Ramsey Clark: Divide and Conquer. The Destruction of the Balkan
Federation by the United States and NATO
4 : Part three (final) and Conclusion
http://www.iacenter.org/yugo/divide&conquer.htm
http://www.icdsm.org/more/rclarkUN2.htm
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PART THREE
The UN Charter Does Not Contain The Power To Create Criminal
Courts And Courts Created By It Are A Continuing Threat To Peace
XI. The US Coerced The UN Security Council to Exceed Its
Powers and Create the First International Criminal Tribunal
Through Which The US Could Target Enemies and Change Regimes
The Charter of the United Nations was "forged" at
Dumbarton Oaks in Washington, D.C. in August and October 1944 and
San Francisco during April to June 1945. The United States and
each of the other four permanent members of the Security Council,
all victors in World War II, though already wary allies, were
given the power to veto Security Council resolutions, as a power
demanded by the five most powerful nations, at the risk of paralyzing
the UN.
Not a word in the Charter implies that power is
conferred on the Security Council to create any Court. The
structure of the Charter, the nature of the powers delegated by
it, and the incorporation into the Charter and the Charter
provisions for Amendment, of the Statute for the International Court
of Justice, its authority narrowly defined and strictly limited,
belie the delegation of any power to create any criminal court.
If power to create a criminal court can be tortured
from the terms of the Charter, then there is no limitation on the
power of the Security Council to do whatever it chooses.
Above all, the immediate history of the nations
actively involved in drafting and ratifying the Charter leaves no
doubt that there would not have been a United Nations if it was
believed a criminal court in which they could be prosecuted might
be created under the Charter. The nations that fought in World
War II and played the major roles in drafting the Charter, most surely
the US, would have rejected their own work.
The history of the planning meetings, the preparations
and instructions of the national delegations, particularly the
five nations which were to be permanent Members of the Security
Council, the Central role of the host nations, the US, the records
of the drafting and consideration of the Charter by the delegates,
if we are to believe the public record, leave no room for doubt that
there would never have been a United Nations if the Charter had
included either expressly, or by implication, the power to create
an international court of criminal justice.
From the four-power Dumbarton Oaks conference in 1944
to the fifty-nation conference at San Francisco in 1945, which
ratified the Charter as drafted and imposed by the US, Britain,
China, France and Russia, there was never any suggestion that an
international criminal court could be authorized under the
Charter. It would not have been accepted by the major powers if there
was. Those nations were not prepared to risk subjecting their
leaders, armed services and citizens to the possibility of
prosecution by an international criminal tribunal in the aftermath
of World War II.
The manner in which the Nuremberg Tribunal was created
is further evidence of an intention to deny power to the UN to
create courts. The US, France, Great Britain and the USSR,
permanent members of the UN Security Council and pre eminent in
drafting its Charter, starting immediately after the UN Charter
was adopted in San Francisco, initiated, drafted and promulgated the
Charter of the International Military Tribunal (Nuremberg Charter)
at London between late June 1945 and August 8, 1945, when it was
signed.
The Nuremberg Charter referred to the declaration by
the UN of an "intention that War Criminals shall be brought to
justice" and it provided that: "Any Government of the United
Nations may adhere to this Agreement by notice given through the
diplomatic channel to the Government of the United Kingdom." But
the Nuremberg Charter claimed no relationship to the UN and makes
no reference to the UN International Court of Justice. The UN was
excluded from even an advisory role and participation in the creation
and work of the Nuremberg Tribunal. The Tribunal was created
completely independent of the UN.
The UN was completely ignored and it made no protest.
The permanent members of the Security Council and other members of
the UN opposed any power in the UN to create a permanent criminal
tribunal, or the creation of such a tribunal under UN authority,
or otherwise.
The US was fully aware that there is no delegation of
power capable of legal restraint on the Security Council within
the UN system. Judicial review by the International Court of
Justice of the legality under the UN Charter of acts by UN organs
was rejected during the drafting of the Charter. At the San
Francisco conference "the proposal to confer the point of preliminary
determination [of each organ's competence] upon the International
Court of Justice was rejected. The view was preferred that each
organ would interpret its own competence." See, The Development
of International Law Through the Political Organs of the United
Nations, Rosalyn Higgins, (1963). Ms. Higgins later served as a
Judge of the ICJ.
John Foster Dulles, Secretary of State in the
Eisenhower Administration, in his memoir, War or Peace, published
in 1950, expressed the US view concerning legal limitations on
Security Council power. "The Security Council is not a body that
merely enforces agreed law. It is a law unto itself... No
principles of law are laid down to guide it, it can decide in
accordance with what it thinks is expedient." The veto power
provided the US significant protection from UN action it opposed.
Its ultimate protection was withdrawal, which after US rejection
of the League of Nations has remained a threat.
The Security Council knew there were only two ways to
create a criminal court under existing international law, by
treaty, or amendment to the Charter of the UN.
The General Assembly, which initiated among other
invaluable contributions to world peace, the Universal Declaration
of Human Rights, authorized studies for the creation of an
International Criminal Court Pursuant to Article 13 of the
Charter. It assigned the task to its International Law Commission,
which worked on the project for years. The contemplation has always
been that such a court would be created by multinational treaty,
or amendment to the UN Charter.
Later the General Assembly authorized planning and
drafting of a treaty to create a permanent International Criminal
Court by the International Law Commission. See James Crawford,
The ILC Adopts A Draft Statute for an International Criminal
Court, 89 Am.J.Int'l.L. 404 (1995). After years of effort, in June
1998, 120 nations agreed on a treaty to create such a court. The
United States and six other countries rejected the treaty.
XII. The US Coerced Creation Of The International Criminal
Tribunal For Former Yugoslavia to Change Regimes, Weaken Balkan States
and Demonize Serbian Leadership
After flagrantly violating the UN Charter by
unilaterally planning the dismemberment of the Socialist Federal
Republic of Yugoslavia and imposing unilateral economic sanctions
against Yugoslavia while providing internal support for secessionist
movements within Yugoslavia, the US coerced the Security Council to
violate the UN Charter by exceeding powers granted to it by the
Peoples of the United Nations to create the International Criminal
Tribunal for Former Yugoslavia on February 22, 1993.
The US Ambassador to the UN, Madeleine Albright, was
the official responsible for achieving the creation of both the
International Criminal Tribunal for the Former Yugoslavia in 1993
and the International Criminal Tribunal for Rwanda in late 1994
and early 1995. "The United States was at the forefront in
creating both tribunals and continues to be their leading source of
political financial, personnel, logistical and information-sharing
support." International Judicial Intervention, David Scheffer,
Foreign Policy, Spring 1996. Mr. Scheffer who was an assistant to
Ambassador Albright was later Legal Advisor in the US Department
of State on international criminal tribunals.
The ICTY was intended by the US as a weapon to destroy
the leadership of Yugoslavia by demonization, marginalization and
incapacitation. The ICTY provided an ideal mechanism for regime
change without the appearance of US intervention or coercion,
removing selected leaders, creating the opportunity for new leadership
supportive of the US while branding the old regime as genocidal war
criminals under the appearance of objective, judicious,
international condemnation. It is the most effective form of
regime change, successful political intervention, selective
prosecution, and demonization in the name of international justice
through the United Nations.
Three key players in the US foreign policy concerning
Yugoslavia and in the role of the ICTY, Richard Holbrooke, Richard
Goldstone and Madeleine Albright, in recent memoirs have declared
their support for military threats, war, bombing and coercion by
threats of prosecution by the ICTY to coerce foreign leaders and
change regimes.
Richard Holbrooke, a career US diplomat who had served
as US Ambassador to Germany, and Assistant Secretary of State
acted as chief US negotiator during the Bosnian conflict and
through the Dayton Accords. Holbrooke supported a major military
role for NATO and the use of bombing to force Yugoslavia agreement
to US demands. Brian Urquhart, in a review of Holbrooke's book
"To End A War" wrote "UN Secretary-General Boutros-Ghali bears the
full brunt of Holbrooke's contempt, especially for his early opposition
to NATO bombing. Nearer home, he has little patience with the
commander of NATO's Southern Forces, Admiral Leighton Smith, who
opposed the bombing that Holbrooke believed to be indispensable to
the start of a serious negotiating process." Time Magazine, May
18, 1998.
When the cease fire in Bosnia was approaching before
the Dayton negotiation, Holbrooke, "...urged Tudjman to do as much
as possible militarily 'in the next week or so'" to gain last
minute advantage and inflict further injury on the Bosnia Serbs."
To End a War, p. 191. Holbrooke believed in the use of violence
to force agreement.
In his book, Holbrooke wrote
"When it was established by the United Nations Security
Council in 1993, the Tribunal was widely viewed as little more
than a public relations device. It got off to a slow start
despite the appointment of a forceful and eloquent jurist,
Richard Goldstone of South Africa, as its chief. Credit for pumping
up its role in those early days went to Madeleine Albright and
John Shattuck, who fought for its status and funding. Other
nations, especially its Dutch hosts and the Germans, also gave
it substantial support." Id pp. 189-190.
Later he recognized political utility in such a
Tribunal.
"During our negotiations, the tribunal emerged as a valuable
instrument of policy that allowed us, for example, to bar
Karadzic and all other indicted war criminals from public
office." Id. p. 90.
Holbrooke found it advantageous that President Karadzic could be
excluded from peace negotiations. Muslim and Croatian leaders had
open access and direct input. In contrast, President Milosevic
remained in charge of negotiations for Serbia to end the NATO
bombing in 1999 after his indictment by the ICTY.
President Izetbegovic is quoted as saying to Holbrooke
"If you can get Karadzic out of power... I can work with
Krajisnik," Karadzics' heir apparent. Id. p. 342. He, too, saw
the ICTY as a tool to be used to gain political advantage and
remove opposition leaders.
Holbrooke felt the vast display of US military power
at the Wright-Patterson Air Force Base would intimidate the Bosnia
participants and strengthen the US hand in the negotiations. In
furtherance of regime change, he told President Clinton after the
21-day negotiation of the Dayton agreement that "... the arrest of
Karadzic and Mladic was the most critical issue that was not
resolved..." Id. p 315.
The Dayton accords removed Karadzic from office
immediately and, as demanded by Holbrooke, Karadzic was barred
from "public activities," "I cited a number of examples,
especially his appearances on television and the use of posters
bearing his likeness, that could constitute violations." Id. p.
343.
While appreciating the power policy makers gained from
ICTY indictments and their threat, Holbrooke resented actions by
the ICTY that interfered with his activities, or policy goals. He
was
"confronted by an unexpected problem: the local police had
arrested two senior Bosnian Serb officers, General Djordje
Djukic and Colonel Aleksa Krsmanovic, as they entered Sarajevo
in a civilian car. The Bosnians claimed the two men were war
criminals..."
The arrest had violated "free movement" agreements made at
Dayton. President Milosevic demanded their release. The Bosinian
Serbs threatened further participation in the Accord. Holbrooke
continued,
"we would normally have insisted that the Muslims release them
immediately. But Justice Goldstone complicated matters
considerably; from the International War Crimes Tribunal in
the Hague, he issued a warrant for the two men--even though
they had not been indicted." Id.
Holbrooke did not intercede to defend the Dayton Accord. The two
men were held for several months at the Hague before the Charges
were dropped for lack of evidence.
The real objective of US policy is reflected in
Holbrooke's description of President Clinton's unplanned stop at a
US military "staging area in Taszar, Hungary," forced by bad
weather en route to the US military base in Tuzla, Bosnia after
Dayton. The President, Prime Minister and Foreign Minister of
Hungary hurried to meet President Clinton. Holbrooke wrote
"The presence of six thousand American troops on Hungarian
soil only four years after the end of the Cold War--and forty
years after the 1956 Soviet invasion--was in itself a
remarkable symbol of the transformation of Europe. The Hungarians
had one message for President Clinton: that they were ready for
NATO membership and that the staging area at Taszar was part
of that goal. 'Stay as long as you like,' they said. 'Turn
this into a permanent NATO installation--and let us join the
West.'" Id. p. 326.
