LA NATO INDAGATA ALL'AIA? MA QUANDO MAI...

- Due lettere di Michael Mandel (l'avvocato presentatore delle denunce a
Carla dal Ponte)

- l'opinione di Jesse Helms: "La `legalita' internazionale' e' stata
troppo spesso usata come giustificazione per bloccare la marcia della
liberta'... Ogni tentativo di mettere sotto accusa i comandanti della
NATO significherebbe la morte della Corte Internazionale... Nessuna
istituzione ONU - non il Consiglio di Sicurezza, non il Tribunale sulla
Jugoslavia, non una futura Corte Internazionale - e' competente a
giudicare la politica estera e le decisioni che investono la sicurezza
nazionale degli Stati Uniti..."

- Louise Arbour, criminale in attesa di giudizio: analisi della genesi e
degli appoggi di cui gode il Tribunale dell'Aia per i crimini commessi
sul territorio della ex-RFSJ


---

LETTERE DI MICHAEL MANDEL


-----Original Message-----
From: Snezana Vitorovich [mailto:zana@...]
Sent: Thursday, March 16, 2000 8:27 PM
To: sn-vesti@...
Subject: M.Mandel sends another letter to Carla Del Ponte !
Importance: High


Justice Carla Del Ponte,
Chief Prosecutor,
International Criminal Tribunal for the Former Yugoslavia,
Churchillplein 1, 2501 EW,
The Hague,
Netherlands


SENT BY COURIER

March 15, 2000


Dear Justice Del Ponte:

Re William J. Clinton et al.

We write to you for two reasons.

First, we wish to draw your attention to the Human Rights Watch Report,
Civilian Deaths in the NATO Air Campaign (February 2000). In our
submission this is yet another clear indication of crimes committed
within
your jurisdiction. Giving every benefit of the doubt to NATO, Human
Rights
Watch has confirmed approximately 500 civilian deaths as a direct result
of
NATO bombing practices in violation of the norms of international law:
in
deliberate attacks on illegitimate targets, in the refusal to take the
necessary, often elemental, precautions to protect civilian life and in
the
use of cluster bombs. Human Rights Watch has also confirmed that leading
NATO officials lied about the nature and extent of these incidents. We
are
quite aware that Human Rights Watch has chosen to characterize these
incidents as "violations of international humanitarian law" and not as
"war
crimes." But the report does not attempt to defend making this
distinction
and it is not, in this context, defensible. As you know, Articles 1 and
16
of your governing Statute oblige you to prosecute "serious violations of
international humanitarian law" of the four types described by Articles
2
("grave breaches of the Geneva conventions of 1949), 3 ("violations of
the
laws and customs of war"), 4 ("genocide") and 5 ("crimes against
humanity").
The evidence in the Human Rights Watch Report is factual evidence (to be
added to the massive evidence already in your possession), of clear
violations of Articles 2, 3 and 5. By definition, these are "serious"
violations - if the massacre of innocent children, women and men is not
"serious" enough - and therefore "war crimes" as far as your tribunal is
concerned. No legal conclusion to the contrary of Human Rights Watch
could
relieve you of your duty to prosecute the individual NATO leaders
responsible for the crimes against civilians factually confirmed in the
report.

Secondly, we feel we must protest your recent statements and those of
your
spokesman, which, combined with your failure to act on the thousands of
complaints against NATO that have reached your office over the past
year,
are turning this investigation into more of a farce than a judicial
proceeding. We regret to say that, for all the faith that has been put
in
your Tribunal by the people of the world, it continues to conduct itself
as
if it were an organ of NATO and not of the United Nations.

In December you told the press that you would indict those responsible
if
you concluded NATO had violated the Geneva Conventions. You said "If I
am
not willing to do that, I am not in the right place: I must give up the
mission". However, following NATO and American protests, you hastily
issued
a statement on December 30, 1999 stating that "NATO is not under
investigation" and that there was "no formal inquiry."

On January 3, we wrote to you asking you to clarify the status of the
inquiry and you said you would respond in due course. But on January 19
you
went to NATO headquarters to meet in private session with NATO Secretary
General George Robertson, himself the subject of numerous war crimes
complaints to you. At that time you assured the press that you had not
even
raised the questions of crimes committed by him and other NATO leaders.
Next
(February 1), you met in London with British Foreign Secretary Robin
Cook,
also the subject of many war crimes complaints, and when asked about
them,
you said "Our work is not done but what we can say is that up until now
we
have no indications that we should open an inquiry." We wrote to you
again
on February 4 asking you to confirm this statement and explain it. Your
special assistant replied on your behalf on February 8, 2000 saying that
the
statement "meant exactly what it said. Up to this point, there is
nothing to
indicate that a full investigation is required, but the Office is
continuing
to study the material that you and others have submitted." As recently
as
March 9, your official spokesman declared to the press that NATO armies
"respect the rule of law" and that "a prosecution is very unlikely,"
while
you repeated that your "work" was continuing.

This is nothing short of a disgrace. If, despite all the evidence that
has
been provided to you since the first complaint reached your office in
April
1999, followed by thousands more from lawyers, legislators and citizens
around the world, you have still seen "nothing to indicate" that even an
investigation is required, the only possible conclusion to draw is that
you
are not serious about your duties, and perhaps never were. If you cannot
apply the law to NATO as well as to NATO's enemies, it seems that you
are
not, in your own words, "in the right place" and should, indeed, "give
up
the mission."

The fact is, as you well know, that the NATO leadership, from the
Presidents
and Prime Ministers on down, including those you have recently been
meeting
and collaborating with, have committed crimes of the utmost seriousness
that
the Statute creating your tribunal absolutely obliges you to prosecute.
In
violation of international law, the Charter of the United Nations, and
the
Geneva Conventions, these NATO leaders ordered a bombing campaign that,
in
attacking Yugoslavia with more than 25,000 bombs and missiles:

- directly killed between 500 and 1800 civilian children, women and men
of
all ethnicities and permanently injured as many others;

- indirectly caused the death of thousands more, by provoking the
retaliatory and defensive measures that are entirely predictable when a
war
of this kind and intensity is undertaken, and by giving a free hand to
extremists on both sides;

- directly and indirectly caused a refugee crisis of enormous
proportions,
with about 1 million fleeing Kosovo during the bombing;

- caused 60 to100 billion dollars worth of damage to an already
impoverished
country; and

- left in its wake a Kosovo of lawlessness and ethnic violence, under
the
direct supervision of NATO, in which hundreds have been murdered and
hundreds of thousands driven out.


