Illegal Tribunal – Illegal Indictment
Statement of the International Progress Organization on the Hague War Crimes Tribunal’s indictment of Serbian Leaders
Dr. Hans Koechler, President [posted 23 April 2001]
[The following statement was written just after the ‘War Crimes Tribunal’ brought ‘indictments’ against Slobodan Miloshevich (Milosevic) and other Serbian government leaders in 1999. The text was sent to us recently by a contributor from Germany. It was published by the International Progress Organization, an NGO (non-governmental organization) which has worked in various associations with the United Nations for almost 30 years. It makes excellent points, especially about the sheer illegality of the “War Crimes Tribunal”. We post it for your information – Jared Israel.]
The International Progress Organization hereby presents the following legal observations on today’s “indictment” by the “International Criminal Tribunal”:
1. The “indictment” issued by the “Chief Prosecutor” of the so-called “International Criminal Tribunal for the Former Yugoslavia” is legally invalid because this “Tribunal” has no jurisdiction whatsoever in the present or any other case.
2. The “Tribunal” derives its raison d’être exclusively from Security Council resolution 827, adopted at the Council’s 3217th meeting on 25 May 1993. In this resolution, establishing the so-called “International Criminal Tribunal,” the Security Council states that it acts “under Chapter VII of the Charter of the United Nations.”
3. When adopting the above resolution, the Security Council acted ultra vires. According to the provisions of the U.N. Charter, the Council has no competence whatsoever in judicial matters. The provisions of Chapter VII determine the Council’s competence in matters of international security but not in matters of criminal justice or other judicial matters. The sole authority in international judicial matters rests with the International Court of Justice.
4. The “determination,” in the preamble of Security Council resolution 827, paragraph four, that the “widespread and flagrant violations of international humanitarian law” on the territory of the former Yugoslavia “constitute a threat to international peace and security” does not provide a sound legal basis for the Security Council acting as a surrogate judicial authority or establishing an international court with jurisdiction in this or any other case.
5. It is regrettable that the institution of the Security Council, while being unable to stop the undeclared war waged by NATO countries against Yugoslavia in violation of international law, and while being prevented, because of the veto power of countries conducting the present war, from restoring international peace and security in Yugoslavia, is now being used to take a so-called “judicial” action against the legitimate Head of State and other high officials of the country under attack.
6. Under the present circumstances, the move by the “Chief Prosecutor” of the Tribunal. Ms. Louise Arbour, can only be considered of political nature. This interpretation is confirmed by today’s statement of the President of the United States who declared that the “indictment” by the “Tribunal” can be seen as an endorsement of NATO’s campaign.
7. The purely political nature of the “indictment” and the lack of any legal validity of this decision can further be seen from the fact that the “President” of the so-called Tribunal. Ms. Gabrielle Kirk McDonald (United States of America), the “Chief Prosecutor,” Ms. Louise Arbour (Canada), and the investigating “judge” in the present case, Mr. David Anthony Hunt (Australia), are citizens either of NATO member countries directly responsible for the undeclared war against Yugoslavia or of a country fully endorsing the NATO war. If the “Tribunal” would have taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest for “judges” from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating “judicial” action against the Head of State of the country under attack.
8. The political nature of the “indictment” was further made obvious by the “Chief Prosecutor’s” press statement earlier today in which she expressed her view that the “indicted” Head of State cannot be considered a partner of any negotiations about a peaceful settlement of the conflict. Such a statement makes a mockery of whatever legal standards the so-called “Tribunal” claims to adhere to. By her statement, the “Chief Prosecutor” has tried to act as a surrogate politician and to influence political events in the interest of those NATO countries presently waging war against Yugoslavia.
9. When, in violation of the United Nations Charter, a self-appointed group of states claiming to act on behalf of international peace and human rights, wages an all-out war against a sovereign member state of the United Nations and deliberately destroys the civilian infrastructure of that country with impunity, the present move by functionaries of the so-called “Tribunal” to declare the legitimate leaders of the country under attack as criminals, can only be seen as an act to hamper the international community’s efforts to settle the conflict in Yugoslavia by peaceful means. This move undermines all efforts to settle the conflict within the framework of the United Nations and only prolongs the suffering of the people of Yugoslavia including the Kosovar Albanians.