For his part Richard Goldstone, the first Chief
Prosecutor to take charge of the office with ICTY, in his memoir,
For Humanity, Reflections of a War Crimes Investigator,
acknowledged the central role played by the US in creating the
Tribunal "Madeleine Albright, ... had played the leading role in
having the tribunal established. Her continued support for the work of
the Yugoslavia tribunal, and later the Rwanda tribunal, was
crucial to their success. She appointed one of her senior
advisors, David Scheffer, to take special responsibility for
moving the work of the tribunal forward." Id. p. 78.
On Goldstone's first day at The Hague, he found
"twenty-three Americans working in the office. They included
lawyers, computer technicians, and police investigators, all of
whom had been assigned to the tribunal by the US government, at no
cost to the United Nations. He claimed the United States had provided
assistance only in an attempt to "jump-start the Office of the
Prosecutor and so make up for the slowness and inefficiencies at
the United Nations headquarters in New York." Id. p. 82. He
complained of the "well-documented inefficiencies of the UN" and
used funds from private sources to pay expenses of his work as
Chief Prosecutor. Id. p. 80‑81.
Judge Goldstone reported that much time during his
last months in office in 1996 was spent pushing for the arrest of
Karadzic and Mladic to no avail. In 1998 he participated with
Theodor Meron, a US citizen who was his advisory at The Hague and
is now President of the ICTY, in an organization campaigning for
the same arrests.
Judge Goldstone cited, as the few leaders who
advocated the use of force to accomplish the arrest, Klaus Kinkel,
the German Foreign Minister, Robin Cook when he became British
Foreign Minister and Madeleine Albright. Id. p. 117. Even without
arrests, Judge Goldstone called investigations and indictments of
individuals, including Karadzic and Mladic, "achievements, because,
though not convicted, they were marginalized." Id. p. 126. He praised
the US and NATO for bombing Yugoslavia, calling it an historic
watershed, even "in apparent breach of the Charter of the UN." Id.
pp. 136-137.
The singular role of the US in support for all the UN
created ad hoc criminal tribunals, as the dismemberment of
Yugoslavia, support for the RPF government of Rwanda and the
arrests of selected leadership in the nations targeted for
discriminatory prosecution demonstrates the political use it makes of
such Courts. As recently as September 2003, Theodor Meron,
President of the ICTY called for the arrests of Karadzic and
Mladic--a questionable role for a person who must presume their
innocence and impartially judge the charges against them, a role
usually left to the Prosecutor and governments.
In her memoir, published in September 2003, Madam
Secretary, Madeleine Albright writes proudly that the
International Criminal Tribunal for the former Yugoslavia, the
first international war crimes tribunal "of its kind" since World
War II, was created in her first year as US Ambassador to the UN.
Describing the difficulties that faced the tribunal she proclaims
"...the Clinton administration, the leading financial
contributor, didn't waver. We shared our technical expertise,
while our volunteers helped interview witnesses and refugees.
We made cooperation with the tribunal a top issue in all our
bilateral relationships with governments both in and outside
the region. I was proud of the role my office played."
Noting that more than four dozen suspects have been tried by 2003,
she concluded "...the tribunal would eventually land the biggest
fish of all." She was referring to Slobodan Milosevic.
Describing her frantic efforts to secure approval for
a NATO assault on Yugoslavia in 1999, she recalls a conversation
with Igor Ivanov, Prime Minister of the Russian Federation during
an intermission in a performance of La Traviata at the Bolshoi
Theater. By then Secretary of State, Albright told Ivanov "The
Europeans are worried about your reaction if NATO tries to act without
going to the Security Council..." Id. at p. 396. Ivanov responded
"'Russia will never agree to air strikes against the Serbs,' he
began. 'That would be totally unacceptable. NATO has no right to
attack a sovereign state.'" Id. at p. 397.
As the NATO bombing continued into April, Secretary
Albright rejected a pause in the attacks "as a sign of weakness".
She considered "declaring Milosevic's removal from power an
explicit war aim." Referring to the British, she recalled "We
agreed among ourselves that Kosovo would have to become an
international protectorate after the war, with Yugoslavia sovereignty
retained in name only." Id. p. 411.
To secure approval for a NATO attack, the State
Department
"...put together a long-term reconstruction plan for the
entire Balkans region. ... This initiative would foster
cooperation among countries throughout the region, and, by
promising aid to Belgrade only if a change in government
occurred, create an additional incentive to dump Milosevic." Id.
pp. 411-412.
The long-term reconstruction plan has not begun, but
Slobodan Milosevic is on trial at The Hague.
Working on Russia, Albright writes
"I began an almost continuous dialogue with Ivanov, telling
him that I hoped our differences over Kosovo would not
jeopardize cooperation on other matters. He said there was no
avoiding it. 'Russia cannot,' he said, 'sit around and watch
NATO destroy a sovereign nation.'" Id. p. 413.
On May 7, US B-2 bombers hit the Chinese Embassy
killing three Chinese in the Embassy and injuring twenty.
Albright writes "our pilots had thought (it) was a Yugoslav
weapons acquisition agency." Id. p. 417.
Twenty days later,
"the war crimes tribunal announced the indictment of
Milosevic, Milutinovic, (President of Serbia) and three other
Serb leaders for crimes against humanity. There were those
who were nervous about Milosevic's indictment, feeling that it
would mean we couldn't negotiate with him. I was not in that
camp. I was gratified by the indictments..." Id. p. 419.
A week later, Albright states,
"On June 3 peace terms were agreed upon. NATO
would occupy Kosovo. On June 9, Yugoslav military forces
started withdraws from Kosovo, the following day NATO
suspended air strikes. Secretary Albright awaiting the news
in Europe was elated. "Walking down the streets in Cologne, I
received a round of applause. During the G8 meeting, Foreign Minister
Fischer had said, 'Well, if it was Madeleine's war, it is now
Madeleine's victory.' ... 'After dinner President Clinton
called and his opening line was, 'So you're a happy girl.' He
was certainly a happy boy. He told me about a column he had
just read by John Keegan in which the British historian had
written, 'There are certain dates in the history of warfare
that mark real turning points...Now there is a new turning point to fix
on the calendar: June 3, 1999, when the capitulation of
President Milosevic proved that a war can be won by airpower
alone.'" Id. p. 421.
President Clinton's pleasure with John Keegan’s column
proclaiming President Milosevic's "capitulation" "proved that a
war can be won by air power alone" reveals a greater interest in
military power than in history. The US was forced to go back to
the United Nations, whose authority it had flouted, to secure
approval of the terms for ending its aggression. Resolution 1244
(1999) adopted by the Security Council on June 10, 1999, ended the
bombing of Yugoslavia. While speaking of substantial autonomy for the
people of Kosovo, a status Yugoslavia had previously recognized,
the resolution provided that Kosovo shall remain "within the
Federal Republic of Yugoslavia" (Para 10). It further demanded
that the "KLA and other armed Kosovo Albanian groups end
immediately all offensive actions and comply with the requirements
for demilitarization laid down by the head of the international
security presence in consultation with the Special Representative of
the Secretary General." (Para. 15) Air power did enormous criminal
damage. It did not win a war. The failure of the peace that
followed is a failure of the US and of KFOR, which was authorized
by Resolution 1244, to fulfill the UN Mandate.
Secretary Albright concedes in her memoir
"Well before the war in Kosovo, I gained administration
support for a policy of trying to replace Milosevic. For two
years we moved both behind the scenes and in public toward
that end. With colleague Joschka Fischer and others, I urged
Serb opposition leaders to build a real political organization
and focus on pushing Milosevic out. ... In public remarks I
said repeatedly that the United States wanted Milosevic 'out of power,
out of Serbia, and in the custody of the war crimes tribunal.'"
Id. p. 500.
In late July 1999 she visited Kosovo for the first
time. In Pristina she spoke to
"an enormous crowd gathered in the city's central square. The
crowd, swollen by returned refugees, was dressed in a mixture
of Albanian national costumes and Chicago Bulls jerseys. ... I
said, 'We must support the war crimes tribunal, because those
indicted for ethnic cleansing and murder should be held
accountable, and Slobodan Milosevic must answer for his crimes.'
The crowd yelled even louder." Id. p. 425.
After her speech in Pristina, Secretary Albright drove
to the
"Serb Orthodox monastery of Gracanica, the mood was fearful
and bitter. I was visiting the monastery to meet with Bishop
Artemije Radosavljevic and other local Serb religious
leaders. The bishop had strongly opposed the NATO bombing."
"When I had met the bishop in Washington before
the war, he had warned that a military confrontation would be
a disaster. Now he showed me pictures of destroyed churches,
recounted attacks that had been made on Serbs, and expressed
his fear that all Serbs might have to leave Kosovo. I told
him that outcome was the opposite of what I wanted; NATO peacekeepers
and the UN would do everything possible to help his people feel
secure. The bishop said that if Serbs were driven out,
Milosevic would be proven right. I agreed." Id. p. 426.
Now four years later violence flares out frequently
and more than 250,000 Serbs have been driven out of Kosovo.
By Secretary Albright's acknowledged test, Milosevic
was right.
NATO attacks in Bosnia and against Yugoslavia were the
first in NATO history. Its victims were defenseless against its
air power. Neither NATO nor its individual members have repaired
the vast destruction they inflicted. Two NATO members had bombed
Belgrade and other Yugoslavia cities before: Germany in 1941 and
the US in 1945.
The ease and confidence with which principals involved
in the war of aggression against Yugoslavia and prosecutions of
the ICTY, including Albright, Holbrooke and Goldstone, speak in
the most derogatory terms of Slobodan Milosevic and other Serb
leaders can only be understood in the light of years of demonization
by the Western media of Yugoslavia, its leaders and for the past
fifteen years, of Milosevic and Serbia with special vehemence. As
a single additional illustration, Holbrooke describes how a
waitress at a restaurant in the Wright-Patterson air base during
the negotiations at Dayton in 1995 was charmed by President
Milosevic, adding that she was unaware she was talking to "one of the
most reviled people in the world." That revulsion was a creation of
the Western media. It makes attacks on the victims of its
demonization politically profitable.
The media overwhelmingly supports US militarism,
military expenditures and both US economic and military
interventions. In war and peace it glorifies US military actions
conditioning the public to accept and seek the use of US military
power to advance US economic and political policies. The media
and the Pentagon tell much the same story in wartime and peace time.
They serve the same master, the American plutocracy. They rarely
question the legality, or morality of US military actions, nearly
always justify and celebrate US military operations and demean the
victims, both soldiers and civilians, so often defenseless against
US high-technology warfare. Foreign military casualties are
overstated during combat, civilian casualties are understated and
both are ignored thereafter. The US media has made no effort to report
civilian casualties in Yugoslavia, Afghanistan, or Iraq and does
not publish those who do.
The Western media is owned and financed by
concentrations of great wealth. Its principal income is from
sales to major corporations of advertising for their products.
The western media is overwhelming responsible for demonizing
individual leaders, organizations, governments, ethnic groups, even
religions, largely as a worldwide chorus for US government
propaganda. Such wealth overwhelmingly supports militarism,
exploitation of foreign resources and labor, foreign investment
and trade advantages and protection of its foreign assets because
it profits from all of these. The media informs, omits and misinforms
public opinion creating a climate in which war and war crimes by
the US will be supported or ignored and demonization of its
enemies accepted. The public accepts the message, which appeals
to its emotions using fear, hatred, nationalist pride,
indifference and a sense of powerlessness.
Peace will be difficult to achieve until the media
seeks to provide the public with a range of facts, opinions and
perspectives sufficient to make informed judgments.
Recent wars of aggression against Yugoslavia, Afghanistan and Iraq
might have been successfully resisted by the people within the
aggressor nations and by world opinion if the media served the
public need for knowledge. What is past will be prologue unless
access to needed information becomes available to all who seek it.
The failure of the ICTY to even investigate US and
NATO crimes against peace, war crimes and their violations of the
UN and NATO Charters, which eroded of UN authority and challenged
its capacity to keep peace, painfully exposes the unilateral use
of the ICTY to prosecute those who resisted the dismemberment of
Yugoslavia and demonize them for posterity.
