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Marlise Simons and the New York Times on the International Court of Justice Decision on Serbia and Genocide in Bosnia:

A Further Study in Total Propaganda Service

by Edward S. Herman and David Peterson March 12, 2007 Printer Friendly Version

On many issues the New York Times serves as a propaganda organ of the state, latching onto a  position that meets an ongoing state interest and then adhering undeviatingly to the party line that ensues. This was true on a stream of Cold War issues, including decades of inflated claims about the Soviet military threat, with the vastly greater U.S. military spending framed as if the U.S. were merely responding to a Soviet challenge;[1] the Times editors also swallowed whole and steadily propagandized the false claim of Soviet involvement in the shooting of Pope John II in 1981.[2] More recently, as is well known and even acknowledged by the Times editors, the paper played an important role in disseminating disinformation on Saddam's non-existent weapons of mass destruction (WMD), helping to set the stage for the U.S. invasion-occupation of Iraq.[3]

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For years now, the New York Times has been riding a similar propaganda bandwagon on the wars and dismantlement of the former Yugoslavia—but in contrast to its performance over Iraq's non-existent WMDs, once the Times climbed aboard this bandwagon, in the early 1990s, it never climbed back down again.  Like the rest of the establishment media in this country and elsewhere, the dominant frame to which the Times subscribed was helpful to longstanding elite interest in a NATO bloc expansion into Central and Eastern Europe that was activated by the collapse of the Soviet bloc.  Accordingly, the Yugoslavia party line holds that some combination of Slobodan Milosevic and the clique around him in Belgrade, or even the ethno-national group of Serbs as a whole, were the cause of the Yugoslavia wars, and required both foreign intervention and the bypassing of the UN Charter and international law to set things right.[4]  The Times's obituary following the death of Milosevic in March 2006 repeated this version of history for what must have been the thousandth time: "[Milosevic] rose and then clung to power by resurrecting old nationalist grudges and inciting dreams of a Greater Serbia, [and] became the prime engineer of wars that pitted his fellow Serbs against the Slovenes, the Croats, the Bosnians, the Albanians of Kosovo and ultimately the combined forces of the entire NATO alliance….The Croats reacted by turning to their own nationalist, Franjo Tudjman, and so the stage was set for a deadly showdown between Yugoslavia's two largest ethnic groups, whose leaders manipulated centuries of historical differences…into a brutal civil war that spread from Croatia into Bosnia-Herzegovina.  There, the Muslim plurality led by Alija Izetbegovic proved powerless to enlist sufficient international support to prevent Mr. Milosevic and Mr. Tudjman from trying to dismember his state. Three and a half years of war ravaged Bosnia, leading to some 200,000 deaths and the eviction of millions from homes in a practice that became known globally as ethnic cleansing."[5] 

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This basic narrative was drafted early in the wars, and was instilled through constant repetition as well as through the selection of stories, portrayal of characters, and the development of themes; alternative accounts were not only ignored, but their authors were frequently the targets of aggressive defamation campaigns.  David Binder, the Times's fine reporter on the former Yugoslavia for many years, had been largely removed from this assignment by the end of 1993, quite obviously because he did not toe this party line but had continued to file reports that overstepped it, writing more complex analyses that did not focus simply on Serb villainy.[6] 

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By contrast, John F. Burns, whom the Times assigned to the former Yugoslavia at the start of 1992, was famous for his close relationship with Bosnian Muslim leader Alija Izetbegovic, and even won a Pulitzer Prize in 1993 based on his detailed reporting of the confessions of  Bosnian Serb, Borislav Herak, then in the custody of Bosnian Muslim forces.[7]  While Herak's allegations about his "odyssey of brutality" (Burns) were extremely dubious from the start, and  betrayed every sign of the syndrome of false memory under extreme duress, Herak's claims were very sexy, and, more important, they conformed to the already-established narrative of vicious, sadistic, genocidal Serbs driving the breakup of Yugoslavia.  At his trial before a Sarajevo court in March 1993, Herak offered emotional testimony about "his part in, or his knowledge of, the deaths of at least 220 Muslims, including 12 women" (Burns).[8]  Eventually, however, a retraction by Herak along with other telling evidence demonstrated that Burns's star witness had provided false testimony based on threats by his Bosnian Muslim captors.[9] But Burns suffered no ill-consequences—his Pulitzer was not withdrawn, nor did Burns surrender it.  Instead, he remains a New York Times stalwart, and has filed hundreds of reports from Baghdad since the fall of 2002.


Enter Marlise Simons          

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After 1993, Burns's place as the Times's most frequently published byline on the Balkans was filled by a number of reporters.  One was Marlise Simons, who, beginning in 1996, with the start of  trials before the International Criminal Tribunal for the Former Yugoslavia (ICTY), reported regularly on the workings of the Tribunal, later becoming the Times's principal reporter on the Milosevic trial, and she still carries on that beat.  Simons' record in dealing with Balkans issues has been one of undeviating accommodation to the establishment narrative, with an essentially perfect record of failing to ask critical questions or to report developments that do not conform to it.  In a separate analysis of 120 Marlise Simons-bylined articles on the ICTY that the New York Times published through December 31, 2003, we showed that Simons' bias was both systematic and comprehensive.[10]  From how Simons framed a story (always adhering to that of the Western establishment), to her sourcing (excluding all serious critics of the ICTY), to her word usage and tone (see the table below), all the way to selectivity in her choice of evidence (she uses the “preferential method”)—we found it "hard to believe that the Soviet media at the time of the Moscow show trials in 1936 could have done a better job on behalf of the Soviet prosecutor than Simons has done for the ICTY's prosecutors."[11]

