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Former
US Attorney General Ramsey Clark indicts NATO
leaders
Amnesty
International reports on Kosovo
Human
Rights Watch: Kosovo Focus on Human
Rights
Censorship
and Bias in the Yugoslav war
Kosovo
Information Archive
TThe
International Criminal Tribunal for the former Yugoslavia:
The prosecutor of the trial against Slobodan Milosevic,
Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and
Vlajko Stojilkovic.
The
International Criminal Tribunal for the former Yugoslavia:
The prosecutor of the trial against Radovan Karadzic and
Genaral Ratko Mladic
Application
of the convention on the prevention and punishment of the
crime of genocide (Croatia vs Yugoslavia)
Application
of the convention on the prevention and punishment of the
crime of genocide (Bosnia and Herzegovina v
Yugoslavia)
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TESTIMONY OF PROFESSOR
MICHAEL MANDEL
Canadian House of Commons,
Standing Committee on Foreign Affairs and International
Trade,
February 22, 2000 ,
By: M. Mandel
Personal Note from M.
Mandel:
Allow me to tell you a little
bit about myself and how I came to be involved in this. I am
a professor of law at Osgoode Hall Law School where I have
taught for 25 years. I specialize in criminal law and
comparative constitutional law with an emphasis on domestic
and foreign tribunals, including United Nations tribunals
such as the International Criminal Tribunal for the Former
Yugoslavia. I have no personal interest in the conflicts in
Yugoslavia- I have no Serbs or Albanians in my family and I
am not being paid by anyone. I became involved in this as a
Canadian lawyer who witnessed a flagrant violation of the
law by my government with unspeakably tragic results for
innocent people of all Yugoslav ethnicities. I became
involved as a Jew appalled by the grotesque and deliberate
misuse of the Holocaust to justify the killing and maiming
of innocent people for what I am convinced were purely
self-interested motives, the farthest thing from
humanitarianism, in a cynical attempt to manipulate the
desire of Canadians to help their fellows on the other side
of the world.
Illegality of the
War
The first thing to note about
NATO's war against Yugoslavia is that it was flatly illegal
both in the fact that it was ever undertaken and in the way
it was carried out. It was a gross and deliberate violation
of international law and the Charter of the United Nations.
The Charter authorizes the use of force in only two
situations: self-defence, or, when authorized by the
Security Council.
The United Nations Charter
provides in so far as is relevant:
- Article 2(3): All Members
shall settle their international disputes by peaceful
means in such a manner that international peace and
security, and justice, are not endangered.
- Article 2(4): All Members
shall refrain in their international relations from the
threat or use of force against the territorial integrity
or political independance of any state, or in any other
manner inconsistent with the Purposes of the United
Nations
- Article 33: The parties to
any dispute, the continuance of which is likely to
endanger the maintenance of international peace and
security, shall, first of all, seek a solution by
negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of
their own choice.
- Article 37(1): Should the
parties to a dispute of the nature referred to in Article
33 fail to settle it by the means indicated in that
Article, they shall refer it to the Security
Council.
- Article 37(2): If the
Security Council deems that the continuance of the
dispute is in fact likely to endanger the maintenance of
international peace and security, it shall decide whether
to take action under Article 36 or to recommend such
terms of settlement as it may consider
appropriate.
- Article 39: The Security
Council shall determine the existence of any threat to
the peace, breach of the peace, or act of aggression and
shall make recommendations, or decide what measures shall
be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and
security.
- Article 41: The Security
Council may decide what measures not involving the use of
armed force are to be employed to give effect to its'
decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include
complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, or
other means of communication, and the severance of
diplomatic relations.
- Article 42: Should the
Security Council consider that the measures provided for
in Article 41 would be inadequate or have proved to be
inadequate, it may take such action by air, sea, or land
forces as may be necessary to maintain or restore
international peace and security. Such action may include
demonstrations, blockade, and other operations by air,
sea, or land forces of Members of the United
Nations.
