edited by alexander cockburn and
 jeffrey st. clair

http://www.counterpunch.org/black.html

 An Impartial Tribunal,
 Really?

 by Christopher Black

 The indictment of Slobodan Milosevic for alleged war
 crimes raises important questions about the impartiality
 and, ultimately, the purpose of the International Criminal
 Tribunal. For centuries, the independence of judicial bodies
 has been considered one of the fundamental precepts of
 the quest for justice. As Lord Hewart stated in 1924, it is
 "...of fundamental importance that justice should not only be
 done, but should manifestly and undoubtedly be seen to be
 done." It has also been said that there is nothing more
 important than the public administration of justice. But in the
 case of the International Criminal Tribunal a compelling
 argument can be made that private justice has replaced
 public justice, that even the appearance of fundamental
 justice has been replaced by an open contempt for justice.

 It is clear that from the beginning American, British, French
 and German interests were behind the creation of the
 Tribunal and worked ceaselessly behind the scenes in
 order to create it. They first considered doing so in regards
 to Iraq and Saddam Hussein, during the Gulf War. The idea
 apparently originated with the United States Department of
 the Army, which alone should tell you something about its
 true purpose. The rhetoric used to justify such a body to
 the general public was of course heavily seasoned with
 concerns for "human rights" the "dignity of the individual",
 "genocide" and "democracy".

 However, they had a problem. It was
 generally agreed that no such tribunal could be created
 without the mechanism of a treaty which had to be ratified
 by all those affected by it. There was no time to create
 such a treaty with respect to Hussein so other methods
 were used to put pressure on the Iraqi government. But
 between 1991 and 1993, the use of an international criminal
 court as a means of effecting policy and to be created by
 the members of the Security Council, instead of by treaty
 was pushed by those four countries. A draft treaty to
 create a truly international criminal court, one which applied
 to all states, the last in a long list of attempts dating back
 to the 1890's, was put together. But its ratification has not
 taken place as several important powers, particularly the
 United States, refuse to sign it for fear of being caught in its
 web. For thirty years the United States has tried to block
 such a treaty. It opposes universal jurisdiction and it
 opposes an independent prosecutor. It wants any
 prosecutions to go through the Security Council subject to
 its right of veto. In fact, Jesse Helms, the conservative US
 senator said such a treaty, if presented to congress for
 ratification would be "dead on arrival". It would seem that
 the treaty is itself nothing more than window dressing to
 satisfy the public that the nations of the world really care
 about human rights and war crimes in order to complement
 their rhetoric about it. For without ratification by the major
 powers it is a dead letter. The United States remains
 stubborn in its opposition to this treaty but then it has a bit
 more to worry about than most countries.

 The next opportunity to try this experiment was Yugoslavia.
 In order to accelerate the break up of that country into
 quasi-independent colonies, principally of Germany and the
 United States, it was necessary to discredit their
 leaderships. An effective propaganda weapon in such an
 exercise is of course a tribunal with an international
 character which the public will accept as a neutral
 instrument of justice but which is controlled for political
 ends.

 The Tribunal was created by the Security Council in its
 Resolutions 808 and 827 of 1993. Both resolutions stated
 that the situation in Bosnia at that time, constituted a threat
 to international peace and security and that a tribunal to
 prosecute war criminals would help to restore peace. It all
 sounds very nice until one realizes that there was no basis
 for the characterization of the situation in Bosnia as a threat
 to international peace. It was a civil war (partly controlled
 by the very countries which wanted to create a tribunal).
 But the members of the Security Council had to
 characterize it that way otherwise the members of the
 Security Council had no jurisdiction to act. The 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.

 Yugoslavia was the first experiment in using a quasi-judicial
 international body to attack the principle of sovereignty.
 And as the Americans have learned so well, the best way
 to get your domestic population behind you as you proceed
 to break another country, economically and militarily is to
 get them to hate those in power in that country. The Serb
 leadership was targeted, and transformed into caricatures
 of evil. There were comparisons to Adolf Hitler, a
 comparison used with surprising frequency by the United
 States against the long list of nations it has attacked in the
 last 50 years, though sometimes they are just labeled as
 common criminals, like Manuel Noriega, or mad, like
 Ghadaffi, if the leader or the country is too small to make
 the Hitler comparison stick. I think Saddam Hussein was
 the first to be compared to Hitler, and declared a common
 criminal and a madman all at the same time.

