Major Abuses - Balkan Conflicts Research Team

Under its Charter, the UN had no power to set up its own criminal tribunal: “Examination of the history, background, drafting and approval of the UN Charter will convince everyone that there would never have been a United Nations if the five permanent members established in the Charter..thought there was any possibility it could create a criminal court” (Ramsey Clark, former US Attorney General). 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. But there was no basis for the characterisation of the situation in Bosnia as a threat to international peace. It was a civil war (partly caused by the very countries which wanted to create a tribunal). But the members of the Security Council had to characterise it that way because they otherwise had no jurisdiction to act. The setup for this characterisation 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 clandestine revision of the UN Charter, undermines the very basis of the Charter. The only legal way for the UN to set up the ICTY would have been via formal amendment to the Charter – something which has never happened and they knew would not happen in this case – or by a treaty which would have required a unanimous vote from all UN member states.
The UN General Secretary in 1993, Boutros Boutros Ghali, stated this position clearly in May 1993. He said: ‘The approach which in the normal course of events would be followed in establishing an international tribunal would be the conclusion of a treaty by which the member states would establish a tribunal and approve its statute. This treaty would be drawn up and adopted by an appropriate international body (e.g. the General Assembly or a specially convened conference), following which it would be opened for signing and ratification. Such an approach would have the advantage of allowing for a detailed examination and elaboration of all issues pertaining to the establishment of the international tribunal. It would also allow the states participating in the negotiation and conclusion of the treaty to fully exercise their sovereign will in particular whether they wish to become parties to the treaty or not’. (UN Secretary General’s Report no. S/25704 (section 18) of 3 May 1993).
Having wrongly assumed the right to legislate, the Security Council ventured to take another step: it delegated its nonexistent legislative competency to its creature – the International Criminal Tribunal at The Hague. Under Article 15 its Statute, the new International Tribunal it authorised its judges to adopt rules of procedure and evidence for the conduct of the pre-trial phase of proceedings, trials and appeals, the admission of evidence, the protection of victims and witnesses and other appropriate matters. In this way the Security Council not only legislated, but also authorised the Tribunal to be its own legislator with regard to criminal procedural law.
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 recognised 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. German Foreign Minister Hans Dietrick Genscher in a 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.
The UN offered very feeble justification of its unconstitutional step of empowering the Security Council to set up the ICTY under Chapter VII of the Charter. It cited the report of a so-called Commission of Experts which had proclaimed a humanitarian emergency on the basis of carrying out what seems to have been a cursory review of international press coverage (which later proved to be hugely exaggerated and inaccurate). It cited also the report of a self-appointed committee of French jurists which advised that a criminal tribunal set up by the UN under the powers of Chapter VII would be alright. The standing of these jurists and the relevance of their expertise was not explained; nor was the reasoning behind their conclusion. At the very least the UN should have brought this matter forward for debate and vote at the General Assembly of the UN.
Numerous members of the Security Council (China, Spain, Venezuela, Japan, UK, New Zealand, Brazil) expressed unease over the creation of the ICTY under the powers of Chapter VII during discussion of resolution 827. The Security Council member states said that it was only the urgency of the humanitarian crisis which persuaded them to vote in favour of the resolution. We now know that this “urgency” was based entirely on propaganda claims that more than 200,000 people had died in the Bosnian conflict during the first 6 months of fighting. This ridiculous figure (cf 60,000 British & Commonwealth civilian deaths in the whole of WW2) was more than 6 times the final total body count of all the conflicts in the former Yugoslavia during the 1990s.
In the Resolution debate, members of the Security Council were at pains to say that the ICTY should operate according to the highest legal standards, observing total objectivity and impartiality at all times. They gave a formal instruction that the ICTY should confine itself to implementing existing international law and should not attempt to change the law in any way. These points were repeated and endorsed by the UN Secretary General in his closing summary and explicitly stated by Madeleine Albright in a video on the ICTY website. However, those who took charge of the creation and operation of the ICTY totally ignored these instructions.
The UN Charter states that nothing contained in the Charter shall authorise 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. Of the permanent members of the Security Council, more now hold the opposite position, for reasons that had more to do with imperialism than humanitarianism.
