November 28, 1999
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can be made that private justice has replaced public justice, that even the appearance of fundamental justice has been replaced by an open contempt for justice.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 basis 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, as I have said, 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 Clarke. 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 madein police custody are moving to prohibit their use entirely. This Tribunal goes back to the days of Star Chamber andthe 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 accused 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 inbringing 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,