10. It would be fitting that the so-called “Tribunal”- if it wants, at least, to prove its credibility in terms of basic moral standards, in spite of its legal incompetence as explained above – should also turn its attention to the practices applied by the NATO coalition in its undeclared war against the people of Yugoslavia (including the province of Kosovo).
The provisions of Article 3 of the so-called “Tribunal” identify, among others, the following practices as “violations of the laws or customs of war”:
(a) “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;” (c) “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;” etc.
NATO’s use of depleted uranium missiles and of cluster bombs, NATO’s attacks on villages, civilian buses etc. fall clearly within the definition of “violations of the laws or customs of war” as given in the Statute of that very “Tribunal” not to speak of the numerous grave breaches of the Geneva Conventions of 1949 committed by the NATO alliance, for which the “Tribunal” also claims to be competent according to Article 2 of its Statute. As long as the “Tribunal” does not take action against those NATO politicians and military officers responsible for these grave breaches of international humanitarian law, the “Tribunal” can only be considered as one more futile exercise in the political use of judicial procedures within the framework of a “policy of double standards” which seems to be the essence of power politics in NATO’s “New World Order.”
11. A dangerous precedent is being created by this new use of judicial procedures for the purposes of power politics. The separation of powers, one of the basic requirements of the rule of law, is being completely neglected when a purely political organ of the United Nations, the Security Council, arrogates to itself judicial powers by establishing an “International Criminal Tribunal,” and when the functionaries of this “Tribunal” act as surrogate politicians effectively hindering a political settlement of an international armed conflict. The sole responsibility for whichever judicial matters in international affairs rests with the International Court of Justice. It is this institution alone that decides on the legal questions related to aggression by one state or a coalition of states against another state, and that decides on issues of international humanitarian law.
12. Because of the regrettable paralysis of the Security Council, the member states of the United Nations as represented in the General Assembly should take immediate action on the basis of the “Uniting for Peace Resolution” (res. 377 A [V] of the General Assembly) in order to prevent a further dangerous deterioration of the situation in Yugoslavia. When otherwise invalid legal procedures are being used to prevent a just political settlement and when the ongoing large-scale bombing of Yugoslavia causes an ecological disaster rendering large areas uninhabitable, urgent action is required by the international community. If this new form of self-righteous power politics is not being checked, similar action may be taken in the time to come against other sovereign countries and their leadership. In this case, the “rule of force” will replace whatever remains of the “rule of law” in international relations. International anarchy will be the inevitable result. All political leaders and people of good will should unite against this most serious threat to the international order since the end of the Cold War.
Dr. Hans Koechler, President
[Reprinted from the IPO Website at http://i-p-o.org/yu-tribunal.htm]
I.P.O. research project on International Criminal Justice — Law versus Politics
Vienna, 1 July 2001/P/RE/17208c-is
The President of the International Progress Organization, Dr. Hans Koechler, announced today the formation of an international committee of experts with the task to undertake a comprehensive study of the ethical, legal and political aspects of international criminal justice in the context of the present world order.
It will be the task of the committee to analyze the present system of international law in the framework of the unipolar power politics that characterizes the so-called “New World Order.” The question put before the committee will be whether a viable and legally sound concept of international criminal justice can be developed in the absence of an elaborate division of powers on the international level.
The I.P.O. committee will evaluate the experience collected from the Lockerbie Trial in the Netherlands, from the Ad Hoc Criminal Tribunals for the former Yugoslavia and Rwanda (set up by the United Nations Security Council), and will study the statute of the International Criminal Court (ICC) in regard to general principles of law, due process and fairness of trial.