The Tribunal accusations, focused on Serbs, is
psychologically more devastating then bombs which are only brute
force. The Court can destroy the honor of a whole people. To
employ the Court unilaterally, to assure impunity for power,
corrupts justice and forces inequality in prosecutions by the
Tribunal. Equality is the mother of justice. Its absence breeds
the revolutionary impulse, hatred and war. Other criminal courts
created by the Security Council confirm the political motivation
of the US and its use of them to enforce its policies.
The International Criminal Tribunal for Rwanda (ICTR)
was created to be a fig leaf for the failure of the UN and
powerful countries to prevent the tragic political violence of
1994. The unauthorized Security Council statute limited ICTY
jurisdiction to events in a single year 1994, after thirty-four years
of aggression against Rwanda by Rwandan exiles who supported the
Belgian Colonial government and in later years by the RPF, which
was founded in Washington, D.C. and supported by the US. By
restricting jurisdiction to 1994, the US prevented investigations
for crimes against peace and war crimes by the RPF, which
conducted major invasions from Uganda in 1990 and 1993. The French
government stopped the invasion in 1993 after major incursions which
provided enclaves for RPF forces within Rwanda, including a
negotiated deployment in Kigali itself of greater than battalion
strength.
The Tribunal has ignored the key causative factor in
the violence: who shot down the plane carrying the Presidents of
Rwanda and Burundi on April 6, 1994? It has ignored the slaughter
of the Catholic Archbishop with ten other bishops and other
Catholic leaders by RPF soldiers at Gitarama in late April 1994.
The restriction of ICTR jurisdiction to the geographic
limits of Rwanda excluded the slaughters of hundreds of thousands
of Rwandans who fled and were pursued by RPF violence in
neighboring Zaire, now again the Democratic Republic of Congo.
The consequence was violence across Congo to Kinshasa with untold
hundreds of thousands killed and the RPF briefly in Kinshasa and
controlling vast parts of Congo, exploiting diamonds and other
resources with impunity and US support.
War rages today in Burundi and Rwanda itself is a time
bomb, waiting to explode with more than 100,000 uncharged
prisoners, most held for more than nine years under cruel, inhuman
and degrading conditions. During the 1990s, the US established
hegemony, with Tutsi leadership, from Uganda, through Rwanda and
Burundi and briefly in most of Congo.
If the ICTR had been granted jurisdiction over persons
in adjacent nations who provided bases, arms, training, sanctuary
and soldiers to invade Rwanda, the Tutsi leadership of Uganda,
including its US supported President Museveni, might have been
indicted. President Kagame of Rwanda served for years in Museveni's
forces as he fought to rule Uganda and become his intelligence chief.
In contrast, the Security Council criminal court
created for Sierra Leone was given jurisdiction to indict
President Taylor of neighboring Liberia, a long time target of US
plans for regime change. The court indicted Taylor who is now
exiled in Nigeria. Such are the powers of selection in ad hoc Tribunals.
Faustin Twagiramungn, chosen to be interim Prime
Minister of the Broad Based Transitional Government of Rwanda
under the UN sponsored Arusha Accords in 1993 and Prime Minister
of the RPF government in the immediate aftermath of its surge to
power from July 1994 to October 1995, testified before the ICTR
that he believes more Hutus were killed than Tutsis in a "political
struggle" in 1994 and not in what the ICTR has labeled an ethnic
genocide of Hutus killing Tutsis. See Transcript, Trial of
Prosecutor v. Ntakirutimana, February 4, 2001, pp. 143 to 168.
The Gersony Report sponsored by the UNHCR, described
RPF attacks and the slaughter of tens of thousands of Hutus during
a brief period in the summer of 1994 in only two prefectures. To
date the International Criminal Tribunal for Rwanda has failed to
indict a single Tutsi more than eight years after its creation.
The removal in September, 2003 of Chief Prosecutor
Carla del Ponte for the ICTR at the insistent of the RPF
government of Rwanda, because she threatened to make token
indictments of Tutsis to create the appearance of even handedness
reveals the power one nation targeted by an international tribunal
depended on its assistance for witnesses, documents and access to
sites has over such a tribunal and the continuing domination of
the US over the ad hoc UN criminal tribunal it brought into being
and the impunity favored powers and leaders of the US enjoy in
those courts.
The criminal tribunal authorized for Sierra Leone with
its jurisdiction defined to permit indictment before it threaten
President Charles Taylor of Liberia who was elected with a large
majority in the presence of international monitors, was planned by
the US as a means of marginalizing and destroying leadership
hostile to US dominion in Sierra Leone and regime change in Liberia.
The US had sought to remove Charles Taylor for years at terrible
cost in life. It succeeded in violation of Liberia's institutions
and the legal term of office to which Taylor was elected after
President Bush's arrogant public demand "Taylor must step down" in
the face of continuing rebel violence supported by the US
stiffened resistance to foreign demanded reforms across Africa.
The US has had a dominant relationship with Liberia since the 1820s.
Liberia's capital is named for US President Monroe of Doctrine
fame. Its second city and major port, Buchanan, is named for the
last US President to serve before the US Civil War ended its
slavery. Despite this close history and consequent high
obligation, the Bush Administration never provided the least
protection for Liberians crowded into the capital from all the
countries in the county and under attack by rebels, mostly
foreign. Nor will the Bush Administration talk of "rebuilding
Liberia." It never has. To their credit, several African nations
sent peacekeepers and the UN provided a significant policing
capacity in October 2003.
The long struggle to create a UN-supported criminal
tribunal for Cambodia was fueled by the US desire to remove the
Prime Minister and other officials who served in the government of
Kampuchea during and after the Vietnam war.
The ad hoc criminal tribunals created by the Security
Council corrupt international law, create hatred and division that
lead to war and are incapable by their very nature and purpose of
achieving equal justice under law. They are selective,
discriminatory and by their creation call for conviction of targeted
persons and groups.
The Nuremberg Tribunal created by the victors of World
War II separated from the UN, taught the international community
which seeks peace under the rule of international law that in the
future all nations and their leaders must be equally accountable
for violations of international laws. The US Chief Prosecutor at
Nuremberg, US Supreme Court Justice Robert H. Jackson, proclaimed
with memorable passion the importance of this principle and applying it
to his own country. Speaking to the American Society of
International Law on April 13, 1945, the day after president
Franklin Roosevelt died with World War II still raging Justice
Jackson also emphasized that while victors had always acted as
they chose toward defeated people, if the choice was for trials in
a court of law for alleged crimes "
... all experience teaches that there are certain things you
cannot do under the guise of judicial trial. Courts try
cases, but cases also try courts.
You must put no man on trial before anything that is called
court...under the forms of judicial proceedings if you are not
willing to see him freed if not proven guilty..."
The Anatomy of the Nuremberg Trials, Telford Tayor, Little, Brown
and Co. 1992 at p. 45.
Following the Nuremberg trials, the UN and the
international community approved the Geneva Conventions and a host
of other treaties, covenants and principles to prevent war and
protect rights. They are based on the principles that no nation,
however powerful, can be above the law.
To restore integrity to its own Charter and honor to
its Members, the UN and the Security Council should abolish all
the existing international tribunals it has created and pledge
never to create another.
Efforts by the US, or others to create new ad hoc
criminal tribunals, or to be seize and try persons for alleged
criminal acts committed outside the US, will undermine the
authority and effectiveness of the ICC and because they are an
exercise of power in violation of international law, make the world
a more lawless place, more prone to war.
The harm done by continuing their unauthorized
activity far exceeds any fear that the future of international law
might be impaired, or "criminals might go free." The accused and
convicted are sufficiently identified.
The positive steps that must be taken are to protect
and strengthen the International Criminal Court, reform its
mandate and reform defects and deficiencies by the UN Charter that
imperil its performance.
XIII. The Bush Administration Intends to Pursue Unilateral
Policies Manifested by Its Wars of Aggression Against Yugoslavia,
Afghanistan and Iraq the Creation of Targeted Ad Hoc Criminal
Tribunals, and Its Destructive Acts Against International
Institutions, Treaties and Law. The US Can Be Deterred Only By United
Commitment of Members of the United Nations to Its Mandate.
The unilateralist policies of the US threaten the UN and
world peace. Ad hoc UN created criminal tribunals are part of the
US unilateral approach. Beyond the long list of unilateral US
military interventions and threats and the several ad hoc UN
criminal tribunals, the US is debilitating the UN and dismantling the
web of international laws and treaties on which the UN must depend
to prevent war.
While President Bush will challenge the UN to outlaw
proliferation of weapons of mass destruction as he did once again
in his address to the General Assembly on September 23, 2003, he
ignores the near US monopoly of the technology, development and
possession of WMDs and the sophisticated rocketry and other
technology to deliver them anywhere in the world. Realizing that
megaton nuclear bombs are too brutish, dumb and dangerous even for
their sender, President Bush is now pressing hard for the
development of tactical nuclear weapons that can destroy a
selected suburb or a battalion at a time.
The US military budget exceeds that of the next
fifteen largest in the world combined and exceeds the gross
national product of most Members of the UN by a multiple. The US
sells nearly half of all conventional arms sold in international
traffic, which contribute to the deaths of hundreds of thousands
and the impoverishment of hundreds of millions annually.
Many members of the UN who have watched the brutal US
assaults on Yugoslavia, Afghanistan, Iraq, or even Grenada, Libya,
Panama, or Sudan realize they have a choice. They must develop
weapons of mass destruction sufficient to deter the US, or be
prepared to surrender independent action on any issue the US
seriously demands. The US wars of aggression and their threat spawn
proliferation of WMDs as they create hatred and new capacities for
terrorist violence.
The US is unilaterally undermining the fragile and
inadequate treaty framework designed to prevent nuclear war. In
the Non Proliferation Treaty, the then six nuclear powers agreed
to plan and act to dismantle their nuclear weapons in return for
the agreement of the non nuclear powers to not develop or obtain
nuclear weapons. The US has unilaterally proliferated ever since. The
US is unilaterally abandoning the ABM and Test Ban treaties,
endangering the entire world. It seeks a monopoly of military
power for mass destruction.
The US has rejected treaties banning land mines
regulating small arms, which kill thousands every year claiming
the Second Amendment to the US Constitution prohibits such a
treaty. It has even opposed prohibition of the use of children in
war. Its unilateral policies and coercive power in international
finance, trade, health and environmental protection threaten
everyone.
The most pervasive unilateralism of the Bush
Administration is its refusal to respect the rights of
others. Mexico's gift to the UN, standing outside the
entrance to the General Assembly, bears the words of its Zapotec
Indian President Benito Juarez who knew that "A respect for the
rights of others is peace."
These unilateral polices place the US above
international law, or control, as do the unilateral ad hoc
criminal tribunals that target leaders and peoples chosen by the
US.
President Bush has made clear his intention to
continue his unilateral militarization. Continuing threats
against Cuba, Iran, Libya, North Korea, Syria, and hostile acts
and interference in the affairs of many nations, confirm his policy.
The US wants other nations to help pay for its crimes
against Iraq with troops and funds, to "stabilize" and "rebuild" a
nation on which the US inflicted tens of thousands of deaths and
tens of billion in damage with bombs in 1991, debilitated with a
decade of Security Council approved genocidal sanctions taking
more than a million lives, then attacked again despite UN
opposition in March 2003 killing at least 30,000 people. It will
force privatization, turning vital facilities and services over to
foreign interests. It will control oil. It will give rich
contracts to favored corporate friends.
The US will not pay to rebuild nations it destroys, or
damages. Ask any victims of the past fifty years. For all its
wealth, US non-military foreign aid is the lowest per capita of
any developed country. Over a period of twelve years without a
casualty the US caused hundreds more deaths by random rocket and
air assaults. Deaths included Leila al Attar, an internationally
famous artist and Director of Baghdad Museum of Modern Art in her
home and two employees of the Al Rashid Hotel in an attempt to
assassinate Saddam Hussein in 1993. Even a UN helicopter and its
seventeen passengers fell victim to US fighter jets in the illegal
US imposed no fly zone over Iraq.