Armed with Resolution 827, the then US Ambassador to the UN, Madeleine Albright, took immediate control of the creation of the ICTY. The ICTY’s Statute, the constitutional document which defined its powers and areas of operation, was swiftly put in place by a team led by David J Scheffer, an enthusiast for ‘supranational justice’. It provided the ICTY with far more power and greater discretion than the Security Council had agreed. This power was used with liberal abandon throughout the 24 years of the ICTY’s existence. Among the most appalling abuses:
• Rather than work according to long-established legal best practice, the ICTY created a new hybrid of the adversarial and inquisitorial legal systems. The primary effect of this was to reduce greatly the basic rights of defendants.
The ICTY decided to dispense with jury trial, meaning that verdicts were reached by a team of 3 judges. Appeals were also heard by the ICTY judges. Legal questions about trial procedure were also resolved by the team of ICTY judges. In practice, the ICTY was always judge and jury in its own case.
The selection of judges was bizarre. Quite a number, mainly with expertise in academic law, had no court experience of any kind; most others were not remotely qualified to handle complex cases of humanitarian law.
Normal rules of evidence were abandoned. Hearsay evidence (frequently at second or third hand) was admitted on the basis that the judges would be able, from their ‘extensive experience’, to evaluate the value of hearsay evidence accurately. In reality, their ‘extensive experience’ of complex international humanitarian affairs was practically zero.
The ICTY also decided to allow many witnesses to give their evidence anonymously. It is estimated that 40% of all ICTY witnesses gave evidence anonymously or in closed session. One ICTY judge, Sir Ninian Stephen from Australia, was outraged: “The right to a fair administration of justice holds so prominent a place in democratic society…that it cannot be sacrificed to expediency…If the defence is unaware of the identity of the person it seeks to question, it may be deprived of the very particulars enabling it to demonstrate that he or she is prejudiced, hostile or unreliable…The dangers inherent in such a situation are obvious”. The practice also deprives the court of opportunity to see the behaviour and demeanour of witnesses in person as they give evidence. This has been a fundamental principle of public trial for centuries because it allows judges and juries a stronger basis to evaluate the quality and truthfulness of evidence. The ICTY’s own Statute requires that any decisions about protecting witnesses be taken only ‘with due regard for the protection of victims and witnesses..while maintaining full respect for the rights of the accused. This has clearly not been observed.
Because of the absence of any ban on hearsay, and judicial bias, Michael Scharf (Professor of Law and Director of the Frederick K. Cox. International Law Centre at Case Western Reserve University School of Law) has estimated that “over ninety percent” of the evidence cited in the Tribunal proceedings is from hearsay sources.
The Tribunal also decided that in cases of rape or sex crimes, “no corroboration of the victim’s testimony shall be required.” So much for a level playing field for the accused.
Whenever the ICTY wanted to do something that was not allowed under its Statute, it used its power to amend the Statute to provide the powers it needed. The goalposts were moved with great regularity.A further illustration of the ICTY’s brazen flouting of its own Statute: 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. The ICTY was determined to secure for itself a far bigger annual budget and lost no time in securing funding from George Soros and his many organisations and a host of NGOs. This funding, which enabled the ICTY to attain an annual budget which approached $300m per annum, some ten times that of the International Criminal Court, came overwhelmingly from people and organisations that were highly partial in their views of the events in the former Yugoslavia during the 1990s.
In flagrant breach of the instructions from the Security Council, the ICTY started to change existing humanitarian law by inventing new crimes, such as Joint Criminal Enterprise. It was clearly illegal for the ICTY to do this under existing law, but the ICTY made this even more apparent by citing as justification two treaties which had not even existed at the time the events themselves occurred (The International Convention for the Suppression of Terrorist Bombing 1997 and the State of the International Criminal Court 1998). Accordingly defendants soon found themselves being charged with crimes that were not designated as crimes at the time they were supposed to have been committed. The reason the ICTY resorted to this was that, even after it had changed many aspects of its story about what had happened during the Yugoslav civil wars, it was having great difficulty finding any evidence to support the indictments it had issued. It re- wrote the relevant indictments to include charges founded on the new crime of JCE, even though the alleged ‘crimes’ had largely taken place before this new crime had been invented. No wonder that even one staunch supporter of the ICTY, the Canadian expert on international law Professor William Schabas, ridiculed JCE as standing for ‘Just Convict Everyone”.
The ICTY swiftly abandoned the previously inviolable principles of modern law that defendants should have the right to present their own defence and to have full access to all the evidence to be brought against them so that they could have their own expert witnesses test and challenge the prosecution case, and freely cross-examine key witnesses. The most crucial forensic and DNA evidence was never made available to the court, far less the defendants and the defence teams. This evidence was merely reported to the court and written into the record as established fact. It is abundantly clear from information in the public domain that none of this so-called evidence would even have been admitted in a proper trial, and – if by chance it had – it would certainly not have survived the rigorous scrutiny of a proper court process.
