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The International Criminal Tribunal for the Former Yugoslavia, also known as ICTY, was illegally founded in May of 1993 when the Security Council of the United Nations was steamrolled into adopting a politically engineered resolution to that effect. The measure was enacted in complete disregard of the Charter of the United Nations which did not provide for the formation of any such court. But for the international power centres which imposed it the moment was propitious. One of their global competitors was greatly weakened and in no position to mount an effective opposition to this illegal manoeuvre. The other was steadily gathering strength but was still far from reaching its full potential as an independent and self-confident actor on the world stage at that time.

ICTY, with its seat at The Hague, was created ostensibly to prosecute serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. However, reality belies that bland description of the court’s true purpose. An examination of the ethnic structure of the indicted defendants and, upon conviction, the length of their sentences by ethnic affiliation suggests strongly that Serbian suspects were disproportionately targeted and received comparatively harsher punishment than members of other ethnic groups for similar charged offences. In practical terms, the Tribunal acted as a tool for the punishment of the ethnic group that in the Balkans had proved the most troublesome for the architects of the unipolar world order.

Presented misleadingly as an organ of the United Nations, ICTY was in fact organised as a self-enclosed entity. Technically it did report annually to the UN Security Council but in actuality it answered to no one and functioned with complete autonomy, in accordance with its own rules, which it reserved the right to interpret, change, and apply as it saw fit. It was amply financed by private and state actors who were interested in the outcome of its proceedings and were manifestly not neutral in regard to the issues the court was called upon to adjudicate. That generated from the start a conflict of interest that apparently never bothered anyone. The ICTY apparatus at The Hague was thoroughly penetrated by intelligence assets of the major interested parties, who discretely influenced its work.

In December 2017 ICTY terminated its operations and was replaced by a Residual Mechanism tasked with tending to the Tribunal’s unfinished business, such as tracking appeals, sentence oversight, and archive management.

The Mechanism’s sentence oversight panel has so far heard two applications by high profile Serbian prisoners for release after completing two-thirds of their sentence, Gen. Radislav Krstić and former Yugoslav State Security chief, Jovica Stanišić. Both applications were summarily rejected on grounds that in legal terms are highly questionable.

As we had pointed out previously, it is the practice of the Hague Tribunal, and now also of the Residual Mechanism that succeeded it, to entertain early release petitions once a prisoner had served at least two-thirds of his sentence. The court’s response to such a petition is discretionary as there are no mandatory rules governing the way it should react. But following an informal practice, the vast majority of early release petitions submitted to the President of the Tribunal and now the Mechanism have been routinely adjudicated in the applicant’s favour. Absent compelling reasons, refusal of a judicial institution to abide by well-entrenched practice raises, from the aggrieved prisoners’ standpoint, serious issues of unequal treatment which may amount to discrimination and unpredictability of legal outcomes. Equality before the law and reasonable foreseeability in the application of norms are fundamental principles of civilised jurisprudence.

Gen. Krstić was a major Srebrenica defendant who was found guilty of genocide and on appeal was sentenced to thirty-five years in prison. Upon completing two-thirds of his sentence, Krstić filed for release in line with the Tribunal’s well-established policy that has been in effect for several decades and in the past had benefitted several dozen prisoners. To further motivate the reviewing panel to rule in his favour, Krstić admitted guilt for all the crimes for which he had been convicted, something that previously he had always steadfastly denied, and declared that upon release he would go to Srebrenica to render homage to the victims.

Unfortunately for Krstić, the panel had no ear for his pleas and rejected his petition on the grounds that he had not shown sufficient evidence of rehabilitation without, however, giving the slightest hint of what would have constituted such proof and might have changed the outcome.

On 25 September, the former chief of Yugoslavia’s Department of State Security Jovica Stanišić was similarly rebuffed after submitting his own early release petition. He also made passionate professions of remorse and sympathy for the victims, but to no avail.

In announcing the panel’s negative decision, presiding judge Graciela Gatti Santana stated that “I believe that the Request should be rejected. Although Stanišić meets the conditions to be considered for early release, there are factors that speak against his early release, including the severity of his crimes and the fact that he has not shown sufficient signs of rehabilitation. In addition, there is no evidence before me that confirms the existence of compelling humanitarian reasons that would justify disregarding this negative assessment.”

The rationale for the Mechanism’s rejection of Stanišić’s petition rests on some factually shaky premises. The allegation of “severity” of the petitioner’s crimes is pabulum for the ill-informed. Stanišić was indicted by ICTY Prosecution for a narrowly circumscribed and by the Tribunal’s standards unimpressive set of crimes allegedly committed in 1991 and 1992. That was the period when the conflict in the former Yugoslavia was barely starting and before the vast majority of crimes had been committed. The conflict ended much later, in the fall of 1995. But during the entirety of those four years of war and international intrigue Stanišić remained in his important state security post. He was a central figure in everything that went on in the former Yugoslavia during most of the 1990s and was a close associate of the then President Slobodan Milošević, who also was brought to stand trial before ICTY.

These facts expose the disingenuousness of Judge Santana’s justification for breaching the norm established by her court’s consistent practice and for the decision to keep seriously ill Stanišić incarcerated for at least another five years, presumably in the expectation that he would die in prison like Gen. Mladić and never have a chance to write his memoirs.

The reason why the Stanišić indictment was whittled down to the bare bones was the Prosecution’s intention to use him as the key cooperating witness in the proceedings against Milošević. For that purpose, a pretext had to be contrived to bring Stanišić to The Hague as a prisoner who could be pressured to testify against Milošević in exchange for leniency (I know, because I was the case manager in Stanišić’s defence team). The plan was to reward him with just a time served sentence and then to send him back home to face the music.

Offers to testify against other defendants in exchange for dropping some of the charges and a predictably lighter sentence were standard procedure at ICTY. Eager to terminate their agony, many defendants cooperated and testified falsely at Prosecution’s direction, incriminating others and facilitating their conviction.

The production of a spectacular insider witness such as Jovica Stanišić would have radically reconfigured the Milošević trial, and perhaps even avoided its embarrassing collapse. The Prosecution however went away disappointed. Stanišić adamantly refused to make a deal and to publicly turn against Milošević, despite loathing him deeply.

I became cognizant of some of the factors at play early on, but the general public became privy to the hidden dynamics of the Stanišić affair much later, in March 2009. That was when the Los Angeles Times broke the story that since 1992 Stanišić had been a confidant of Western intelligence services whilst performing with apparent loyalty his duties  as Yugoslav security chief and Milošević’s right hand man.

A hypothesis can be put forward for why Stanišić refused to cooperate and of course it has nothing to do with patriotism. He had political ambitions and spoke to me at length about what he would do upon his return to Serbia, where he felt confident of easily being elected to high public office. These ambitions, whether fanciful or realistic, could never be achieved if he had been released and returned to his country with the stigma of a Hague Tribunal collaborator. Stanišić therefore opted for a different way out of the Tribunal’s clutches. He calculated that his former associates in the foreign intelligence services, who wielded decisive influence in the Tribunal’s corridors, would remember his past services and feel morally obligated to ensure his release on honourable terms, after acquittal following an apparently proper trial.

But just like the Prosecution, Stanišić also miscalculated. He bet on the wrong horse. In the eyes of his former “friends” Stanišić was a relic of the past, of little or no residual utility. They had fresh faces, other players that they were cultivating to take the helm after driving Milošević out. The most that they would have been willing to arrange for him was a symbolic time served sentence in return for spilling the beans on his former boss.

Jovica Stanišić is another embodiment of Kissinger’s famous dictum, a lesson that Eastern European bumpkins never seem to learn.