ICTY’s Kristoff Flugge: A Judge Who (to Paraphrase Shakespeare) Protesteth Too Much

Not long ago, it was reported that “a senior judge at one of the UN courts in The Hague is reportedly resigning over ‘shocking’ political interference from the White House and Turkey”. The hero of this morality play is German judge Kristoff Flugge. The stage of his edifying performance is the International Criminal Tribunal for the Former Yugoslavia, also known by its acronym ICTY. One would assume that all must be well in the international justice system with such brave judges risking their careers to stand up for the cherished principle of judicial independence.

But before shouting three cheers for the integrity of “international justice,” it would be good to remember that on that stage appearances do not necessarily convey accurately the underlying reality.

Judge Flugge is remembered also for emitting some impressive integrity noises at the beginning of his Hague Tribunal career, just as he seems to have done it now at the very end. In a 2009 interview with Der Spiegel, he boldly suggested that “genocide” was not the most fitting description for what happened in Srebrenica. That heresy was immediately punished and Flugge was dumped from the Karadžić pre-trial panel, not to be heard of again for several years that followed.

Judge Flugge’s re-education in international justice limbo was apparently successful because it helped him to see the light. By 2011, all was forgiven and he was again trusted enough to be appointed presiding judge in the trial of General Ratko Mladic though the stain on his reputation for questioning the Srebrenica dogma was never erased completely. It comes in handy for periodic flagellation  lest Flugge becomes tempted to succumb again to unconventional ideas.

Flugge’s disingenuous “shock” at the way, ever since its inception, things have customarily worked at ICTY suggests that his last ten years at the Hague may have been spent in a cocoon. The things that have only recently begun to bother him at the institution he has been serving faithfully for a decade were endemic to it from the start, and perhaps even earlier than that.

As a matter of fact, new evidence is emerging continuously about the non-judicial milieu in which the International Criminal Tribunal for the Former Yugoslavia was conceived, and not merely the questionable circumstances, under the terms of the UN Charter, in which it was later on officially founded. A piece of this jigsaw puzzle is a recently released memo, dated February 1, 1993,  prepared by Daniel Wagner, chief of DCI Interagency Balkan Task Force, for Acting CIA Director John Woolsey. In his analysis of the situation in the Balkans, Wagner outlines for his superior policy options available in the former Yugoslavia.

Tucked away in item 11 on page 7 of the memo is the recommendation to “establish a war crimes tribunal.” That to our knowledge is the earliest official reference to the project that culminated in the formation of the Hague Tribunal. The author of this memo exercised remarkable foresight when he coyly noted that “even treatment of Bosnian transgressions, however, would be regarded as tilting in Belgrade's favor.” The International Tribunal for the Former Yugoslavia, the institution Flugge until recently worked for, was set up by UN Security Council resolution on May 25 of the same year. That was accomplished on the initiative of the only superpower at that time, to whose intelligence agency Wagner’s original February 1 memo was addressed. Sheer coincidence, no doubt.

It turned out that on the issue of bias Wagner was spot on. As if on cue, all necessary precautions were subsequently taken, for the duration of the Tribunal’s activity, to avoid not just the appearance but also the substance of even-handedness in ICTY’s work.

If judicial independence is an issue that bothers Judge Flugge so extremely, he should appreciate being informed that ICTY’s history is replete with evidence of its non-existence.

Only a few years into its operation, the rather egregious dependence of ICTY on non-judicial patrons was frankly acknowledged by ICTY President Gabrielle Kirk McDonald: “We benefited from the strong support of concerned governments and dedicated individuals such as Secretary Albright. As the permanent representative to the United Nations, she had worked with unceasing resolve to establish the Tribunal. Indeed, we often refer to her as the ‘mother of the Tribunal’” After the release of his February 1 1993, memo intelligence operative Daniel Wagner should perhaps be referred to as its “father.”

With remarkable candor, these warm sentiments attesting to a cozy relationship were matched by Judge Theodor Meron, one of Ms. McDonald’s successors as President of the ICTY, who said the following on October 2003, speaking before the Commission on Security and Cooperation in Europe (CSCE) in Washington: “As you know, the United States took a leading role in the creation of the ICTY and remains a staunch supporter. The US's financial contribution accounts for approximately a quarter of the Tribunal's annual budget of approximately $120 million.”

With such close bonds, it is no wonder that during the bombing of Yugoslavia, when the issue of investigating all parties' “transgressions” in Kosovo was raised, some war crimes actors were deemed to be “more equal than others.” On May 16 1999, NATO spokesman Jamie Shea informed the press that when “[then ICTY chief prosecutor] Justice Arbour starts her investigation, she will because we allow her to. (…) NATO countries are those who have provided the finances to set up the Tribunal, we are amongst the majority financiers (…) so let me assure you that we and the Tribunal are all one on this, we want to see war criminals brought to justice and I am certain that when Justice Arbour goes to Kosovo and looks at the facts she will be indicting people of Yugoslav nationality.” 

So much not just for even-handedness, but for ICTY judicial independence as well.

Prof. Michael Scharff was undoubtedly correct when he termed America’s motives in the creation of the Tribunal as “less than pure.” He went on to quote Richard Holbrooke's boast to the effect that, besides being a public relations device, the Hague Tribunal was also a “potentially useful policy tool.

The ousting of Danish judge Frederik Harhoff in 2013, in the middle of Flugge’s happy tenure at ICTY, for denouncing the alleged interference of foreign powers in judgments rendered by the Tribunal, should have alerted judge Flugge to the gravity of the situation at his workplace. But it apparently failed to stir his professional conscience.

It should incidentally be noted that ICTY is the institution that has been the main prop for the Srebrenica genocide narrative over the years. One might well wonder what credibility ICTY’s Srebrenica judgments have in light of the cited operational facts?

In the infamous episode of Gen. Wesley Clark’s testimony in the Milošević trial, where all procedural rules were cast aside by the Chamber explicitly to accommodate its major financiers and alleviate their “national security” concerns, the Tribunal publicly lived up to Holbrooke’s cynical characterization of its utilitarian mission. That was starkly illustrated and brilliantly explained by Prof. Tiphaine Dickson of Portland State University in her scholarly critique, The Deposition Will Not Be Televised: Wesley Clark’s Testimony in the Milosevic Trial. True, that outrage occurred in 2003, before Judge Flugge was appointed to ICTY. But if judicial independence is one of his major concerns, he should perhaps have researched the professional culture of the institution that invited him to sit on its bench, before accepting.

International criminal lawyer Christopher Black had some harsh things to say about the Hague Tribunal in 2000, not long after it was set up. In retrospect, Black’s trenchant observations seem strikingly well-founded rather than harsh. Judge Flugge must have been living in a parallel universe if he failed to react until a few days ago. He will now profit handsomely from his “see no evil” stance. A generous retirement package and benefits await pensioner Flugge. And on top of that, he will go off into the twilight with the aura of a moral hero for noticing and bringing to the public’s attention, just as he was about to retire anyway, things about the Hague Tribunal that most of us have been saying for years. These are all facts that, to use one of the favorite formulas of the court in which he uncomplainingly sat and rendered judgments for ten years, Judge Kristoff Flugge “knew or should have known” all along.

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