>X-Sender: [EMAIL PROTECTED] > >Date: Mon, 14 Feb 2000 20:55:01 -0800 >To: [EMAIL PROTECTED] >From: Eric Fawcett <[EMAIL PROTECTED]> (by way of Rycroft & >Pringle <[EMAIL PROTECTED]>) >Subject: Peace/Justice Canada-- sfp-46: ICTY a kangaroo court? > >The International Criminal Tribunal for the former Yugoslavia (ICTY) >is examined critically by Christopher Black in a companion paper that is >available on request and will be posted on the SfP web site as sfp-46b. > > (As Eric did not include the URL, I am guessing that it may > be available at http://helios.physics.utoronto.ca/mailman/listinfo.cgi/ > or http://helios.physics.utoronto.ca/mailman/listinfo.cgi/sfp-46b) > >Its genesis, procedures and funding are all suspect. >+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ > > Louise Arbour: unindicted war criminal > ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ >by Christopher Black, Toronto defense lawyer and writer and one of >the lawyers who made the request to the War Crimes Tribunal to >indict NATO leaders for war crimes; >and Edward Herman, economist and media analyst - his most recent book is >The Myth of the Liberal Media: An Edward Herman Reader (Peter Lang,1999) > > Among the many ironies of the NATO war against Yugoslavia was the role >of the International Criminal Tribunal and its chief prosecutor, Louise >Arbour, elevated by Canadian Prime Minister Jean Chretien to Canada's >highest court in 1999. It will be argued here that that award was entirely >justified on the grounds of political service to the NATO powers, but a >monumental travesty if the question of the proper administration of >justice enters the equation. In fact, it will be shown below that as >Arbour and her Tribunal played a key role in EXPEDITING war crimes, an >excellent case can be made that in a just world she would be in the dock >rather than in judicial robes. > >Arbour To NATO's Rescue >~~~~~~~~~~~~~~~~~~~~~~~ > The moment of truth for Arbour and the Tribunal came in the midst of >NATO's 78-day bombing campaign against Yugoslavia, when Arbour appeared, >first, in an April 20 press conference with British Foreign Secretary >Robin Cook to receive from him documentation on Serb war crimes. Then on >May 27, Arbour announced the indictment of Serb President Slobodan >Milosevic and four of his associates for war crimes. The inappropriateness >of a supposedly judicial body doing this in the midst of the Kosovo war, >and when Germany, Russia and other powers were trying to find a diplomatic >resolution to the conflict, was staggering. > > At the April 20 appearance with Cook, Arbour stated that "It is >inconceivable...that we would in fact agree to be guided by the political >will of those who may want to advance an agenda." But her appearance with >Cook and the followup indictments fitted perfectly the agenda needs of the >NATO leadership. There had been growing criticism of NATO's increasingly >intense and civilian infrastructure-oriented bombing of Serbia, and Blair >and Cook had been lashing out at critics in the British media for >insufficient enthusiasm for the war. Arbour's and the Tribunal's >intervention declaring the Serb leadership to be guilty of war crimes was >a public relations coup that justified the NATO policies and helped permit >the bombing to continue and escalate. This was pointed out repeatedly by >NATO leaders and propagandists: Madeleine Albright noted that the >indictments "make very clear to the world and the publics in our countries >that this [NATO policy] is justified because of the crimes committed, and >I think also will enable us to keep moving all these processes [i.e., >bombing] forward" (CNN, May 27). State Department spokesman James Rubin >stated that "this unprecedented step...justifies in the clearest possible >way what we have been doing these past months" (CNN Morning News, May 27). > > Although the Tribunal had been in place since May 1993, and the most >serious atrocities in the Yugoslav wars occurred as the old Federation >disintegrated from June 1991 through the Dayton peace talks in late 1995, >no indictment was brought against Milosevic for any of those atrocities, >and the May 27 indictment refers only to a reported 241 deaths in the >early months of 1999. The indictment appears to have been hastily prepared >to meet some urgent need. Arbour even mentioned on April 20 that she had >"visited NATO" to "dialogue with potential information providers in order >to generate unprecedented support that the Tribunal needs if it will >perform its mandate in a time frame that will make it relevant to the >resolution of conflict...of a magnitude of what is currently unfolding in >Kosovo." But her action impeded a negotiated resolution, although it >helped expedite a resolution by intensified bombing. > > Arbour herself noted that "I am mindful of the impact that this >indictment may have on the peace process," and she said that although >indicted individuals are "entitled to the presumption of innocence until >they are convicted, the evidence upon which this indictment was confirmed >raises serious questions about their suitability to be guarantors of any >deal, let alone a peace agreement." (CNN Live Event, Special, May 27). So >Arbour not only admitted awareness of the political significance of her >indictment, she suggested that her possible interference with any >diplomatic efforts was justified because the indicted individuals, though >not yet found guilty, are not suitable to negotiate. This hugely >unjudicial political judgment, along with the convenient timing of the >indictments, points up Arbour's and the Tribunal's highly political role. > >Background of the Tribunal's Politicization >~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > Arbour's service to NATO in indicting Milosevic was the logical >outcome of the Tribunal's de facto control and purpose. It was established >by the Security Council in the early 1990s to serve the Balkan policy ends >of its dominant members, especially the United States. (China and Russia >went along as silent and powerless partners, apparently in a trade-off for >economic concessions.) And its funding and interlocking functional >relationship with the top NATO powers have made it NATO's instrument. > > Although Article 32 of its Charter declares that the Tribunal's >expenses shall be provided in the general budget of the United Nations, >this proviso has been regularly violated. In 1994-1995 the U.S. government >provided it with $700,000 in cash and $2.3 million in equipment (while >failing to meet its delinquent obligation to the UN that might have >allowed the UN itself to fund the Tribunal). On May 12, 1999, Judge >Gabrielle Kirk McDonald, president of the Tribunal, stated that "the U.S. >government has very generously agreed to provide $500,000 [for an Outreach >project] and to help to encourage other states to contribute." Numerous >other U.S.-based governmental and non-governmental agencies have provided >the Tribunal with resources. > > Article 16 of the Tribunal's charter states that the Prosecutor shall >act independently and shall not seek or receive instruction from any >government. This section also has been systematically violated. NATO >sources have regularly made claims suggesting their authority over the >Tribunal: "We will make a decision on whether Yugoslav actions against >ethnic Albanians constitute genocide," states a USIA Fact Sheet, and Cook >asserted at his April 20 press conference with Arbour that "we are going >to focus on the war crimes being committed in Kosovo and our determination >to bring those responsible to justice, " as if he and Arbour were a team >jointly and cooperatively deciding on who should be charged for war >crimes, and obviously excluding himself from those potentially chargeable. >Earlier, on March 31, two days after Cook had promised Arbour supportive >data for criminal charges, she announced the indictment of Arkan. > > Tribunal officials have even bragged about "the strong support of >concerned governments and dedicated individuals such as Secretary >Albright," further referred to as "mother of the Tribunal" (by Gabrielle >Kirk McDonald). The post-Arbour chief prosecutor Carla Del Ponte at a >September 1999 press conference thanked the US FBI for helping the >Tribunal, and expressed general thanks for "the important support the U.S. >government has provided the Tribunal." Arbour herself informed President >Clinton of the forthcoming indictment of Milosevic two days before the >rest of the world, and in 1996 the prosecutor met with the >Secretary-General of NATO and its supreme commander to "establish contacts >and begin discussing modalities of cooperation and assistance." Numerous >other meetings have occurred between prosecutor and NATO, which was given >the function of Tribunal gendarme. In the collection of data also, the >prosecutor has depended heavily on NATO and NATO governments, which again >points to the symbiotic relation between the Tribunal and NATO. > >Serb-Specific Focus >~~~~~~~~~~~~~~~~~~~ > The NATO powers focused almost exclusively on Serb misbehavior in the >course of their participation in the breakup of Yugoslavia, and the >Tribunal has followed in NATO's wake. A great majority of the Tribunal's >indictments have been of Serbs, and those against Croatians and Muslims >often seemed to have been timed to counter claims of anti-Serb bias (e.g., >the first non-Serb indictment [Ivica Rajic], announced during the peace >talks in Geneva and bombing by NATO in September 1995). > > Arbour herself did state (April 20) that "the real danger is whether we >would fall into that [following somebody's political agenda] inadvertently >by being in the hands of information- providers who might have an agenda >that we would not be able to discern." But even an imbecile could discern >that NATO had an agenda and that simply accepting the flood of documents >offered by Cook and Albright entailed advertently following that agenda. >Arbour even acknowledged her voluntary and almost exclusive >"dependencies...on the goodwill of states" to provide information that >"will guide our analysis of the crime base." And her April 20 reference to >the "morality of the [NATO's] enterprise" and her remarks on Milosevic's >possible lack of character disqualifying him from negotiations, as well as >her rush to help NATO with an indictment, point to quite clearly >understood political service. > > In a dramatic illustration of Arbour-Tribunal bias, a 150 page Tribunal >report entitled "The Indictment Operation Storm: A Prima Facie Case," >describes war crimes committed by the Croatian armed forces in their >expulsion of more than 200,000 Serbs from Krajina in August 1995, during >which "at least 150 Serbs were summarily executed, and many hundreds >disappeared." This report, leaked to the New York Times (to the dismay of >Tribunal officials), found that the Croatian murders and other inhumane >acts were "widespread and systematic," and that "sufficient