- Article 51: Nothing in the
present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain
international peace and security . Measures taken by
Members in the exercise of this right of self-defence
shall be immediately reported to the Security Council and
shall not in any way affect the authority and
responsibility of the Security Council under the present
Charter to take at any time such action as it deems
necessary in order to maintain or restore international
peace and security.
The jurisprudence of the
International Court of Justice is also clear. For instance,
it stated in its ruling against United States intervention
in Nicaragua;
In any event, while
the United States might form its own appraisal of the
situation as to respect for human rights in Nicaragua,
the use of force could not be the appropriate method to
monitor or ensure such respect. With regard to the steps
actually taken, the protection of human rights, a
strictly humanitarian objective, cannot be compatible
with the mining of ports, the destruction of oil
installations, or again with the training, arming and
equipping of the contras.
[CASE CONCERNING THE
MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA)
(MERITS) Judgment of 27 June 1986, I.C.J. Reports, 1986,
p.134-135, paragraphs 267 and 268]
It should be also noted that
the preliminary decision of the World Court last year in
Yugoslavia's case against 10 NATO countries, including
Canada, does not in the slightest contradict this. As Mr.
Matas has pointed out to you in his statement, this decision
was taken on purely jurisdictional grounds, first the United
States' shameful refusal to recognize the World Court's
jurisdiction in general, and second Canada's objection to
jurisdiction in this specific case. But it is worth quoting
some paragraphs from the decision of the Court:
- 15. Whereas the Court is
deeply concerned with the human tragedy, the loss of
life, and the enormous suffering in Kosovo which form the
background of the present dispute, and with the
continuing loss of life and human suffering in all parts
of Yugoslavia;
- 16. Whereas the Court is
profoundly concerned with the use of force in Yugoslavia;
whereas under the present circumstances such use raises
very serious issues of international law;
- 17. Whereas the Court is
mindful of the purposes and principles of the United
Nations Charter and of its own responsibilities in the
maintenance of peace an security under the Charter and
the Statue of the court;
- 18. Whereas the Court deems
it necessary to emphasize that all parties appearing
before it must act in conformity with their obligations
under the United Nations Charter and other rules of
international law, including humanitarian
law.
[CASE CONCERNING LEGALITY
OF USE OF FORCE (YUGOSLAVIA v. CANADA) International Court
of Justice, 2 June 1999]
To sum up, in the case of
NATO's war on Yugoslavia, neither of the two exclusive bases
for the use of force (Security Council authorization or
self-defence) was even claimed by NATO.
As a violation of the United
Nations Charter, the attack on Yugoslavia was also a
violation of the NATO Treaty itself and Canada's own
domestic law.
The NATO Treaty (1949), so far
as is relevant, reads as follows:
[Preamble]: The Parties
to this Treaty reaffirm their faith in the purposes and
principles of the Charter of the United Nations and their
desire to live in peace with all peoples and all
governments.
- Article 1: The Parties
undertake, as set forth in the Charter of the United
Nations, to settle any international dispute in which
they may be involved by peaceful means in such a manner
that international peace and security and justice are not
endangered, and to refrain n their international
relations from the threat or use of force in any manner
inconsistent with the purposes of the United
Nations.
- Article 7: This treaty does
not affect, and shall not be interpreted as affecting in
any way the rights and obligations under the charter of
the Parties which are members of the United Nations, or
the primary responsibility of the Security Council for
the maintenance of international peace and
security.
The Canada Defence Act, in so
far as relevant reads as follows:
- 31. (1) the Governor in
Council may place the Canadian forces or any component,
unit or other element thereof on active service anywhere
in or beyond Canada at any time when it appears advisable
to do so
- (a) by reason of an
emergency, for the defence of Canada; or
- (b) in consequence of any
action undertaken by Canada under the United Nations
Charter, the North Atlantic treaty or any other similar
instrument for collective defence that may be entered
into by Canada.
The war's illegality is not
disputed by any legal scholar of repute, even those who had
some sympathy for the war- for instance, Mr. Mendes in his
presentation to this Committee. Of course, Mr. Mendes calls
this a "fatal flaw" in the UN Charter. I don't believe it is
a "flaw" at all, for reasons I'll elaborate. But I don't
think the seriousness of this can be glossed over one bit;
the flagrant violation of the law by our government is no
small thing. Democracy is quite simply meaningless if
governments feel they can violate the law with
impunity.
