Da: ICDSM Italia
Data: Lun 15 Dic 2003 14:21:46 Europe/Rome
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Oggetto: [icdsm-italia] Political Trial, Political Testimony, Political
Pressure

 
The Deposition Will not be Televised:

Wesley Clark's Testimony in the Milosevic Trial

 

The right to a fair and public trial, the cornerstone of criminal
justice, has been under attack since September 11th, 2001. The protean
war on terrorism has led to a growing culture of judicial opacity and
has had the effect of increasing the public's tolerance of closed
proceedings, in the name of State security and national interests.

Yet not only in the US-- or at Guantanamo Bay-- have the courthouse
doors been slamming shut, and the workings of justice shielded from
public view. At the International Criminal Tribunal for the former
Yugoslavia (ICTY), the public and the media are often invited to step
out of the public gallery for confidential portions of proceedings. The
defendant's right to a public trial[1]-- and the public's right to
measure whether justice is truly carried out independently and
impartially-- is infringed upon by security considerations with
alarming frequency, particularly in the case of Slobodan Milosevic. To
exclude the public from even a fraction of such a historically
important trial, before a Tribunal created by the Security Council of
the United Nations[2]-- ostensibly to establish truth[3],
reconciliation[4] and peace[5]-- would seem to defeat the purpose. How
can a UN body disregard UN human rights instruments and General
Assembly resolutions which elevate the right to a public trial to the
gold standard in the protection of human rights? The fact that the ICTY
was created for political considerations provides some insight into the
question. Madeleine Albright was described as "the mother of the
Tribunal" by its past President[6], and Madam Secretary also lent her
name to the so-called "humanitarian" war in Kosovo[7].

 

Political Trial, Political Testimony, Political Pressure

Any doubt as to the political nature of the ICTY has been put to rest
following the imposition by the US government of bafflingly stringent
conditions for the upcoming testimony, on December 15th and 16th, of US
presidential candidate Wesley Clark for the Prosecution in the
Milosevic case[8]. The American government has succeeded in requiring
that General Clark's testimony be held in the absence of the public or
press, and has obtained the right to delay the transmission of the
testimony for 48 hours, in what the ICTY had called a "temporary closed
session." The delayed transmission is designed to permit the US
government to "review the transcript and make representations as to
whether evidence given in open session (sic) should be redacted in
order to protect the national interests of the US". This process will
engender a further delay, as the Chamber considers US requests for
censorship of the public record, in keeping with the legally nebulous
concept of US "national interests".

 But what could General Clark have to tell the Security Council
Tribunal that he hasn't said in an interview, written in an op-ed, or
detailed in one of his two self-congratulatory tomes on the art of war?
More importantly, what could he possibly say against the interests of
President Slobodan Milosevic that would require the imposition by the
US of stringent conditions to protect its "legitimate national
interests"?

Could it be that Wesley Clark is a vulnerable witness? In the context
of the ongoing-- and apparently endless-- "war on terrorism", might the
US government wish to prevent questions being asked about General
Clark's role[9]-- and that of his government[10]-- in providing
military, financial and political support to the KLA[11], whose
well-documented links to Al-Qaeda[12] now threaten to throw intolerable
light on the effects of US foreign policy in the Balkans?

The ICTY has already agreed that seven paragraphs of Clark's full
statement will be placed under seal, inaccessible to the public. The US
government, which has obtained the right to have two representatives
present in the courtroom for General Clark's testimony--in contrast to
the public, who are entitled to no representative whatsoever-- may
request that further evidence be given in private session.

 

Public Trial?

In other words, while Wesley Clark--a public figure, US presidential
candidate and former Supreme Commander of NATO during its bombing of
Yugoslavia-- testifies at the trial of Slobodan Milosevic--the trial of
the century-- the public and media will be shut out. For 48 hours, the
public will wait for the US government to decide what it believes the
media can be trusted to report, and what must be cut from the public
record, in the name of "national interests". During the invasion of
Iraq, embedded journalists obtained information in a timelier manner.
And upon what basis will the Chamber decide whether or not to grant US
requests to cut evidence from the public record? Isn't the concept of
"national interest" a somewhat subjective, political notion, making the
adjudication of its content and applicability next to impossible? A
foreign government-- the sole superpower-- imposes conditions on the
testimony of a retired general and presidential candidate against the
former president of the nation bombed under the orders of the witness.
The conditions of the testimony violate internationally recognized
rights to public trials. The conditions violate the rights of the
accused, the media, and the public. That a court of law -- much less an
international tribunal purportedly designed to uphold human rights and
bring an end to the culture of impunity-- would accept such outrageous
conditions is unthinkable, unless this is a political, rather than
judicial process.

