[Dragan Obrenovic’s case is paradigmatic for the way the Hague Tribunal works. Most of the principal features of this non-standard judicial institution, whose legitimacy has been challenged from the moment of its inception, may be observed there. The makeshift nature of the indictment; the co-optation of the co-defendants to give evidence against each other, and against other defendants who will appear in due course; the use of psychological pressure and blackmail to break the targeted defendants’ personalities; on the whole, the low quality of assistance provided by opportunistic lawyers from the “politically suitable” list kept by the Registry; these are but some of the characteristics of that bizarre court. However, due note having been taken of the fact that its acts may be null and void from the standpoint of morality and legal procedure, its judgments undoubtedly have proved effective from the standpoint of propaganda and are quite useful politically. Perhaps that satisfies the needs of the cynical authors of the International Criminal Tribunal for the Former Yugoslavia. They probably believe that they can dispense with legitimacy grounded in traditional institutions. Their motto is ex chaos ordo. In their boundless hubris they consider themselves the creators of a new world which requires no reference to the values and traditions of the old, which they are in fact systematically undermining. The Dragan Obrenovic affair illustrates the impact of that destructive endeavour in the domain of international law and what it portends for the future.]
The announcement that the wretched Dragan Obrenovic is to be released from the dungeons of the Hague Tribunal eight months before the completion of his prison term should warm the heart of every honourable and equitable person. It is particularly heart-warming news to the author of these lines who was a member of Obrenovic’s defence team, is acquainted with all the details of his case – public as well as confidential – and appreciates fully that, to the shame of the Inquisition and its contemptible apologists, an almost twelve-year sentence shall have been endured by a completely innocent person.
Dragan Obrenovic is not merely an innocent but also a tragic man. He was arrested in 2001 pursuant to a sealed ICTY indictment [lettres de cachet, a practice of the ancien régime in France that in times past was denounced by the “enlighteners” but has nowadays become a standard mechanism of “international justice”, with the full approval of the champions of human rights] which was eagerly enforced by the occupation forces in Bosnia and Herzegovina. He was, in effect, kidnapped while having Easter dinner with his family at his in-laws’ house and then delivered to his tormentors at The Hague for further processing. His indictment was formulated in an offhand manner, encompassing a range of the usual epithets, from genocide, persecution and crimes against humanity, to joint criminal enterprise. Within the last of these charges, the Prosecution imputed to him the legally fictive murder of seven to eight thousand persons in Srebrenica although he had not killed a single specific individual.
I met Dragan Obrenovic for the first time at the Detention Unit in Sheveningen in the company of Gene Wilson, the lead lawyer in his case. That was shortly after his arrival. The defendant was still in a combative mood, firm in his resolve to “demonstrate his innocence” to the “court”. At home in Zvornik, Bosnia, his return was awaited by his wife and then six-year old son. In his native town, Rogatica, he was expected by his deeply concerned parents and brothers.
Dragan Obrenovic was an elite officer of the Yugoslav National Army [JNA] and one of the top ranking Military Academy graduates in his class. When war broke out in 1992, as a patriot who was a native of Bosnia, and since the Bosnian Serb army that was in the process of being organised was badly in need of trained officers, he remained to serve in it. By the end of the war he had attained the rank of major. At the time of the critical events having to do with Srebrenica, in July of 1995, Obrenovic was chief-of-staff of the Zvornik Brigade, Drina Corps, Army of the Republic of Srpska.
What did the “guilt” of Dragan Obrenovic consist of, in relation to the Srebrenica operation and its consequences? It is truly difficult to answer that question, although the Prosecution of the Hague Tribunal claimed to have a ready response. In the critical period after 11 July, 1995, the date when Srebrenica fell to Serbian forces, Dragan Obrenovic and his handful of Spartans were deployed high up the mountain passes overlooking Zvornik, at some distance from Srebrenica and the places of execution for captured members of the Bosnian Muslim Army. There, resisting the breakout of the armed horde of the Muslim Army 28th Division, which outnumbered them many-fold, they organised a desperate defence line. There was a realistic possibility that the opposing forces, whose intentions at the moment were unclear, might storm the town of Zvornik which had no troops available to defend it, resulting in mayhem.