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We reproduce here a Table on Simons's word-usage from our earlier work, a dramatic and almost comic illustration of this Times reporter's bias.[12]   

 

 

-------------------------------------------------------------------

                            MARLISE SIMONS’ WORD USAGE

Slobodan Milosevic                    Prosecutors Louise Arbour and Carla 
                                                      Del Ponte; Judge Richard May

Infamous                                                            Forceful (Arbour)

Sniped                                                              Resolute (Arbour)

Scoffed                                                New assertiveness (Arbour)

Smirk on his face                                           Very capable (Arbour)

Speechmaking                                       No-nonsense style (Arbour)

Badgers the simple conscripts             Tough crime fighter (Del Ponte)

Carping                                      Unswerving prosecutor (Del Ponte)

Blustery defense                                     Natural fighter (Del Ponte)

Loud and aggressive                           Unrelenting hunter (Del Ponte)

Notorious                                            Finding the truth (Del Ponte)

Defiant                                                 Keeping tight control (May)

Reverted to sarcasm                    Patiently repeated questions (May)

Contemptuous                                   Sober, polite and tough (May)

Outbursts                                               Expert on evidence (May)

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

-------------------------------------------------------------------


This differential word usage cannot be explained on the grounds that the ICTY's former Chief Prosecutor Louise Arbour, but not Milosevic, was “resolute” and “forceful,” and that Richard May, the former Presiding Judge at the trial, was only “sober, polite and tough,” whereas Milosevic was “contemptuous” and “carping.” John Laughland writes that May was “stubborn and aggressive" and "behaved rudely towards Milosevic throughout the trial,” while “exceedingly indulgent to the prosecutor.”[13] The noted Toronto lawyer Edward L. Greenspan, commenting on the opening days of the Milosevic trial, was immediately impressed with the fact that May “clearly reviles Milosevic” and “doesn’t even feign impartiality, or indeed, interest.”[14] But Simons would never call this attitude, so obvious to Laughland and Greenspan, “contemptuous.” Numerous trial observers have noted how May continuously interfered with Milosevic's cross-examinations in a manner that could reasonably be called “carping” and far worse.  But not Simons—she reserves such words strictly for the bad man.  During the Prosecution testimony by former NATO General Wesley Clark, May interrupted Milosevic’s cross-examination at least 60 times, but didn’t bother Clark once, even as Clark spent many minutes discoursing on matters that had no bearing on the trial charges.[15]  Simons never mentioned this, nor did she note that during his period as witness Clark was allowed to telephone Bill Clinton to get from him a faxed statement, contrary to previously firm courtroom procedures as enforced by May.

 

During the course of her reporting on the Milosevic trial, Simons often referred to Milosevic's and the Serbs' quest for a “Greater Serbia” as a central charge of the prosecution.[16] But during the defense phase of the Milosevic trial, when the Serbian Radical Party leader and fellow ICTY indictee Vojislav Seselj was called to the witness stand, an exchange took place on the fourth and final day of his testimony in which prosecutor Geoffrey Nice acknowledged that Milosevic himself never advocated a "Greater Serbia," and didn’t even believe in the concept, as Seselj did.  What Milosevic really wanted, Nice explained, was "first of all that the former Yugoslavia shouldn't be broken up because he argued, well, then, if they [i.e., Serbs] all live in the same place one where they can do it in [is] the former Yugoslavia."[17]  But this startling admission in court by the chief prosecutor in the Milosevic trial, that the defendant accused of being the fountainhead of Yugoslavia's breakup wanted instead to preserve the common state, was never reported by Simons or any of her colleagues at the Times.[18]


Simons and the Times on the International Criminal Court Decision

 

More recently, Marlise Simons has written two articles on the judgment by another tribunal, the International Court of Justice (ICJ) in the Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (better known as Bosnia and Herzegovina v. Serbia and Montenegro, or simply Bosnia v. Serbia).[19]  Both of these articles, as well as a Times editorial covering the same ground, which Simons  may have authored or co-authored, will be the focus of the balance of this article.[20]

 

First initiated in 1993 by the Muslim government of Bosnia and Herzegovina against the Federal Republic of Yugoslavia, the case was finally argued before the ICJ in 2006.  On February 26 of this year, the ICJ published a Judgment exonerating Serbia of any direct responsibility for the crimes committed against the male population of the Srebrenica "safe area" following its evacuation in July 1995, but also finding that Serbia "failed to take all measures within its power to prevent" the commission of these crimes.[21]

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The New York Times and Marlise Simons headlined her initial article “Court Declares Bosnia Killings Were Genocide,” adding the subhead “Serbia is Faulted but Cleared of the Crime” (February 27).  Simons' lead sentence affirmed that "The International Court of Justice…for the first time called the massacre of Bosnian Muslims at Srebrenica in 1995 an act of genocide…."  The Times editorial later repeated the line that "The World Court…concluded that genocide did take place…" (March 5).  And in her first follow-up article, Simons again repeated the line that "The judges ruled that Bosnian Serb troops committed genocide against Muslims in 1995 in Srebrenica" (March 6).  Similar assertions about what the ICJ declared or determined or ruled or found (etc.) comprise the main frame describing the Judgment, and its ubiquity is fairly close to total.[22]

 