Not only was this anti-humanitarian war illegal in itself, it was, as
you
well know, carried out in flagrant and direct violation of the Geneva
Conventions, norms of international law that it is your duty to enforce.
According to admissions made in public throughout the war and after it,
according to eye-witness reports and according to powerful
circumstantial
evidence displayed on the world's television screens during the bombing
campaign - evidence good enough to convict in any criminal court in the
world - these NATO leaders deliberately and illegally made targets of
places
and things with only tenuous or slight military value or no military
value
at all, such as city bridges, factories, hospitals, electricity plants,
marketplaces, downtown and residential neighbourhoods, and television
studios, all such targets being strictly prohibited by the Geneva
Conventions. The same evidence shows that, in doing this, the NATO
leaders
aimed to demoralize and break the will of the people, not to defeat the
army.

You know that one reason these civilian targets are illegal is that
civilians are very likely to be killed or injured when such targets are
hit.
And all of the NATO leaders knew that, too. They were carefully told
that by
their military planners. And they still went ahead and did it. Indeed,
there is persuasive evidence in your hands that, in some circumstances
at
least, NATO not only knowingly killed civilians, but deliberately set
out to
do so: for example on the Grdelica and Varvarin bridges (April 12 and
May
30) and the NIS marketplace (May 7).

This strategy was carried out without any risk to the NATO soldiers and
pilots, much less the leaders themselves, once again in direct violation
of
the Geneva Conventions. This was a war fought against civilians of all
ethnicities with bombing from altitudes so high that the civilians bore
all
the risks of the "inevitable collateral damage".

Far from a "humanitarian intervention" - not that this could ever excuse
the
wholesale killing of innocent civilians - this was a coldly strategic
enterprise. It exploited as well as exacerbated a tragedy for which the
NATO
countries' themselves must bear a large share of the responsibility: in
more
than a decade of beggaring Yugoslavia for motives of sheer greed, in
encouraging the KLA in its deliberate provocations, in throwing aside
every
opportunity for peace at Rambouillet and elsewhere, in undermining and
ultimately withdrawing the OSCE observer force. As you know, most of
the
world rejects NATO's humanitarian claims and we feel that we must remind
you
once again that you are a United Nations organ, not a NATO organ. In
fact,
we believe that this war must be understood as an attempt by the United
States, through NATO, to overthrow the authority of the United Nations
and
to replace it with NATO's military might, to be used wherever
strategically
advantageous and whatever the human consequences.

It is no secret that the Americans sponsored the creation of your
tribunal
to advance their own strategic ends. Despite these questionable origins
we
have given your tribunal every opportunity to vindicate itself. We have
given it every benefit of the doubt even in the face of mounting
evidence
that it did not deserve it:

- when, in January, 1999, then prosecutor Judge Louise Arbour made her
dramatic for-the-press appearance at the border of Kosovo, hastily
lending
unwarranted credibility to contested American accounts of atrocities at
Racak, a major precipitating justification of the war;

- when, only days after the bombing had commenced, she announced the
indictment of "Arkan," an indictment that had been kept secret since
1997;

- when, as the civilian casualties began to mount, Justice Arbour made
television appearances with NATO leader Robin Cook, already the subject
of
numerous complaints, so that he could make a great show of handing over
war
crimes dossiers against NATO's enemies;

- when, soon after, she met with Madeleine Albright, herself by then the
subject of well-grounded complaints before the Tribunal, and Albright
took
the opportunity to announce that the United States was the major
provider of
funds to the Tribunal;

- when, two weeks later, in the midst of the bombing, Judge Arbour
announced
the indictment of Slobodan Milosevic, on the basis of undisclosed
evidence,
for Racak and events which had occurred only six weeks earlier in the
middle
of a war zone, on what, in other words, must have been very flimsy and
suspicious evidence;

Compare this to your inability to even "open an investigation" after one
year of being provided with overwhelming evidence in the public domain
of
NATO leaders' crimes which, on the most conservative estimates, resulted
in
the deaths of far more civilians than those for which the Serb
leadership
was so quickly indicted;

- and when, at the conclusion of the bombing, Judge Arbour handed over
the
investigation of war crimes in Kosovo to the NATO countries' own police
forces. notwithstanding that they had every motive to falsify the
evidence.

These could not be regarded as the acts of an impartial prosecutor. Not
when NATO was in the midst of a controversial war in flagrant violation
of
international law.

We sincerely hoped for better things from you, coming as you did from a
country outside of the NATO alliance. But immediately upon taking up
your
post you declared that your priorities were in the prosecution of the
Serb
leadership - a de facto immunity for the NATO leaders which we tried,
evidently in vain, to persuade you was a violation of your legal and
moral
duties to all the victims, present and future, of aggressor states. And
now
these contradictory declarations, this unseemly consorting with the
people
you should be investigating, and this inexcusable failure to even open
an
investigation. It is clear to us that you suffer from the same judicial
deficit as did your predecessor.

We hope that you realize the implications of what you are doing:
that you
are irreparably discrediting the work of your tribunal - or do you
expect
anyone to put any faith in the findings of a biased judicial institution
or
to co-operate with it? - that you are dealing blows to international
law
from which it will be difficult for it ever to recover; that your
actions
and inactions have encouraged NATO in its violence against the civilian
population of Yugoslavia and in the cruel sanctions it continues to
impose
upon it; and that you, too, must therefore bear a share of the blame for
all
this suffering.


Yours very truly,




Michael Mandel
Professor,
for myself and for
David Jacobs, Shell Jacobs, Lawyers, 672 Dupont street, Suite 401,
Toronto,
Canada M6G 1Z6;
Glen Rangwala, Movement for the Advancement of International Criminal
Law,
Trinity College, University of Cambridge, Cambridge CB2 1TQ, United
Kingdom;
and
André Savik, The Balkan Charter, Schoningsgt. 43, 0362 Oslo, Norway.

cc. His Excellency Mr. Anwarul Karim Chowdhury (Bangladesh), President
of
the Security Council, Room 3520, The United Nations, New York, New York,
U.S.A. 10017;
Mr. Kofi Annan, Secretary-General of the United Nations, Room 3800, The
United Nations, New York, New York, U.S.A. 10017;
Judge Claude Jorda, President, The International Tribunal for the Former
Yugoslavia, Churchillplein 1, 2501 EW, The Hague, Netherlands.