If there is to be peace and justice, the US owes tens
of billions of dollars to the people of Iraq and must pay to
rebuild the country. A payment to Iraq of 10% of the US military
budget for the next decade would take the money from the offending
source and provide a means for Iraq to rebuild. Nothing can
compensate for the lives lost. US firms must be barred from profiting
for the crimes of their government.
Actions by the US against the International Criminal
Court reveals its determination not to be held accountable for its
acts, and to destroy the court which it fears. The US coerced the
Security Council into creating ad hoc Tribunals. It provided
funds and personnel. Then it threatened nations with sanctions
and other harm to coerce agreements to arrest and surrender persons
within their borders charged by the ad hoc Tribunals. This is its
chosen means: selective prosecution.
The US, while clearly opposing an International
Criminal Court that could claim jurisdiction over it, took a major
role in drafting the treaty for the ICC. It insisted on
provisions and amendments that weakened and impaired the
effectiveness of the tribunal as the price of its participation.
The ICC would face an extremely difficult challenge
even if it had a perfect charter and full support. President
Clinton signed the treaty late in his administration, but
cautioned the US Senate not to ratify it, as is required to bind
the US. President Bush then withdrew the Presidential approval and
has attacked the ICC at every turn.
The US attempted unilaterally to coerce many nations
from adopting the ICC treaty, seeking to prevent its
ratification. Since ratification, the US has coerced nations from
the Philippines to Colombia as recently as September 18, 2003, to
agree not to surrender US citizens to the ICC. This is a clear
act of obstruction of justice, a criminal offense in the domestic laws
of nations.
In a bold act of coercion, on June 30, 2002, US
Permanent Representative to the United Nations, Ambassador John D.
Negroponte, announced that without a Security Council resolution
establishing immunity for personnel contributed to Security
Council-authorized peacekeeping missions, the United States would
veto the resolution to renew the UN peacekeeping mission in
Bosnia-Herzegovina. Ambassador Negroponte argued that, having
accepted the risks of "exposing people to dangerous and difficult
situations in the service of promoting peace and stability, we
will not ask them to accept the additional risk of politicized
prosecutions before a court whose jurisdiction over our people, the
Government of the United States does not accept."
On July 12, 2002, after intense negotiations, the
Security Council, by a unanimous vote, adopted Resolution 1422,
which provides that for one year from July 1, 2002, the ICC will
not begin, or proceed with, an investigation or prosecution for
acts committed within the year against officials, or personnel of UN
peacekeeping operations contributed to such operations by states
not party to the Rome Statute. Resolution 1422 further states an
intention to renew its term for additional one-year periods as
long as necessary. The King can do no wrong. Should the US have
such impunity? And if there is a risk of "politicized
prosecution" should anyone be subjected to the jurisdiction of such a
court? Yet surely an independent, impartial and competent
International Criminal Court with worldwide jurisdiction is
essential to peace in these times.
XIV. The Indictment of the President of the Federal Republic
of Yugoslavia, Slobodan Milosevic, Was A Politically Determined
Discriminatory Prosecution
There is not a more extreme case of discriminatory
political prosecution by the ICTY than the indictment of Slobodan
Milosevic. He was President of the Federal Republic of
Yugoslavia, the highest official of the Balkan federation. He
is an Orthodox Christian Serb. The Muslim President of Bosnia Alija
Izetbegovic, and the Roman Catholic President of Croatia Franjo
Tudjman, both now deceased, were not indicted by the ICTY. By any
measure each of them is more politically extreme than Milosevic,
but he alone represented the Federal Republic of Yugoslavia. For
the NATO powers, Yugoslavia’s dismemberment had to be justified.
Milosevic was a former President of the Serbian Republic of
Yugoslavia and Serbs were the largest part of the Yugoslav
population and had the strongest commitment to the federation.
Within Bosnia, which in the Dayton Accords was divided
into three parts, Muslim, Croatian and Serbian living in Srpska,
among the political leadership only the Serb, Radovan Karadzic,
President of Republika Srpska, who had strongly supported the
Federal Republic, and his successor, Biljana Plavsic, were indicted.
Richard Goldstone, who began service as the Chief
Prosecutor for the ICTY on August 15, 1994 opened an investigation
of President Milosevic within two months. When he left the office
in late 1996 he had not obtained any evidence justifying the
indictment of President Milosevic. He wrote in his memoir
published in 2001,
"...to indict Milosevic it was necessary to establish before a
criminal tribunal that he was a party to the crimes committed
by the Bosnian Serb Army. Had there been such evidence he
would have been indicted. I frequently assured the public
that no person ever pressed me to refrain from indicting
Milosevic or anyone else."
Goldstone was aware when he wrote this that President Milosevic
had been indicted later in 1999.
Goldstone was replaced by Canadian jurist Louise
Arbour, who continued the investigation. And still there was no
indictment of President Milosevic for two and a half years. An
indictment could not be justified in light of the facts.
Though a passionate believer in the necessity and
desirability of the Federal Republic of Yugoslavia if there is to
be peace in the Balkans, President Milosevic recognized that peace
was the end to be sought; federation was a means to that end and
not a reason for war. As even Holbrooke concedes, President
Milosevic negotiated for a peaceful resolution. In the wake of
secession, President Milosevic presided over the formation of the
new Federal Republic of Yugoslavia on April 28, 1992, comprised of
only Serbia and Montenegro. Civil War had not yet broken out.
The new Constitution recognized the withdrawal of four Republics
from the federation. The Constitution affirmatively declared the
new Republic had no territorial ambitions against its former Republics:
Slovenia, Croatia, Macedonia and Bosnia. Serbia and Montenegro
accepted secession and renounced force, which would necessarily
diminish the possibility of a large Balkan federation in the near
future.
The new Constitution was adopted quickly. The
European Union, urged by Germany, had recognized Bosnia and
Herzegovina on April 6, 1992. It chose the 51st anniversary of
the first dismemberment of Yugoslavia by Germany, Italy, Hungary
and Bulgaria to destroy the achievement of federation among South Slavs
won by the Balkan victors in World War II. President Milosevic
did not intend to risk a repetition of the Balkan tragedy of 1941
to 1945.
Though Bosnia had seceded from Yugoslavia, President
Milosevic used his influence with Bosnian Serbs to persuade them
to accept the UN sponsored Vance-Owen settlement which they signed
in Athens, only to see it fail from US opposition. All other
international peace initiatives met the same strongest support by
President Milosevic.
President Milosevic then became the negotiator at
Dayton for the Bosnian Serb leadership, which was barred from
participation, the indictment of President Karadzic by the ICTY
being the justification. Once again President Milosevic was the
key person in securing a peace agreement even though it reinforced
the dismemberment of the successful Socialist Federal Republic he
cherished.
Serbia and Montenegro under President Milosevic's
leadership did not expel anyone, or "ethnically cleanse" any
Croats, Slovenes, Bosnians, or Macedonians during the difficult
years 1992-1999. On the contrary, the new Republic accepted
70,000 Muslim refugees from Bosnia who sought safety in Serbia.
Even before the immigration of 70,000 Muslims from Bosnia, Serbia
had a larger Muslim population than Bosnia. Muslims in Serbia were
never attacked, except by NATO bombs, and then only as part of the
general population.
President Milosevic's successful efforts to maintain
the peace despite the cost to federation, stands in sharp contrast
to the acts of President Tudjman in Croatia, Izetbegovic in Bosnia
and Serb and Croat Bosnians who used military force to purge
others from territory they would govern.
Perhaps most revealing of the pure political nature of
the ICTY indictment of President Milosevic is the fact that when
indictment was announced in late May 1999 it was not for acts
during the preceding seven years in Croatia, or Bosnia which had
been under investigation for years. He was first indicted shortly
after April 22, 1999 when NATO bombed his home in the suburbs of
Belgrade in an assassination attempt.
The indictment was for alleged Serb military activity
in Kosovo earlier in 1999. Kosovo was under heavy NATO
bombardment at the time which continued into June. Only after the
bombing ceased was it possible for NATO to occupy and for the ICTY
to enter Kosovo to investigate.
President Milosevic was indicted during the midst of
the US/NATO aerial and missile attacks throughout Serbia, which
were most intensive in Kosovo, in order to justify the US and NATO
criminal assault against Serbia and to obscure the thousands of
deaths it inflicted from the air. Included among the many
notorious assaults causing deaths was the bombing of the Chinese
Embassy in New Belgrade which had created an international uproar
shortly before the indictment. It was a case of demonization and
persecution by a presumptively neutral UN Tribunal proceeding
first with the indictment, then later with an investigation of the
alleged crime.
Months later Slobodan Milosevic was indicted for
alleged crimes years earlier in Croatia and Bosnia.
The US and NATO maintained control of the ICTY just as
they did over the peace negotiations and bombing in Bosnia and
Serbia. The Chief Prosecutor, President of the Tribunal and
President of the Trial Chamber that indicted President Milosevic
were all from NATO countries and the US was the dominant force creating
and guiding both NATO and the ICTY.
XV. The Sheer Magnitude And Scope Of The Trial Is Not
Capable of, or Appropriate For Judicial Resolution The And Pace Of
the Trial of Slobodan Milosevic Threatens His Health and Right To
Due Process of Law
President Milosevic, with the Socialist Federal
Republic of Yugoslavia and all its people, are victims of the
dismemberment of Yugoslavia and the violence it entailed, the
devastation by US and NATO wars of aggression and finally of
regime change from foreign intervention. He was surrendered to the
ICTY in violation of the Constitution and laws of Yugoslavia in
2001.
His trial began in February 2002. President Milosevic
chose to "defend himself in person," a fundamental human right
recognized by the International Covenant on Civil and Political
Rights. Part III, Article 14(3)(d). As of October 1, 2003, the
prosecution had presented its case over a period of twenty months.
There has never been a trial like it in history.
Nuremberg with twenty-one individual defendants and charges
relating to all the horror of World War II excepting the Pacific
conflict, was completed in eleven months. Beginning in November
1945, the prosecution finished its presentation on March 4, 1946.
The defense then proceeded and the final judgment was announced on
October 1, 1946.
Unlike criminal prosecutions, which are based on the
responsibility of the accused for his individual conduct, the ICTY
prosecutor, lacking evidence of criminal acts of President
Milosevic, has put the history of the conflict in evidence, first
Kosovo, which was chronologically last, then Croatia and Bosnia.
The Prosecution may or may not finish its presentation during 2003.
To date the prosecution has produced some 500,000
pages of documents and 5,000 videocassettes. There have been
approximately 250 days of hearings with over 200 prosecution
witnesses testifying. The transcript of the testimony runs more
than 30,000 pages.
Overwhelmingly the evidence involves events in which
President Milosevic was not present and played no role. He has
nevertheless vigorously cross-examined the witnesses in defense of
the truth and for history. While it is awkward, if not
impossible, and dangerous for a judiciary to attempt, write, or find
the facts of history in a legal proceeding, President Milosevic,
standing alone for the defense, has fought for the facts and to
keep the trial record true to the history it purports to
determine. Historians tend to believe history cannot be
professionally written for a century after the times it describes,
when passions cool, the dust settles and events have been examined
from many perspectives. Many agree with Voltaire that history is
fiction agreed upon. The ICTY seeks to write a history dictated
by the US and NATO, not by the facts. The entire procedure is
alien to truth and justice.
The spectacle of a lone man defending history and
truth to exhaustion against the power of the UN court created to
bury Yugoslavia signals "unfair" and "untrue".
The Herculean task, combined with the conditions of
the prison in which he is confined, which was used as a Nazi
prison during the occupation of the Netherlands in the 1940s, have
drained his energy and stamina and endanger his health. The very
fact that the accused is confined in a former Nazi prison
symbolizes how little power has learned from the past.