Humanitarian
Justification
We all know that the leaders of
the NATO countries sought to justify this war as a
humanitarian intervention in defence of a vulnerable
population - the Kosovo Albanians - threatened with mass
atrocities.
A lot turns on this claim, but
NOT the illegality of the war. In fact, the reason why there
is such unanimity among scholars on the illegality of this
war is that there is no "humanitarian exception" under
international law or the United Nations Charter. That does
not mean that there are no means for the international
community to intervene to prevent or stop humanitarian
disasters, even to use force where necessary. It just means
that the use of force for humanitarian purposes has been
totally absorbed in the UN Charter. A state must be able to
demonstrate the humanity of its' proposed intervention to
the UN Security Council, including, of course, the five
permanent members possessing a veto. Nor has the Security
Council shown itself to be incapable of acting in these
situations. It issued numerous resolutions authorizing
action in this conflict. (Resolutions 1160, 1199, 1203
during 1998 and Resolutions 1239 and 1244 during 1999, the
last of which brought an end to the bombing)
The Security Council has also
shown itself capable of authorizing the use of force; for
example, its' authorization of "all necessary means" to
restore the sovereignty of Kuwait in Resolution 678 passed
11/29/90, which gave Iraq until 1/15/91 to withdraw. Bombing
by the Americans commenced on 1/16/91.
But NATO did not even move a
Resolution before the Security Council over Kosovo. Nor did
it use the alternative means of demonstrating to the
international community the necessity for its' use of force
in the General Assembly's "Uniting for Peace" (Resolution
1950), which allows the General Assembly to recommend action
to the Security Council if two-thirds of those present and
voting agree:
"...(The General
Assembly) Resolves that if the Security Council, because
of lack of unanimity of the permanent members, fails to
exercise its' primary responsibility for the maintenance
of international peace and security in any case where
there appears to be a threat to the peace, breach of the
peace, or act of aggression, the General Assembly shall
consider the matter immediately with a view to making
appropriate recommendations to Members for collective
measures, including in the case of a breach of the peace
or act of aggression the use of armed force when
necessary, to maintain or restore international peace and
security."
There are 2 basic reasons why
these procedures were not utilized by NATO in this case. In
the first place, the most plausible explanation for this
whole war was that it was, at its' foundation, nothing less
than an attempt by the United States, through NATO, to
overthrow the authority of the United Nations. In the second
place, NATO could never have demonstrated a humanitarian
justification for what it was doing- because, it had
none.
In law, as in morals, it is not
enough for a humanitarian justification to be CLAIMED; it
must also be DEMONSTRATED. To use an odious example, but one
which makes the point clearly enough, Hitler himself used a
humanitarian justification for invading Poland and
unleashing WW II: he claimed he was doing it to protect the
German minority from oppression by the Poles.
In the case of NATO, what had
to justified as a humanitarian intervention was a bombing
campaign that, in dropping 25,000 bombs on Yugoslavia,
directly killed between 500 and 1800 civilian children,
women, and men of all ethnicities, and permanently injured
many others; a bombing campaign that caused 60 to 100
billion dollars damage to an already impoverished country; a
bombing campaign that directly and indirectly caused a
refugee crisis of enormous proportions, with about one
million people fleeing Kosovo during these attacks; a
bombing campaign that indirectly caused the death of
thousands more, by provoking the brutal retaliatory and
defensive measures that are inevitable when a war of this
kind and intensity is undertaken, and by giving a free hand
to extremists on both sides to vent their hatred. What also
has to be justified is the ethnic cleansing that has
occurred in Kosovo since the entry of the triumphant KLA,
fully backed by NATO's might, which has seen hundreds of
thousands of Serb (and Roma and Jewish) citizens of Kosovo
driven out, and hundreds murdered as well- a murder rate
that is about 10 times the Canadian rate per
capita.
