The most contemptible court of all time?
[Christopher Black is distinguished Canadian lawyer who served
as an ‘Amicus Curiae’ at both the Yugoslav and Rwanda international
criminal tribunals. His analysis reveals the full extent of the gross
deception employed by the Western allies to create the ICTY illegally
and, by making it entirely unaccountable, enabling those running the
court to abandon every cardinal principle of modern justice by
returning to the standards of the 13th century.]
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 allsounds 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 setup 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.
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
McDonald’s 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.”
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 made
in police custody are moving to prohibit their use entirely.
This Tribunal goes back to the days of Star Chamber and
the 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 accuses 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 in
bringing 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.