The public nature of the judicial process is vital to any democracy:
public access to open justice ensures fair trials. Only if justice is
accessible can the people form an opinion as to whether trials conform
to national and international standards[13]. Public access to criminal
proceedings protects defendants from malicious, abusive, or political
prosecutions, carried out in secret, far from public scrutiny. In the
context of the Milosevic trial, these considerations apply with greater
urgency still, given the political nature of the Tribunal, the
proceedings, as well as the financial and institutional support
received by the ICTY from certain governments and individuals[14],
whose preoccupations and interests are at odds with the requirements of
justice as envisaged by international and domestic standards.

 

"National interests" trump cross-examination

Slobodan Milosevic's right to cross-examine Wesley Clark has also been
severely curtailed-- contrary to the rights set out by the ICTY's Rules
of Procedure and recognized in all adversarial systems of law. He will
not be entitled to question General Clark on matters of credibility, an
outrageous restriction in light of the fact that Clark, a US
presidential candidate, has recently acknowledged that the 78-day
bombing campaign against Yugoslavia by NATO-- a campaign for which he
was directly responsible-- was carried out in "technical" violation of
international law[15].

Questions of credibility inevitably arise with respect to a witness
testifying about Mr. Milosevic's intent and good faith as a negotiator.
In such a case, the defence would be entitled to question the sincerity
of the witness, one who ordered the bombing of the RTS television
studios in Belgrade[16], just as a link-up was being established for an
interview with Larry King on CNN[17]. One could ask about the bombing
of a passenger train, and in particular, about the less than forthright
justification provided by the witness, publicly, for that incident of
"collateral damage"[18]. In particular, Clark could be asked why he
stated to the press that the train’s speed was such that the missiles’
trajectories could not be altered, using altered videotape
footage—shown at three times the normal speed—to support his
justification for these civilian deaths.  General Clark's incredible
explanations for the bombing of the Chinese embassy— one of which
was :  « I had another call that said, "Whoops. It looks like the
embassy was moved »[19] would also constitute appropriate lines of
cross-examination.

It is presently unknown to the public if Clark will even be questioned
with respect to the bombing campaign. If his statement does not cover
NATO's attack on Yugoslavia, Slobodan Milosevic will not be entitled to
raise it at all, as the conditions obtained by the US government limit
questions asked to the content of Clark's statement[20]. The ICTY has
allowed Mr Milosevic to "seek to have the scope of examination expanded
by prior agreement of the US government"[21]. This delegation of
judicial authority by the Trial Chamber to the US government would be
comical if it were not such a striking manifestation of this
institution's incapacity to act judicially. Why can't President
Milosevic apply to the judges to request a wider scope of
cross-examination? When did the US government replace the judges on the
bench? No legal explanation or authority is provided by the ICTY's
decision to justify such an incredible measure. It is simply an
admission that this institution cannot adjudicate the facts or apply
the law with the independence and impartiality required by
international legal authority as well as its own statute, which
provides that "The Trial Chambers shall ensure that a trial is fair and
expeditious and that proceedings are conducted in accordance with the
rules of procedure and evidence, with full respect for the rights of
the accused and due regard for the protection of victims and
witnesses"[22].

