilians caused by the use of artillery to serve as proof of the criminal responsibility of the accused basing it on the expert’s Konings evaluations: ‘Expert Konings also testified generally about the harassing and frightening effect the use of artillery can have on civilians, causing fear, panic, and disorder’ (emphasis added). So the Chamber had classified Konings testimony as credible although it had heard that this expert equalized without turning a hair the shelling of Knin (which lasted a few hours) with the shelling of Sarajevo (which lasted over three years). The Chamber heard together with everybody who was present at the hearing – through whatever means – that Konings lost his temper, raging against at in that moment actual Israeli artillery shelling against Hamas in the Gaza strip, that he regarded as an assault on civilians. All quotes above originate from the transcripts of the Tribunal. This outrage of the expert Konings (a fellow countryman of the presiding judge Orie) against Israel’s behaviour in the Gaza Strip in 2009, is not documented in the transcripts. It has been, I assume, ‘redacted’; I heard it by chance through the session’s broadcast. But this ‘incident’ alone should have been ground enough to put the expert’s credibility in question. In fact, it can be seen as the substantiation of his incompetence as an expert in this field. Prior to that, he was incapable of understanding that the order to shell a ‘catholic church’ meant the police station of the Serb rebels and not a place of worship. This St Ante monastery at Knin was seized by the Serb-rebel special police and everybody but the expert of the prosecution would classify it, i.e. the VRSK special police headquarters where the counter assaults were still being planned and coordinated, as a legal target for the HV’s artillery shelling, as in fact the Chamber has done too. This expert played the central role in the passing of the sentence of imprisonment for Gotovina and Markac, though he was not helpful for defining the 200 metre margin.

This short review may perhaps help to explain the reasons behind the Appeal Chamber’s decision. It has been outlined from the layman’s standpoint and meant to address the general public in order to explain the evident shortcomings of the original sentence by Trial Chamber.

A proposal for critics of the Appeals Chamber’s judgment

Against this background, the decision of the Appeal Chamber can be better understood. Also, the very wise decision to take the touchstone, the ‘200-Metre Standard’, of the Trial Chamber’s argumentations as a guiding principle for its revocation might be better understood. It was a shrewd method to reduce the complexity. The Appeal Chamber’s judgment resembles an elegant mathematical formula. This might well be one reason why it is encountered with such a lot of misapprehension.

Since the five judges disagreed heavily concerning other question, this was the one finding that they reached unanimously: ‘The Appeals Chamber unanimously holds that the Trial Chamber erred in deriving the 200 Metre Standard’. It is perfectly clear why this unanimity was inevitable: ‘the Trial Chamber adopted a margin of error that was not linked to any evidence it received’ (emphasis added). About such an error of judgment there can be no disagreement. Also it is not just a formalistic pettiness as some critics tend to think. It was the Trial Chamber that made the unlawful artillery attacks crucial to its verdict and it was the Trial Chamber that pinned all charges to the alleged unlawfulness of the artillery attacks based on its impact analysis. Since the evidence it had received through the prosecution was not sufficient, the Chamber constructed its one standard of impact error for which it had received no evidence at all.

The Trial Chamber itself already rejected a big part of the prosecution’s allegations about forcible expulsion, or in the words of the Appeal Chamber, it ‘declined to characterise as deportation civilians’ departures from settlements targeted by artillery attacks which the Trial Chamber did not characterise as unlawful’. Since the Appeal Chamber has quashed the finding about the unlawful artillery attacks in its entirety, it consequently infers: ‘Absent the finding of unlawful artillery attacks and resulting displacement, the Trial Chamber’s conclusion that the common purpose crimes of deportation, forcible transfer, and related persecution took place cannot be sustained’.(96)

The Appeals Chamber refers to the Trial Chamber’s conclusions as ‘mutually-reinforcing findings’; if we take the diplomatic aspects of this formulation away, one would speak rather of circular conclusions. Essentially, the Trial Chamber declared the Croatian war council to be a session of JCE (joint criminal enterprise) because it concluded that there were ‘unlawful artillery attacks’ taking place in four towns, and it pronounced these attacks to be unlawful because they were designed by the JCE to force the transfer of Serb civilians. Such conclusions are not valid. So the Appeal Chamber concludes: ‘The Brioni Transcript includes no evidence that an explicit order was given to commence unlawful attacks, and Gotovina’s statement regarding a strike on Knin could be interpreted as a description of HV capabilities rather than its aims, especially in the context of general planning for Operation Storm which took place at the Brioni Meeting’. This means, of course, that the Trial Chamber didn’t have any evidence either. But it wanted to have a sentencing verdict and I suppose it is not too intrepid to guess that this had motivated the Trial Chamber to drawing invalid (circular) conclusions; to inventing unsound impact margin standards; to dropping the evaluation of the expert testimony from a retired general familiar with the responsibilities of military commanders, which was directly relevant for weighing Gotovina’s effort concerning the disciplinary measures (AT 132-134); and also to expressing itself more in a lyrical than in a judicial manner by stating that ‘within days of the discussion at Brioni, Gotovina’s words became a reality’.