The Tribunal has the duty to protect President
Milosevic's health. The death penalty is not an option. It also
has a duty to respect his right to represent himself and not
impair his health to do so. It <br/><br/>(Message over 64 KB, truncated)
Federation by the United States and NATO
4 : Part three (final) and Conclusion
http://www.iacenter.org/yugo/divide&conquer.htm
http://www.icdsm.org/more/rclarkUN2.htm
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PART THREE
The UN Charter Does Not Contain The Power To Create Criminal
Courts And Courts Created By It Are A Continuing Threat To Peace
XI. The US Coerced The UN Security Council to Exceed Its
Powers and Create the First International Criminal Tribunal
Through Which The US Could Target Enemies and Change Regimes
The Charter of the United Nations was "forged" at
Dumbarton Oaks in Washington, D.C. in August and October 1944 and
San Francisco during April to June 1945. The United States and
each of the other four permanent members of the Security Council,
all victors in World War II, though already wary allies, were
given the power to veto Security Council resolutions, as a power
demanded by the five most powerful nations, at the risk of paralyzing
the UN.
Not a word in the Charter implies that power is
conferred on the Security Council to create any Court. The
structure of the Charter, the nature of the powers delegated by
it, and the incorporation into the Charter and the Charter
provisions for Amendment, of the Statute for the International Court
of Justice, its authority narrowly defined and strictly limited,
belie the delegation of any power to create any criminal court.
If power to create a criminal court can be tortured
from the terms of the Charter, then there is no limitation on the
power of the Security Council to do whatever it chooses.
Above all, the immediate history of the nations
actively involved in drafting and ratifying the Charter leaves no
doubt that there would not have been a United Nations if it was
believed a criminal court in which they could be prosecuted might
be created under the Charter. The nations that fought in World
War II and played the major roles in drafting the Charter, most surely
the US, would have rejected their own work.
The history of the planning meetings, the preparations
and instructions of the national delegations, particularly the
five nations which were to be permanent Members of the Security
Council, the Central role of the host nations, the US, the records
of the drafting and consideration of the Charter by the delegates,
if we are to believe the public record, leave no room for doubt that
there would never have been a United Nations if the Charter had
included either expressly, or by implication, the power to create
an international court of criminal justice.
From the four-power Dumbarton Oaks conference in 1944
to the fifty-nation conference at San Francisco in 1945, which
ratified the Charter as drafted and imposed by the US, Britain,
China, France and Russia, there was never any suggestion that an
international criminal court could be authorized under the
Charter. It would not have been accepted by the major powers if there
was. Those nations were not prepared to risk subjecting their
leaders, armed services and citizens to the possibility of
prosecution by an international criminal tribunal in the aftermath
of World War II.
The manner in which the Nuremberg Tribunal was created
is further evidence of an intention to deny power to the UN to
create courts. The US, France, Great Britain and the USSR,
permanent members of the UN Security Council and pre eminent in
drafting its Charter, starting immediately after the UN Charter
was adopted in San Francisco, initiated, drafted and promulgated the
Charter of the International Military Tribunal (Nuremberg Charter)
at London between late June 1945 and August 8, 1945, when it was
signed.
The Nuremberg Charter referred to the declaration by
the UN of an "intention that War Criminals shall be brought to
justice" and it provided that: "Any Government of the United
Nations may adhere to this Agreement by notice given through the
diplomatic channel to the Government of the United Kingdom." But
the Nuremberg Charter claimed no relationship to the UN and makes
no reference to the UN International Court of Justice. The UN was
excluded from even an advisory role and participation in the creation
and work of the Nuremberg Tribunal. The Tribunal was created
completely independent of the UN.
The UN was completely ignored and it made no protest.
The permanent members of the Security Council and other members of
the UN opposed any power in the UN to create a permanent criminal
tribunal, or the creation of such a tribunal under UN authority,
or otherwise.
The US was fully aware that there is no delegation of
power capable of legal restraint on the Security Council within
the UN system. Judicial review by the International Court of
Justice of the legality under the UN Charter of acts by UN organs
was rejected during the drafting of the Charter. At the San
Francisco conference "the proposal to confer the point of preliminary
determination [of each organ's competence] upon the International
Court of Justice was rejected. The view was preferred that each
organ would interpret its own competence." See, The Development
of International Law Through the Political Organs of the United
Nations, Rosalyn Higgins, (1963). Ms. Higgins later served as a
Judge of the ICJ.
John Foster Dulles, Secretary of State in the
Eisenhower Administration, in his memoir, War or Peace, published
in 1950, expressed the US view concerning legal limitations on
Security Council power. "The Security Council is not a body that
merely enforces agreed law. It is a law unto itself... No
principles of law are laid down to guide it, it can decide in
accordance with what it thinks is expedient." The veto power
provided the US significant protection from UN action it opposed.
Its ultimate protection was withdrawal, which after US rejection
of the League of Nations has remained a threat.
The Security Council knew there were only two ways to
create a criminal court under existing international law, by
treaty, or amendment to the Charter of the UN.
The General Assembly, which initiated among other
invaluable contributions to world peace, the Universal Declaration
of Human Rights, authorized studies for the creation of an
International Criminal Court Pursuant to Article 13 of the
Charter. It assigned the task to its International Law Commission,
which worked on the project for years. The contemplation has always
been that such a court would be created by multinational treaty,
or amendment to the UN Charter.
Later the General Assembly authorized planning and
drafting of a treaty to create a permanent International Criminal
Court by the International Law Commission. See James Crawford,
The ILC Adopts A Draft Statute for an International Criminal
Court, 89 Am.J.Int'l.L. 404 (1995). After years of effort, in June
1998, 120 nations agreed on a treaty to create such a court. The
United States and six other countries rejected the treaty.
XII. The US Coerced Creation Of The International Criminal
Tribunal For Former Yugoslavia to Change Regimes, Weaken Balkan States
and Demonize Serbian Leadership
After flagrantly violating the UN Charter by
unilaterally planning the dismemberment of the Socialist Federal
Republic of Yugoslavia and imposing unilateral economic sanctions
against Yugoslavia while providing internal support for secessionist
movements within Yugoslavia, the US coerced the Security Council to
violate the UN Charter by exceeding powers granted to it by the
Peoples of the United Nations to create the International Criminal
Tribunal for Former Yugoslavia on February 22, 1993.
The US Ambassador to the UN, Madeleine Albright, was
the official responsible for achieving the creation of both the
International Criminal Tribunal for the Former Yugoslavia in 1993
and the International Criminal Tribunal for Rwanda in late 1994
and early 1995. "The United States was at the forefront in
creating both tribunals and continues to be their leading source of
political financial, personnel, logistical and information-sharing
support." International Judicial Intervention, David Scheffer,
Foreign Policy, Spring 1996. Mr. Scheffer who was an assistant to
Ambassador Albright was later Legal Advisor in the US Department
of State on international criminal tribunals.
The ICTY was intended by the US as a weapon to destroy
the leadership of Yugoslavia by demonization, marginalization and
incapacitation. The ICTY provided an ideal mechanism for regime
change without the appearance of US intervention or coercion,
removing selected leaders, creating the opportunity for new leadership
supportive of the US while branding the old regime as genocidal war
criminals under the appearance of objective, judicious,
international condemnation. It is the most effective form of
regime change, successful political intervention, selective
prosecution, and demonization in the name of international justice
through the United Nations.
Three key players in the US foreign policy concerning
Yugoslavia and in the role of the ICTY, Richard Holbrooke, Richard
Goldstone and Madeleine Albright, in recent memoirs have declared
their support for military threats, war, bombing and coercion by
threats of prosecution by the ICTY to coerce foreign leaders and
change regimes.
Richard Holbrooke, a career US diplomat who had served
as US Ambassador to Germany, and Assistant Secretary of State
acted as chief US negotiator during the Bosnian conflict and
through the Dayton Accords. Holbrooke supported a major military
role for NATO and the use of bombing to force Yugoslavia agreement
to US demands. Brian Urquhart, in a review of Holbrooke's book
"To End A War" wrote "UN Secretary-General Boutros-Ghali bears the
full brunt of Holbrooke's contempt, especially for his early opposition
to NATO bombing. Nearer home, he has little patience with the
commander of NATO's Southern Forces, Admiral Leighton Smith, who
opposed the bombing that Holbrooke believed to be indispensable to
the start of a serious negotiating process." Time Magazine, May
18, 1998.
When the cease fire in Bosnia was approaching before
the Dayton negotiation, Holbrooke, "...urged Tudjman to do as much
as possible militarily 'in the next week or so'" to gain last
minute advantage and inflict further injury on the Bosnia Serbs."
To End a War, p. 191. Holbrooke believed in the use of violence
to force agreement.
In his book, Holbrooke wrote
"When it was established by the United Nations Security
Council in 1993, the Tribunal was widely viewed as little more
than a public relations device. It got off to a slow start
despite the appointment of a forceful and eloquent jurist,
Richard Goldstone of South Africa, as its chief. Credit for pumping
up its role in those early days went to Madeleine Albright and
John Shattuck, who fought for its status and funding. Other
nations, especially its Dutch hosts and the Germans, also gave
it substantial support." Id pp. 189-190.
Later he recognized political utility in such a
Tribunal.
"During our negotiations, the tribunal emerged as a valuable
instrument of policy that allowed us, for example, to bar
Karadzic and all other indicted war criminals from public
office." Id. p. 90.
Holbrooke found it advantageous that President Karadzic could be
excluded from peace negotiations. Muslim and Croatian leaders had
open access and direct input. In contrast, President Milosevic
remained in charge of negotiations for Serbia to end the NATO
bombing in 1999 after his indictment by the ICTY.
President Izetbegovic is quoted as saying to Holbrooke
"If you can get Karadzic out of power... I can work with
Krajisnik," Karadzics' heir apparent. Id. p. 342. He, too, saw
the ICTY as a tool to be used to gain political advantage and
remove opposition leaders.
Holbrooke felt the vast display of US military power
at the Wright-Patterson Air Force Base would intimidate the Bosnia
participants and strengthen the US hand in the negotiations. In
furtherance of regime change, he told President Clinton after the
21-day negotiation of the Dayton agreement that "... the arrest of
Karadzic and Mladic was the most critical issue that was not
resolved..." Id. p 315.
The Dayton accords removed Karadzic from office
immediately and, as demanded by Holbrooke, Karadzic was barred
from "public activities," "I cited a number of examples,
especially his appearances on television and the use of posters
bearing his likeness, that could constitute violations." Id. p.
343.
While appreciating the power policy makers gained from
ICTY indictments and their threat, Holbrooke resented actions by
the ICTY that interfered with his activities, or policy goals. He
was
"confronted by an unexpected problem: the local police had
arrested two senior Bosnian Serb officers, General Djordje
Djukic and Colonel Aleksa Krsmanovic, as they entered Sarajevo
in a civilian car. The Bosnians claimed the two men were war
criminals..."
The arrest had violated "free movement" agreements made at
Dayton. President Milosevic demanded their release. The Bosinian
Serbs threatened further participation in the Accord. Holbrooke
continued,
"we would normally have insisted that the Muslims release them
immediately. But Justice Goldstone complicated matters
considerably; from the International War Crimes Tribunal in
the Hague, he issued a warrant for the two men--even though
they had not been indicted." Id.
Holbrooke did not intercede to defend the Dayton Accord. The two
men were held for several months at the Hague before the Charges
were dropped for lack of evidence.
The real objective of US policy is reflected in
Holbrooke's description of President Clinton's unplanned stop at a
US military "staging area in Taszar, Hungary," forced by bad
weather en route to the US military base in Tuzla, Bosnia after
Dayton. The President, Prime Minister and Foreign Minister of
Hungary hurried to meet President Clinton. Holbrooke wrote
"The presence of six thousand American troops on Hungarian
soil only four years after the end of the Cold War--and forty
years after the 1956 Soviet invasion--was in itself a
remarkable symbol of the transformation of Europe. The Hungarians
had one message for President Clinton: that they were ready for
NATO membership and that the staging area at Taszar was part
of that goal. 'Stay as long as you like,' they said. 'Turn
this into a permanent NATO installation--and let us join the
West.'" Id. p. 326.