Date: Fri, 4 Feb 2000 08:37:08 -0600 (CST)
From: rrozoff@... (Rick Rozoff)
Reply-To: "STOP NATO: ¡NO PASARAN!" <STOPNATO@...>
To: Activist_List@..., stopnato@...

STOP NATO: ¡NO PASARAN! - HTTP://WWW.STOPNATO.HOME-PAGE.ORG

Michael Mandel's response to W.Pfaff's article
Dear Friends,
For all those who have kindly forwarded me the Herald Tribune Article of
January 24 by William Pfaff, I just want to assure you that I did not
remain silent, but actually submitted an article in reply on January 26.
I have since called the Tribune many times trying to ascertain their
intentions about publishing it. The opinion page editor has asked me to
be patient, and I have been. I will continue to be, but in the meantime,
I see no reason why I should not send you the reply to circulate as you
see fit.
Best wishes, Michael Mandel
Our Case Against NATO.
By Michael Mandel
Starting in April of last year and continuing to the present day, dozens
of lawyers and law professors, a pan-American association representing
hundreds of jurists, some elected legislators, and thousands of private
citizens from around the world, have lodged formal complaints with the
International Criminal Tribunal in the Hague charging NATO leaders with
war crimes for their 79 day bombing campaign against Yugoslavia.
The particular complaint I am involved in was filed in May, 1999 and
names 68 individuals, including all the heads of government, foreign
ministers and defense ministers of the 19 NATO countries (including US
President Clinton, Secretaries Cohen and Albright, Canadian Prime
Minister Chretien, Ministers Axworthy and Eggleton and so on down the
list), and the highest ranking NATO officials, from then Secretary
General Javier Solana, through Generals Wesley Clark, Michael Short, and
official spokesman Jamie Shea.
We have been in frequent contact with the Tribunal, travelling to the
Hague twice to argue our case with Chief Prosecutors Louise Arbour and
Carla Del Ponte and their legal advisers, filing evidence, legal briefs
and arguments in support of the case.
Recently, Justice Del Ponte disclosed that she was studying an internal
document analyzing the many claims that have been made against NATO.
This has been followed by a number of claims and counter-claims in the
media that have not always been helpful to people genuinely interested
in understanding the issues.
In particular, two recent articles in the International Herald Tribune
("Professors Pursue War-Crimes Case Against NATO" by Charles Trueheart,
January 21, and "NATO Committed No War Crimes in Bombing Yugoslavia" by
William Pfaff on January 24) have sought to minimize the seriousness of
the complaints and to cast doubt on their credibility in a way that, I
believe, does a disservice to the Tribune's readership.
For instance, Mr. Trueheart writes that "most legal scholars say the
professors have a pretty weak case", but the only scholar he actually
cites is Paul Williams of the American University in Washington. Mr.
Williams claims the fact that the Tribunal would even consider our case
shows it is politically motivated. But Mr. Williams might have his own
motivations. On his web-site he lists his "specific accomplishments in
the field of international law" to include "serving as legal advisor to
the government of Kosova" and "serving as co-counsel for the Department
of State's Serbian Sanctions Task Force." Mr. Trueheart would have been
more helpful to his readers if he had mentioned this.
Perhaps if I tell Tribune readers something about the nature of our case
and what we actually know, they (legal scholars and others, partisans
and non-partisans) can judge for themselves if the case is as weak or
incredible as Mr. Williams, Mr. Trueheart and Mr. Pfaff would like them
to think.
In the first place, we know that these individual NATO leaders each
"planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of" (to use the words of the
Statute) a bombing attack that directly caused the death of between 600
and 1800 civilian children, women and men. (The first figure has been
announced by Human Rights Watch, about to launch its own complaint to
the Criminal Tribunal; the second is the government of Yugoslavia's
figure). We also know that the attack permanently injured as many as it
killed. The NATO leaders have all admitted that they caused these deaths
and injuries knowingly – every last one of them said they regretted
it, but that such things were "inevitable" in this kind of bombing
campaign. And when the deaths and injuries ("collateral damage")
occurred, these NATO leaders continued their bombing and their killing
and their injuring.
They did all this without any lawful excuse. The war was illegal from
start to finish. That's not just my opinion. It's the opinion of the
vast majority of legal scholars and all the leading ones – even those
who had some sympathy for the war, for example, the former president and
current judge of the Hague Tribunal itself, distinguished Professor
Antonio Cassese of Italy, in an article published in the European
Journal of International Law (Volume 10, No. 1).
But most people in the world had no sympathy for this war. That may irk
Americans, but it is true. According to published opinion surveys done
inside and outside of NATO, it appears that most people did not believe
the claims that the NATO was killing and maiming for humanitarian
motives. And it's no good for Mr. Pfaff to invoke the OSCE Report,
because if you read the introduction to that Report you find that it was
paid for and drafted only by NATO members. There are many more credible
accounts of what moved NATO (we have provided several to the Tribunal),
besides the obvious fact that, as a humanitarian enterprise, the
campaign was a predictable disaster. Many people, at least, agree with
Mr. Pfaff, that "the intensified Serbian campaign of terror and
eviction" was "provoked by the bombing". Mr. Pfaff says that would
constitute "a better charge" against NATO. Better or not, it is one of
the many we have specifically made in our complaint.
So we know that a lot of innocent people were violently killed as a
direct or indirect result of these NATO leaders' intentional violation
of the most fundamental tenets of international law and the Charter of
the United Nations (which the NATO Treaty itself binds the NATO
countries to uphold).
Killing hundreds or thousands of people knowingly and without lawful
excuse makes these leaders mass murderers. The minimum estimate of their
victims vastly outnumbers the total attributed to the 98 people executed
for murder in the United States last year. It's also a lot more than the
385 victims for which the Tribunal charged the Serbian leadership with
murder in May, 1999.
Not only that, according to admissions made in public throughout the war