Yes, but the Tribunal insisted note be taken that Dragan Obrenovic was an officer and chief-of-staff of a brigade in whose “zone of responsibility” crimes had been committed. The nuances of his actual position and capacity to influence events which were taking place elsewhere were of little interest to the Prosecution of the Hague Tribunal. In that phase of the inquisition the only thing that mattered was to obtain judgments of conviction against the command level of the Bosnian Serb Army to which Obrenovic belonged and that was within reach at that time. (The arrests of higher level officers who were tried in Popovic et al. came later, and the apprehension of Karadzic and Mladic after that.) Besides Obrenovic, the other officers who were to be tried in his group were Colonel Vidoje Blagojevic and Captain Momir Nikolic of the Bratunac Brigade, and Dragan Jokic, commander of the engineering squad of the Zvornik Brigade.
The case of the last-mentioned depicts the farce in The Hague with compelling clarity. Jokic was charged with having “aided and abetted the murders of Bosnian Muslim men… by providing engineering resources and personnel to be used to dig mass graves for the executed victims”. Jokic’s comment on all that was worthy of Seselj or of Garcia Marquez: “Instead of putting me on trial, they ought to decorate me. If we had not performed a quick burial in that scorching summer heat, the population in the area would probably have died of cholera!”
After several months during which we were making frequent visits to the incarcerated Obrenovic, Wilson and I began to notice a drastic change in the mood of the accused. As a result of daily contact with “old timers” at the detention unit, Obrenovic’s fighting spirit was beginning to dissipate. I have no idea whether at the Military Academy he was encouraged to read Dante’s Inferno, but it was clear that through practical experience gained in his new circumstances he was absorbing its fundamental message. On a certain day, an appalled Obrenovic confided to us that another accused on his floor had decided to admit to two murders which he had not committed. In response to our man’s question, why he chose to do such a thing, the individual cited pragmatic reasons, arguing that such admissions would facilitate his plea bargain with the Prosecution and thus help him shorten the nightmarish legal process against him. Obrenovic was shocked, and so was I, because at that time I was quite green when it came to the way the Tribunal functioned. By now, such things strike me as quite normal.
The prosecutor in the Dragan Obrenovic case was the sinister Vishinsky of the Hague Tribunal, Peter McCloskey. If in the Tribunal there is a universally despised individual, from the standpoint of both the lawyers and the accused, it is he. McCloskey is a textbook example of what the holy apostle Paul was warning against: zeal not according to reason. Spoiled child of a wealthy American political family (his father was a Congressman during the Vietnam War), of mediocre intellectual and professional talents (that goes without saying), Peter turned Srebrenica (in addition to his favourite pastime, fishing) into the moral project of his life. Concurrently, in his grasp of the subject matter he never made it much farther than the caricaturish notions which comprise the official narrative. To be Serbian and, in Peter’s eyes, to be in some way associated with Srebrenica, by definition is a very dangerous thing.
The next year and a half of the pre-trial case was for us an emotional toboggan, depending on the changing moods and intentions of the client. There was a period when Obrenovic descended into a serious clinical depression. Giving circumstances their due, that should not have been a surprise. There was only one matter that puzzled me: his almost interminable refrain, “How will I explain these grave charges to my son when he grows up?” To me, the answer to his agonised question was perfectly clear: it is enough to tell the child that he should take pride in the fact that sitting in judgment of his father was an illegitimate court whose politically motivated imputations of “guilt” were legally and morally null and void. Innocent suffering was nothing to be ashamed of but is in fact a great honour, when we are made worthy of it. That is at least what I would tell to my child. But, suum cuique.
After a period of time, the commencement of the trial was on the horizon. Phases of dispiritedness alternated with moments of resolve not to falter in demonstrating his “innocence”, followed again by emotional downturns. That continued until just a few days before the scheduled start of the trial in April of 2003. Then, like a thunderbolt, news spread around that co-accused Momir Nikolic had made a plea-bargain with the Prosecution. In return for an admission of guilt and agreement to testify against others as a prosecution witness he could now avoid the uncertainties of a trial and look forward to a more or less predictable sentence.