The Rules of the ICTY also set out that "all proceedings before a Trial
Chamber, other than deliberations of the Chamber, shall be held in
public, unless otherwise provided."[23] Exceptions to this rule do not
include the imposition, by a foreign government, of closed sessions and
censorship of the public record, based on "national interests"[24],
even when that foreign governement is an indispensable financial
contributor to the Tribunal.[25]

 

"National interests"

What are "national interests", anyway? One could be forgiven for
concluding that they could mean anything. The law is silent as to the
definition of this notion. The concept of "national security" however,
has been studied and defined as a legal concept. In particular, the
question of whether and when the public can be deprived of access to
information in the name of national security was the object of an
important international legal conference held in Johannesburg in 1995,
at which the "Johannesburg Principles on National Security, Freedom of
Expression and Access to Information", were adopted. The meeting was
convened by Article 19, the International Centre Against Censorship,
and the Centre for Applied Legal Studies of the University of
Witwatersrand, South Africa[26].

A restriction to open justice, on the ground of "national
security"--and not "national interest"-- a concept which would appear
to protect less urgent concerns--is not, according to Principle 2 of
the Johannesburg Principles "legitimate unless its genuine purpose and
demonstrable effect is to protect a country's existence or its
territorial integrity against the use or threat of force, or its
capacity to respond to the threat or use of force, whether from an
external source, such as a military threat, or an internal source, such
as incitement to overthrow the government."

Did the US government argue that the very existence or territorial
integrity of the United States of America would be emperiled by Wesley
Clark's public testimony? It is unkown whether they did or not, because
the application made by the US government to require these
conditions--without which conditions they would not permit Wesley Clark
to testify at all-- was confidential. The hearing was confidential. And
the confidential decision setting out these conditions--released to the
public over two weeks after being handed down--fails to offer any
indication of which "national interests" were invoked by the United
States government to justify such sweeping measures of secrecy.

The Johannesburg Principles also set out what would not constitute a
legitimate restriction to a public trial on the basis of national
security:

 "In particular, a restriction sought to be justified on the ground of
national security is not legitimate if its genuine purpose or
demonstrable effect is to protect interests unrelated to national
security, including, for example, to protect a government from
embarrassment or exposure of wrongdoing, or to conceal information
about the functioning of its public institutions, or to entrench a
particular ideology, or to suppress industrial unrest."[27]

 Clearly, the fact that the ICTY would accept the imposition by the US
of conditions which egregiously violate one of the most fundamental
principles of international law--public trials-- without a public case
ever having being made to justify such an unprecedented restriction,
should thoroughly dispell any myths about the fairness of these
proceedings.

Consider, in addition, that Wesley Clark is very much a public figure,
he is running for President of the United States, and accordingly, his
testimony should be subject to public scrutiny. And note that General
Clark, retired, testifies against Slobodan Milosevic in interviews
almost every day-- and frequently engages in derisive imitations of him
which mock his Slavic-accented English[28]. Could it be that the ICTY
is protecting the US "national interest" in the public and media by not
hearing Slobodan Milosevic effectively cross-examine Wesley Clark?

The US governement has succeeded in insulating Clark's testimony from
public scrutiny in the name of "national interests". But why stop at
General Clark? And why would other NATO countries fail to seize this
opportunity to testify as accusers without having to bear the
consequences of a transparent process? This precedent will no doubt be
invoked to protect other American officials[29] from the strains of
public trials, and in turn, serve to further secure US impunity under
international law. US impunity is already well-established, considering
the American governement's refusal to submit to the jurisdiction of the
International Criminal Court for fear of "political prosecutions"[30].
Such a concern, when viewed in light of the massive US contribution to
both ad hoc Security Council tribunals, the ICTY and ICTR-- from which
one may presume that the US has culled evidence of unfounded,
politically-motivated prosecutions[31]--elevates disingenuity to
dizzying heights.

 

Conflict of interest?

The right to a fair and public trial is the right to a fair and public
trial before an independent and impartial tribunal. Every international
legal instrument recognizes this basic principle[32].