(for instance during NATO briefings), and according to eye-witness
reports of such distinguished journalists as Dana Priest and Michael
Dobbs in this very newspaper, and according to powerful circumstantial
evidence displayed on the world's television screens throughout the
bombing campaign -- evidence good enough to convict in any criminal
court in my country or yours – these NATO leaders deliberately and
illegally made targets of places and things with only tenuous or slight
military value or no military value at all. Places such as city bridges,
factories, hospitals, marketplaces, downtown and residential
neighbourhoods, and television studios. The same evidence shows that, in
doing this, the NATO leaders aimed to demoralize and break the will of
the people, not to defeat the army.
Mr. Pfaff concedes as much. He seems to think the Serbians deserved it
for electing Milosevic, though it's hard to see how even this bizarre
reasoning would justify the killing, maiming and terrorizing of all
those children who were ineligible to vote, not to mention the people
who voted against the current Serb leadership.
But one reason these targets are illegal is that civilians are very
likely to be killed or injured when such targets are hit. And all of the
NATO leaders knew that. They were carefully told that by their military
planners. And they still went ahead and did it.
And they did it without any risk to themselves or to their soldiers and
pilots. That's where the "cowardice" comes in. It's not a matter of
being "unfair, unchivalrous or dishonorable" as Mr. Pfaff seems to
think. The cowardice lies in fighting the civilian population and not
the military, in bombing from altitudes so high that the civilians,
Serbians, Albanians, Roma, and anybody else on the ground, bore all the
risks of the "inevitable collateral damage" (and other atrocities).
That's a crime under the Geneva Conventions, too. And it should be.
NATO dropped 6 to 10 billion dollars worth of bombs, including cluster
bombs and bombs using poisonous depleted uranium. The bombing did 60 to
100 billion dollars worth of damage, primarily to non-military targets.
Perhaps readers would find it helpful to read the words of the Hague
Tribunal Statute, drafted, voted for and signed by the United States.
Remember that these are the very crimes that have been used to indict
the Serbian leaders:
Article 2: "persons committing or ordering to be committed grave
breaches of the Geneva Conventions of 12 August 1949, namely the
following acts against persons or property protected under the
provisions of the relevant Geneva Convention: wilful killing; wilfully
causing great suffering or serious injury to body or health; extensive
destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly"
Article 3: "persons violating the laws or customs of war. Such
violations shall include, but not be limited to: employment of poisonous
weapons or other weapons to cause unnecessary suffering; wanton
destruction of cities, towns or villages, or devastation not justified
by military necessity; attack, or bombardment, by whatever means, of
undefended towns, villages, dwellings, or buildings; destruction or
wilful damage done to institutions dedicated to religion, charity and
education, the arts and sciences, historic monuments and works of art
and science.
Article 5: "The following crimes when committed in armed conflict,
whether international or internal in character, and directed against any
civilian population: murder … other inhumane acts."
Article 7: "The official position of any accused person, whether as Head
of State or Government or as a responsible Government official, shall
not relieve such person of criminal responsibility or mitigate
punishment. The fact that any of the acts referred to in articles 2 to 5
of the present Statute was committed by a subordinate does not relieve
his superior of criminal responsibility if he knew or had reason to know
that the subordinate was about to commit such acts or had done so and
the superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof.
Evidently the Geneva Conventions and international humanitarian law have
become inconvenient to the armies and the leaders of the big powers. But
if the Hague Tribunal is only going to enforce the law against their
small power enemies -- if it's only going to be strong with the weak and
not with the strong -- Justice Del Ponte is right in saying that it
should pack up and go home. Because, in that case, the Tribunal is doing
far more harm than good, only legitimating NATO's violent lawlessness
against people unlucky enough to be ruled by "indicted war criminals",
as opposed to the un-indicted kind that govern the NATO countries.
Mr. Pfaff's essential error is the common one in the media of taking all
NATO's claims at face value. "Causing unintended civilian casualties in
the course of legitimate acts of war" is the way Mr. Pfaff describes it.
But do we really need to be told that there might be a difference
between NATO's claims and what actually happened? NATO's claims are, in
fact, the claims of the most notorious war criminals in history. Have we
not learned by now to distinguish between "plausible (or implausible)
deniability" and sophisticated or clumsy cover-ups on the one hand, and
the truth on the other? That's what independent criminal courts are for,
whether in The Hague or any other town.
This would not be the first time that military and political leaders
have lied to us. These military and political leaders. Forget "I did not
have sexual relations with that woman". What about the claim by Jamie
Shea that it was the Serbs who bombed the Albanian refugee convoy (until
the independent journalists found bomb fragments "made in U.S.A.")? What
about the claim by a NATO general, with video up on the screen, that the
passenger train on the Grdelicka bridge was going too fast to avoid
being hit (until somebody pointed out that the video had been speeded up
to three times its real speed)? What about the claim that the Chinese
Embassy was bombed because NATO's maps were out of date? Let alone the
claims by Mr. Clinton (and Mrs. Clinton) and Mr. Cohen that a
"Holocaust" was occurring in which perhaps 100,000 Kosovar men had been
murdered (until the bombing was over and the numbers dwindled to 2,108
– and we have yet to be told who they were or how they died).
So readers can see for themselves that there is far more than meets the
eye here and an awful lot at stake. Judge Del Ponte is making no error
in taking these complaints very seriously indeed. That's what's required
by her sworn and sacred duty to the innocent victims on all sides of
this war, and the many victims that will follow if she fails to do it.
Michael Mandel is Professor of Law at Osgoode Hall Law School of York
University in Toronto