The I.P.O. has repeatedly alerted the international public in regard to the discriminatory application of international criminal law by the United Nations War Crimes Tribunal in The Hague and has warned of the politicization of such tribunals. The I.P.O. has also documented the negative impact of political influence on the proceedings of the Scottish Court in the Netherlands (Lockerbie Trial) and has repeatedly questioned the competence of the United Nations Security Council for matters of a strictly judicial nature.
As the President of the I.P.O. explained, international criminal justice cannot be based on considerations of power politics and, for that reason, must not be left to the supreme executive organ of the United Nations, the Security Council. As has been repeatedly illustrated by the conduct of the chief prosecutors of the Hague Tribunal, Ms. Arbour and now Ms. del Ponte, indictments follow the eternal rule of “victors’ justice”: the war crimes and violations of international humanitarian law by NATO forces, their commanders, and the political leaders of NATO countries, have not led to any indictment at all because – de facto if not de jure – those countries control the conduct of the Tribunal.
One of the basic questions before the I.P.O. committee of experts will be whether the international rule of law is not more seriously damaged by the discriminatory application of the laws of war through politically-controlled courts and tribunals than by the absence of an international legal system of enforcement (as was the case in the traditional system of international law). If – because of the absence of a division of powers – the application of legal norms on the international level means discrimination in favour of the powerful – i.e. total immunity for those perpetrators of crimes who manage to control the Security Council and to present themselves as the “international community” – then the legitimacy per se of international law enforcement will be jeopardized and the large majority of nations will deny recognition to such a rule of force – which nonetheless presents itself as the “rule of law.”
It is no mere coincidence that the United States administration vigorously opposes the existence of an International Criminal Court (with universal jurisdiction eventually also over US nationals) while it propagates international ad hoc tribunals the establishment of which it is able to control through the Security Council, a body that acts ultra vires when it deals with judicial matters on the basis of Chapter VII of the Charter.
The results of the research project on the viability of the concept of international criminal justice and its normative contradictions in the context of global power politics will be published in 2003.
IS THE HAGUE TRIBUNAL A COURT OF JUSTICE?
The indictment issued by the Chief Prosecutor of the so-called International Criminal Tribunal for the Former Yugoslavia is legally invalid because this Tribunal has no jurisdiction whatsoever in the case of Milosevic, or in any other case.
The Tribunal derives its raison d’être exclusively from Security Council resolution 827, which was adopted on May 25,1993. In this resolution, establishing the so-called International Criminal Tribunal, the Security Council states that it acts “under Chapter VII of the Charter of the United Nations.”
In adopting the above resolution, the Security Council acted ultra vires, i.e. outside its actual competence. According to the provisions of the UN Charter, the Council has no competence whatsoever in judicial matters. The provisions of Chapter VII determine the Council’s competence in matters of international security but not in matters of criminal justice or other judicial matters. The sole authority in international judicial matters rests with the International Court of Justice.
The purely political nature of the indictment of Milosevic and the lack of any legal validity of this decision can further be seen from the fact that the President of the so-called Tribunal, the Chief Prosecutor, and the investigating judge are citizens either of NATO member countries directly responsible for the undeclared war against Yugoslavia or of countries that fully endorsed the NATO war.
If the Tribunal had taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest when “judges” from countries that waged an undeclared war against Yugoslavia sit on a panel initiating judicial action against the Head of State of Yugoslavia.
If the Tribunal desires to at least prove its credibility in terms of basic moral standards, in spite of its legal incompetence, it should also turn its attention to the actions of the NATO coalition in its war against the people of Yugoslavia (including the province of Kosovo).
The provisions of Article 3 of the so-called Tribunal identify a number of practices as “violations of the laws or customs of war”, including the following:
(a) “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;” (c) “attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;” etc.
NATO’s use of depleted uranium missiles and cluster bombs, and its attacks on villages, civilian buses, etc. fall clearly within the definition of “violations of the laws or customs of war” as given in the Statute of the Tribunal, not to mention the numerous grave breaches of the Geneva Conventions of 1949 committed by the NATO alliance, for which the Tribunal also claims to be competent according to Article 2 of its Statute.