But this framing of the decision is dishonest for many reasons.  One is that this case was about Serbia’s responsibility for the Srebrenica killings, which the ICJ denied but the Times did not feature.  A second reason is that the “declaration” of the ICJ that this was a case of "genocide" was not based on any independent investigation by the ICJ itself, but was derivative—in fact, the ICJ imported from the ICTY's rulings in its Krstic and Blagojevic cases, as well as the UN Secretary-General's 1999 report The Fall of Srebrenica, an already-existing determination to this effect,[23] and undertook no investigative effort to confirm or disconfirm it.  This resulted in large measure from the fact that, by the date the oral pleadings were heard by the ICJ in 2006, Serbia's defense strategy was to bypass all questions related to the fate of the Srebrenica "safe area" population, which are complex and would have required a major research effort, and to focus on the narrower question of Serbia's responsibility for whatever actions the Bosnian Serbs themselves may have taken.  Since Serbia addressed only the so-called "evidence of attribution" produced against it by Bosnia, the ICJ avoided the more fundamental matter before it, and merely quoted the ICTY's findings of "genocide," employing them contextually in an ex cathedra fashion without itself opening this critical question.  Although this was the only case ever to be argued before the ICJ under the Genocide Convention, and though the Judgment is replete with mentions of "genocide,"[24] the 15 voting-judges at the ICJ produced no finding on whether the Srebrenica-related killings constituted genocide—as anyone who checks paragraph 471 of the Judgment can plainly see.

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The ICJ's exoneration of Serbia from responsibility for the events at Srebrenica was especially important because the entire case against Milosevic that had been before the other court, on which Simons and the Times lavished such great attention, turned on his alleged master-minding and control of the indigenous Serb forces in Croatia and Bosnia. As John Laughland immediately pointed out, “Slobodan Milosevic was posthumously exonerated… when the international court of justice ruled that Serbia was not responsible for the 1995 massacre at Srebrenica.”[25]  Even former ICTY President Antonio Cassese—clearly unhappy with the Judgment—understood what it meant: "Serbia was not responsible under international law," he wrote; "Nor was Serbia guilty of complicity."  Most important of all, Cassese added that "if former Serbian President Slobodan Milosevic were alive, he would be absolved of the charge of genocide."[26]   Equally clear—though even more openly hostile toward the outcome—was Ruth Wedgwood, Johns Hopkins University international law professor and career-apologist for U.S. lawlessness, including acts of aggression, torture, the abandonment of habeas corpus and probable cause protections, and anything else required to serve the immediate needs of the imperial state.[27]  "The court's judgment has broad implications," Wedgwood noted in a long and bitter commentary that visually dominated the Times's op-ed page.  "It amounts to a posthumous acquittal of Mr. Milosevic for genocide in Bosnia."[28]  But in the Simons-Times treatment of this subject, there is not a hint of the connection or parallel that exists between the ICJ's exoneration of Serbia, on the one hand, and the status of the same category of charges brought against Milosevic in his serial indictments at the ICTY, on the other.  This strategic silence continues the pattern of suppression of inconvenient facts and lines of thought noted earlier as regards Simons' failure to report the collapse of the "Greater Serbia" charge during the Seselj phase of the Milosevic defense. 

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The Times's editorial states that the ICJ “established the official complicity of the former Serbian government.”  This is an egregious misrepresentation—in fact, the ICJ's Judgment even uses the word complicity in stating the opposite from what the Times claims: namely, "that Serbia has not been complicit in genocide" (Par. 471, Part (4), emphasis added). The ICJ claimed that the Serb government should have taken active steps to prevent the Srebrenica killings, but “complicity” implies control or some form of  participation. Furthermore, as the ICJ contends that the Srebrenica killings were not preplanned, but driven more or less by on-the-spot decisions and actions, it is not even clear that the Serbian government could have done anything about the killings. It is also not clear why the ICJ singled out the Serbian government for failure to act, rather than the UN Protection Force (UNPROFOR) and the NATO governments that were physically present within Bosnia at the time and therefore arguably in a better position to know and to act than the Serbian government.

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As regards Serbia's "breaching it obligation of prevention," the ICJ argued that "it does not need to be proved that the State concerned definitely had the power to prevent genocide; it is sufficient that it had the means to do so and that it manifestly refrained from using them."[29] But any court taking this argument seriously would have no choice but to find the United States in breach of the same obligation—it had the means and obviously failed to use them.  The ICJ also stated that "The FRY leadership, and President Milosevic above all, were fully aware of the climate of deep-seated hatred which reigned between the Bosnian Serbs and the Muslims in the Srebrenica region."[30] But so was everyone else.  Moreover, the Serbian government's armed forces had been withdrawn from Bosnia, but UNPROFOR was still in place, as was NATO's newly created Rapid Reaction Force, and these forces exercised complete control of the skies.  Neither the Simons articles nor the editorial mention these considerations. 

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Simons quotes the ICJ on “deep-seated hatred,” but neither here nor in the earlier sample of her 120-bylined articles that we studied does she discuss the roots of this hatred—most notably Naser Oric's frequent rampages against local Serbs from his armed camp in Srebrenica, from which Oric made videos of beheaded Serbs that he proudly showed to Western correspondents, reported elsewhere, but never by the New York Times.[31] In her article here Simons mentions that during the 1992-1995 wars in Bosnia, Srebrenica was declared a “haven and [the UN] promised to protect it.”  And she adds that, in July l995, “Serb forces…seized control of the enclave and killed almost every Bosnian Muslim man and boy captured there.” But neither here nor in her 120 earlier articles does Simons mention that the UN also promised to disarm these "safe areas,"[32] but failed to do so, allowing them to be used as protected bases for Bosnian Muslim attacks in eastern Bosnia that killed several thousand Serb civilians.  This might give meaning to the “deep-seated hatred” that Simons and the Times mention but fail to explain.