---

L'OPINIONE DI JESSE HELMS

>> -----Original Message-----
>> From:
>> 03.04.2000 08:26
>>
>>
>> Not so much a witty one-liner, but an eye opener,
>> in my opinion, nonetheless. The following is taken
>> from an address by Senator Jesse Helms, chairman
>> of the US Senate Committee on Foreign Realtions,
>> made before the UN Security Council. He's a
>> lovable old man and I highly recommend you visit
>> his website: http://www.senate.gov/~helms/
>>
>> So, without further delay, I give you the Senator:
>>
>>
>> It is my intent to extend to you my hand of
>> friendship and convey the hope that in the days to
>> come, and in retrospect, we can join in a mutual
>> respect that will enable all of us to work
>> together in an atmosphere of friendship and hope -
>> the hope to do everything we can to achieve peace
>> in the world.
>>
>> Having said all that, I am aware that you have
>> interpreters who translate the proceedings of this
>> body into a half dozen different languages.
>>
>> They have an interesting challenge today. As some
>> of you may have detected, I don't have a Yankee
>> accent. (I hope you have a translator here who can
>> speak Southern - someone who can translate words
>> like "y'all" and "I do declare.")
>>
>> It may be that one other language barrier will
>> need to be overcome this morning. I am not a
>> diplomat, and as such, I am not fully conversant
>> with the elegant and rarefied language of the
>> diplomatic trade. I am an elected official, with
>> something of a reputation for saying what I mean
>> and meaning what I say. So I trust you will
>> forgive me if I come across as a bit more blunt
>> than those you are accustomed to hearing in this
>> chamber.
>> ...
>>
>> Most Americans do not regard the United Nations as
>> an end in and of itself - they see it as just one
>> part of America's diplomatic arsenal.
>>
>> ...
>>
>> And when the oppressed peoples of the world cry
>> out for help, the free peoples of the world have a
>> fundamental right to respond.
>>
>> As we watch the UN struggle with this question at
>> the turn of the millennium, many Americans are
>> left exceedingly puzzled. Intervening in cases of
>> widespread oppression and massive human rights
>> abuses is not a new concept for the United States.
>> The American people have a long history of coming
>> to the aid of those struggling for freedom. In the
>> United States, during the 1980s, we called this
>> policy the "Reagan Doctrine."
>>
>> In some cases, America has assisted freedom
>> fighters around the world who were seeking to
>> overthrow corrupt regimes. We have provided
>> weaponry, training, and intelligence. In other
>> cases, the United States has intervened directly.
>> In still other cases, such as in Central and
>> Eastern Europe, we supported peaceful opposition
>> movements with moral, financial and covert forms
>> of support. In each case, however, it was
>> America's clear intention to help bring down
>> Communist regimes that were oppressing their
>> peoples, - and thereby replace dictators with
>> democratic governments.
>>
>> The dramatic expansion of freedom in the last
>> decade of the 20th century is a direct result of
>> these policies.
>>
>> In none of these cases, however, did the United
>> States ask for, or receive, the approval of the
>> United Nations to "legitimize" its actions.
>>
>> It is a fanciful notion that free peoples need to
>> seek the approval of an international body (some
>> of whose members are totalitarian dictatorships)
>> to lend support to nations struggling to break the
>> chains of tyranny and claim their inalienable,
>> God-given rights.
>>
>> ...
>>
>> But, some may respond, the U.S. Senate ratified
>> the UN Charter fifty years ago. Yes, but in doing
>> so we did not cede one syllable of American
>> sovereignty to the United Nations. ... no treaty
>> or law can ever supercede the one document that
>> all Americans hold sacred: The U.S. Constitution.
>>
>> ...
>>
>> The effort to establish a United Nations
>> International Criminal Court is a case-in-point.
>> Consider: the Rome Treaty purports to hold
>> American citizens under its jurisdiction - even
>> when the United States has neither signed nor
>> ratified the treaty. In other words, it claims
>> sovereign authority over American citizens without
>> their consent. How can the nations of the world
>> imagine for one instant that Americans will stand
>> by and allow such a power-grab to take place?
>>
>> The Court's supporters argue that Americans should
>> be willing to sacrifice some of their sovereignty
>> for the noble cause of international justice.
>> International law did not defeat Hitler, nor did
>> it win the Cold War. What stopped the Nazi march
>> across Europe, and the Communist march across the
>> world, was the principled projection of power by
>> the world's great democracies. And that principled
>> projection of force is the only thing that will
>> ensure the peace and security of the world in the
>> future.
>>
>> More often than not, "international law" has been
>> used as a make-believe justification for hindering
>> the march of freedom. When Ronald Reagan sent
>> American servicemen into harm's way to liberate
>> Grenada from the hands of a communist
>> dictatorship, the UN General Assembly responded by
>> voting to condemn the action of the elected
>> President of the United States as a violation of
>> international law - and, I am obliged to add, they
>> did so by a larger majority than when Soviet
>> invasion of Afghanistan was condemned by the
>> same General Assembly!
>>
>> Similarly, the U.S. effort to overthrow
>> Nicaragua's Communist dictatorship (by supporting
>> Nicaragua's freedom fighters and mining
>> Nicaragua's harbors) was declared by the World
>> Court as a violation of international law.
>>
>> Most recently, we learn that the chief prosecutor
>> of the Yugoslav War Crimes Tribunal has compiled a
>> report on possible NATO war crimes during the
>> Kosovo campaign. At first, the prosecutor declared
>> that it is fully within the scope of her authority
>> to indict NATO pilots and commanders. When news of
>> her report leaked, she backpedaled.
>>
>> She realized, I am sure, that any attempt to
>> indict NATO commanders would be the death knell
>> for the International Criminal Court. But the very
>> fact that she explored this possibility at all
>> brings to light all that is wrong with this brave
>> new world of global justice, which proposes a
>> system in which independent prosecutors and
>> judges, answerable to no state or institution,
>> have unfettered power to sit in judgement of the
>> foreign policy decisions of Western democracies.
>>
>> No UN institution - not the Security Council, not
>> the Yugoslav tribunal, not a future ICC - is
>> competent to judge the foreign policy and national
>> security decisions of the United States. American
>> courts routinely refuse cases where they are asked
>> to sit in judgement of our government's national
>> security decisions, stating that they are not
>> competent to judge such decisions. If we do not
>> submit our national security decisions to the
>> judgement of a Court of the United States, why
>> would Americans submit them to the judgement of an
>> International Criminal Court, a continent away,
>> comprised of mostly foreign judges elected by an
>> international body made up of the membership of
>> the UN General Assembly?
>>
>>
>>


---

LOUISE ARBOUR CRIMINALE DI GUERRA


> > Date: Mon, 14 Feb 2000 20:55:01 -0800
> > To: peace@...
> > From: Eric Fawcett <fawcett@...> (by way of Rycroft &
> > Pringle <emerald@...>)
> > Subject: Peace/Justice Canada-- sfp-46: ICTY a kangaroo court?
> >
> > The International Criminal Tribunal for the former Yugoslavia (ICTY)
> > is examined critically by Christopher Black in a companion paper that is
> > available on request and will be posted on the SfP web site as sfp-46b.
> >
> > (As Eric did not include the URL, I am guessing that it may
> > be available at
http://helios.physics.utoronto.ca/mailman/listinfo.cgi/
> > or http://helios.physics.utoronto.ca/mailman/listinfo.cgi/sfp-46b)
> >
> > Its genesis, procedures and funding are all suspect.