These results were to be
expected and they were predicted by NATO's military and
political advisors in their very careful planning of this
war which went back more than a year before the bombings
commenced.
A humanitarian justification
would have to show that this disaster was outweighed by a
greater disaster that was about to happen and would have
happened but for this intervention. The evidence for this,
which must be carefully scrutinized by this Committee, is
meagre to say the least.
Nobody could seriously maintain
that the conditions for a repeat of the Bosnian bloodbath
were there: this was not an all-out civil war with
well-armed parties of roughly equal strength on each side
and huge ethnic enclaves fighting for their existence. These
conditions simply did not exist in Kosovo prior to these
bombings.
Nor did the facts indicate a
humanitarian disaster would have occurred but for NATO's
bombing. A total of approximately 2000 people had been
killed on both sides in the prior two years of fighting
between KLA and the Serbs, and violence was declining with
the presence of UN observers. The alleged massacre of 45
ethnic Albanians at Racak, Yugoslavia, must be regarded with
the greatest suspicions, not only because of the
circumstances, but because of involvement of the American
emissary Mr. William Walker, with his history of covert and
illegal activities on behalf of the Americans in Latin
America.
Nor is the Report recently
released by OSCE of much value in assessing the situation,
since it was written and paid for by the NATO countries
themselves.
Even more importantly, the
evidence is overwhelming that NATO did not make serious
efforts at averting a disaster and was not at all serious
about peace.
If we look at the Rambouillet
negotiations, a number of perplexing questions are raised:
why was the irredentist and insurrectionary KLA preferred as
NATO interlocutor to the only popularly-elected leader, the
moderate Ibrahim Rugova? Why, for that matter, was Rugova
ignored during the war? Why did the US insist on a secret
annex to the Rambouillet Accord (Appendix B) that would have
allowed it to occupy all of Serbia? Why did the final peace
agreement look so much like what the Serbs had agreed to
before the bombings? Do we really think that NATO could not
have put the 10 billion dollars ( worth of bombs it dropped)
to working out and underwriting a peace agreement that would
have accommodated and protected all sides, if it were only
interested in humanity- and not war?
Why are NATO countries so
unwilling to spend money on reconstruction of Kosovo,
claiming that they have run out of money, with less than 1
billion dollars spent?
And where, to resolve these
enormous doubts about whether NATO acted out of humanitarian
motives this time, is the evidence that these people have
ever acted from humanitarian motives before?
With such huge holes in its'
argument. we are entitled to examine the leopard on his
spots. What about the failure to intervene with force in
Rwanda? What about the United States' own bankrolling of the
repressive Suharto regime in Indonesia? What about Turkey's
violent repression of the Kurds, a humanitarian disaster
that has claimed 30,000 lives, not 2000?
What about the United States
itself? The richest country in the world which creates
social conditions so violent and racist that its' normal
murder rate is in the realm of 20,000 per year, almost as
high, per capita, as Kosovo is RIGHT NOW - the same United
States that puts two or three people to death by lethal
injection every week.
NATO has no humanitarian
lessons to teach the world.
Finally, and very importantly,
we must ask some serious questions about the way in which
this supposed humanitarian intervention was handled. With
Albanian citizens of Kosovo supposedly in the hands of
genocidal maniacs, NATO gave five days warning between the
withdrawal of the OSCE observers and the launch of the
attack. This was followed by seven days of bombing by NATO
that mostly ignored Kosovo itself. In other words, these
tactics were an INVITATION to genocide that was not
accepted, but one that also was guaranteed to produce a
refugee flow to legitimate a massive bombing
campaign.
As Ambassador Bissett told this
committee last week, that NATO leaders have no respect for
the truth should startle no one. What of the claim by Jamie
Shea that it was the Serbs who bombed the Albanian refugee
convoy? (until independant journalists found bomb fragments
marked, "Made in USA")
What of the claim by a NATO
general, with video up on the screen, that the passenger
train on the Grdelica bridge was going too fast to avoid
being hit? (until somebody pointed out that the video had
been speeded up three times its' normal speed)
What of the claim that the
Chinese embassy was bombed because NATO's maps were out of
date?