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Simons states that “International organizations say more than 100,000 people died between 1992 and 1995, two-thirds of them Bosnian Muslims.” Not “international organizations,” but researchers sponsored by the ICTY itself and by NATO governments.[33]  “More than 100,000” is also misleading in that both study projects gave the figure of just about 100,000. This slight inflation by Simons is a small residue of the long-standing inflation of Bosnian Muslim fatalities that up to very recently held that 200,000 to 300,000 had been killed; Simons herself stood by this figure, produced by Bosnian Muslim officials, up to very recent times, and as quoted above, the Times's obituary notice on Milosevic was still using the 200,000 figure as late as March 2006, long after the two research groups had provided the 100,000 figure. It was awkward that all this enormous attention to Bosnia and an alleged “genocide” should be based on a figure shrunken by one-half to two-thirds below the conventional untruth, and Simons does this reluctantly.  Note also her mention that two-thirds were Bosnian Muslims—a fact that gets the number of Bosnian Muslim deaths down to 66,000.  But Simons fails to mention that this includes soldiers, approximately half the total, a fact which in turn would get the grand total of  Bosnian Muslim civilians killed down to 33,000.  Nor can Simons bring herself to mention the figure of 16,000 Serb civilians estimated to have been killed in this fighting.[34]

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Simons gives the figure of 8,000 “men and boys” killed at Srebrenica (Simons has never noted that many and perhaps most “boys“ were among the women and children bussed to safety by the Serbs in July 1995). The killings there were declared by the ICTY to constitute genocide.[35]  Of course Simons and the Times have never challenged the legitimacy or independence and integrity of the ICTY, an institution which was organized, funded, staffed and de facto controlled by the United States and Britain, and which served U.S. and NATO aims from beginning to end.[36] John Laughland’s excellent book Travesty, dealing with the ICTY and trial of Milosevic, may be a study in “The Corruption of International Justice,” as his subtitle affirms, but no trace of such a critical thought can be found anywhere in Simons or the Times.  Nor can Simons and the Times even be bothered with reporting accurately the ICTY’s decision as regards numbers—in the Krstic Judgment (August, 2001), the ICTY faced the problem that considerably fewer than 3,000 bodies had been found in the Srebrenica area and an untold number of them were killed in fighting during the Bosnian Muslim retreat from Srebrenica. The ICTY judges in the end simply guessed that a majority of the "well in excess of 7,000 people" alleged missing had been executed, which would make their judgment about that genocide based on an uncertain figure possibly far short of 8,000.[37]  But Simons and the Times prefer the larger number, just as for years they stood by the 200,000 - 250,000 figures for overall deaths in Bosnia.

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Simons and the Times have never uttered a critical word on the ICTY's designation of the Srebrenica massacre as “genocide.” It fits their biases—just as allegations about Iraq’s weapons of mass destruction once did, and allegations about Milosevic's quest for a "Greater Serbia" still do.  In these circumstances, their investigative zeal—even their willingness to think critically in any fashion—completely shuts down. Can it be genocide where the perpetrator takes the trouble to ensure that all the women and children are bussed to safety?   When the killings in fighting are hard to disentangle from executions, and only some 2,028 bodies are recovered in the area after six years of searching?[38]  When even on the ICTY’s  judgment, which was not based on hard evidence and is therefore speculation, only possibly 4,001 executions took place?  When, as the ICJ concludes, any decisions to execute large numbers were taken by local commanders, and may have been based on a vengeance motive that is local in nature?  And when there is not the slightest evidence of any larger plan to exterminate the Bosnian Muslims?  Can we have genocide in one small town, as the ICTY would have it?  Isn’t this a degradation of the word genocide?  A denial of the event for which the word was coined, along with the Convention bearing its name?  And an insult to the memory of the victims?

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No such thoughts ever make it into the New York Times.

We believe that the ICJ’s adoption of the ICTY's conclusion about "genocide"  was a serious error, and one that will exact negative consequences for a long time to come. Even a cursory examination of the ICTY's judgments in the Krstic and Blagojevic cases show them to be based on extremely thin evidence, illogical and poorly argued as law, highly emotional pleadings, and an untenable misuse of a much abused word.  For the ICJ to reiterate this very problematic claim by a nominally judicial, but de facto political, organ shows that in the case of Bosnia and Herzegovina v. Yugoslavia, the ICJ elected to treat the contentious issues before it within the safe framework of established, NATO-friendly truths.  In so doing, the ICJ, for the second time in less than a decade, helped to advance the anti-Serb campaign of the NATO-ICTY bloc.[39]

 

Nowhere does the ICJ more clearly give this shape than in its ruling that by failing to transfer to the ICTY any persons indicted by it for genocide, Serbia has violated its obligations under the Genocide Convention, and must immediately comply, "in particular in respect of General Ratko Mladic."[40] This ruling helps the NATO-ICTY political program in the former Yugoslavia, and Simons is keenly aware of the fact.  Her March 6 article assembled "several legal experts" to show how the ruling creates new political leverage over the Republic of Serbia and the Bosnian Serbs.  Former ICTY President Antonio Cassese warned of the "great moral weight attached" to the judgment, which "creates new pressures" and "all sorts of obstacles for Belgrade…."  Simons' other sources included the ICTY's Chief Prosecutor Carla Del Ponte; onetime Clinton envoy to the ICTY and point-man in keeping the crime of aggression out of the International Criminal Court's jurisdiction, David Scheffer; and Phon van den Biesen, a "Dutch lawyer and a leader of the Bosnian legal team," who conducted several of the plaintiff's oral pleadings before the ICJ.