>-----Original Message-----
>Date: Wednesday, February 16, 2000 6:46 PM
>Subject: [] Louise Arbour: unindicted war criminal
>
>
>Louise Arbour: unindicted war criminal
>
>by Christopher Black,
>Toronto defense lawyer and writer and one of the lawyers who made the
>request to the War Crimes Tribunal to indict NATO leaders for war crimes;
>and Edward Herman, economist and media analyst
>>>his most recent book is The Myth of the Liberal Media: An Edward Hermam
>Reader
>(Peter Lang, 1999)
>
>Among the many ironies of the NATO war against Yugoslavia was the role of
>the International Criminal Tribunal and its chief prosecutor, Louise
>Arbour, elevated by Canadian Prime Minister Jean Chretien to Canada's
>highest court in 1999. It will be argued here that that award was entirely
>justified on the grounds of political service to the NATO powers, but a
>monumental travesty if the question of the proper administration of justice
>enters the equation. In fact, it will be shown below that as Arbour and her
>Tribunal played a key role in EXPEDITING war crimes, an excellent case can
>be made that in a just world she would be in the dock rather than in
>judicial robes.
>
>Arbour To NATO's Rescue
>
>The moment of truth for Arbour and the Tribunal came in the midst of NATO's
>78-day bombing campaign against Yugoslavia, when Arbour appeared, first, in
>an April 20 press conference with British Foreign Secretary Robin Cook to
>receive from him documentation on Serb war crimes. Then on May 27, Arbour
>announced the indictment of Serb President Slobodan Milosevic and four of
>his associates for war crimes. The inappropriateness of a supposedly
>judicial body doing this in the midst of the Kosovo war, and when Germany,
>Russia and other powers were trying to find a diplomatic resolution to the
>conflict, was staggering.
>
>At the April 20 appearance with Cook, Arbour stated that "It is
>inconceivable...that we would in fact agree to be guided by the political
>will of those who may want to advance an agenda." But her appearance with
>Cook and the follow-up indictments fitted perfectly the agenda needs of the
>NATO leadership. There had been growing criticism of NATO's increasingly
>intense and civilian infrastructure-oriented bombing of Serbia, and Blair
>and Cook had been lashing out at critics in the British media for
>insufficient enthusiasm for the war. Arbour's and the Tribunal's
>intervention declaring the Serb leadership to be guilty of war crimes was a
>public relations coup that justified the NATO policies and helped permit
>the bombing to continue and escalate. This was pointed out repeatedly by
>NATO leaders and propagandists: Madeleine Albright noted that the
>indictments "make very clear to the world and the publics in our countries
>that this [NATO policy] is justified because of the crimes committed, and I
>think also will enable us to keep moving all these processes [i.e.,
>bombing] forward" (CNN, May 27). State Department spokesman James Rubin
>stated that "this unprecedented step...justifies in the clearest possible
>way what we have been doing these past months" (CNN Morning News, May 27).
>
>Although the Tribunal had been in place since May 1993, and the most
>serious atrocities in the Yugoslav wars occurred as the old Federation
>disintegrated from June 1991 through the Dayton peace talks in late 1995,
>no indictment was brought against Milosevic for any of those atrocities,
>and the May 27 indictment refers only to a reported 241 deaths in the early
>months of 1999. The indictment appears to have been hastily prepared to
>meet some urgent need. Arbour even mentioned on April 20 that she had
>"visited NATO" to "dialogue with potential information providers in order
>to generate unprecedented support that the Tribunal needs if it will
>perform its mandate in a time frame that will make it relevant to the
>resolution of conflict...of a magnitude of what is currently unfolding in
>Kosovo." But her action impeded a negotiated resolution, although it helped
>expedite a resolution by intensified bombing.
>
>Arbour herself noted that "I am mindful of the impact that this indictment
>may have on the peace process," and she said that although indicted
>individuals are "entitled to the presumption of innocence until they are
>convicted, the evidence upon which this indictment was confirmed raises
>serious questions about their suitability to be guarantors of any deal, let
>alone a peace agreement." (CNN Live Event, Special, May 27). So Arbour not
>only admitted awareness of the political significance of her indictment,
>she suggested that her possible interference with any diplomatic efforts
>was justified because the indicted individuals, though not yet found
>guilty, are not suitable to negotiate. This hugely unjudicial political
>judgement, along with the convenient timing of the indictments, points up
>Arbour's and the Tribunal's highly political role.
>
>Background of the Tribunal's Politicization
>
>Arbour's service to NATO in indicting Milosevic was the logical outcome of
>the Tribunal's de facto control and purpose. It was established by the
>Security Council in the early 1990s to serve the Balkan policy ends of its
>dominant members, especially the United States. (China and Russia went
>along as silent and powerless partners, apparently in a trade-off for
>economic concessions.) And its funding and interlocking functional
>relationship with the top NATO powers have made it NATO's instrument.
>
>Although Article 32 of its Charter declares that the Tribunal's expenses
>shall be provided in the general budget of the United Nations, this proviso
>has been regularly violated. In 1994-1995 the U.S. government provided it
>with $700,000 in cash and $2.3 million in equipment (while failing to meet
>its delinquent obligation to the UN that might have allowed the UN itself
>to fund the Tribunal). On May 12, 1999, Judge Gabrielle Kirk McDonald,
>president of the Tribunal, stated that "the U.S. government has very
>generously agreed to provide $500,000 [for an Outreach project] and to help
>to encourage other states to contribute." Numerous other U.S.-based
>governmental and non-governmental agencies have provided the Tribunal with
>resources.
>
>Article 16 of the Tribunal's charter states that the Prosecutor shall act
>independently and shall not seek or receive instruction from any
>government. This section also has been systematically violated. NATO
>sources have regularly made claims suggesting their authority over the
>Tribunal: "We will make a decision on whether Yugoslav actions against
>ethnic Albanians constitute genocide," states a USIA Fact Sheet, and Cook
>asserted at his April 20 press conference with Arbour that "we are going to
>focus on the war crimes being committed in Kosovo and our determination to
>bring those responsible to justice, " as if he and Arbour were a team
>jointly and co-operatively deciding on who should be charged for war