The ICTY entirely failed to ensure impartiality and objectivity. The USA, which had armed and aided the Croatians and Bosnian Muslims from 1991 onwards, was allowed to be the driving force behind the ICTY. The ICTY itself chose to appoint investigators with little or no relevant experience for complex humanitarian forensic and DNA work, proudly proclaimed that it had taken extensive briefings from US and NATO intelligence experts, despite their known anti-Serb mindset, and used an agency originally set up by the Bosnian Muslim President to carry out grave excavation and DNA identification work. As the staff of the International Commission for Missing Persons remained over 90% Bosnian Muslim throughout the ICTY’s life, there was not much even- handedness here.
In 2009 the ICTY again broke new ground by hugely increasing the sentence of a previously convicted defendant just as he was appealing against his original sentence. Veselin Šljivančanin, a former officer in the Yugoslav People’s Army (JNA), was originally convicted in September 2007 of ‘aiding and abetting torture’ during Croatia’s war of secession from the federal Yugoslav state in 1991. At the time of his conviction, Šljivančanin had already been in the ICTY’s custody for more than four years. He was released at the end of 2007, pending appeal. But the ICTY’s Appeals Chamber overturned his original five-year sentence and imposed a 17-year term of imprisonment, while dismissing all counts of appeal entered by Šljivančanin and his co-defendant and former superior officer, Mile Mrkšić. The Appeals Chamber’s decision was not based on any new facts. No fresh evidence was brought to light to challenge the original verdict. The Appeals judges themselves noted that the 2007 judgement ‘did not err in its factual findings’. Nevertheless, a majority of them (with two out of five judges dissenting) agreed with the prosecutor that ‘a five years’ imprisonment sentence does not adequately reflect the level of gravity of the crimes’. The ICTY gave two key reasons for its new sentence. First, it argued that Šljivančanin had been wrongly acquitted at his original trial of aiding and abetting murder. On the basis of nothing more than the record of its own trial acquitting him of this charge, the ICTY now found him guilty. Second, it asserted that the five-year term imposed in 2007 – for aiding and abetting torture – had to be revised because it was not clear whether the judges had given sufficient weight to the suffering of the victims and their families.
The ICTY’s self-awarded power to appeal against any ‘not guilty’ judgments handed down by its judges was perverse in the extreme. One provision enabled them to re-arrest and re-try someone they had themselves found innocent a few moments earlier. The power it gave them to ignore the principle that ‘double- jeopardy’ was unfair – something enshrined in the US constitution and the legal systems of many countries – was once again in fundamental violation of the restrictions set down by the Security Council.
Another ICTY trick was to reinterpret creatively its own Statute: for example, it allowed itself to introduce the charge of Joint Criminal Enterprise on the basis that “It is fair to conclude that the Statute does not confine itself to providing for jurisdiction over those persons who plan, instigate, order, physically perpetrate a crime or otherwise aid and abet in its planning, preparation or execution”. But that is exactly what the Statute (already ultra vires in terms of the limitations set by the UN Security Council) did confine itself to.
The ICTY resorted also to overruling its own Statute and key international human rights documents by saying that it had to ‘interpret its provisions within its own legal context and not rely in its application on interpretations made by other judicial bodies’. One example of this was its re-interpretation of Article 6 of the European Court of Human Rights to give itself even greater leeway to contrive evidence. The ICTY argued “The International Tribunal is, in certain respects, comparable to a military tribunal, which often has limited rights of due process and more lenient rules of evidence”. Even a vigorous supporter of international criminal justice, Geoffrey Robertson QC, criticised this, saying ‘The more “horrific” the crime, the more due process is necessary’.
The standards of fairness set by the ICTY judges were deplorable. A typical example was when Judge Richard May was so desperate to protect witness William Walker (a former US diplomat masquerading as a UN Peace Ambassador who claimed to have uncovered a massacre at Racak in Kosovo) that he interrupted Slobodan Milosevic’s highly effective cross-examination of Walker more than 70 times. On many other occasions during Milosevic’s trial, May made clear his intolerance of any point raised by Milosevic, frequently turning off Milosevic’s microphone. Other judges were little better. Such behaviour by a judge would be enough to trigger an immediate re-trial in many jurisdictions.