This article was written a few years ago. Chris
Black leads the Lawyers Group of the International Committee to Defend
Slobodan Milosevic
The indictment of Slobodan Milosevic for alleged war crimes
raises important questions about the
impartiality and, ultimately, the purpose of the International Criminal
Tribunal. For centuries, the independence of judicial bodies has been
considered one of the fundamental precepts of the quest for justice. As
Lord Hewart stated in 1924, it is "...of fundamental importance that
justice should not only be done, but should manifestly and undoubtedly be
seen to be done." It has also been said that there is nothing more
important than the public administration of justice. But in the case of
the International Criminal Tribunal a compelling argument can be made that
private justice has replaced public justice, that even the appearance of
fundamental justice has been replaced by an open contempt for justice.
It is clear that from the beginning American,
British, French and German interests were behind the creation of
the Tribunal and worked ceaselessly behind the scenes in order to create
it. They first considered doing so in regards to Iraq and Saddam Hussein,
during the Gulf War. The idea apparently originated with the United States
Department of the Army, which alone should tell you something about its
true purpose. The rhetoric used to justify such a body to the general
public was of course heavily seasoned with concerns for "human rights" the
"dignity of the individual", "genocide" and "democracy".
However, they had a problem. It was
generally agreed that no such tribunal could be created without the
mechanism of a treaty which had to be ratified by all those affected by
it. There was no time to create such a treaty with respect to Hussein so
other methods were used to put pressure on the Iraqi government. But
between 1991 and 1993, the use of an international criminal court as a
means of effecting policy and to be created by the members of the Security
Council, instead of by treaty was pushed by those four countries. A draft
treaty to create a truly international criminal court, one which applied
to all states, the last in a long list of attempts dating back to the
1890's, was put together. But its ratification has not taken place as
several important powers, particularly the United States, refuse to sign
it for fear of being caught in its web. For thirty years the United States
has tried to block such a treaty. It opposes universal jurisdiction and it
opposes an independent prosecutor. It wants any prosecutions to go through
the Security Council subject to its right of veto. In fact, Jesse Helms,
the conservative US senator said such a treaty, if presented to congress
for ratification would be "dead on arrival". It would seem that the treaty
is itself nothing more than window dressing to satisfy the public that the
nations of the world really care about human rights and war crimes in
order to complement their rhetoric about it. For without ratification by
the major powers it is a dead letter. The United States remains stubborn
in its opposition to this treaty but then it has a bit more to worry about
than most countries.
The next opportunity to try this experiment was
Yugoslavia. In order to accelerate the break up of that country into
quasi-independent colonies, principally of Germany and the United States,
it was necessary to discredit their leaderships. An effective propaganda
weapon in such an exercise is of course a tribunal with an international
character which the public will accept as a neutral instrument of justice
but which is controlled for political ends.
The Tribunal was created by the Security Council in its
Resolutions 808 and 827 of 1993. Both resolutions stated that the
situation in Bosnia at that time, constituted a threat to international
peace and security and that a tribunal to prosecute war criminals would
help to restore peace. It all sounds very nice until one realizes that
there was no basis for the characterization of the situation in Bosnia as
a threat to international peace. It was a civil war (partly controlled by
the very countries which wanted to create a tribunal). But the members of
the Security Council had to characterize it that way otherwise the members
of the Security Council had no jurisdiction to act. The setup for this
characterization was Resolution 688 of 1991 in which the Security Council
stated that disregard for human rights constitutes a threat to
international security and can no longer be treated as an internal matter.
This reinterpretation, this revision of the UN Charter, which in fact
undermines the very basis of the Charter was forcefully advocated by the
German foreign minister Mr. Genscher in speeches he gave to the German
parliament and to the Canadian parliament in Ottawa and by British, French
and of course American ministers in speeches and memorandums to each
other.
Chapter VII of the UN Charter requires that there be a
threat to the peace or an act of aggression before the Security Council
can make use of its special powers set out in that Chapter. It has always
been interpreted to mean and was meant to mean a threat to international
peace not national peace. The members of the Security Council recognized
this and so had to redefine a national problem as an international one.