>crimes, and obviously excluding himself from those potentially chargeable.
>Earlier, on March 31, two days after Cook had promised Arbour supportive
>data for criminal charges, she announced the indictment of Arkan.
>
>Tribunal officials have even bragged about "the strong support of concerned
>governments and dedicated individuals such as Secretary Albright," further
>referred to as "mother of the Tribunal" (by Gabrielle Kirk McDonald). The
>post-Arbour chief prosecutor Carla del Ponte at a September 1999 press
>>>conference thanked the US FBI for helping the Tribunal, and expressed
>>>general thanks for "the important support the U.S. government has
provided
>>>the Tribunal." Arbour herself informed President Clinton of the
>forthcoming
>indictment of Milosevic two days before the rest of the world, and in 1996
>the prosecutor met with the Secretary-General of NATO and its supreme
>commander to "establish contacts and begin discussing modalities of
>co-operation and assistance." Numerous other meetings have occurred between
>prosecutor and NATO, which was given the function of Tribunal gendarme. In
>the collection of data also, the prosecutor has depended heavily on NATO
>and NATO governments, which again points to the symbiotic relation between
>the Tribunal and NATO.
>
>Serb-Specific Focus
>
>The NATO powers focused almost exclusively on Serb misbehavior in the
>course of their participation in the break-up of Yugoslavia, and the
>Tribunal has followed in NATO's wake. A great majority of the Tribunal's
>indictments have been of Serbs, and those against Croatians and Muslims
>often seemed to have been timed to counter claims of anti-Serb bias (e.g.,
>the first non-Serb indictment [Ivica Rajic], announced during the peace
>talks in Geneva and bombing by NATO in September 1995).
>
>Arbour herself did state (April 20) that "the real danger is whether we
>would fall into that [following somebody's political agenda] inadvertently
>by being in the hands of information- providers who might have an agenda
>that we would not be able to discern." But even an imbecile could discern
>that NATO had an agenda and that simply accepting the flood of documents
>offered by Cook and Albright entailed advertently following that agenda.
>Arbour even acknowledged her voluntary and almost exclusive
>"dependencies...on the goodwill of states" to provide information that
>"will guide our analysis of the crime base." And her April 20 reference to
>the "morality of the [NATO's] enterprise" and her remarks on Milosevic's
>possible lack of character disqualifying him from negotiations, as well as
>her rush to help NATO with an indictment, point to quite clearly understood
>political service.
>
>In a dramatic illustration of Arbour-Tribunal bias, a 150 page Tribunal
>report entitled "The Indictment Operation Storm: A Prima Facie Case,"
>describes war crimes committed by the Croatian armed forces in their
>expulsion of more than 200,000 Serbs from Krajina in August 1995, during
>which "at least 150 Serbs were summarily executed, and many hundreds
>disappeared." This report, leaked to the New York Times (to the dismay of
>Tribunal officials), found that the Croatian murders and other inhumane
>acts were "widespread and systematic," and that "sufficient material" was
>available to make three named Croatian generals accountable under
>international law. (Raymond Bonner, "War Crimes Panel Finds Croat Troops
>'Cleansed' the Serbs," NYT, March 21, 1999). But the Times article also
>reports that the United States, which supported the Croat's ethnic
>cleansing of Serbs in Krajina, not only defended the Croats in the Tribunal
>but refused to supply requested satellite photos of Krajina areas attacked
>by the Croats, as well as failing to provide other requested information.
>The result was that the Croat generals named in the report on Operation
>Storm were never indicted, and although the number of Serbs executed and
>disappeared over a mere four days was at least equal to the 241 victims of
>the Serbs named in the indictment of Milosevic, no parallel indictment of
>Croat leader Tudjman was ever brought by the Tribunal. But this was not a
>failure of data gathering--the United States opposed indictments of its
>allies, and thus the Tribunal did not produce any.
>
>Tribunal's Kangaroo Court Processes
>
>Arbour has claimed that the Tribunal was "subject to extremely stringent
>rules of evidence with respect to the admissibility and the credibility of
>the product that we will tender in court" so that she was guarded against
>"unsubstantiated, unverifiable, uncorroborated allegations" (April 20).
>This is a gross misrepresentation of what John Laughland described in the
>Times (London) as "a rogue court with rigged rules" (June 17, 1999). The
>Tribunal violates virtually every standard of due process: it fails to
>separate prosecution and judge; it does not accord the right to bail or a
>speedy trial; it has no clear definition of burden of proof required for a
>conviction; it has no independent appeal body; it violates the principle
>that a defendant may not be tried twice for the same crime (Article 25
>gives the prosecutor the right to appeal against an acquittal); suspects
>can be held for 90 days without trial; under Rule 92 confessions are
>presumed to be free and voluntary unless the contrary is established by the
>prisoner; witnesses can testify anonymously, and as John Laughland notes,
>"rules against hearsay, deeply entrenched in Common Law, are not observed
>and the Prosecutor's office has even suggested not calling witnesses to
>give evidence but only the tribunal's own 'war crimes investigators.'"
>
>As noted, Arbour presumes guilt before trial; the concept of "innocent till
>convicted" is rejected, and she can declare that people linked with Arkan
>"will be tainted by their association with an indicted war criminal" (March
>31). Arbour clearly does not believe in the basic rules of Western
>jurisprudence, and Laughland quotes her saying "The law, to me, should be
>creative and used to make things tight." And within a month of her
>elevation to the Canadian Supreme Court she was a member of a court
>majority that grafted onto Canadian law the dangerously unfair Tribunal
>practice of permitting a more liberal use of hearsay evidence in trials.
>The consequent corruption of the Canadian justice system, both by her
>appointment and her impact, mirrors that in the Canadian political system,
>whose leading members supported the NATO war without question.
>
>NATO's Crimes
>
>In bombing Yugoslavia from March 24 into June 1999, NATO was guilty of the
>serious crime of violating the UN Charter requirement that it not use force
>without UN Security Council sanction. It was also guilty of criminal
>aggression in attacking a sovereign state that was not going beyond its
>borders. In its defense, NATO claimed that "humanitarian" concerns demanded
