Just as the manuscript of our new monograph, “Srebrenica: the deconstruction of a virtual genocide”, was ready to go to press on June 10, the Hague Tribunal announced its trial verdict in Popović et al. There is always a delay before the Tribunal publishes the full text of its verdicts. As a result, what we have at this time are a few excerpts and an official Summary that was posted on the Tribunal’s website.[1]  But even that much is sufficient for some preliminary comments.

As always, the Summary contains all the major conclusions drawn by the Chamber. Later, the full text of the judgment will undoubtedly be of great value to check the factual basis upon which specific conclusions rest. However, all Tribunal verdicts follow the same pattern and their creativity coefficient is very low. That persuades us that the Summary offers sufficient material for an adequate reaction.

This judgment illustrates once again the popular American saying that it is very difficult to teach an old dog new tricks. Indeed, it does not seem to contain any new, unexpected, or creative elements.

It starts predictably, with a ritual incantation:   
“In the context of the war in the former Yugoslavia, and in the context of human history, these events are arrestive in their scale and brutality.”

Needless to say, this overheated rhetoric has little to do with reality.  History is replete with examples of cruelty, especially in wartime, for the execution of several hundred prisoners to stand apart in this catalogue of atrocities. Has the Chamber heard of the Death March of British war prisoners on the island of Borneo under Japanese occupation in 1945? Of the 1.574 British soldiers who were forced by the Japanese to march from Sandakan, where they had been interred, several weeks later only 431 managed to reach their new destination, Ranau. When in July of 1945 Japan capitulated, not a single one of those British prisoners was still alive. The conditions under which that forced march took place are described thus:
„Prisoners who were unable to walk were shot. The march route was through virgin jungle infested with crocodiles, snakes and wild pigs, and some of the prisoners had no boots. Rations were less than minimal.“[2]

This detail is sufficient to demonstrate the political hypocrisy and thorough lack of professionalism on the part of the Tribunal Chamber. It relies on inflated emotional rhetoric to create a propaganda atmosphere conducive to the acceptance of the prearranged draconic sentences  it was determined to inflict on the accused. Did British prisoners in Borneo have an easier time of it that the victims of Srebrenica did in eastern Bosnia? To be consistent, the Tribunal Chamber would be obliged to answer in the affirmative. The Chamber puts Srebrenica war prisoners in mid-July 1995 absolutely in the forefront of all human suffering, and—mind you—in world-historical terms.

To deal now with more concrete issues. The Chamber invokes the “extensive amount of forensic and demographic evidence” presented during trial and it draws the following conclusion:
“Based on the evidence, the Trial Chamber has found that at least 5.336 identified individuals were killed in the executions following the fall of Srebrenica. However, noting that the evidence before it is not all encompassing, the Trial Chamber is satisfied that the number of identified individuals will rise. The Trial Chamber therefore considers that the number of individuals killed in the executions following the fall of Srebrenica could well be as high as 7.826.”

Nota bene: since there aren’t 5.336 bodies, the Chamber’s conclusion strongly suggests that the “evidence” which forms the basis for this conclusion derives from DNA analyses prepared by the International Committee for Missing Persons (ICMP). That impression is enhanced by the Chamber’s further observation that it has proof that “at least 5.336 identified individuals were killed in the executions following the fall of Srebrenica”. Personal identification evidence, based on alleged matches with surviving relatives, is the key feature of ICMP materials which, in closed session and under seal, were submitted by the prosecution during the Popović et al. trial. All our criticisms in relation to that “evidence” remain fully in effect.[3]  This evidence is unverifiable and it was presented in a form which constitutes a mockery of standard evidentiary procedure. In the form in which they were offered, these DNA results cannot serve as a basis for proving anything. All legal findings and conclusions based on them are null and void.

Some of the flaws in the Chamber’s reasoning are egregious enough for a layman to notice. How can the Chamber have advance knowledge that the evidence presented at trial is not “all encompassing” and how can it base its present judgment on an anticipation of the quantity and quality of future evidence? Has ICMP assured the Chamber that it will fabricate additional DNA matches in sufficient number to reach the magic figure of  8.000 or to approach it closely? That is the way it sounds because based on unpresented evidence the Chamber says it is “satisfied” that the final figure of execution victims could be “up to 7.826.”