Wesley Clark will presumably be testifying about his role as NATO
Supreme Commander. The US is a NATO country--arguably the NATO country.
As Wesley Clark put it: "we're the leaders of NATO, we set up NATO,
it's our organization."[33] The ICTY is in a difficult position to act
as an independent judicial body, because NATO has stated that "it is
one" with the Tribunal. NATO spokesman Jamie Shea, on May 16th
1999, told the press that when "Justice Arbour starts her
investigation, she will because we allow her to. (…) NATO countries are
those who have provided the finance to set up the Tribunal, we are
amongst the majority financiers (…)so let me assure that we and the
Tribunal are all one on this, we want to see war criminals brought to
justice and I am certain that when Justice Arbour goes to Kosovo and
looks at the facts she will be indicting people of Yugoslav
nationality(…)"[34]

It is difficult to imagine a more damning admisssion. By stating that
its constituent countries are the Tribunal's major financiers, NATO is
in essence claiming to pay the salaries of the judges and prosecutor of
the ICTY. And that statement is somewhat inconsistent with the
requirements of institutional independence and impartiality for a
criminal trial. And when NATO's former Supreme Commander,-- a board
member of George Soros' International Crisis Group, alongside Canadian
Supreme Court Justice Louise Arbour[35] -- is given an opportunity to
testify in the absence of the press because this is a condition imposed
by the United States -- any appearance of justice, beyond the cosmetic
trappings of judges' robes, and the ritual incantions "all rise" and
"be seated" (although who will be there to rise and be seated?) vanish
in a puff of smoke.

 

Tiphaine Dickson

© 2003

(Tiphaine Dickson criminal lawyer based Montréal. She acted as lead
defence counsel in one of the first ad hoc genocide prosecutions before
the International Criminal Tribunal for Rwanda, in Arusha, Tanzania.)



[1]Article 14 of the International Covenant on Civil and Political
Rights states:

"In the determination of any criminal charge against him, or of his
rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial
tribunal established by law..."  

Paragraph 106 of the Report of the Secretary-General Pursuant to
Paragraph 2 of Security Council Resolution 808 (1993),(S/25704),
recognized the application of international legal safeguards to the
ICTY:

"It is axiomatic that the International Tribunal must fully respect
internationally recognized standards regarding the rights of the
accused at all stages of its proceedings. In the view of the
Secretary-General, such internationally recognized standards are, in
particular, contained in article 14 of the International Covenant on
Civil and Political Rights."

[2]United Nations Security Council Resolution 827 (1993).

[3]"Speaking during the debate on the resolution that committed the
U.N. Security Council to the creation of the ICTY, Secretary of State
Madeleine Albright asserted that "[t]his will be no victor's tribunal.
The only victor that will prevail in this endeavour is the truth.",
Remarks of ICTY President Theodor Meron, October 7th, 2003, before the
Commission on Security and Cooperation in Europe, (CSCE), Washington,
http://www.csce.gov/witness.cfm?briefing_id=269&testimony_id=437

[4]"The role of the Tribunal cannot be over emphasized. Far from being
a vehicle for revenge, it is a tool for promoting reconciliation and
restoring true peace." First Annual Report of the ICTY, (A/49/342 -
S/1994/1007) submitted by former ICTY President Judge Gabrielle Kirk
McDonald.

[5]"the Security Council stated in Resolution 808 (1993) that it was
convinced that in the particular circumstances of the former
Yugoslavia, the establishment of an international tribunal would bring
about the achievement of the aim of putting an end to such crimes and
of taking effective measures to bring to justice the persons
responsible for them, and would contribute to the restoration and
maintenance of peace." Paragraph 26 of the Report of the
Secretary-General Pursuant to Paragraph 2 of Security Council
Resolution 808 (1993), Presented 3 May 1993 (S/25704). Security Council
Resolution 827 adopted this reasoning as a justification to establish
the ICTY.

[6]Judge Gabrielle Kirk McDonald, first President of the ICTY, made
this statement at an awards ceremony held at the U.S. Supreme Court
on April 5th, 1999: "[W]e 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.’" Quoted in
Prosecute NATO, George Szamuely, New York Press,

http://www.balkanpeace.org/library/fa_2000/jan/fa250100.html.

[7]See Online Newshour, June 10th 1999:

JIM LEHRER: Does it bother you when people called it Madeleine's war?

MADELEINE ALBRIGHT: Well, I had... it had never occurred to me that
anybody would call a war after me, but it doesn't bother me at all that
people know that I believed, as did President Clinton, that this was a
situation that could not go on.

http://www.pbs.org/newshour/bb/europe/jan-june99/albright_6-10.html


[8]"Decision on Prosecution's Application for a Witness Pursuant to
Rule 70 (B)", Prosecutor v. Milosevic, IT-02-54-T, 30 October 2003,
Confidential, released November 16th, 2003.