For his part Richard Goldstone, the first Chief
Prosecutor to take charge of the office with ICTY, in his memoir,
For Humanity, Reflections of a War Crimes Investigator,
acknowledged the central role played by the US in creating the
Tribunal "Madeleine Albright, ... had played the leading role in
having the tribunal established. Her continued support for the work of
the Yugoslavia tribunal, and later the Rwanda tribunal, was
crucial to their success. She appointed one of her senior
advisors, David Scheffer, to take special responsibility for
moving the work of the tribunal forward." Id. p. 78.
On Goldstone's first day at The Hague, he found
"twenty-three Americans working in the office. They included
lawyers, computer technicians, and police investigators, all of
whom had been assigned to the tribunal by the US government, at no
cost to the United Nations. He claimed the United States had provided
assistance only in an attempt to "jump-start the Office of the
Prosecutor and so make up for the slowness and inefficiencies at
the United Nations headquarters in New York." Id. p. 82. He
complained of the "well-documented inefficiencies of the UN" and
used funds from private sources to pay expenses of his work as
Chief Prosecutor. Id. p. 80‑81.
Judge Goldstone reported that much time during his
last months in office in 1996 was spent pushing for the arrest of
Karadzic and Mladic to no avail. In 1998 he participated with
Theodor Meron, a US citizen who was his advisory at The Hague and
is now President of the ICTY, in an organization campaigning for
the same arrests.
Judge Goldstone cited, as the few leaders who
advocated the use of force to accomplish the arrest, Klaus Kinkel,
the German Foreign Minister, Robin Cook when he became British
Foreign Minister and Madeleine Albright. Id. p. 117. Even without
arrests, Judge Goldstone called investigations and indictments of
individuals, including Karadzic and Mladic, "achievements, because,
though not convicted, they were marginalized." Id. p. 126. He praised
the US and NATO for bombing Yugoslavia, calling it an historic
watershed, even "in apparent breach of the Charter of the UN." Id.
pp. 136-137.
The singular role of the US in support for all the UN
created ad hoc criminal tribunals, as the dismemberment of
Yugoslavia, support for the RPF government of Rwanda and the
arrests of selected leadership in the nations targeted for
discriminatory prosecution demonstrates the political use it makes of
such Courts. As recently as September 2003, Theodor Meron,
President of the ICTY called for the arrests of Karadzic and
Mladic--a questionable role for a person who must presume their
innocence and impartially judge the charges against them, a role
usually left to the Prosecutor and governments.
In her memoir, published in September 2003, Madam
Secretary, Madeleine Albright writes proudly that the
International Criminal Tribunal for the former Yugoslavia, the
first international war crimes tribunal "of its kind" since World
War II, was created in her first year as US Ambassador to the UN.
Describing the difficulties that faced the tribunal she proclaims
"...the Clinton administration, the leading financial
contributor, didn't waver. We shared our technical expertise,
while our volunteers helped interview witnesses and refugees.
We made cooperation with the tribunal a top issue in all our
bilateral relationships with governments both in and outside
the region. I was proud of the role my office played."
Noting that more than four dozen suspects have been tried by 2003,
she concluded "...the tribunal would eventually land the biggest
fish of all." She was referring to Slobodan Milosevic.
Describing her frantic efforts to secure approval for
a NATO assault on Yugoslavia in 1999, she recalls a conversation
with Igor Ivanov, Prime Minister of the Russian Federation during
an intermission in a performance of La Traviata at the Bolshoi
Theater. By then Secretary of State, Albright told Ivanov "The
Europeans are worried about your reaction if NATO tries to act without
going to the Security Council..." Id. at p. 396. Ivanov responded
"'Russia will never agree to air strikes against the Serbs,' he
began. 'That would be totally unacceptable. NATO has no right to
attack a sovereign state.'" Id. at p. 397.
As the NATO bombing continued into April, Secretary
Albright rejected a pause in the attacks "as a sign of weakness".
She considered "declaring Milosevic's removal from power an
explicit war aim." Referring to the British, she recalled "We
agreed among ourselves that Kosovo would have to become an
international protectorate after the war, with Yugoslavia sovereignty
retained in name only." Id. p. 411.
To secure approval for a NATO attack, the State
Department
"...put together a long-term reconstruction plan for the
entire Balkans region. ... This initiative would foster
cooperation among countries throughout the region, and, by
promising aid to Belgrade only if a change in government
occurred, create an additional incentive to dump Milosevic." Id.
pp. 411-412.
The long-term reconstruction plan has not begun, but
Slobodan Milosevic is on trial at The Hague.
Working on Russia, Albright writes
"I began an almost continuous dialogue with Ivanov, telling
him that I hoped our differences over Kosovo would not
jeopardize cooperation on other matters. He said there was no
avoiding it. 'Russia cannot,' he said, 'sit around and watch
NATO destroy a sovereign nation.'" Id. p. 413.
On May 7, US B-2 bombers hit the Chinese Embassy
killing three Chinese in the Embassy and injuring twenty.
Albright writes "our pilots had thought (it) was a Yugoslav
weapons acquisition agency." Id. p. 417.
Twenty days later,
"the war crimes tribunal announced the indictment of
Milosevic, Milutinovic, (President of Serbia) and three other
Serb leaders for crimes against humanity. There were those
who were nervous about Milosevic's indictment, feeling that it
would mean we couldn't negotiate with him. I was not in that
camp. I was gratified by the indictments..." Id. p. 419.
A week later, Albright states,
"On June 3 peace terms were agreed upon. NATO
would occupy Kosovo. On June 9, Yugoslav military forces
started withdraws from Kosovo, the following day NATO
suspended air strikes. Secretary Albright awaiting the news
in Europe was elated. "Walking down the streets in Cologne, I
received a round of applause. During the G8 meeting, Foreign Minister
Fischer had said, 'Well, if it was Madeleine's war, it is now
Madeleine's victory.' ... 'After dinner President Clinton
called and his opening line was, 'So you're a happy girl.' He
was certainly a happy boy. He told me about a column he had
just read by John Keegan in which the British historian had
written, 'There are certain dates in the history of warfare
that mark real turning points...Now there is a new turning point to fix
on the calendar: June 3, 1999, when the capitulation of
President Milosevic proved that a war can be won by airpower
alone.'" Id. p. 421.
President Clinton's pleasure with John Keegan’s column
proclaiming President Milosevic's "capitulation" "proved that a
war can be won by air power alone" reveals a greater interest in
military power than in history. The US was forced to go back to
the United Nations, whose authority it had flouted, to secure
approval of the terms for ending its aggression. Resolution 1244
(1999) adopted by the Security Council on June 10, 1999, ended the
bombing of Yugoslavia. While speaking of substantial autonomy for the
people of Kosovo, a status Yugoslavia had previously recognized,
the resolution provided that Kosovo shall remain "within the
Federal Republic of Yugoslavia" (Para 10). It further demanded
that the "KLA and other armed Kosovo Albanian groups end
immediately all offensive actions and comply with the requirements
for demilitarization laid down by the head of the international
security presence in consultation with the Special Representative of
the Secretary General." (Para. 15) Air power did enormous criminal
damage. It did not win a war. The failure of the peace that
followed is a failure of the US and of KFOR, which was authorized
by Resolution 1244, to fulfill the UN Mandate.
Secretary Albright concedes in her memoir
"Well before the war in Kosovo, I gained administration
support for a policy of trying to replace Milosevic. For two
years we moved both behind the scenes and in public toward
that end. With colleague Joschka Fischer and others, I urged
Serb opposition leaders to build a real political organization
and focus on pushing Milosevic out. ... In public remarks I
said repeatedly that the United States wanted Milosevic 'out of power,
out of Serbia, and in the custody of the war crimes tribunal.'"
Id. p. 500.
In late July 1999 she visited Kosovo for the first
time. In Pristina she spoke to
"an enormous crowd gathered in the city's central square. The
crowd, swollen by returned refugees, was dressed in a mixture
of Albanian national costumes and Chicago Bulls jerseys. ... I
said, 'We must support the war crimes tribunal, because those
indicted for ethnic cleansing and murder should be held
accountable, and Slobodan Milosevic must answer for his crimes.'
The crowd yelled even louder." Id. p. 425.
After her speech in Pristina, Secretary Albright drove
to the
"Serb Orthodox monastery of Gracanica, the mood was fearful
and bitter. I was visiting the monastery to meet with Bishop
Artemije Radosavljevic and other local Serb religious
leaders. The bishop had strongly opposed the NATO bombing."
"When I had met the bishop in Washington before
the war, he had warned that a military confrontation would be
a disaster. Now he showed me pictures of destroyed churches,
recounted attacks that had been made on Serbs, and expressed
his fear that all Serbs might have to leave Kosovo. I told
him that outcome was the opposite of what I wanted; NATO peacekeepers
and the UN would do everything possible to help his people feel
secure. The bishop said that if Serbs were driven out,
Milosevic would be proven right. I agreed." Id. p. 426.
Now four years later violence flares out frequently
and more than 250,000 Serbs have been driven out of Kosovo.
By Secretary Albright's acknowledged test, Milosevic
was right.
NATO attacks in Bosnia and against Yugoslavia were the
first in NATO history. Its victims were defenseless against its
air power. Neither NATO nor its individual members have repaired
the vast destruction they inflicted. Two NATO members had bombed
Belgrade and other Yugoslavia cities before: Germany in 1941 and
the US in 1945.
The ease and confidence with which principals involved
in the war of aggression against Yugoslavia and prosecutions of
the ICTY, including Albright, Holbrooke and Goldstone, speak in
the most derogatory terms of Slobodan Milosevic and other Serb
leaders can only be understood in the light of years of demonization
by the Western media of Yugoslavia, its leaders and for the past
fifteen years, of Milosevic and Serbia with special vehemence. As
a single additional illustration, Holbrooke describes how a
waitress at a restaurant in the Wright-Patterson air base during
the negotiations at Dayton in 1995 was charmed by President
Milosevic, adding that she was unaware she was talking to "one of the
most reviled people in the world." That revulsion was a creation of
the Western media. It makes attacks on the victims of its
demonization politically profitable.
The media overwhelmingly supports US militarism,
military expenditures and both US economic and military
interventions. In war and peace it glorifies US military actions
conditioning the public to accept and seek the use of US military
power to advance US economic and political policies. The media
and the Pentagon tell much the same story in wartime and peace time.
They serve the same master, the American plutocracy. They rarely
question the legality, or morality of US military actions, nearly
always justify and celebrate US military operations and demean the
victims, both soldiers and civilians, so often defenseless against
US high-technology warfare. Foreign military casualties are
overstated during combat, civilian casualties are understated and
both are ignored thereafter. The US media has made no effort to report
civilian casualties in Yugoslavia, Afghanistan, or Iraq and does
not publish those who do.
The Western media is owned and financed by
concentrations of great wealth. Its principal income is from
sales to major corporations of advertising for their products.
The western media is overwhelming responsible for demonizing
individual leaders, organizations, governments, ethnic groups, even
religions, largely as a worldwide chorus for US government
propaganda. Such wealth overwhelmingly supports militarism,
exploitation of foreign resources and labor, foreign investment
and trade advantages and protection of its foreign assets because
it profits from all of these. The media informs, omits and misinforms
public opinion creating a climate in which war and war crimes by
the US will be supported or ignored and demonization of its
enemies accepted. The public accepts the message, which appeals
to its emotions using fear, hatred, nationalist pride,
indifference and a sense of powerlessness.
Peace will be difficult to achieve until the media
seeks to provide the public with a range of facts, opinions and
perspectives sufficient to make informed judgments.
Recent wars of aggression against Yugoslavia, Afghanistan and Iraq
might have been successfully resisted by the people within the
aggressor nations and by world opinion if the media served the
public need for knowledge. What is past will be prologue unless
access to needed information becomes available to all who seek it.
The failure of the ICTY to even investigate US and
NATO crimes against peace, war crimes and their violations of the
UN and NATO Charters, which eroded of UN authority and challenged
its capacity to keep peace, painfully exposes the unilateral use
of the ICTY to prosecute those who resisted the dismemberment of
Yugoslavia and demonize them for posterity.