material" was >available to make three named Croatian generals accountable under >international law. (Raymond Bonner, "War Crimes Panel Finds Croat Troops >'Cleansed' the Serbs," NYT, March 21, 1999). But the Times article also >reports that the United States, which supported the Croat's ethnic >cleansing of Serbs in Krajina, not only defended the Croats in the >Tribunal but refused to supply requested satellite photos of Krajina areas >attacked by the Croats, as well as failing to provide other requested >information. The result was that the Croat generals named in the report on >Operation Storm were never indicted, and although the number of Serbs >executed and disappeared over a mere four days was at least equal to the >241 victims of the Serbs named in the indictment of Milosevic, no parallel >indictment of Croat leader Tudjman was ever brought by the Tribunal. But >this was not a failure of data gathering--the United States opposed >indictments of its allies, and thus the Tribunal did not produce any. > >Tribunal's Kangaroo Court Processes >~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ > Arbour has claimed that the Tribunal was "subject to extremely stringent >rules of evidence with respect to the admissibility and the credibility of >the product that we will tender in court" so that she was guarded against >"unsubstantiated, unverifiable, uncorroborated allegations" (April 20). >This is a gross misrepresentation of what John Laughland described in the >Times (London) as "a rogue court with rigged rules" (June 17, 1999). The >Tribunal violates virtually every standard of due process: it fails to >separate prosecution and judge; it does not accord the right to bail or a >speedy trial; it has no clear definition of burden of proof required for a >conviction; it has no independent appeal body; it violates the principle >that a defendant may not be tried twice for the same crime (Article 25 >gives the prosecutor the right to appeal against an acquittal); suspects >can be held for 90 days without trial; under Rule 92 confessions are >presumed to be free and voluntary unless the contrary is established by >the prisoner; witnesses can testify anonymously, and as John Laughland >notes, "rules against hearsay, deeply entrenched in Common Law, are not >observed and the Prosecutor's office has even suggested not calling >witnesses to give evidence but only the tribunal's own 'war crimes >investigators.'" > > As noted, Arbour presumes guilt before trial; the concept of "innocent >till convicted" is rejected, and she can declare that people linked with >Arkan "will be tainted by their association with an indicted war criminal" >(March 31). Arbour clearly does not believe in the basic rules of Western >jurisprudence, and Laughland quotes her saying "The law, to me, should be >creative and used to make things tight." And within a month of her >elevation to the Canadian Supreme Court she was a member of a court >majority that grafted onto Canadian law the dangerously unfair Tribunal >practice of permitting a more liberal use of hearsay evidence in trials. >The consequent corruption of the Canadian justice system, both by her >appointment and her impact, mirrors that in the Canadian political system, >whose leading members supported the NATO war without question. > >NATO's Crimes >~~~~~~~~~~~~~ > In bombing Yugoslavia from March 24 into June 1999, NATO was guilty of >the serious crime of violating the UN Charter requirement that it not use >force without UN Security Council sanction. It was also guilty of criminal >aggression in attacking a sovereign state that was not going beyond its >borders. In its defense, NATO claimed that "humanitarian" concerns >demanded these actions and thus justified seemingly serious law >violations. Apart from the fact that this reply sanctions law violations >on the basis of self- serving judgments that contradict the rule of law, >it is also called into question on its own grounds by counter-facts. >First, the NATO bombing made "an internal humanitarian problem into a >disaster" in the words of Rollie Keith, the returned Canadian OSCE human >rights monitor in Kosovo. Second, the evidence is now clear that NATO >refused to negotiate a settlement in Kosovo and insisted on a violent >solution; that in the words of one State Department official, NATO >deliberately "raised the bar" and precluded a compromise resolution >because Serbia "needed to be bombed." These counter-facts suggest that the >alleged humanitarian basis of the law violations was a cover for starkly >political and geopolitical objectives. > > NATO was also guilty of more traditional war crimes, including some that >the Tribunal had found indictable when carried out by Serbs. Thus on March >8, 1996, the Serb leader Milan Martic was indicted for launching a rocket >cluster-bomb attack on military targets in Zagreb in May 1995, on the >ground that the rocket was "not designed to hit military targets but to >terrorize the civilians of Zagreb." The Tribunal report on the Croat >Operation Storm in Krajina also provided solid evidence that a 48 hour >Croat assault on the city of Knin was basically "shelling civilian >targets," with fewer than 250 of 3,000 shells striking military targets. >But no indictments followed from this evidence or for any other raid. > > The same case for civilian targeting could be made for numerous NATO >bombing raids, as in the cluster-bombing of Nis on May 7, 1999, in which a >market and hospital far from any military target were hit in separate >strikes--but no indictment has yet been handed down against NATO. > > But NATO was also guilty of the bombing of non-military targets as >systematic policy. On March 26, 1999, General Wesley Clark said that "We >are going to very systematically and progressively work on his military >forces...