Yet in all those speeches and memoranda there is not one compelling reason
given for doing this except vague references to the collapse of the
socialist bloc, and the imperative to establish a new world order. In
fact, Mr. Genscher in his speech to the Canadian parliament stated
unequivocally that no nation would any longer be allowed to ignore
Security Council decisions. Even if this redefinition were a legitimate
interpretation of the UN Charter, which it is not, the UN Charter only
speaks of economic measures and then military measures, not judicial or
criminal measures.
Chapter VII has to be read in context with Chapter I of
the Charter which speaks of international cooperation in solving
international problems of an economic, social, cultural or humanitarian
character. It says nothing of humanitarian problems of a national
character. It states that the UN is based on the principle of the
sovereign equality of its members, a fundamental principle of
international law, and the first guarantee of the right to
self-determination of the world's peoples. If a people does not have the
right of sovereignty, the right to self-determination is a sham. This
principle is completely denied by the creation of the Tribunal. The
Tribunal itself explicitly denies that this principle applies in its own
statements as do its political supporters, but never, of course, in
reference to themselves. Lastly, the Charter states that nothing contained
in the Charter shall authorize the UN to intervene in matters which are
essentially within the domestic jurisdiction of any state. This
fundamental principle, put in the Charter so that the UN could not be used
by some members to bully others has also been fatally undermined by the
creation of the Tribunal. The members of the Security Council, more
precisely, the permanent members, now hold the opposite position, and I
submit, do so for reasons connected more with imperialism not
humanitarianism.
In light of these facts the Security Council's authority
to create such a tribunal is in my view more than questionable. That it
was created is to be credited to Madeleine Albright, who used some
effective persuasion with the Russian and Chinese members to vote for its
creation in return for economic consideration and with a view to
controlling smaller states within their own spheres of interest.
Yugoslavia was the first experiment in using a
quasi-judicial international body to attack the principle of sovereignty.
And as the Americans have learned so well, the best way to get your
domestic population behind you as you proceed to break another country,
economically and militarily is to get them to hate those in power in that
country. The Serb leadership was targeted, and transformed into
caricatures of evil. There were comparisons to Adolf Hitler, a comparison
used with surprising frequency by the United States against the long list
of nations it has attacked in the last 50 years, though sometimes they are
just labeled as common criminals, like Manuel Noriega, or mad, like
Ghadaffi, if the leader or the country is too small to make the Hitler
comparison stick. I think Saddam Hussein was the first to be compared to
Hitler, and declared a common criminal and a madman all at the same time.
The Tribunal from the outset was, as I have said, the
creation of particular governments. Their motives are clear from the
preliminary discussions in the Security Council on the creation of the
court which focused almost entirely on crimes allegedly committed by Serbs
and their leadership. Since its inception it has kept this focus. The
majority of indictments have been directed at Serbs even though there is
substantial evidence of the commission of serious war crimes by Croats and
Bosnian Muslims.
The Tribunal has jurisdiction over war crimes and crimes
against humanity, but crimes against peace, the worst crime under the
Nuremberg principles, are not within the purview of the tribunal. The
underlying reason for this is that the members of the Security Council
preferred to reserve to themselves competence in the field of aggression
and similar crimes against peace. The members of the Security Council have
a very keen sense of humor or perhaps more accurately, self-preservation.
In a statement to the Secretary-General of the United
Nation, Mr. Boutros-Boutros Ghali, on January 21, 1994, by Antonio Cassese
the Tribunal's political character was made quite clear when he said in
reference to the role of the Tribunal, "The political and diplomatic
response (to the Balkans conflict) takes into account the exigencies and
the tempo of the international community. The military response will come
at the appropriate time." In other words, the Tribunal is considered a
political response. He went on to state, "Our tribunal will not be simply
"window dressing" but a decisive step in the construction of a new world
order."