But we should backtrack a bit. Operating from behind the scenes was Nancy Wilson, the wife of the lead attorney in the Obrenovic case. She missed her home in America, her girlfriends, and the neurotic dog that the Wilsons were obliged to leave in the care of others when they temporarily moved to the Netherlands, fully expecting a lengthy trial. Nancy was actively lobbying with her husband to try to find a solution that would enable them to return home as quickly as possible. On more than one occasion McCloskey had sent Obrenovic offers of cooperation, through lead counsel of course, and up to that point the accused had adamantly rejected them all. Lead counsel Wilson was professionally bound to explain the potential advantages and drawbacks of the Prosecution’s offers. But over time Wilson’s legal advice, which technically should have remained strictly neutral, became subtly crafted to favour Mrs. Wilson’s suggestions.
When Nikolic finalised his plea agreement, just days before the start of the trial, we found Obrenovic in a very unsettled mood. He decided to activate his right to authorise lead counsel to convey to McCloskey his willingness to initiate formal plea bargain negotiations.
McCloskey was triumphant. One of his stratagems to persuade Obrenovic to go along was the threat that he better make up his mind quickly, before the start of the trial, because otherwise, once the trial begins, the quality of the Prosecution’s offer would be degraded significantly. However, in disregard of earlier warnings, and perhaps looking to plug the numerous holes in his Srebrenica case, McCloskey decided to be “nice” to Obrenovic and to show his “human side”. He sent Obrenovic a message that he was prepared to generously overlook the belatedness of his cooperation (the plea bargain includes the writing of a “Statement of Facts and Acceptance of Responsibility” and a few other trifles taking several weeks to complete, and this drama was playing out literally a few days before the commencement of the trial). McCloskey assured Obrenovic that if he remained steadfast in his intention he would be treated as if the decision had been taken “on time”.
Encouraged by this touching display of prosecutorial magnanimity, the by then broken Obrenovic instructed his defence team to get to work. In the basement of the building in which the Hague Tribunal is situated we conducted meetings lasting many days in order to hammer out the “Statement of the Facts”. Since I was still green, it struck me as strange that the very educated and literate Obrenovic was not allowed to compose even a draft of the statement that he was expected to sign. Isn’t he the person best acquainted with the “facts” of his own case? But of course such a possibility was unthinkable because the accused’s “statement”, formulated for the purposes of the plea bargain, has nothing to do with the facts. It is designed to serve as the matrix which from that point on will govern his testimony as a prosecution witness against other defendants. For that reason to the Prosecution it is absolutely critical that the scenario according to which his role will unfold be clearly set out in advance.
Identical considerations were earlier applied to Erdemovic, as well as to Nikolic, Babic, and Deronjic, to cite just a few of the Tribunal’s most famous plea-bargainers. Their alleged statements were formulated in the prosecutor’s office and were meant to serve the Prosecution’s needs. The most that the accused can do is quibble over some peripheral issues, but the core of the “statement” that will be imputed to him is controlled exclusively by the Prosecution. Should the accused refuse to sign what is put before him, the plea bargain fails. He must then face the continuation of the proceedings against him and the potential wrath of an outraged Tribunal.
It goes without saying that when he agreed to the Faustian bargain, the desperate Dragan Obrenovic could not have taken into account the full range of the consequences of his action. There followed humiliating years of lying on the witness stand against former colleagues and superiors at other trials where Srebrenica-related events were being considered. It is now that he has really got something to explain to his son when he grows up. But the responsibility for casting this innocent man into the dark hole of lawlessness and injustice at The Hague is not his alone; it must be borne as well by the authors of the contemporary Inquisition, the destroyers of the legal order, and their corrupt admirers.
The epilogue to the Dragan Obrenovic drama (for his “cooperation” he was awarded a seventeen-year prison sentence, of which he was expected to sit out two-thirds, or about twelve, but in consideration of his exemplary conduct the honourable court recently reduced that by eight months) occurred in one of the corridors of the Hague Tribunal. A short time after he successfully extorted “cooperation” and “confession” from his hapless victim Dragan Obrenovic, we saw the jubilant prosecutor Peter McCloskey walking toward us. His words were memorable and deserve to be savoured in the original, exactly as they were pronounced:
„Hey guys, you know something, we didn’t have anything on him, anyway…“