This sounds in fact like the famous repartee of the Church father Origen, who did not fare well in his disputation with the pagan philosopher Celsus, and said that based on discovered evidence it may appear that Celsus is right, but that evidence still to be discovered will demonstrate that he, Origen, had won the debate.

But the ludicrous part of the Chamber’s conclusion is its apparent claim that the unverifiable numbers it flaunts are of victims “killed in the executions following the fall of Srebrenica.” Does the Chamber have any idea of what DNA evidence is and what it can and cannot do?

DNA can help prove the existence of a blood relationship between a person believed to be dead and a living survivor and thus in many cases it can lead to identification. But in terms of the other key components of a criminal investigation, such as the time and cause of death, DNA is completely useless. The person whose identity is established by an acceptable DNA match could have been executed, but could also have been killed in legitimate military action, could have died a natural death, or could have been killed in an accident. All the latter possibilities, and many others like them, involve no criminal liability whatsoever. It was scientifically impossible for the Chamber to conclude that the DNA matches belonged to execution victims.

As in the previous Srebrenica trials, the Chamber in Popović et al.  also was unable to function without reliance on the discredited “crown witness”, Dražen Erdemović. The Hague Tribunal’s toxic dependence on the evidence of the notoriously false witness Erdemović is reflected in the way the Chamber approached the issue of placing the accused VRS Lt. Colonel Vujadin Popović on the crime scene in Branjevo and Pilica. It simply had to place him there if it was to create a convincing rationale for sentencing him to life imprisonment:
“There is no evidence before the Trial Chamber of any other Lieutenant Colonel in Pilica at this time. In light of this, the Trial Chamber is satisfied that there is no other reasonable conclusion available on the evidence but that the Lieutenant Colonel whom Erdemović saw at Branjevo Military Farm and in Pilica town on 16 July was Popović.[4]

First year law students will notice the curious way in which the Chamber approached the identification of the mysterious “lieutenant-colonel”. His presence in Pilica is assumed not for some objective reason, but because it was Erdemović who said so. The picture drawn by Erdemović by hook or by crook must be rounded off with an identified lieutenant-colonel, practically whoever that individual might turn out to be. By happenstance, in the courtroom, in the dock, there was indeed a real life lieutenant-colonel, a certain Vujadin Popović. Having satisfied all the assigned criteria for the role, he was the natural candidate. The possibility that Erdemović may have invented the lieutenant-colonel as he did a number of other things in his evidence, does not disconcert the Chamber in the slightest. It goes on to say:
“The Trial Chamber has carefully considered the fact that Erdemović was unable to identify Popović in a photo line up … However, the Trial Chamber considers that given the traumatic circumstances in which Erdemović met Popović and the significant passage of time since then, Erdemović’s failure to identify Popović in a photo line up does not raise a reasonable doubt as to the Trial Chamber’s conclusion that the man whom Erdemović saw at Pilica on 16 July was, in fact, Popović”.[5]

So let no one suggest maliciously that the Chamber approached the resolution of this important issue without exercising due care. It struggled intellectually and it meticulously weighed the evidence, taking full account of the rather significant fact—which could not have escaped the attention of experienced jurists—that witness Erdemović failed to recognize the accused Popović in a photo line-up. But the traumatized witness’ inability to recognize the suspect (which before most normal courts would have strengthened greatly the defendant’s case) is not an impediment to the Hague Tribunal in the drawing of its “conclusions”, and it is not even sufficient to raise a reasonable doubt. The Chamber’s task is to identify by name the lieutenant-colonel fancied by Erdemović and to send him to prison for life. Vujadin Popović is sitting there, he happens to be a lieutenant-colonel, and he must now pay the predetermined price.

To summarize. The judgment of the ICTY trial chamber in Popović et al. illustrates once again the immutable modus operandi of the Hague Tribunal. All the facts, both actual and imagined, must be fitted on the bed of Proscrustes of preordained findings and arbitrary “legal conclusions.”
The Chamber has once again performed the task assigned to it with signal success.

[1]Judgment Summary for Popović et al., http://www.icty.org/x/cases/popovic/tjug/en/100610summary.pdf
[2]For details, see site of Commonwealth prisoners of war in the Far East: http://www.diggerhistory.info/pages-battles/ww2/sandakan.htm
[3]See pp. 20-23 of the monograph “Srebrenica: deconstruction of a virtual genocide”, Belgrade 2010.
[4]Popović et al., trial judgment, par.  1134
[5]Popović et al., trial judgment, par.  1135.