The governing statute of the Tribunal states in Article 16
that the Prosecutor shall act independently as a separate organ of the
Tribunal and shall not seek or receive instruction from any government or
any other source. Article 32 states that the expenses of the Tribunal
shall be borne by the regular budget of the United Nations. Both of these
provisions have been openly and continuously violated.
The Tribunal itself, through its senior officials openly
brags about its particularly close ties to the American government. In her
remarks to the United States Supreme Court in Washington, D.C. on April
5th of this year, Judge Gabrielle Kirk McDonald, President of the
Tribunal, and an American stated, "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". If she is the mother then
Bill Clinton is the father, as Louise Arbour confirmed by her action of
reporting to the President of the United States the decision to indict
Milosevic two days before she announced it to the rest of the world, in
blatant violation of her duty to remain independent. Further, she and the
current prosecutor have made several public appearances with U.S
officials, including Madeleine Albright, and both have openly stated that
they rely on NATO governments for investigations, governments which have a
great interest in the undermining of the Yugoslavian leadership.
In 1996, the prosecutor met with the Secretary-General of
NATO and the Supreme Allied Commander in Europe to "establish contacts and
begin discussing modalities of cooperation and Assistance". On May 9th,
1996 a memorandum of understanding between the Office of the Prosecutor
and Supreme Headquarters Allied Powers Europe (SHAPE) was signed by both
parties. Further meetings have taken place since including that of the
president of the Tribunal with General Wesley Clarke. The memorandum of
May 9th spelled out the practical arrangements for support to the tribunal
and the transfer of indicted persons to the Tribunal. In other words, NATO
forces became the gendarmes of the Tribunal, not UN forces, and the
Tribunal put itself at the disposal of NATO. This relationship has
continued despite the Tribunal's requirement to be independent of any
national government and, therefore, group of national governments.
The Tribunal has received substantial funds from
individual States, private foundations and corporations in violation of
Article 32 of its Charter. Much of its money has come from the U.S.
government directly in cash and donations of computer equipment. In the
last year for which public figures are available, 1994/95, the United
States provided $700,000 in cash and $2,300,000 worth of equipment. That
same year the Open Society Institute, a foundation established by George
Soros, the American billionaire financier, to bring "openness" to the
former east bloc countries contributed $150,000 and the Rockefeller
family, through the Rockefeller Foundation, contributed $50,000 and there
have been donations from corporations such as Time-Warner, and Discovery
Products, both US corporations. It also important to know that Mr. Soros'
foundation not only funds the Tribunal it also funds the main KLA
newspaper in Pristina, an obvious conflict of interest that has not been
mentioned once in the western press.
The Tribunal also receives money from the United States
Institute for Peace for its Outreach project, a public relations arm of
the Tribunal set up to overcome opposition in the former Yugoslav
republics to its work and the constant criticisms of selective prosecution
and the application of double standards; objections which have obvious
merit and which are never answered by anyone at the Tribunal or by any of
its sponsors. The Institute for Peace is stated to be " an independent,
non-partisan federal institution created and funded by Congress to
strengthen the nation's capacity to promote the peaceful resolution of
international conflict." .Established in 1984 under Ronald Reagan, its
Board of Directors is appointed by the President of the United States.
The Tribunal also receives support from the Coalition For
International Justice whose purpose is also to enhance public opinion of
the Tribunal. The CIJ was founded and is funded by, again, George Soros'
Open Society Institute and something called CEELI, the Central and East
European Law Institute, created by the American Bar Association and
lawyers close to the U.S. government to promote the replacement of
socialist legal systems with free market ones.
These groups also have supplied many of the legal staff of
the Tribunal. In her speech to the Supreme Court, Judge McDonald said,
"The Tribunal has been well served by the tremendous work of a number of
lawyers who have come to the Tribunal through the CIJ and CEELI..." It is
also interesting to note that the occasion of Judge McDonalds speech was
her acceptance of an award from the American Bar Association and CEELI. In
the same speech she also said," We are now seeking funding from states and
foundations to carry out this critical effort."