What of the claims by Mr.
Clinton (and Mrs. Clinton) and Mr. Cohen that a "Holocaust"
was occurring in which perhaps 100,000 men from Kosovo had
been murdered? (until the bombing was over and the numbers
dwindled down to 2108- and we have yet to be told who they
were and how they died)
In fact, most people in the
world simply do not believe NATO's claim of
humanitarianism.
A poll taken in mid-April and
published by The Economist shows that this was a very
unpopular war, opposed by perhaps most of the world's
population both outside and inside the NATO alliance. ("Oh
what a lovely war!", The Economist, April 24, 1999, showing
more than a third opposed in Canada, Poland, Germany, France
and Finland, almost an even split in Hungary, an even split
in Italy and a majority opposed in the Czech Republic,
Russia and Taiwan) A poll taken in Greece between April 29th
and May 5th showed 99.5% against the war, 85% believing
NATO's motives to be strategic and not humanitarian, and,
most importantly, 69% in favour of charging Bill Clinton
with war crimes, 35.2% for charging Tony Blair and only 14%
for charging Slobodan Milosevic, not far from the 13% in
favour of charging NATO general Wesley Clark and 9.6% for
charging NATO Secretary General Javier Solana. ("Majority in
Greece wants Clinton tried for war crimes", The Irish Times,
May 27, 1999).
Much more plausible than the
humanitarian thesis is the one that the United States
deliberately provoked this war, that it deliberately
exploited and exacerbated another country's tragedy - a
tragedy partly of its own creation (we should not forget
that the West's aggressive and purely selfish economic
policies that have beggared Yugoslavia over the last ten
years). NATO exists to make war, not peace. The arms
industry exists to make profits from dropping bombs. And the
United States, by virtue of its military might dominates
NATO the way it does not dominate the United Nations. The
most plausible explanation then is that this attack was not
about the Balkans at all. It was an attempt to overthrow the
authority of the United Nations and make NATO, and therefore
the United States, the world's supreme authority, to
establish the "precedent" that NATO politicians have been
talking about since the bombing stopped. To give the United
States the free hand that the United Nations does not, in
its conflicts with the Third World and its rivalries with
Russia, China and even Europe.
In other words, this was not a
case of the United Nations being an obstacle to
humanitarianism. It was a case of using a flimsy pretext of
humanitarianism to overthrow the United Nations.
Not only was this an illegal
war that had no humanitarian justification. It was a war
pursued by illegal means. According to admissions made in
public throughout the war (for instance during NATO
briefings), according to eye-witness reports and according
to powerful circumstantial evidence displayed on the world's
television screens throughout the bombing campaign -
evidence good enough to convict in any criminal court in the
world - these NATO leaders deliberately and illegally made
targets of places and things with on ly tenuous or slight
military value or no military value at all. Places such as
city bridges, factories, hospitals, marketplaces, downtown
and residential neighbourhoods, and television studios. The
same evidence shows that, in doing this, the NATO leaders
aimed to demoralize and break the will of the people, not to
defeat its army.
The American group Human rights
Watch has just issued a lengthy report documenting a
systematic and massive violation of international
humanitarian law by NATO in Yugoslavia. They estimate the
civilian victims to be about 500. This figure should be
taken as a minimum because it is a number Human Rights Watch
says it can independently confirm and that can be attributed
directly to the bombing. It excludes persons known to be
killed as an indirect result of the bombing. every benefit
of the doubt is given to NATO, a fact exemplified by the
Report's puzzling and actually undefended distinction
between these grave "violations of humanitarian law" and
"war crimes". Human Rights Watch has also documented the use
of anti-personnel cluster bombs in attacks on civilian
targets.
The reason these civilian
targets are illegal is that civilians are very likely to be
killed or injured when such targets are hit. And all of the
NATO leaders knew that. They were carefully told that by
their military planners. And they still went ahead and did
it.