As long as the Tribunal does not take action against the NATO politicians and military officers responsible for these grave breaches of international humanitarian law, it can only be considered a corrupt exercise of political power.
The right to self-determination
Chapter I of the UN Charter states that international cooperation is necessary to solve international problems of an economic, social, cultural or humanitarian character.
Chapter I makes no reference to humanitarian problems of a national character. It states that the UN is based on the principle of the sovereign equality of its members, which is a fundamental principle of international law as well as the basic 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 International Criminal Tribunal for the Former Yugoslavia. The Tribunal itself has repeatedly denied that the principle of self-determination applies to Yugoslavia.
The UN Charter also 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 has also been fatally undermined by the
creation of the Tribunal.
“A rogue court with rigged rules”, The Times of London, June 17, 1999
In order to give the appearance of being a judicial organ, the Tribunal has appointed judges, prosecutors, clerks, and investigators. It has its own rules of procedure and evidence, as well as its own prison system. It says that it applies the principle of presumption of innocence, which means that a person who appears before a judge in a court of law is presumed to be innocent until proven guilty.
However, in contrast to normal criminal courts the Tribunal itself is involved in preparing indictments. Issuance of an indictment requires the approval of one of the Tribunal’s judges, who signs it.
How can the judge subsequently presume the accused to be innocent, if he/she has already approved and signed the indictment?
The presumption of innocence is compromised in other ways. Detention is automatic after arrest. There is no bail and no form of release pending trial, unless the prisoner proves “exceptional circumstances”. Loss of job, loss of contact with friends, family, or loss of country is not enough. 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. They are subject to discipline if they do not, and are under constant surveillance. Mail is censored, family visits are restricted, communication with family is at the prisoner’s own expense. Access to radio or television is restricted. Prisoners have had to wait many months and in some cases years before being brought to trial.
But the Tribunal still insists that the indicted are presumed innocent. Then why are they treated as convicted prisoners?
Special rules of evidence, no laymen
In virtually all Western countries, hearsay evidence – which means evidence that is not first-hand – is either inadmissible in a court of law or is considered to be virtually without value.
But the Tribunal has set aside this tradition and relies heavily on hearsay evidence.
There is no jury or any other participation by laymen. Witnesses can testify anonymously, or can refuse to appear in court. In its yearbook for 1994, the Tribunal stated that “The Tribunal does not need to shackle itself with restrictive rules which have developed out of the ancient trial-by-jury system.”
The Tribunal’s rules allow for closed hearings in circumstances which are vaguely defined, as well as secret trials, which are the essence of injustice and of political
The Tribunal is increasing its use of sealed indictments, so that no one knows if they have been charged until the military police arrest them.
Suspects, i.e. persons who are not indicted, can be detained for up to 90 days without charge. All that is needed is a statement by the Tribunal that the person in question is suspected. No evidence is required.
One of the Tribunal’s most dangerous rules is Rule 92, which states that confessions shall be presumed to be free and voluntary unless the contrary is established – by the prisoner. After 90 days at the mercy of military police and prosecutors, the prisoner has to prove possible coercion.
Almost every other court in the world presumes the opposite. Many courts are currently moving to entirely prohibit the use of confessions made in police custody, because such confessions are notoriously unreliable.
There is even a special provision for obtaining evidence from NGO’s (Non-Governmental Organizations) such as George Soros’ Open Society Foundation, whose conflict of interest is described below.
On paper, accused have the right to choose counsel, 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.
In some cases, the Registrar of the Tribunal has barred lawyers from particular countries because the Tribunal considers that too many of them already represent accused persons. Lawyers have been subject to large fines for contempt.
No citizen of any country in the world would consider him/herself fairly tried before a court that was paid for, staffed and assisted by private citizens or corporations
who had a direct stake in the outcome of the trial and who were, themselves, in practical terms, immune from the 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 the case of the Tribunal, a compelling argument can be made that the bias is not only apprehended, but is real.
It is not only the individual judge who is biased. It is the entire Tribunal, which is not a judicial body worthy of international respect but a kangaroo court established for political purposes.