The new prosecutor Carla Del Ponte, on September 30, at a
press conference, thanked the director of the FBI for assisting the
tribunal and stated "I am very appreciative of the important support that
the U.S government has provided the tribunal. I look forward to their
continued support." On September 29th, in response to a question as to
whether the tribunal would be investigating crimes Committed in Kosovo
after June 10, or crimes committed by others (meaning NATO) in the
Yugoslav theatre of operations, "The primary focus of the Office of The
Prosecutor must be on the investigation and prosecution of the five
leaders of the FRY and Serbia who have already been indicted." Why this
"must" be is not explained. Why, if the Tribunal is impartial wouldn't it
be just as focussed on NATO war crimes, the war crimes of Clinton,
Schroeder , Chirac, Chretien etc? Why did it still need to investigate to
support the indictments against the leaders of the government and military
of Yugoslavia if there was already evidence to justify those indictments?
Well, we can speculate why when we consider that the last
prosecutor, Louis Arbour, who was asked to investigate all NATO leaders
for war crimes, instead accepted a job from one of them, the Prime
Minister of Canada, Jean Chretien. She now sits in the scarlet robes of a
judge of the Supreme Court of Canada, a lifetime appointment, her reward
for handing down the indictment against Mr. Milosevic, despite the lack of
evidence and (if you believe the reports of the Spanish and RCMP forensic
experts recently returned from Kosovo) the continuing lack of evidence of
the systematic crimes he is accused of.
On April 19th Judge McDonald "expressed her deep
appreciation to the U.S. Government for its pledge of $500 000 for the
Outreach project which was announced on April 16 by Harold Koh, U.S.
Assistant Secretary of State.
In her speech to the Council On Foreign Relations in New
York on May 12 of this year Judge McDonald stated," The U.S. government
has very generously agreed to provide $500 000 and to help to encourage
other States to contribute. However, the moral imperative to end the
violence in the region is shared by all, including the corporate sector. I
am pleased, therefore, that a major corporation has recently donated
computer equipment worth three million dollars, which will substantially
enhance our operating capacity."
From the start, the Office of the Prosecutor has had
meetings with NGO's that are eager to " cooperate with and assist the
tribunal", many of them linked to George Soros through his Open Society
Foundation. All this money flows through a special UN account which is
financed by assessed contributions from member states and voluntary
contributions from states and corporations again in violation of its
statute. As an aside it's interesting that its role as a propaganda tool
was indirectly acknowledged by its own staff when they failed to provide
for a courtroom or holding cells in their first budget of approximately $
32 million dollars. The Security Council sent them back to redraft the
budget to include those items. After all, this was supposed to be a
criminal tribunal! They did so. The difference was an added expense of
$500 000. It's also interesting to know that three of its first four rooms
in the Peace Palace in the Hague were loaned to them by the Carnegie
Foundation.
In order to give itself the appearance of a judicial body
the Tribunal has persons appointed as judges, prosecutors, clerks,
investigators, and has its own rules of procedure and evidence, its own
prison system. It says it applies the presumption of innocence. However,
unlike criminal courts, with which we are all familiar (or, perhaps not),
the court itself is involved in the laying of the charges. When a charge
is to be laid the approval of one of the trial judges must be obtained.
That approval is only given if a prima facie case is established. That is,
a case which if not answered could result in a conviction. Yet, despite
this close relationship between the prosecutor and the judges and the
commitment to the charges the judges have made by signing the indictment ,
the rules insist on the presumption of innocence. This presumption is
compromised in other ways. The most egregious is that upon arrest
detention is automatic. There is no bail, no form of release pending
trial, unless the prisoner proves "exceptional circumstances". Loss of
job, loss of contact with friends, family, indeed country is not
sufficient. Even ill health has not been sufficient to get bail. Prisoners
are treated as if they had been convicted. They are kept in cells and have
to obey prison rules, are subject to discipline if they do not, constant
surveillance, censored mail, restricted family visits, communication with
family at their own expense and there are restrictions on what they can
see or hear on radio or television. Prisoners have had to wait many months
before a trial takes place, sometimes years. Yet, still they insist these
men are presumed innocent. The question is by whom? By the judges, one of
whom laid the charge in the first place?
