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justice has been replaced by an open contempt for justice.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