The Tribunal accusations, focused on Serbs, is
psychologically more devastating then bombs which are only brute
force. The Court can destroy the honor of a whole people. To
employ the Court unilaterally, to assure impunity for power,
corrupts justice and forces inequality in prosecutions by the
Tribunal. Equality is the mother of justice. Its absence breeds
the revolutionary impulse, hatred and war. Other criminal courts
created by the Security Council confirm the political motivation
of the US and its use of them to enforce its policies.
The International Criminal Tribunal for Rwanda (ICTR)
was created to be a fig leaf for the failure of the UN and
powerful countries to prevent the tragic political violence of
1994. The unauthorized Security Council statute limited ICTY
jurisdiction to events in a single year 1994, after thirty-four years
of aggression against Rwanda by Rwandan exiles who supported the
Belgian Colonial government and in later years by the RPF, which
was founded in Washington, D.C. and supported by the US. By
restricting jurisdiction to 1994, the US prevented investigations
for crimes against peace and war crimes by the RPF, which
conducted major invasions from Uganda in 1990 and 1993. The French
government stopped the invasion in 1993 after major incursions which
provided enclaves for RPF forces within Rwanda, including a
negotiated deployment in Kigali itself of greater than battalion
strength.
The Tribunal has ignored the key causative factor in
the violence: who shot down the plane carrying the Presidents of
Rwanda and Burundi on April 6, 1994? It has ignored the slaughter
of the Catholic Archbishop with ten other bishops and other
Catholic leaders by RPF soldiers at Gitarama in late April 1994.
The restriction of ICTR jurisdiction to the geographic
limits of Rwanda excluded the slaughters of hundreds of thousands
of Rwandans who fled and were pursued by RPF violence in
neighboring Zaire, now again the Democratic Republic of Congo.
The consequence was violence across Congo to Kinshasa with untold
hundreds of thousands killed and the RPF briefly in Kinshasa and
controlling vast parts of Congo, exploiting diamonds and other
resources with impunity and US support.
War rages today in Burundi and Rwanda itself is a time
bomb, waiting to explode with more than 100,000 uncharged
prisoners, most held for more than nine years under cruel, inhuman
and degrading conditions. During the 1990s, the US established
hegemony, with Tutsi leadership, from Uganda, through Rwanda and
Burundi and briefly in most of Congo.
If the ICTR had been granted jurisdiction over persons
in adjacent nations who provided bases, arms, training, sanctuary
and soldiers to invade Rwanda, the Tutsi leadership of Uganda,
including its US supported President Museveni, might have been
indicted. President Kagame of Rwanda served for years in Museveni's
forces as he fought to rule Uganda and become his intelligence chief.
In contrast, the Security Council criminal court
created for Sierra Leone was given jurisdiction to indict
President Taylor of neighboring Liberia, a long time target of US
plans for regime change. The court indicted Taylor who is now
exiled in Nigeria. Such are the powers of selection in ad hoc Tribunals.
Faustin Twagiramungn, chosen to be interim Prime
Minister of the Broad Based Transitional Government of Rwanda
under the UN sponsored Arusha Accords in 1993 and Prime Minister
of the RPF government in the immediate aftermath of its surge to
power from July 1994 to October 1995, testified before the ICTR
that he believes more Hutus were killed than Tutsis in a "political
struggle" in 1994 and not in what the ICTR has labeled an ethnic
genocide of Hutus killing Tutsis. See Transcript, Trial of
Prosecutor v. Ntakirutimana, February 4, 2001, pp. 143 to 168.
The Gersony Report sponsored by the UNHCR, described
RPF attacks and the slaughter of tens of thousands of Hutus during
a brief period in the summer of 1994 in only two prefectures. To
date the International Criminal Tribunal for Rwanda has failed to
indict a single Tutsi more than eight years after its creation.
The removal in September, 2003 of Chief Prosecutor
Carla del Ponte for the ICTR at the insistent of the RPF
government of Rwanda, because she threatened to make token
indictments of Tutsis to create the appearance of even handedness
reveals the power one nation targeted by an international tribunal
depended on its assistance for witnesses, documents and access to
sites has over such a tribunal and the continuing domination of
the US over the ad hoc UN criminal tribunal it brought into being
and the impunity favored powers and leaders of the US enjoy in
those courts.
The criminal tribunal authorized for Sierra Leone with
its jurisdiction defined to permit indictment before it threaten
President Charles Taylor of Liberia who was elected with a large
majority in the presence of international monitors, was planned by
the US as a means of marginalizing and destroying leadership
hostile to US dominion in Sierra Leone and regime change in Liberia.
The US had sought to remove Charles Taylor for years at terrible
cost in life. It succeeded in violation of Liberia's institutions
and the legal term of office to which Taylor was elected after
President Bush's arrogant public demand "Taylor must step down" in
the face of continuing rebel violence supported by the US
stiffened resistance to foreign demanded reforms across Africa.
The US has had a dominant relationship with Liberia since the 1820s.
Liberia's capital is named for US President Monroe of Doctrine
fame. Its second city and major port, Buchanan, is named for the
last US President to serve before the US Civil War ended its
slavery. Despite this close history and consequent high
obligation, the Bush Administration never provided the least
protection for Liberians crowded into the capital from all the
countries in the county and under attack by rebels, mostly
foreign. Nor will the Bush Administration talk of "rebuilding
Liberia." It never has. To their credit, several African nations
sent peacekeepers and the UN provided a significant policing
capacity in October 2003.
The long struggle to create a UN-supported criminal
tribunal for Cambodia was fueled by the US desire to remove the
Prime Minister and other officials who served in the government of
Kampuchea during and after the Vietnam war.
The ad hoc criminal tribunals created by the Security
Council corrupt international law, create hatred and division that
lead to war and are incapable by their very nature and purpose of
achieving equal justice under law. They are selective,
discriminatory and by their creation call for conviction of targeted
persons and groups.
The Nuremberg Tribunal created by the victors of World
War II separated from the UN, taught the international community
which seeks peace under the rule of international law that in the
future all nations and their leaders must be equally accountable
for violations of international laws. The US Chief Prosecutor at
Nuremberg, US Supreme Court Justice Robert H. Jackson, proclaimed
with memorable passion the importance of this principle and applying it
to his own country. Speaking to the American Society of
International Law on April 13, 1945, the day after president
Franklin Roosevelt died with World War II still raging Justice
Jackson also emphasized that while victors had always acted as
they chose toward defeated people, if the choice was for trials in
a court of law for alleged crimes "
... all experience teaches that there are certain things you
cannot do under the guise of judicial trial. Courts try
cases, but cases also try courts.
You must put no man on trial before anything that is called
court...under the forms of judicial proceedings if you are not
willing to see him freed if not proven guilty..."
The Anatomy of the Nuremberg Trials, Telford Tayor, Little, Brown
and Co. 1992 at p. 45.
Following the Nuremberg trials, the UN and the
international community approved the Geneva Conventions and a host
of other treaties, covenants and principles to prevent war and
protect rights. They are based on the principles that no nation,
however powerful, can be above the law.
To restore integrity to its own Charter and honor to
its Members, the UN and the Security Council should abolish all
the existing international tribunals it has created and pledge
never to create another.
Efforts by the US, or others to create new ad hoc
criminal tribunals, or to be seize and try persons for alleged
criminal acts committed outside the US, will undermine the
authority and effectiveness of the ICC and because they are an
exercise of power in violation of international law, make the world
a more lawless place, more prone to war.
The harm done by continuing their unauthorized
activity far exceeds any fear that the future of international law
might be impaired, or "criminals might go free." The accused and
convicted are sufficiently identified.
The positive steps that must be taken are to protect
and strengthen the International Criminal Court, reform its
mandate and reform defects and deficiencies by the UN Charter that
imperil its performance.
XIII. The Bush Administration Intends to Pursue Unilateral
Policies Manifested by Its Wars of Aggression Against Yugoslavia,
Afghanistan and Iraq the Creation of Targeted Ad Hoc Criminal
Tribunals, and Its Destructive Acts Against International
Institutions, Treaties and Law. The US Can Be Deterred Only By United
Commitment of Members of the United Nations to Its Mandate.
The unilateralist policies of the US threaten the UN and
world peace. Ad hoc UN created criminal tribunals are part of the
US unilateral approach. Beyond the long list of unilateral US
military interventions and threats and the several ad hoc UN
criminal tribunals, the US is debilitating the UN and dismantling the
web of international laws and treaties on which the UN must depend
to prevent war.
While President Bush will challenge the UN to outlaw
proliferation of weapons of mass destruction as he did once again
in his address to the General Assembly on September 23, 2003, he
ignores the near US monopoly of the technology, development and
possession of WMDs and the sophisticated rocketry and other
technology to deliver them anywhere in the world. Realizing that
megaton nuclear bombs are too brutish, dumb and dangerous even for
their sender, President Bush is now pressing hard for the
development of tactical nuclear weapons that can destroy a
selected suburb or a battalion at a time.
The US military budget exceeds that of the next
fifteen largest in the world combined and exceeds the gross
national product of most Members of the UN by a multiple. The US
sells nearly half of all conventional arms sold in international
traffic, which contribute to the deaths of hundreds of thousands
and the impoverishment of hundreds of millions annually.
Many members of the UN who have watched the brutal US
assaults on Yugoslavia, Afghanistan, Iraq, or even Grenada, Libya,
Panama, or Sudan realize they have a choice. They must develop
weapons of mass destruction sufficient to deter the US, or be
prepared to surrender independent action on any issue the US
seriously demands. The US wars of aggression and their threat spawn
proliferation of WMDs as they create hatred and new capacities for
terrorist violence.
The US is unilaterally undermining the fragile and
inadequate treaty framework designed to prevent nuclear war. In
the Non Proliferation Treaty, the then six nuclear powers agreed
to plan and act to dismantle their nuclear weapons in return for
the agreement of the non nuclear powers to not develop or obtain
nuclear weapons. The US has unilaterally proliferated ever since. The
US is unilaterally abandoning the ABM and Test Ban treaties,
endangering the entire world. It seeks a monopoly of military
power for mass destruction.
The US has rejected treaties banning land mines
regulating small arms, which kill thousands every year claiming
the Second Amendment to the US Constitution prohibits such a
treaty. It has even opposed prohibition of the use of children in
war. Its unilateral policies and coercive power in international
finance, trade, health and environmental protection threaten
everyone.
The most pervasive unilateralism of the Bush
Administration is its refusal to respect the rights of
others. Mexico's gift to the UN, standing outside the
entrance to the General Assembly, bears the words of its Zapotec
Indian President Benito Juarez who knew that "A respect for the
rights of others is peace."
These unilateral polices place the US above
international law, or control, as do the unilateral ad hoc
criminal tribunals that target leaders and peoples chosen by the
US.
President Bush has made clear his intention to
continue his unilateral militarization. Continuing threats
against Cuba, Iran, Libya, North Korea, Syria, and hostile acts
and interference in the affairs of many nations, confirm his policy.
The US wants other nations to help pay for its crimes
against Iraq with troops and funds, to "stabilize" and "rebuild" a
nation on which the US inflicted tens of thousands of deaths and
tens of billion in damage with bombs in 1991, debilitated with a
decade of Security Council approved genocidal sanctions taking
more than a million lives, then attacked again despite UN
opposition in March 2003 killing at least 30,000 people. It will
force privatization, turning vital facilities and services over to
foreign interests. It will control oil. It will give rich
contracts to favored corporate friends.
The US will not pay to rebuild nations it destroys, or
damages. Ask any victims of the past fifty years. For all its
wealth, US non-military foreign aid is the lowest per capita of
any developed country. Over a period of twelve years without a
casualty the US caused hundreds more deaths by random rocket and
air assaults. Deaths included Leila al Attar, an internationally
famous artist and Director of Baghdad Museum of Modern Art in her
home and two employees of the Al Rashid Hotel in an attempt to
assassinate Saddam Hussein in 1993. Even a UN helicopter and its
seventeen passengers fell victim to US fighter jets in the illegal
US imposed no fly zone over Iraq.