[9]As military aide to Richard Holbrooke during the 1995 Dayton Peace
Accords, as Director for Strategic Plans and Policy within the Joint
Chiefs of Staff from 1994 to 1997, and as Supreme Allied Commander of
NATO from 1997 to 2000.

[10]Brendan O'Neill, "How We Trained Al-Qa'eda", The Spectator,
November 22nd, 2003,
http://www.spectator.co.uk/article.php3?2003-09-13&id=3499#articletop.

[11]Id., Craig Pyesjosh Meyer and William C. Rempe, "Terrorists Use
Bosnia as Base and Sanctuary", Los Angeles Times, October 7, 2001;
Michel Chossudovsky, "Regime Rotation in America: Wesley Clark, Osama
bin Laden and the 2004 Presidential Elections", Center for Research on
Globalization, October 22nd, 2003,
http://globalresearch.ca/articles/CHO310B.html.

[12] Cliff Kincaid, "Wesley Clark's Ties To Muslim Terrorists",
Accuracy in Media, September 17, 2003; Brendan O'Neill, "How We Trained
Al-Qa'eda", The Spectator, November 22nd, 2003,
http://www.spectator.co.uk/article.php3?2003-09-13&id=3499#articletop;
Craig Pyesjosh Meyer and William C. Rempe, "Terrorists Use Bosnia as
Base and Sanctuary", Los Angeles Times, October 7, 2001; Michel
Chossudovsky, "Regime Rotation in America: Wesley Clark, Osama bin
Laden and the 2004 Presidential Elections", Center for Research on
Globalization, October 22nd, 2003,
http://globalresearch.ca/articles/CHO310B.html; Nikolaos Stavrou,
"Balkan Branches of the Terror Network?", Washington Times, October 21,
2001; George Szamuely, "Home-Grown Terrorism", New York Press, December
28, 1999.

[13]Amnesty International, Fair Trials Manual,
http://www.amnesty.org/ailib/intcam/fairtrial/indxftm_b.htm#14

[14]Although the ICTY's Statute provides that the Tribunal is to be
financed by the regular budget of the UN, which constitutes a safeguard
against the violation of judicial independence, the Tribunal has
received donations from governments, including the US, as well as
private foundations, such as the Rockefeller Foundation. See paragraph
16 of the First Annual Report by the President of the ICTY,
http://www.un.org/icty/rappannu-e/1994/index.htm. The ICTY has also
received donations from George Soros as well as corporations. Of
interest is the "private" financing of exhumations, for the Office of
the Prosecutor: " Funding for mass grave exhumations in the former
Yugoslavia is not part of the Tribunal's regular budget but comes
primarily from PHR (Physicians for Human Rights-ed.). That organisation
acts as a conduit for funding from IGOs and NGOs to the Tribunals for
the former Yugoslavia and Rwanda. To date, a number of foundations,
including the US-based John Merck, Rockefeller and Soros (Open Society
Institute) Foundations, and the Dutch organisation Novib, have made
donations of cash, equipment and personnel." See
http://www.un.org/icty/BL/08art1e.htm.

[15]"Meet the Press", November 16th, 2003,
http://www.msnbc.com/news/994273.asp; Peter J. Boyer, "General Clark's
Battles", The New Yorker, November 17th, 2003.

[16]Reporters sans frontières, November 2000 Report, "Serbian
Broadcasting: Chronicle of Martyrdom Foretold",
http://www.rsf.org/rsf/uk/html/europe/rapport/serbie_rts.html. Both
Amnesty International and Human Rights Watch have concluded that the
bombing of RTS-- which killed 16 people-- was carried out in violation
of international law, id.

[17]Robert Fisk, "Taken In By the NATO Line," The Independent, July 2,
1999.