 

In other words, Simons used her follow-up article as a platform for sources who have devoted major parts of their careers to advocating against Serbia.  And she marshaled each of these figures to issue warnings to Serbia: Until it arrests and transfers to the ICTY the five indictees still at large, "this is bound to have an adverse effect on decisions around Europe" (van den Biesen).  Missing was so much as a single legal expert who did not feed Simons similar threats about the "international repercussions" Serbia risks by not doing what the ICTY demands (Scheffer).  "[T]he ruling," she writes, "associates Serbia's present government with the scourge of genocide, even if it happened under the past government of Slobodan Milosevic."  This is a misleading half-truth, of course: As we've noted, the ruling exonerates Serbia of any responsibility for Srebrenica-related killings, and posthumously does the same for Milosevic.  But Simons' real point here is political, not factual: The "scourge of genocide" is an epithet, a smear to be spread across the collective, much as "Milosevic's willing executioners" used to be.[41]  

 

Simons and the New York Times display unconditional respect for the work of the ICJ in this case. This contrasts sharply with their reaction to the ICJ decisions in the case of  Nicaragua v. United States (1986) and the case concerning the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004).  In Bosnia v. Serbia, the ICJ decision is somewhat favorable to the side that the Times supports, and as we have indicated, Simons and the editors twist, misinterpret, and inflate its weak and inconsistent finding that Serbia breached its "obligation to prevent genocide" to yield a more favorable result than the decision itself merits. In the Nicaragua case, however, the ICJ concluded quite forcefully that the United States had breached its obligations "not to use force against another state," "not to violate the sovereignty of another state," and "not to intervene in the affairs of another state"—and unlike Serbia, was ordered to make reparations to Nicaragua.[42]  The Times responded to this judgment by calling the ICJ a “hostile forum” and “tendentious,” and in a blatant illustration of their willingness to disregard international law when it works against their own country's policies, they raised no objection when the Reagan administration rejected the ruling, and terminated the U.S. acceptance of the ICJ's compulsory jurisdiction that had dated back to 1946.[43] Similarly, in the case of Israel's apartheid wall, though the ICJ ruled on an advisory basis that its construction is "contrary to international law" as it applies to an occupying military power, and noting that Israel is obligated to "dismantle forthwith the structure" and "make reparations for all damage caused by its construction,"[44] the Times warned that the "Palestinians will fashion the nonbinding ruling from The Hague into a political battering ram," but otherwise soft-peddled the issue, and urged no steps to be taken by Israel or the international community to stop construction.[45] Nor was there any editorial follow-up as construction of the barrier has continued.

 

On these two gravely important issues—"genocide" and the "supreme international crime" or aggression—the ICJ has shown a troubling proclivity to run in parallel with the ICTY.  For its part, the ICTY does not concern itself with the "supreme international crime," the Nuremberg-class crime that the ICTY's sponsors committed when they attacked Yugoslavia in 1999 (and, later, Afghanistan and Iraq as well);[46] but it is very aggressive in pursuing lesser crimes, as it has done on a selective basis in the case of Yugoslavia.  Similarly, Yugoslavia in 1999 failed to persuade the ICJ to hear its case against NATO without first securing the consent of the military alliance then attacking it; needless to say, none was forthcoming.  But several years later, this time cast in the defendant's role, Yugoslavia was brought before the same ICJ, and a verdict rendered.  What this plainly shows is that the international system, even at the highest level embodied by the International Court of Justice, the "principal judicial organ of the United Nations," systematically fails to address crimes against the peace when committed by supreme international criminals, but somehow or other makes itself available to pursue lesser criminals, even those whose crimes occur as they resist the perpetrators of  the “supreme international crime.” 

 

It is remarkable that with all the mass killings of the post-war period, the ICJ and the world media featured Bosnia - Herzegovina, and Srebrenica in particular, as the first test-case in which the application of the Genocide Convention to armed conflict was adjudicated. In the case of Bosnia, the grand total of civilian deaths in the years 1992-1995 was on the order of 66,000; and in the case of Srebrenica, the ICTY's "likely" total was a “majority” of 7,000 - 8,000 (i.e., some indeterminate value over 3,500), mainly or entirely military-aged men.  So this still counts as “genocide,” and worthy of concentrated attention.  But the 200,000 mainly civilian deaths in East Timor, a million deaths from the “sanctions of mass destruction” in Iraq, the possibly half-million Iraqi deaths in the wake of the U.S.-British invasion-occupation of 2003-2007, the several million killed during the U.S. aggression against Vietnam and all of Southeast Asia, 1962-1975—each of these fail to qualify for adjudication and punishment for “genocide.”

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This harks back to the wise aphorism that “The greater the crime, the smaller the penalty.”  But that, in turn, rests on a simple rule—that the powerful define whom the terrorists and genocidists are, and exempt themselves and their allies. This is why, in John Laughland’s words, contemporary adjudications are a “travesty” and “corruption of  international justice.”