As a political instrument the Tribunal is designed to violate and destroy the integrity and sovereignty of a country. The creation of the Tribunal is a crime against peace under the Nuremberg Principles. Instead of resolving conflict, the Tribunal is used to justify conflict, Instead of creating peace, it is used to justify war and therefore is an instrument of war.
Who finances the Tribunal? Who runs it?
According to Article 16 of the Tribunal’s own statutes, 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” (author’s emphasis). According to Article 32, 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 has openly referred to its particularly close ties to the American government. In her remarks to the United States Supreme Court in Washington, DC on April 5, 1999 Judge Gabrielle Kirk McDonald, a US citizen who was then President of the Tribunal said:
“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 Madeleine Albright was the mother, Bill Clinton was the father. Louise Arbour confirmed this when she reported the decision to indict Milosevic to the President of the United States two days before she announced it to the rest of the world, in blatant violation of her duty to remain independent.
Arbour also made several public appearances with US officials, including Madeleine Albright, and both Arbour and Albright stated publicly that they rely on NATO governments for investigations. These governments were and are interested in undermining the government of Yugoslavia.
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 9, 1996 a memorandum of understanding between the Office of the Prosecutor and Supreme Headquarters
Allied Powers Europe (SHAPE) was signed by both parties. The President of the Tribunal also met with US General Wesley Clarke, who commanded the NATO war against Yugoslavia in 1999.
The memorandum of May 9 defined the practical arrangements for support to the Tribunal and the transfer of indicted persons to the Tribunal. In other words, NATO forces – not UN forces – became the gendarmes of the Tribunal, and the Tribunal put itself at the disposal of NATO. This relationship has continued although the statute of the Tribunal requires it to be independent of any national government and, by implication, of any 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. A large share of these funds has come from the US government directly in the form of cash and computer equipment. In the last year for which public figures are available, 1994/95, the United States provided USD 700,000 in cash and USD 2,300,000 worth of equipment.
In the same year, USD 150,000 was provided by the Open Society Institute, a foundation established by billionaire financier George Soros to bring “openness” to former socialist countries in Eastern Europe. The Rockefeller Foundation contributed USD 50,000 and other donations have been supplied by corporations such as Time-Warner and Discovery Products, both US corporations.
It should also be noted that Mr. Soros’ foundation donates funds not only to the Tribunal, but also to the main KLA newspaper in Pristina, an obvious conflict of interest that is not normally reported in the Western press.
The Tribunal also receives money from the Outreach Project of the United States Institute for Peace. This project is a public relations arm of the Tribunal that was set up to counter criticism in the former Yugoslav republics. Criticism often points to the Tribunal’s selective prosecution and double standards, and is 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, another PR organization. The CIJ was founded and is funded by George Soros’ Open Society Institute and an organization called CEELI, the Central and East European Law Institute, which was created by the American Bar Association and lawyers close to the US government in order to promote the replacement of socialist legal systems with “free-market” systems.
The above 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 should also be noted 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.”
Tribunal prosecutor Carla Del Ponte has thanked the director of the FBI for its assistance, stating “I am very appreciative of the important support that the US government has provided the Tribunal. I look forward to their continued support.”
On September 29th, 1999, 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, Del Ponte said “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.”
No further explanation was provided. If the Tribunal is impartial in accordance with its statute, shouldn’t it also focus on the NATO war crimes for which Clinton, Blair, Schroeder, Chirac, and 63 other Western leaders are responsible?
Equally important, why was it necessary to continue investigations that support the indictments against the leaders of the government and military of Yugoslavia? The Indictments had already been issued. Were they not based on sufficient evidence? Or was there no evidence at all?
By Peter Cohen
NOTE: The above text is based on articles by Dr. Hans Koechler, who has served as a consultant to the UN, and Christopher Black, a Canadian lawyer who helped prepare the American Association of Jurist’s indictment of Bill Clinton and 66 other NATO leaders for war crimes against the people of Yugoslavia. The indictment was refused by the International Criminal Tribunal for the Former Yugoslavia.