[18]"NATO used speeded-up film to excuse civilian deaths in Kosovo:
newspaper", AFP, January 6, 2001: " (…) US General Wesley Clark,
shortly afterwards showed two videotapes of the train appearing to be
traveling fast on the bridge, and said it had then been impossible to
alter the missiles' trajectories. The Frankfurt newspaper said the two
videotapes were both shown at three times normal speed. A spokesman for
NATO'S military command in Mons, Belgium, acknowledged in a telephone
interview with AFP that those images had been altered by "a technical
problem." The footage, recorded by a camera installed in the warhead of
one of the missiles that destroyed the bridge and train were altered
during the process of being copied for screening, said the spokesman.
He said NATO was aware of the problem since last October but did not
consider it "useful" to disclose it."

[19]"About five in the morning, I had another call that said, "Whoops.
It looks like the embassy was moved." Interview, General Wesley Clark,
Frontline, PBS,
http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/
clark.html

[20]ICTY Decision, supra.

[21]Id.

[22]ICTY Statute, Article 20, paragraph 1.

[23]Id., paragraph 4.

[24]Rules 70 and 79 of the ICTY Rules of Procedure and Evidence
exhaustively set out permissible exceptions to the requirement of
public hearings.

[25]The President of the ICTY, Judge Theodor Meron, stated the
following, last October 7th, before the Commission on Security and
Cooperation in Europe (CSCE) in Washington: "As you know, the United
States took a leading role in the creation of the ICTY and remains a
staunch supporter. The U.S.'s financial contribution accounts for
approximately a quarter of the Tribunal's annual budget of
approximately $ 120 million."
http://www.csce.gov/witness.cfm?briefing_id=269&testimony_id=437

[26]http://www.derechos.org/nizkor/excep/johannesburg.html

[27]Johannesburg Principles, Principle 2 (B).

[28]N.R. Kleinfield, "General Clark on the Hustings: Complexity and
Contradiction", New York Times, November 23rd, 2003,
http://www.nytimes.com/2003/11/23/politics/campaigns/23CLAR.html; Seth
Rogovoy, "A General for President?", September 13th, 2003, The Atlantic
Monthly, Tom Junod, "The General", August 2003, Esquire.

[29] Christopher Marquis, "US Seeks Safeguards on Diplomats Testifying
at Milosevic Trial", New York Times, June 13th, 2002 Global Policy
Forum- International
Justice,http://www.globalpolicy.org/intljustice/tribunals/2002/
0613mil.htm

[30] US Department of State, International Information Programs, "U.S.
Restates Objections to International Criminal Court U.S. statement to
General Assembly Sixth Committee", October 14th, 2002:

"In a speech to the General Assembly's sixth committee, which deals
with legal matters, Nicholas Rostow explained the U.S. position on the
court. "The United States is concerned about the danger of politically
motivated prosecutions," Rostow said. "Examples of investigations or
prosecutions based on political agenda, not evidence and neutral
prosecutorial judgement abound. The structure of the ICC makes such
unacceptable proceedings possible."

http://usinfo.state.gov/topical/pol/usandun/02101615.htm


[31]Id.

[32]Universal Declaration of Human Rights, Article 10; International
Covenant on Civil and Political Rights, Article 14; European Convention
on Human Rights, Article 6; African Charter of Rights, Articles 7 (d)
and 26; American Convention, Article 8(1); Basic Principles on the
Independence of the Judiciary. According to the UN Human Rights
Committee, the right to be tried before an independent tribunal "is an
absolute right that may suffer no exception": González del Río v. Peru,
(263/1987), 28 October 1992, Report of the HRC, vol. II, (A/48/40),
1993, paragraph 20.

[33]June 20, 2001, Uncommon Knowledge, Transcript 606: Waging Modern
War, www.uncoommonknowledge.org/01-02/606.html

[34]Press Conference, 16 May 1999.
www.nato.int/kosovo/press/p990516b.htm

[35]http://www.intl-crisis-group.org/home/index.cfm?id=1139&l=1

 
---
  
The Hague, 15 September 2003
 
8:00 a.m. Demonstrations in front of the Tribunal
 
9:00 a.m. ICDSM Press Conference at Bel Air Hotel
                  ICDSM lawyer Tiphaine Dickson will give a statement
                                  and answer questions of the press
 
---

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To join or help this struggle, visit:
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