[to see] how much pain he is willing to suffer." But this focus >on "military forces" wasn't effective, so NATO quickly turned to "taking >down...the economic apparatus supporting" Serb military forces (Clinton's >words), and NATO targets were gradually extended to factories of all >kinds, electric power stations, water and sewage processing facilities, >all transport, public buildings, and large numbers of schools and >hospitals. In effect, it was NATO's strategy to bring Serbia to its knees >by gradually escalating its attacks on the civil society. > > But this policy was in clear violation of international law, one of >whose fundamental elements is that civilian targets are off limits; >international law prohibits the "wanton destruction of cities, towns or >villages or devastation not justified by military necessity" (Sixth >Principle of Nuremberg, formulated in 1950 by an international law >commission at the behest of the UN). "Military necessity" clearly does not >allow the destruction of a civil society to make it more difficult for the >country to support its armed forces, any more than civilians can be killed >directly on he ground that they pay taxes supporting the war machine or >might some day become soldiers. The rendering of an entire population a >hostage is a blatant violation of international law and acts carrying it >out are war crimes. > > On September 29, 1999, in response to a question on whether the >Tribunal would investigate crimes committed in Kosovo after June 10, or >those committed by NATO in Yugoslavia, prosecutor Carla del Ponte stated >that "The primary focus of the Office of the Prosecutor must be on the >investigation and prosecution of the five leaders of the FRY and Serbia >who have already been indicted." Why this "must" be the focus, especially >in light of all the evidence already assembled in preparing the favored >indictments, was unexplained. In late December, it was finally reported >that Del Ponte was reviewing the conduct of NATO, at the urging of Russia >and several other "interested parties" ("U.N. Court Examines NATO's >Yugoslavia War," NYT, Dec. 29, 1999). But the news report itself indicates >that the focus is on the conduct of NATO pilots and their commanders, not >the NATO decision-makers who made the ultimate decisions to target the >civilian infrastructure. It also suggests the public relations nature of >the inquiry, which would "go far in dispelling the belief...that the >tribunal is a tool used by Western leaders to escape accountability." The >report also indicates the delicate matter that the tribunal "depends on >the military alliance to arrest and hand over suspects." It also quotes >Del Ponte saying that "It's not my priority, because I have inquiries >about genocide, about bodies in mass graves." We may rest assured that no >indictments will result from this inquiry. > > An impartial Tribunal would have gone to great pains to balance NATO's >flood of documents by internal research and a welcoming of rival >documentation. But although submissions have been made on NATO's crimes by >Yugoslavia and a number of Western legal teams, the Tribunal didn't get >around to these until this belated and surely nominal inquiry that is "not >my priority," as the Tribunal "must" pursue the Serb villains, for reasons >that are only too clear. > >Beyond Orwell >~~~~~~~~~~~~~ > NATO's leaders, frustrated in attacking the Serb military machine, >quite openly turned to smashing the civil society of Serbia as their means >of attaining the quick victory desired before the 50th Anniversary >celebration of NATO's founding. Although this amounted to turning the >civilian population of Serbia into hostages and attacking them and their >means of sustenance--in gross violation of the laws of war--Arbour and her >Tribunal not only failed to object to and prosecute NATO's leaders for war >crimes, by indicting Milosevic on May 27 they gave NATO a moral cover >permitting escalated attacks on the hostage population. > > Arbour and the Tribunal thus present us with the amazing spectacle of an >institution supposedly organized to contain, prevent, and prosecute for >war crimes actually knowingly facilitating them. Furthermore, petitions >submitted to the Tribunal during Arbour's tenure had called for >prosecution of the leaders of NATO, including Canadian Prime Minister Jean >Chretien, for the commission of war crimes. If she had been a prosecutor >in Canada, Britain or the United States, she would have been subject to >disbarment for considering and then accepting a job from a person she had >been asked to charge. But Arbour was elevated to the Supreme Court of >Canada by Chretien with hardly a mention of this conflict of interest and >immorality. > > In this post-Orwellian New World Order we are told that we live under >the rule of law, but as Saint Augustine once said, "There are just laws >and there are unjust laws, and an unjust law is no law at all." > > ............................................. > Bob Olsen, Toronto [EMAIL PROTECTED] > ............................................. > __________________________________ KOMINFORM P.O. 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