 

  ---- Endnotes ----

 

  1. See Tom Gervasi, The Myth of Soviet Military Supremacy (Harper and Row, 1986), pp. 119-126.  Also see Edward S. Herman, "All the News Fit To Print, Part II: Covering the Cold War," Z Magazine, May, 1998.
  2. See Edward S. Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media (Pantheon, 2nd Ed., 2001), Introduction, pp. xxvii-xxix; and Ch. 4, "The KGB - Bulgarian Plot to Kill the Pope: Free-Market Disinformation as 'News'," pp. 143-167.
  3. Although the New York Times's famous mea culpa was at best partial and confined, we nevertheless regard it as the classic case because we do not believe that the Times as an institution has ever acknowledge this degree of culpability about its erroneous coverage of a story of this magnitude over as long a period of time.  See "The Times and Iraq," New York Times, May 26, 2004.  Also see Michael Massing, Now They Tell Us: The American Press and Iraq (New York Review Books, 2004); and Eric Boehlert, Lapdogs: How the Press Roller Over for Bush (Free Press, 2006). 
  4. For a superb analysis of this party line, see David Chandler, The 'Butcher of the Balkans'?  The Crime of 'Joint Criminal Enterprise' and the Miloševic Indictments at the International Criminal Tribunal at The Hague, University of Westminster, U.K., 2006.
  5. Marlise Simons, "Slobodan Milosevic, 64, Former Yugoslav Leader Accused of War Crimes, Dies," New York Times, March 12, 200
  6. We estimate that since the New York Times published David Binder's interview with Milovan Djilas in his Belgrade apartment on December 23, 1993, the Times has published no more than 19 articles under the Binder byline that touched on some aspect of the former Yugoslavia, including the paper's obituaries for Franjo Tudjman (December 11, 1999) and Alija Izetbegovic (October 20, 2003).  Subsequent to 1993, Binder had to resort to alternative media to challenge the standard line; e.g., David Binder, "Bosnia's Bombers," The Nation, October 2, 1995.

  7. John F. Burns, "A Killer's Tale. A Serbian Fighter's Path of Brutality," New York Times, November 27, 1992.

  8. John F. Burns, "Bosnia War Crime Trial Hears Serb's Confession," New York Times, March 14, 1993.

  9. It turns out that reporters from Burns's own paper have helped to discredit his Pulitzer Prize-winning work: See Kit R. Roane, "Symbol of Inhumanity in Bosnia Now Says 'Not Me'," New York Times, January 31, 1996; Chris Hedges, "Jailed Serb's 'Victims' Found Alive, Embarrassing Bosnia," New York Times, March 1, 1997; and Jonathan Randal, "Serb Convicted of Murders Demanding Retrial After 2 'Victims' Found Alive," Washington Post, March 15, 1997. 

  10. See Edward S. Herman and David Peterson, "Marlise Simons on the Yugoslavia Tribunal: A Study in Total Propaganda Service," ZNet, 2004.

  11. Ibid.

  12. Ibid.  Each of the descriptive terms reproduced in Table 2 derive from a sample of 120 Marlise Simons-bylined reports published in the New York Times through December 31, 2003.
  13. John Laughland, Travesty: The Trial of Slobodan Milosevic and the Corruption of International Justice (Pluto Press, 2007), p. 69, p. 157.

  14. Edward L. Greenspan, "This is a lynching," National Post, March 13, 2002.  Greenspan's observations were formed on the basis of his reading transcripts of the trial.

  15. Michael Mandel, How America Gets Away With Murder: Illegal Wars, Collateral Damage, and Crimes Against Humanity (Pluto Press, 2004), pp. 169-170.
  16. As early as February 16, 1990, Marlise Simons reported for the Times from the Croatian capital of Zagreb that "Politicians from some smaller republics like Slovenia fear the rise of Serbian nationalism, saying it reflects aspirations to return to the era and borders of what was once known as Greater Serbia" ("Serbian-Albanian Conflict Reverberating Across Yugoslavia").  Eleven years later, she wrote that "Carla Del Ponte had argued that the conflicts and charges of war crimes in Bosnia, Croatia and Kosovo all belonged in one trial because they were part of the same strategy by Mr. Milosevic to create what he saw as an ethnically pure Greater Serbia" ("Yugoslavia: Milosevic Prosecutor Wants One Trial," December 20, 2001).
  17. Milosevic Trial Transcript, August 25, 2005, pp. 43226 - 43228. In this remarkable exchange, the South Korean Judge O-Gon Kwon asked Prosecutor Geoffrey Nice "how you understand the difference of the Greater Serbia idea and the idea of one -- all Serbs living in one state.  How do you understand?"  Nice replied: "[I]t may be that the accused's aim was for that which could qualify as a de facto Greater Serbia, yes. Did he -- did he find the source of his position, for I don't wish to identify it as an ideology or a platform. Did he find the source of his position at least overtly in historical concept of Greater Serbia; no, he didn't. His was perhaps to borrow His Honour Judge Robinson's term or was stated to be the pragmatic one of ensuring that all the Serbs who had lived in the former Yugoslavia should be allowed for either constitutional or other reasons to live in the same unit. That meant as we know historically from his perspective first of all that the former Yugoslavia shouldn't be broken up because he argued, well, then, if they all live in the same place one where they can do it in the former Yugoslavia" (p. 43227).—As best we can tell, no major English-language news source—and certainly no print source—has ever reported this remarkable admission by Nice.
  18. As noted earlier, as late as the obituary on Milosevic that she drafted for the New York Times in March 2006, Marlise Simons repeated the line that "he rose and then clung to power by resurrecting old nationalist grudges and inciting dreams of a Greater Serbia."  See note 5, above.

  19. See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (or Bosnia and Herzegovina v. Serbia and Montenegro), International Court of Justice, February 26, 2007. 

  20. See Marlise Simons, “Court Declares Bosnia Killings Were Genocide: Serbia Is Faulted but Cleared of the Crime,” New York Times, February 27, 2007; “Taking Genocide to Court,” Editorial, New York Times, March 5, 2007; and Marlise Simons, "Mixed Ruling on Genocide Still Puts Pressure on Serbia," New York Times, March 6, 2007.—Note that the cutoff date for the present analysis is March 6, 2007.  