If there is to be peace and justice, the US owes tens
of billions of dollars to the people of Iraq and must pay to
rebuild the country. A payment to Iraq of 10% of the US military
budget for the next decade would take the money from the offending
source and provide a means for Iraq to rebuild. Nothing can
compensate for the lives lost. US firms must be barred from profiting
for the crimes of their government.
Actions by the US against the International Criminal
Court reveals its determination not to be held accountable for its
acts, and to destroy the court which it fears. The US coerced the
Security Council into creating ad hoc Tribunals. It provided
funds and personnel. Then it threatened nations with sanctions
and other harm to coerce agreements to arrest and surrender persons
within their borders charged by the ad hoc Tribunals. This is its
chosen means: selective prosecution.
The US, while clearly opposing an International
Criminal Court that could claim jurisdiction over it, took a major
role in drafting the treaty for the ICC. It insisted on
provisions and amendments that weakened and impaired the
effectiveness of the tribunal as the price of its participation.
The ICC would face an extremely difficult challenge
even if it had a perfect charter and full support. President
Clinton signed the treaty late in his administration, but
cautioned the US Senate not to ratify it, as is required to bind
the US. President Bush then withdrew the Presidential approval and
has attacked the ICC at every turn.
The US attempted unilaterally to coerce many nations
from adopting the ICC treaty, seeking to prevent its
ratification. Since ratification, the US has coerced nations from
the Philippines to Colombia as recently as September 18, 2003, to
agree not to surrender US citizens to the ICC. This is a clear
act of obstruction of justice, a criminal offense in the domestic laws
of nations.
In a bold act of coercion, on June 30, 2002, US
Permanent Representative to the United Nations, Ambassador John D.
Negroponte, announced that without a Security Council resolution
establishing immunity for personnel contributed to Security
Council-authorized peacekeeping missions, the United States would
veto the resolution to renew the UN peacekeeping mission in
Bosnia-Herzegovina. Ambassador Negroponte argued that, having
accepted the risks of "exposing people to dangerous and difficult
situations in the service of promoting peace and stability, we
will not ask them to accept the additional risk of politicized
prosecutions before a court whose jurisdiction over our people, the
Government of the United States does not accept."
On July 12, 2002, after intense negotiations, the
Security Council, by a unanimous vote, adopted Resolution 1422,
which provides that for one year from July 1, 2002, the ICC will
not begin, or proceed with, an investigation or prosecution for
acts committed within the year against officials, or personnel of UN
peacekeeping operations contributed to such operations by states
not party to the Rome Statute. Resolution 1422 further states an
intention to renew its term for additional one-year periods as
long as necessary. The King can do no wrong. Should the US have
such impunity? And if there is a risk of "politicized
prosecution" should anyone be subjected to the jurisdiction of such a
court? Yet surely an independent, impartial and competent
International Criminal Court with worldwide jurisdiction is
essential to peace in these times.
XIV. The Indictment of the President of the Federal Republic
of Yugoslavia, Slobodan Milosevic, Was A Politically Determined
Discriminatory Prosecution
There is not a more extreme case of discriminatory
political prosecution by the ICTY than the indictment of Slobodan
Milosevic. He was President of the Federal Republic of
Yugoslavia, the highest official of the Balkan federation. He
is an Orthodox Christian Serb. The Muslim President of Bosnia Alija
Izetbegovic, and the Roman Catholic President of Croatia Franjo
Tudjman, both now deceased, were not indicted by the ICTY. By any
measure each of them is more politically extreme than Milosevic,
but he alone represented the Federal Republic of Yugoslavia. For
the NATO powers, Yugoslavia’s dismemberment had to be justified.
Milosevic was a former President of the Serbian Republic of
Yugoslavia and Serbs were the largest part of the Yugoslav
population and had the strongest commitment to the federation.
Within Bosnia, which in the Dayton Accords was divided
into three parts, Muslim, Croatian and Serbian living in Srpska,
among the political leadership only the Serb, Radovan Karadzic,
President of Republika Srpska, who had strongly supported the
Federal Republic, and his successor, Biljana Plavsic, were indicted.
Richard Goldstone, who began service as the Chief
Prosecutor for the ICTY on August 15, 1994 opened an investigation
of President Milosevic within two months. When he left the office
in late 1996 he had not obtained any evidence justifying the
indictment of President Milosevic. He wrote in his memoir
published in 2001,
"...to indict Milosevic it was necessary to establish before a
criminal tribunal that he was a party to the crimes committed
by the Bosnian Serb Army. Had there been such evidence he
would have been indicted. I frequently assured the public
that no person ever pressed me to refrain from indicting
Milosevic or anyone else."
Goldstone was aware when he wrote this that President Milosevic
had been indicted later in 1999.
Goldstone was replaced by Canadian jurist Louise
Arbour, who continued the investigation. And still there was no
indictment of President Milosevic for two and a half years. An
indictment could not be justified in light of the facts.
Though a passionate believer in the necessity and
desirability of the Federal Republic of Yugoslavia if there is to
be peace in the Balkans, President Milosevic recognized that peace
was the end to be sought; federation was a means to that end and
not a reason for war. As even Holbrooke concedes, President
Milosevic negotiated for a peaceful resolution. In the wake of
secession, President Milosevic presided over the formation of the
new Federal Republic of Yugoslavia on April 28, 1992, comprised of
only Serbia and Montenegro. Civil War had not yet broken out.
The new Constitution recognized the withdrawal of four Republics
from the federation. The Constitution affirmatively declared the
new Republic had no territorial ambitions against its former Republics:
Slovenia, Croatia, Macedonia and Bosnia. Serbia and Montenegro
accepted secession and renounced force, which would necessarily
diminish the possibility of a large Balkan federation in the near
future.
The new Constitution was adopted quickly. The
European Union, urged by Germany, had recognized Bosnia and
Herzegovina on April 6, 1992. It chose the 51st anniversary of
the first dismemberment of Yugoslavia by Germany, Italy, Hungary
and Bulgaria to destroy the achievement of federation among South Slavs
won by the Balkan victors in World War II. President Milosevic
did not intend to risk a repetition of the Balkan tragedy of 1941
to 1945.
Though Bosnia had seceded from Yugoslavia, President
Milosevic used his influence with Bosnian Serbs to persuade them
to accept the UN sponsored Vance-Owen settlement which they signed
in Athens, only to see it fail from US opposition. All other
international peace initiatives met the same strongest support by
President Milosevic.
President Milosevic then became the negotiator at
Dayton for the Bosnian Serb leadership, which was barred from
participation, the indictment of President Karadzic by the ICTY
being the justification. Once again President Milosevic was the
key person in securing a peace agreement even though it reinforced
the dismemberment of the successful Socialist Federal Republic he
cherished.
Serbia and Montenegro under President Milosevic's
leadership did not expel anyone, or "ethnically cleanse" any
Croats, Slovenes, Bosnians, or Macedonians during the difficult
years 1992-1999. On the contrary, the new Republic accepted
70,000 Muslim refugees from Bosnia who sought safety in Serbia.
Even before the immigration of 70,000 Muslims from Bosnia, Serbia
had a larger Muslim population than Bosnia. Muslims in Serbia were
never attacked, except by NATO bombs, and then only as part of the
general population.
President Milosevic's successful efforts to maintain
the peace despite the cost to federation, stands in sharp contrast
to the acts of President Tudjman in Croatia, Izetbegovic in Bosnia
and Serb and Croat Bosnians who used military force to purge
others from territory they would govern.
Perhaps most revealing of the pure political nature of
the ICTY indictment of President Milosevic is the fact that when
indictment was announced in late May 1999 it was not for acts
during the preceding seven years in Croatia, or Bosnia which had
been under investigation for years. He was first indicted shortly
after April 22, 1999 when NATO bombed his home in the suburbs of
Belgrade in an assassination attempt.
The indictment was for alleged Serb military activity
in Kosovo earlier in 1999. Kosovo was under heavy NATO
bombardment at the time which continued into June. Only after the
bombing ceased was it possible for NATO to occupy and for the ICTY
to enter Kosovo to investigate.
President Milosevic was indicted during the midst of
the US/NATO aerial and missile attacks throughout Serbia, which
were most intensive in Kosovo, in order to justify the US and NATO
criminal assault against Serbia and to obscure the thousands of
deaths it inflicted from the air. Included among the many
notorious assaults causing deaths was the bombing of the Chinese
Embassy in New Belgrade which had created an international uproar
shortly before the indictment. It was a case of demonization and
persecution by a presumptively neutral UN Tribunal proceeding
first with the indictment, then later with an investigation of the
alleged crime.
Months later Slobodan Milosevic was indicted for
alleged crimes years earlier in Croatia and Bosnia.
The US and NATO maintained control of the ICTY just as
they did over the peace negotiations and bombing in Bosnia and
Serbia. The Chief Prosecutor, President of the Tribunal and
President of the Trial Chamber that indicted President Milosevic
were all from NATO countries and the US was the dominant force creating
and guiding both NATO and the ICTY.
XV. The Sheer Magnitude And Scope Of The Trial Is Not
Capable of, or Appropriate For Judicial Resolution The And Pace Of
the Trial of Slobodan Milosevic Threatens His Health and Right To
Due Process of Law
President Milosevic, with the Socialist Federal
Republic of Yugoslavia and all its people, are victims of the
dismemberment of Yugoslavia and the violence it entailed, the
devastation by US and NATO wars of aggression and finally of
regime change from foreign intervention. He was surrendered to the
ICTY in violation of the Constitution and laws of Yugoslavia in
2001.
His trial began in February 2002. President Milosevic
chose to "defend himself in person," a fundamental human right
recognized by the International Covenant on Civil and Political
Rights. Part III, Article 14(3)(d). As of October 1, 2003, the
prosecution had presented its case over a period of twenty months.
There has never been a trial like it in history.
Nuremberg with twenty-one individual defendants and charges
relating to all the horror of World War II excepting the Pacific
conflict, was completed in eleven months. Beginning in November
1945, the prosecution finished its presentation on March 4, 1946.
The defense then proceeded and the final judgment was announced on
October 1, 1946.
Unlike criminal prosecutions, which are based on the
responsibility of the accused for his individual conduct, the ICTY
prosecutor, lacking evidence of criminal acts of President
Milosevic, has put the history of the conflict in evidence, first
Kosovo, which was chronologically last, then Croatia and Bosnia.
The Prosecution may or may not finish its presentation during 2003.
To date the prosecution has produced some 500,000
pages of documents and 5,000 videocassettes. There have been
approximately 250 days of hearings with over 200 prosecution
witnesses testifying. The transcript of the testimony runs more
than 30,000 pages.
Overwhelmingly the evidence involves events in which
President Milosevic was not present and played no role. He has
nevertheless vigorously cross-examined the witnesses in defense of
the truth and for history. While it is awkward, if not
impossible, and dangerous for a judiciary to attempt, write, or find
the facts of history in a legal proceeding, President Milosevic,
standing alone for the defense, has fought for the facts and to
keep the trial record true to the history it purports to
determine. Historians tend to believe history cannot be
professionally written for a century after the times it describes,
when passions cool, the dust settles and events have been examined
from many perspectives. Many agree with Voltaire that history is
fiction agreed upon. The ICTY seeks to write a history dictated
by the US and NATO, not by the facts. The entire procedure is
alien to truth and justice.
The spectacle of a lone man defending history and
truth to exhaustion against the power of the UN court created to
bury Yugoslavia signals "unfair" and "untrue".
The Herculean task, combined with the conditions of
the prison in which he is confined, which was used as a Nazi
prison during the occupation of the Netherlands in the 1940s, have
drained his energy and stamina and endanger his health. The very
fact that the accused is confined in a former Nazi prison
symbolizes how little power has learned from the past.
The Tribunal has the duty to protect President
Milosevic's health. The death penalty is not an option. It also
has a duty to respect his right to represent himself and not
impair his health to do so. It <br/><br/>(Message over 64 KB, truncated)