One can now presume that the dissenting two judges in the Appeal Chamber shared such attitudes and that they met the plea by the prosecutor Brady, who said at appeals hearing 14.05. 2012: ‘Instead, just as the Trial Chamber did, this Chamber needs to take a holistic view based on all the evidence considered together and not examine the facts and the evidence in this deconstructed in an artificial way and today in this afternoon’s submission, what I would like to do is to put this picture, the evidence and the facts, back together again, as they were properly understood by the Trial Chamber’. (p. 167) The two dissenting judges might have taken ‘a holistic view’ disregarding the conclusive evidence put forth by the other three judges who obviously declined the advice ‘not [to] examine the facts and the evidence’. But what, in fact, is ‘a holistic view’? It’s an overall interpretation of the events and in this case it is the prosecutor’s completely flawed interpretation.

Some critics are arguing that if one takes the Trial Chamber and Appeal Chamber together, then five judges were for the sentencing judgment, so eventually the majority. This really cannot be accepted as a valid argument. But the question that ought to be put is why some judges at an international law court prefer holistic interpretation of events rather than conclusive evidence. I think that this has to do with the ambiguous character of the court established by the Security Council under the name ICTY.

The ambivalent concept of the ICTY

Founding the ICTY through the Security Council in 1993, its members followed the principles of international law as established since the Nuremberg trials, but they adopted the Charter selectively. This problem can be put aside here, but what is relevant in this context is that they were under the influence of the worldwide discourse concerning the dissolution of the Socialist Federative Republic of Yugoslavia and the subsequent wars. The outstanding feature of this discourse was its ethnicistic character. I can outline this problem only very roughly. Putting ethnicity in the foreground corrupts the whole complicated issue. This ethnicistic perception shows itself already in the denotation of the Court as the tribunal for the former Yugoslavia – a name that in every sense is wrong. It refers to the Yugoslav nations instead of to the political background of the war. So it suggests that the war that took place in that region was an ethnic or civil war. So gradually the idea emerged that all, or at least most of, the peoples were somehow engaged in the war or some ethnic conflict.

The prosecutors seemed to be getting nervous that they will have to issue charges only against the Serbs and thought obviously that they had to balance this out. But there is nothing to balance out; what should have been done was to take in account that nobody is charged because of her or his nationality but because of war crimes. The nationality of the accused is of secondary importance. Instead of changing its perspective, the prosecution tried to change the reality by issuing indictments against accused from other national groups. But it was also the error of the Court to pass such indictments, for example against Macedonian officials, as a matter of war crimes. It is a big difference if one writes ‘Seven convicted for the massacre of Srebrenica’ as opposed to ‘the Serbs perpetrated an act of genocide at Srebrenica in July 1995’ (cf. Ian Traynor, ’Croatia’s “war crime” is no longer a crime after UN tribunal verdict’, guardian.co.uk, Friday 16 November 2012). ‘The Serbs’ didn’t perpetrate any act of genocide and there is no formulation in the Court’s documents that would justify such reckless language. A war-crimes tribunal should be the place where this supercilious ethnicistic treatment of the conflict and the war finds its end. What counts at the Court, is the crime and not the nationality of the accused. In most cases, the judges of the ICTY did their job well, as did lawyers in the prosecutions regarding the Kosovo, Sarajevo and Srebrenica cases; partially also in the Vukovar case. It is the dimension of the crime that was in focus and not the nationality of the indicted. So in respect of the mentioned seven sentenced in the 2^nd ‘Srebrenica Trial’ on 10 June 2010 – trial judgment pending appeal for six of the accused – the Chamber’s findings differentiate the grades of responsibility of the accused and convicted two of them (Ljubisa Beara and Vujadin Popovic) of genocide, extermination, murder and persecutions. Not even in the slovenly and tendentious indictment against Gotovina et al. was such a formulation as ‘Croatia’s ‘war crime’’ used. Instead the prosecutor writes in the final brief: ‘Now it should be noted first that no one is alleging that Croatia had a plan or policy to expel. It was the members of the JCE’ (T. 29025).

But referring to the case also by ‘Oluja’ created confusion, and this case was (mis)understood as a trial about the operation named ‘Storm’; since this endeavour was legal it cannot and it is not going to be put to any trial. This also has to do with irresponsible language. The gap between the sentenced perpetrators in relation to their nationality has causes that are not ethnic. It is the completely diverging characters of the warring parties; the party that was waging war and that was engaged in vast battlefields was carrying out its campaigns in a fundamentally different manner than the parties in resistance to this crusade. The scope of crimes done by the main belligerent with the headquarters in Belgrade cannot be balanced out by dubious indictments against commanders and leaders of the resistance parties, such as the recently acquitted Ramush Haradinaj. Though the court in The Hague was cautious in its language, in practice it givee in to the ethnicistic politics of balancing the national groups of the accused, with the disastrous consequence that now the sentenced war criminals are being counted according their nationality.

Now Zdravko ‘Tolimir was found guilty by the Majority of Trial Chamber II, Judge Nyambe dissenting, of genocide, conspiracy to commit genocide, murder as a violation of the laws or customs of war, as well as extermination, persecutions, inhumane acts through forcible transfer and murder as crimes against humanity’ (Press Release, The Hague, 12 December 2012). He was convicted because of the conclusive evidence of his criminal responsibility as the ‘right hand’ of Ratko Mladic – but not as a Serb.