  21. See Bosnia and Herzegovina v. Serbia and Montenegro, par. 471.  Here we emphasize the inconsistency between the ICJ's findings in parts (2), (3), (4), and (9), on the one hand, and parts (5) and (7), on the other.  In the first set of findings, the ICJ clearly exonerates Serbia of any role in Srebrenica-related crimes; but in the second, the ICJ finds Serbia in violation of its obligations to have taken steps to prevent the very same Srebrenica-related crimes for which the ICJ exonerates Serbia of responsibility!

  22. Examples of this framing of the ICJ's Judgment abound.  "The ICJ has ruled that genocide did occur" (Richard Dicker, Human Rights Watch). "[T]he court ruled that the mass murder of almost 8,000 Bosnian Muslim males at Srebrenica …was indeed an act of genocide" (Ian Traynor, The Guardian, February 27).  "[I]t confirmed that a genocide had taken place in Srebrenica" (Editorial, The Guardian, February 27). "The court did find that the Bosnian Serb army had committed genocide" (Jeffrey Fleishman and Zoran Cirjakovic, Los Angeles Times, February 27, 2007). "The World Court calls it by its name: genocide" (Editorial, Toronto Globe and Mail, February 28). 

  23. For the ICJ's account of the sources it used for its Judgment, see Section (5) "The massacre at Srebrenica," Bosnia and Herzegovina v. Serbia and Montenegro, pars. 278 - 297.

  24. By our count, the term 'genocide' appears within this Judgment a total of 576 different times.

  25. John Laughland, “Lies of the vigilantes,” The Guardian, February 28, 2007.
  26. Antonio Cassese, "The ICJ applied too high a burden of proof on Srebrenica," Daily Star, March 1, 2007.
  27. For a brief sample of Ruth Wedgwood's advocacy on behalf of U.S. lawlessness, see, e.g., "Fiddling in Rome: America and the International Criminal Court," Foreign Affairs, Nov./Dec., 1998; "An International Criminal Court Is Still A Bad Idea," Wall Street Journal, April 15, 2002; "World Criminal Court A Slippery Slope for U.S.," Boston Globe, August 10, 2002; "Legal authority exists for a strike on Iraq," Financial Times, March 14, 2003; "The Rule of War and the War on Terror," New York Times, December 23, 2003; "Ill-Advised Advisory," Wall Street Journal, February 18, 2004; "War Comes To Court," Wall Street Journal, April 20, 2004; "Judicial Overreach," Wall Street Journal, November 16, 2004; "A Run for the Money: Spin-Offs, Rivals, and UN Reform," National Interest, Winter, 2005; "Give the United Nations a Little Competition," New York Times, December 5, 2005; "Iran Ascendant: Using international law to check Iran's ambition to control the Middle East," American Lawyer, March 1, 2007.      
  28. Ruth Wedgwood, "Slobodan Milosevic's Last Waltz," New York Times, March 12, 2007.—As the Times published this commentary when the current article was going to press, we do not deal with it in detail here.  However, we want to emphasize that in this first opinion column published in the Times on the ICJ's Judgment by someone other than its own staff, it was Ruth Wedgwood whom the Times mobilized, amplifying the viewpoints of this all-around apologist for her state and the kinds of crimes at which it now excels.    

  29. Bosnia and Herzegovina v. Serbia and Montenegro, par. 438.

  30. Ibid., par. 438.

  31. For material on Nasir Oric, see Bill Schiller, "Muslims' hero vows he'll fight to the last man," Toronto Star, January 31, 1994; John Pomfret, "Weapons, Cash and Chaos Lend Clout to Srebrenica's Tough Guy," Washington Post, February 16, 1994; and Bill Schiller, "Fearsome Muslim warlord eludes Bosnian Serb forces," Toronto Star, July 16, 1995.   

  32. UN Security Council Resolution 819 (S/RES/819), adopted on April 16, 1993, designated Srebrenica a "safe area" and "free from any armed attack or any other hostile act" (par. 1).  Within 48 hours, the Bosnian Muslim General Sefer Halilovic, the Bosnian Serb General Ratko Mladic, and UNPROFOR General Lars-Eric Wahlgren of Sweden reached an agreement that called for a Serb ceasefire in exchange for UNPROFOR's disarming of the Bosnian Muslim garrison within the "safe area."  As UNPROFOR commanding General Philippe Morillon explained, 'We can now guarantee the survival of Srebrenica.  The agreement we reached was to demilitarise the town.'  Marcus Tanner, "Srebrenica victims airlifted to safety," The Independent, April 19, 1993; and John F. Burns, "U.N. Says Enclave Is 'Saved'; Bosnians Call It 'Surrender'," New York Times, April 19, 1993.  Similar agreements were repeated in May when the Security Council extended "safe area" designation to five other Muslim centers.

  33. According to Ewa Tabeau and Jakub Bijak, two researchers employed by the Demographics Unit at the International Criminal Tribunal for the Former Yugoslavia, the total "number of war-related deaths in Bosnia and Herzegovina [was] 102,622 individuals, of which 47,360 (46%) [were] military victims and about 55,261 (54%) [were] civilian war-related deaths."  See “War-related Deaths in the 1992–1995 Armed Conflicts in Bosnia and Herzegovina: A Critique of Previous Estimates and Recent Results,” European Journal of Population, Vol. 21, June, 2005, p. 207.  Also see the ongoing work of the Sarajevo-based research and Documentation Center, specifically its “Status of the Database by Centers,” a webpage where the Center reports its most current estimate of mortality from the wars.  As of early 2007, the Center's estimate had been hovering between 97,000 and 98,000 for several months.