>these actions and thus justified seemingly serious law violations. Apart
>from the fact that this reply sanctions law violations on the basis of
>self- serving judgements that contradict the rule of law, it is also called
>into question on its own grounds by counter-facts. First, the NATO bombing
>made "an internal humanitarian problem into a disaster" in the words of
>Rollie Keith, the returned Canadian OSCE human rights monitor in Kosovo.
>Second, the evidence is now clear that NATO refused to negotiate a
>settlement in Kosovo and insisted on a violent solution; that in the words
>of one State Department official, NATO deliberately "raised the bar" and
>precluded a compromise resolution because Serbia "needed to be bombed."
>These counter-facts suggest that the alleged humanitarian basis of the law
>violations was a cover for starkly political and geopolitical objectives.
>
>NATO was also guilty of more traditional war crimes, including some that
>the Tribunal had found indictable when carried out by Serbs. Thus on March
>8, 1996, the Serb leader Milan Martic was indicted for launching a rocket
>cluster-bomb attack on military targets in Zagreb in May 1995, on the
>ground that the rocket was "not designed to hit military targets but to
>terrorize the civilians of Zagreb." The Tribunal report on the Croat
>Operation Storm in Krajina also provided solid evidence that a 48 hour
>Croat assault on the city of Knin was basically "shelling civilian
>targets," with fewer than 250 of 3,000 shells striking military targets.
>But no indictments followed from this evidence or for any other raid.
>
>The same case for civilian targeting could be made for numerous NATO
>bombing raids, as in the cluster-bombing of Nis on May 7, 1999, in which a
>market and hospital far from any military target were hit in separate
>strikes--but no indictment has yet been handed down against NATO.
>
>But NATO was also guilty of the bombing of non-military targets as
>systematic policy. On March 26, 1999, General Wesley Clark said that "We
>are going to very systematically and progressively work on his military
>forces...[to see] how much pain he is willing to suffer." But this focus on
>"military forces" wasn't effective, so NATO quickly turned to "taking
>down...the economic apparatus supporting" Serb military forces (Clinton's
>words), and NATO targets were gradually extended to factories of all kinds,
>electric power stations, water and sewage processing facilities, all
>transport, public buildings, and large numbers of schools and hospitals. In
>effect, it was NATO's strategy to bring Serbia to its knees by gradually
>escalating its attacks on the civil society.
>
>But this policy was in clear violation of international law, one of whose
>fundamental elements is that civilian targets are off limits; international
>law prohibits the "wanton destruction of cities, towns or villages or
>devastation not justified by military necessity" (Sixth Principle of
>Nuremberg, formulated in 1950 by an international law commission at the
>behest of the UN). "Military necessity" clearly does not allow the
>destruction of a civil society to make it more difficult for the country to
>support its armed forces, any more than civilians can be killed directly on
>he ground that they pay taxes supporting the war machine or might some day
>become soldiers. The rendering of an entire population a hostage is a
>blatant violation of international law and acts carrying it out are war
>crimes.
>
>On September 29, 1999, in response to a question on whether the Tribunal
>would investigate crimes committed in Kosovo after June 10, or those
>committed by NATO in Yugoslavia, prosecutor Carla del Ponte stated that
>"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 the focus, especially in
>light of all the evidence already assembled in preparing the favored
>indictments, was unexplained. In late December, it was finally reported
>that Del Ponte was reviewing the conduct of NATO, at the urging of Russia
>and several other "interested parties" ("U.N. Court Examines NATO's
>Yugoslavia War," NYT, Dec. 29, 1999). But the news report itself indicates
>that the focus is on the conduct of NATO pilots and their commanders, not
>the NATO decision-makers who made the ultimate decisions to target the
>civilian infrastructure. It also suggests the public relations nature of
>the inquiry, which would "go far in dispelling the belief...that the
>tribunal is a tool used by Western leaders to escape accountability." The
>report also indicates the delicate matter that the tribunal "depends on the
>military alliance to arrest and hand over suspects." It also quotes Del
>Ponte saying that "It's not my priority, because I have inquiries about
>genocide, about bodies in mass graves." We may rest assured that no
>indictments will result from this inquiry.
>
>An impartial Tribunal would have gone to great pains to balance NATO's
>flood of documents by internal research and a welcoming of rival
>documentation. But although submissions have been made on NATO's crimes by
>Yugoslavia and a number of Western legal teams, the Tribunal didn't get
>around to these until this belated and surely nominal inquiry that is "not
>my priority," as the Tribunal "must" pursue the Serb villains, for reasons
>that are only too clear.
>
>Beyond Orwell
>
>NATO's leaders, frustrated in attacking the Serb military machine, quite
>openly turned to smashing the civil society of Serbia as their means of
>attaining the quick victory desired before the 50th Anniversary celebration
>of NATO's founding. Although this amounted to turning the civilian
>population of Serbia into hostages and attacking them and their means of
>sustenance--in gross violation of the laws of war--Arbour and her Tribunal
>not only failed to object to and prosecute NATO's leaders for war crimes,
>by indicting Milosevic on May 27 they gave NATO a moral cover permitting
>escalated attacks on the hostage population.
>
>Arbour and the Tribunal thus present us with the amazing spectacle of an
>institution supposedly organized to contain, prevent, and prosecute for war
>crimes actually knowingly facilitating them. Furthermore, petitions
>submitted to the Tribunal during Arbour's tenure had called for prosecution
>of the leaders of NATO, including Canadian Prime Minister Jean Chretien,
>for the commission of war crimes. If she had been a prosecutor in Canada,
>Britain or the United States, she would have been subject to disbarment for
>considering and then accepting a job from a person she had been asked to
>charge. But Arbour was elevated to the Supreme Court of Canada by Chretien
>with hardly a mention of this conflict of interest and immorality.>In this
>post-Orwellian New World Order we are told that we live under the
>rule of law, but as Saint Augustine once said, "There are just laws and
>there are unjust laws, and an unjust law is no law at all."
>
>

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