Its rules of evidence are relaxed so that protections on
the admission of hearsay evidence developed over centuries in all national
courts are set aside and replaced by an anything is admissible if deemed
relevant approach even if it is hearsay. There is no jury. Witnesses can
testify anonymously, or not be shown in court. In its yearbook for 1994,
this statement appears, "The tribunal does not need to shackle itself with
restrictive rules which have developed out of the ancient trial-by-jury
system." There are provisions in the rules for closed hearings, in
circumstances which are vaguely defined, secret trials, the very essence
of injustice and of political courts. It is now increasing its use of
sealed indictments, so that no one knows if they have been charged until
the military police swoop down on them on the street in any country.
Suspects, persons not indicted, can be detained for up to ninety days
without charge. We all know from experience what prisoners can undergo in
a day or two at the mercy of most police forces. Ninety days. Anyone one
of us here could be detained by the Tribunal for that length of time. All
they have to say is they have some reason to suspect you. This is easily
constructed.
Perhaps its most dangerous rule is Rule 92 that states
confessions shall be presumed to be free and voluntary unless the contrary
is established (by the prisoner). Just think - presumed to be free and
voluntary after 90 days at the mercy of military police and prosecutors.
Almost every other court in the world presumes the opposite or, because of
the notorious unreliability of confessions made in police custody are
moving to prohibit their use entirely. This Tribunal goes back to the days
of Star Chamber and the justice of the 13th century. Finally, we have
imprisonment of those sentenced in foreign countries so that not only are
they imprisoned, they are at the same time exiled. There is even a special
provision for the obtaining of evidence from NGO's such as George Soros
Open Society Foundation, whose conflict of interest has already been
mentioned. Accused have the right to choose counsel on paper but in
reality that right is infringed by the Registrar who can disqualify
counsel for all sorts of reasons including being unfriendly to the
Tribunal. Such a counsel will be supplied if the accuses insists strongly
enough but it is not made easy. There are cases in which the Registrar has
barred lawyers from particular countries because there are deemed to be
too many of them already representing accused persons, and the use of its
contempt powers is a powerful weapon to intimidate counsel. Lawyers have
been subject to large fines for contempt.
No citizen of any country in the world would consider
themselves fairly tried before a court that was paid for, staffed and
assisted by private citizens or corporations which had a direct stake in
the outcome of the trial and who were, themselves, in practical terms,
immune from that court. It is a well established principle of law that a
party in a legal action, whether civil or criminal, is entitled to ask for
the removal of any judge sitting on the case when there exists a
reasonable apprehension of bias. In this instance, a compelling argument
can be made that the bias is not only apprehended, it is real, that it is
not of one judge but of the entire tribunal, that this is not a judicial
body worthy of international respect but a kangaroo court, a bogus court,
with a political purpose serving very powerful and identifiable masters.
To be consistent with my thesis I will go further and say that as a
political instrument designed to violate, to destroy, the integrity and
sovereignty of a country, its creation is a crime against peace under the
Nuremberg Principles. Instead of resolving conflict as it claims, it is
used to justify conflict, instead of creating peace, it is used to justify
war and therefore is an instrument of war.
Will Slobodan Milosevic receive a fair trial if they take
him? Will the leaders of NATO, even be investigated let alone indicted for
war crimes committed in the brutal attack on the civilian population of
Yugoslavia, as my colleagues in Canada, South and Central America, Spain,
Norway, Greece, Britain, and the United States have requested? As the
English say, the proof is in the pudding. Our requests have met with empty
words and no action. We made the requests in order to bring to the
attention of the world the crimes that were being committed by NATO. We
believe we have succeeded in that. If we have not succeeded in bringing to
justice the war criminals of NATO, it is because we have exposed the
political nature of this Tribunal instead. It is up to all of us to act on
this knowledge.