  34. See Tabeau and Bijak, fn. 12, p. 213, where they explain the method by which they reached their provisional estimate of 16,700 war-related Bosnian Serb civilian deaths.

  35. For the ICTY's most extensive discussions of the fate of the Srebrenica "safe area" population, see Judge Almiro Rodrigues et al., Judgment in Prosecutor v. Radislav Krstic, ICTY, August 2, 2001; and Judge Theodor Meron et al., Judgment in the Appeals Chamber (IT-98-33-A), ICTY, August 19, 2004. 

  36. On the ICTY's background and practices, see Mandel, How America Gets Away With Murder, Ch. 4, "The War Crimes Tribunal," pp. 117-146; and Laughland, Travesty, Ch. 3, "Inverting Nuremberg," pp. 53-68.

  37. See esp. pars. 66 - 84 of the Judgment in Prosecutor v. Radislav Krstic, August 2, 2001. “There is some serious inconsistency in the [Krstic] judgment on the question of the actual number of victims,” Michael Mandel observes, contrasting the forensic evidence for the estimated number of bodies exhumed (2,028) with the demographic evidence for the number of person’s “reported as missing and…presumed dead after the fall of the Srebrenica enclave” (between 7,475 and 7,536) and, ultimately, against the Trial Chamber’s Judgment that the “total number [of Bosnian Muslim men executed by Bosnian Serb forces] is likely to be within the range of 7,000 – 8,000” (par. 84). “The evidence,” Mandel continues, “was found only ‘to support the proposition that the majority of missing people were, in fact, executed and buried in the mass graves’.  A majority of a maximum of 7,000 - 8,000 would put the maximum executed closer to 4,000.” As Mandel concludes (How America Gets Away With Murder, pp. 155-156): "The mass murder of 4,000 people is a horrifying crime, whether committed by Serbs in Bosnia or the Americans in Afghanistan or Iraq. It’s the kind of thing that happens in war, and that’s precisely why the crime against peace is the ‘supreme international crime’. For murdering 4,000 people, they could have sent Krstic (not to mention Clinton) away for a lot of life terms, so why exaggerate the numbers? Because the tribunal wasn’t really interested in the murder charges. They were after the big prize of genocide, a much more difficult case to make in these circumstances, so the higher the number of dead the better."

  38. See Judgment in Prosecutor v. Radislav Krstic, par. 73 and par. 80.—Here we note that this August 2001 Judgment refers to 2,028 as the "minimum" conservative estimate.  It adds that "Although the Trial Chamber cannot dismiss the possibility that some of the exhumed bodies were killed in combat, it accepts that the majority of [these] victims were executed" (par. 80).

  39. The first time the ICJ helped to advance a NATO-friendly campaign occurred during NATO's 1999 aggression against Yugoslavia. In this Case Concerning the Legality of Use of Force, Yugoslavia asked the ICJ to issue an injunction against ten member-states of the military bloc then attacking it; Yugoslavia also sought a determination as to the legality of this attack on its territory.  But the ICJ ruled that it lacked the jurisdiction to hear any of the cases, and ordered each dismissed.  Most remarkable of all, as early as June 2, 1999, with Yugoslavia still under attack by NATO, the ICJ ruled that it "manifestly lacks jurisdiction" to entertain the complaint naming the United States.  The ICJ "cannot decide a dispute between States without the consent of those States to its jurisdiction," 12 of 15 judges agreed.  Since the "United States observes that it 'has not consented to jurisdiction…and will not do so'," the ICJ was left with no alternative: "in the absence of consent by the United States,…the Court cannot exercise jurisdiction…"  See Federal Republic of Yugoslavia v. United States of America, ICJ, Order of June 2, 1999, pars. 19 - 31.  Also see David Peterson, "A Case of Genocide?" ZNet, March 10, 2007.

  40. Bosnia and Herzegovina v. Serbia and Montenegro, par. 465.  Also see "The obligation to punish genocide" (pars. 439 - 450), and par. 471(6) and (9).

  41. Examples of collective guilt imputed to Serbs have been common.  "Whatever else we do in Kosovo," Stacy Sullivan wrote, "we must face the fact that, for all intents and purposes, many ordinary Serbs are—to paraphrase Daniel Jonah Goldhagen—Milosevic's willing executioners."  (New Republic, May 10, 1999.)  "Milosevic's long and malevolent shadow obscures a multitude of sins by others who have escaped a reckoning. In Serbia he had many willing executioners behind him. And nearly everywhere else in the Balkans, his virulent ethnic nationalism still has many enthusiastic imitators today."  (Rod Nordland and Roy Gutman, "Judgment Day," Newsweek, July 9, 2001.)

  42. Case Concerning Military and Paramilitary Activities in and against Nicaragua (or: Nicaragua v. United States of America), ICJ Judgment of June 27, 1986, par. 292.

  43. "America's Guilt - or Default," Editorial, New York Times, July 1, 1986.

  44. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, July 9, 2004, par. 163.

  45. "One Wall, Two Opinions," Editorial, New York Times, July 11, 2004.

  46. See Statute of the International Tribunal Adopted May 25, 1993, along with subsequent updates.  None of articles 2 through 5, which run the gamut including breaches of the Geneva Conventions of 1949, the laws and customs of war, genocide, and crimes against humanity, so much as mentions the "supreme international crime"—or anything remotely like it.
  

 

 

 

 

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