And they did it without any
risk to themselves or to their soldiers and pilots. That's
why this war was called a "coward's war". The cowardice lay
in fighting the civilian population and not the military, in
bombing from altitudes so high that the civilians, Serbians,
Albanians, Roma, and anybody else on the ground, bore all
the risks of the "inevitable collateral damage".
War Crimes Charges before the
International Tribunal
But the fact that this war was
illegal and unjustified has further very serious
implications. Mr. Chretien, Mr. Axworthy and Mr. Eggleton,
along with all the other NATO leaders, planned and executed
a bombing campaign that they knew was illegal and that they
knew would cause the death and permanent injury of thousands
of civilian children, women and men. Hard as it is for us to
accept, or even to say, killing hundreds or thousands of
civilians knowingly and without lawful excuse is nothing
less than mass murder. Milosevic was indicted the The Hague
for 385 victims . . . (NATO) killed between 500 and 1800
(civilians).
That is why, starting in April
of last year and continuing to the present day, dozens of
lawyers and law professors, a pan-American association
representing hundreds of jurists, some elected legislators,
and thousands of private citizens from around the world,
have lodge formal complaints with the International Criminal
Tribunal in the Hague charging NATO leaders with war
crimes.
The particular compliant I am
involved in was filed in May, 1999 and names 68 ministers of
the 19 NATO countries (including US President Bill Clinton,
Secretaries Cohen and Albright, Canadian Prime Minister
Chretien, Ministers Axworthy and Eggleton and so on down the
list), and the highest ranking of NATO officials, from then
Secretary General Javier Solana, through Generals Wesley
Clark, Michael Short, and official spokesman Jamie
Shea.
The charges against NATO
leaders include the following:
Grave breaches of the Geneva
Conventions of 12 August 1949, contrary to article 2 of the
Statue of the Tribunal, namely the following acts against
persons or property protected under the provisions of the
relevant Geneva Convention: (a) willful killing; (c)
willfully causing great suffering or serious injury to body
or health; (d) extensive destruction and appropriation of
property, not justified by military necessity and carried
out unlawfully and wantonly.
Violations of the laws or
customs of war, contrary to Article 3 namely: (a) employment
of poisonous weapons or other weapons to cause unnecessary
suffering; (b) wanton destruction of cities, towns or
villages, or devastation not justified by military
necessity; (c) attack, or bombardment, by whatever means, of
undefended towns, villages, dwellings, or buildings; (d)
seizure of, destruction or willful damage done to
institutions dedicated to religion, charity and education,
the arts and sciences, historic monuments and works of art
and science.
Crimes against humanity
contrary to Article 5, namely; (a) murder; (i) other
inhumane acts.
Article 7 or the Statute
provides for "individual criminal responsibility"
thus:
- 1. A person who planned
instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a
crime referred to in articles 2 to 5 of the present
Statute, shall be individually responsible for the crime.
- 2. The official position of
any accused person, whether as Head of State or
Government or as a responsible Government official, shall
not relieve such person of criminal responsibility or
mitigate punishment.
- 3. The fact that any of the
acts referred to in articles 2 to 5 of the present
Statute was committed by a subordinate does not relieve
his superior of criminal responsibility if he knew or had
reason to know that the subordinate was about to commit
such acts or had done so and the superior failed to take
the necessary and reasonable measures to prevent such
acts or to punish the perpetrators thereof.
We have been in frequent
contact with the Tribunal, travelling to the Hague twice to
argue our case with Chief Prosecutors Louise Arbour and
Carla Del Ponte and their legal advisers, filing evidence,
legal briefs and arguments in support of the case. I am
filing with this Committee a book of the evidence we have
filed with the tribunal. I understand that you already have
the two volumes prepared by the government of Yugoslavia. I
would point out that these volumes have been confirmed as
"largely credible" by the Human Rights Watch
Report.
Recently, Justice Del Ponte
disclosed that she was studying an internal document
analyzing the many claims that have been made against NATO.
My latest word from her (February 8) is that she is still
studying the case.
Justice Del Ponte has said that
if she is not prepared to prosecute NATO she should pack up
and go home, and I have to agree with her, because, in that
case, the tribunal would be doing far more harm than good,
only legitimating NATO's violent lawlessness against people
unlucky enough to be ruled by "indicted war criminals", as
opposed to the un-indicted kind that govern the NATO
countries.
