On 4 February, the Hague Tribunal for the Former Yugoslavia [ICTY], transformed into the ominously sounding “Residual Mechanism,” in disregard of its established practice, declined to grant early release to Serbian prisonerMilan Martić. In the final phase of the conflict in the former Yugoslavia, Martić was the leader of the Serbian minority in the Krajina region of Croatia. Having completed two-thirds of his 35-year sentence,Martić was under the impression that his petition for early release was opportune and would be granted.He had been accused of a variety of offences, most of them standard fare in Tribunal proceedings: murder, persecution on political, racial and religious grounds, imprisonment, deportations, the plunder, etc. But what stands out in Martić’s indictment is the charge that after the start of the Croatian offensive against Krajina Serbs in the summer of 1995 heordered his forces to fire missiles at the Croatian capital of Zagreb, allegedly killing and injuring a number of civilians.

Image: Milan Martic (Source: Zoran Lesic /ICTY)

That is essentially the same kind of violation of international humanitarian law for whichAnte Gotovina, Martić’s opponent who commanded the attacking forces on the Croatian side, was put on trial by the same Hague Tribunal. Gotovina however, unlike his Serbian counterpart Martić, was never in a position to petition the Tribunal for early release. The reason for that is that he was acquitted, notwithstanding that the military operation he directed resulted in the expulsion of a quarter million Serb residents, the strafing of their refugee columns by his military aircraft, and the cold-blooded slaughter of 2,000 Serb civilians as they were fleeing desperately from Gotovina’s advancing columns.

Image: Radislav Krstic. Credit: UN-ICTY Zoran Lesic (CC BY 2.0)

This marks the Tribunal’s second refusal in the last several months to grant an early release petition, afterrejecting a similar request filed byGen. Radislav Krstić. Coincidentally, both prisoners whose petitions were denied just happen to be Serbs. And notably, never before that in the Tribunal’s three-decade history had an early release petition submitted by any prisoner who had served two-thirds of his sentence been denied. During the aforementioned period the Tribunal released routinely nearly a hundred convicted ICTY prisoners of diverse ethnic backgrounds, once they had satisfied the two-thirds criterion.

What makes the cases of Milan Martić and Radislav Krstić so different as to justify such a radical departure from established Tribunal (or “Mechanism,” if you prefer) practice?

Setting forth her reasons for rejecting Martić’s petition, presiding judgeGraciela Gatti Santanastated that in her opinion the prisoner Martić has failed to convincingly demonstrate a degree of “rehabilitation” sufficient to justify release before the completion of his full prison term. The “general good behaviour” acknowledged by the authorities in Estonia, where Martić has been serving his sentence, in the judge’s view “cannot on its own demonstrate rehabilitation of a person convicted for some of the most heinous international crimes.” She stressed that a circumstance particularly aggravating for the petitioner was the fact that “the Estonian authorities reported that Martic ‘considers himself a political prisoner’ and, “[g]enerally speaking, does not want to talk about his crimes, believing that the sentence imposed on him was politically motivated.”

Can anyone blame Martić for holding such opinions?

Judge Santana’s rationale is highly indicative of the legal culture, or perhaps more precisely thementality, of the Hague Tribunal. She claims that proof of “rehabilitation” is a criterion for early release, but neither in Martić’s case, nor when denying the petition of Gen. Krstić on virtually identical grounds, has she indicated what in her personal view or in light of ICTY’s practice constitutes evidence of rehabilitation. Furthermore, and this is the key point, the judge disenfranchises the petitioner for the act of refusing to internalise the allegations contained in the Prosecution’s charge sheet and for rejecting the verdict brought against him. The prisoner is penalised for the outrage of refusing to accept the imputation of guilt, which he is perfectly entitled to do within the rules of civilised jurisprudence. It is something that he must have done from the commencement of the proceedings, otherwise there would have been no trial at all.

In juridical terms, what right could the court possibly have to require a prisoner to assent to a verdict with which he strongly disagrees, and to make such involuntary assent a condition for receiving a benefit, in this case a shortened prison term? That question is particularly apt since post-trial acceptance of guilt was not a necessary condition for the early release of any other ICTY prisoner before Martić and Krstić filed their petitions.

Source: Global Research