In 2012, judge Matimba demolished not just her fellow-judges’ legal findings in the Tolimir trial but implicitly thrashed the Hague Tribunal as well. On June 8 she could tweak the Tribunal’s tail again, Stephen Karganovic writes.
We will soon be lucky enough to learn the answer to one of the few remaining mysteries of the Yugoslav Tribunal at the Hague. At this point it is entirely irrelevant how you choose to call it, ICTY or The Mechanism (the latter being the official, sinister-sounding name of its final incarnation). The issue concerns the appellate judgement in the case of General Ratko Mladic, commander of Serbian forces in the 1992 – 1995 Bosnian war. He stands accused, and in the trial verdict was found guilty, of the long list of usual heinous offences, topped by genocide and Srebrenica, that a person of his stature and ethnicity would normally have to face at the Hague Tribunal. On June 8, at the end of the appellate phase of the proceedings, we shall find out what the appeals chamber think about it.
The interesting thing about Mladic’s appellate chamber is that, in contrast to past practice, it is not composed of “good ole boys” drawn mostly from NATO countries. It is a chamber whose complexion, at least since the surprisingly successful recusal in 2016 of good ole boys Meron, Agius and Pocar, after a defence complaint of bias, BLM would probably approve (though the unsuspected presence of Uncle Toms can never be entirely discounted). Still, the new set of Mladic appellate chamber judges have solid Third World credentials. How that will impact their ruling, we shall soon find out.
But by far the most interesting member of this group is its presiding judge, Zambian jurist Prisca Matimba. In 2012 she sat on the trial chamber of General Mladic’s right-hand man, General Zdravko Tolimir, whom the majority found guilty and packed off to life imprisonment. Mrs. Matimba, however, sent shock waves by composing a fascinating dissenting opinion in which she compellingly argued that there was no evidence of Gen. Tolimir’s guilt on any of the charges laid against him (see chapter XIII of Judgment) and that instead of being sent to prison the defendant should be sent home. In the best British legal tradition, Zambian judge Matimba turned the tables. She supported her conclusion with a brilliant legal analysis reinforced by a panoply of lethally formulated First World arguments. But her singlehanded bravado performance failed to make even the slightest dent in her majority colleagues’ determination to reach a diametrically opposite result. Nevertheless, she in effect demolished not just her fellow-judges’ legal findings in the Tolimir trial but implicitly thrashed her institutional employer, the Hague Tribunal, as well.
Theoretically, on June 8 judge Matimba could tweak the Tribunal’s tail again by repeating her memorable 2012 performance. There is no ostensible reason for her to now take a different position in the Mladic case. Not only are all the basic charges the same as against Tolimir but, more importantly, so is the evidence, for whatever it is worth. Major witnesses are much the same and the crime base, as alleged by the prosecution, is also virtually identical, certainly in the key segments of genocide and Srebrenica. But before getting one’s expectations too high, worth pondering is the career of another ICTY judge, Christoph Flügge, who also briefly got out of line and then had to fight hard for “rehabilitation” (meaning job, salary and benefits).
Following the apprehension of Radovan Karadzic, Flügge was appointed a pre-trial judge in that case. But in 2009, in an inexplicable outburst of nonconformism, he told Der Spiegel that the term “genocide” in his view was no longer judicially viable: “Which is why I believe that we should consider devising a new definition of the crime. Perhaps the term mass murder would eliminate some of the difficulties we face in arriving at legal definitions. It would also work in Cambodia, where Cambodians killed large numbers of Cambodians. What do you call that? Suicidal genocide? Sociocide?” Still, as a properly repentant German, he concluded his academic musings on this delicate subject by maintaining that “strictly speaking, the term genocide only fits the Holocaust”.
But it turned out that the Tribunal would have none of Flügge’s new definitions and Massenmoerder nonsense because it understands all too well the nature of its overriding political task. It is to aim straight for the jugular, which in plain terms is genocide. After this incautious interview, Flügge promptly vanished from the Karadzic pre-trial panel. It is a matter of speculation in which political re-education camp judge Flügge spent the next year or so of his life (the ones in Xinjiang had not yet been officially opened) but after some time he emerged as a totally new and right-thinking man. He even apparently managed to regain a modicum of his employers’ trust, which included the privilege of serving on the Mladic trial chamber. And after his remarkable genocide epiphany he was happy to sign the verdict, in which the “genocide” charge evidently no longer bothered his delicate conscience.
The Flügge precedent is therefore something well to keep in mind when calibrating expectations from judge Prisca Matimba, without derogating in the least from the significance of her extraordinary dissenting opinion in the Tolimir case. No matter what, that will remain a unique and inspiring expression of professional integrity and can still be inhaled as a rare breath of fresh air in the miasmic swamp of the Hague Tribunal.
On June 8, General Ratko Mladic’s appointed judgment day, we will find out if there are any limits to the power of the Hague Tribunal to reengineer recalcitrant human souls. Should it succeed in whipping into line even the brave Zambian lady and superb legal professional Prisca Matimba, that will come as a sad disappointment indeed but also as another ringing confirmation of the inherent fallenness of human nature.