This was the very purpose for
which the United States sponsored this tribunal in the first
place, at least according to Michael Scharf,
Attorney-Advisor with the US State Department, who, under
Madeleine Albright's instructions, actually drafted the
Security Council resolution establishing the
Tribunal.
"the tribunal was
widely perceived within the government as little more
than a public relations device and as a potentially
useful policy tool... Indictments also would serve to
isolate offending leaders diplomatically, strengthen the
hand of their domestic rivals and fortify the
international political will to employ economic sanctions
or use of force" (The Washington Post, October 3,
1999)
I must confess that my
colleagues and I and the thousands of others who have
complained to the Tribunal have grave doubts about its
impartiality. We have given the benefit of every doubt even
in the face of mounting evidence that it didn't deserve it:
when, in January, 1999, then prosecutor Judge Louise Arbour
made a rather dramatic appearance at the border of Kosovo,
lending credibility to contested American accounts of
atrocities at Racak, a precipitating justification of the
war itself; when, only days after the bombing had commenced,
she made an announcement of the Arkan indictment that had
been secret from 1997; when she made television appearances
with NATO leader Robin Cook, already the subject of numerous
complaints during the war to receive war crimes dossiers;
when she met with Madeleine Albright, herself by then the
subject of well-grounded complaints before the tribunal, and
Albright took the opportunity to announce that the United
States was the major provider of funds to the indictment of
Milosevic, on the basis of undisclosed evidence, for Racak
and events which had occurred only six weeks earlier in the
middle of a war zone - on what, in other words, must have
been very flimsy and suspicious evidence; and when, at the
conclusion of the bombing Judge Arbour handed over the
investigation of war crimes in Kosovo to NATO countries'
police forces themselves - notwithstanding that they had
every motive to falsify the evidence.
I am sad to say, because the
former prosecutor is now a judge of the Supreme Court of
Canada and an old colleague and friend of mine, of whom we
all want to be proud, that these could not be regarded as
the acts of an impartial prosecutor. Not when NATO was in
the midst of a disastrous war in flagrant violation of
international law.
We sincerely hoped for better
things from Judge Del Ponte coming as she did from a country
outside of the NATO alliance. But our expectations have been
progressively lowered. First, when she declared, immediately
upon taking the job, that her priorities were the
prosecution of Milosevic, something which clearly suited the
NATO countries but which, as we told her in November, could
in no way be compatible with her sworn duties. A prosecutor
cannot declare that she is going to concentrate only on some
crimes and grant effective immunity to other criminals.
Then, when she made the observation that she was indeed
investigating complaints against NATO, and NATO reacted in
its typically outrageous fashion by attacking the Tribunal,
Judge Del Ponte quickly issued unseemly appeasing statements
and went on a conciliatory mission to Brussels.
I am saying all this to put the
Committee on guard against delegating its own judgment to
this Tribunal which was set up as an instrument of the
United States foreign policy and has given us so many
grounds to suspect that it sees itself the same way.
Whatever this Tribunal decides to do or not to do, it is
incumbent on this Committee to scrutinize its reasons and
the evidence with the utmost care.
Let me end by citing to you the
words of Justice Robert Jackson from his opening statement
to the Nuremberg Tribunal on November 21, 1945:
"But the ultimate
step in avoiding periodic wars, which are inevitable in a
a system of international lawlessness, is to make
statesmen responsible to law. And let me make clear that
while this law is first applied against German
aggressors, the law includes, and if it is to serve a
useful purpose it must condemn aggression by any other
nations, including those which sit here now in judgment.
We are able to do away with domestic tyranny and violence
and aggression by those in power against the rights of
their own people only when we make all men answerable to
the law." (The Nuremberg Case As Presented by Robert H.
Jackson, Chief Counsel for the United States (New York;
Cooper Square Publishers Inc, 1971) at page
93)
Reprinted from:
http://www.smip.sv.gov.yu/
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