 The Tribunal from the outset was
 the creation of particular
 governments. Their motives are clear from the
 preliminary discussions in the Security Council on the
 creation of the court which focused almost entirely on
 crimes allegedly committed by Serbs and their leadership.
 Since its inception it has kept this focus. The majority of
 indictments have been directed at Serbs even though there
 is substantial evidence of the commission of serious war
 crimes by Croats and Bosnian Muslims.

 The Tribunal has jurisdiction over war crimes and crimes
 against humanity, but crimes against peace, the worst
 crime under the Nuremberg principles, are not within the
 purview of the tribunal. The underlying reason for this is that
 the members of the Security Council preferred to reserve
 to themselves competence in the field of aggression and
 similar crimes against peace. The members of the Security
 Council have a very keen sense of humour or perhaps more
 accurately, self-preservation.

 In a statement to the Secretary-General of the United
 Nation, Mr. Boutros-boutros Ghali, on January 21, 1994, by
 Antonio Cassese the Tribunal's political character was
 made quite clear when he said in reference to the role of
 the Tribunal, "The political and diplomatic response
 (to the Balkans conflict) takes into account the exigencies
 and the tempo of the international community. The military
 response will come at the appropriate time." In other
 words, the Tribunal is considered a political response. He
 went on to state, "Our tribunal will not be simply "window
 dressing" but a decisive step in the construction of a new
 world order."

 The governing statute of the Tribunal states in Article 16
 that the Prosecutor shall act independently as a separate
 organ of the Tribunal and shall not seek or receive
 instruction from any government or any other source.
 Article 32 states that the expenses of the Tribunal shall be
 borne by the regular budget of the United Nations. Both of
 these provisions have been openly and continuously
 violated.

 The Tribunal itself, through its senior officials, openly brags
 about its particularly close ties to the American
 government. In her remarks to the United States Supreme
 Court in Washington, D.C. on April 5th of this year, Judge
 Gabrielle Kirk Mcdonald, President of the Tribunal, and an
 American stated, "We benefited from the strong support of
 concerned governments and dedicated individuals such as
 Secretary Albright. As the permanent representative to the
 United Nations, she had worked with unceasing resolve to
 establish the Tribunal. Indeed, we often refer to her as the
 "mother of the Tribunal". If she is the mother then Bill
 Clinton is the father, as Louise Arbour confirmed by her
 action of reporting to the President of the United States the
 decision to indict Milosevic two days before she announced
 it to the rest of the world, in blatant violation of her duty to
 remain independent. Further, she and the current
 prosecutor have made several public appearances with U.S
 officials, including Madeleine Albright, and both have openly
 stated that they rely on Nato governments for
 investigations, governments which have a great interest in
 the undermining of the Yugoslavian leadership.

 In 1996, the prosecutor met with the Secretary-General of
 Nato and the Supreme Allied Commander in Europe to
 "establish contacts and begin discussing modalities of
 cooperation and Assistance". On May 9th, 1996 a
 memorandum of understanding between the Office of the
 Prosecutor and Supreme Headquarters Allied Powers
 Europe (SHAPE) was signed by both parties. Further
 meetings have taken place since including that of the
 president of the Tribunal with General Wesley Clark. The
 memorandum of May 9th spelled out the practical
 arrangements for support to the tribunal and the transfer of
 indicted persons to the Tribunal. In other words, Nato
 forces became the gendarmes of the Tribunal, not UN
 forces, and the Tribunal put itself at the disposal of Nato.
 This relationship has continued despite the Tribunal's
 requirement to be independent of any national government
 and, therefore, group of national governments.

 The Tribunal has received substantial funds from individual
 States, private foundations and corporations in violation of
 Article 32 of its Charter. Much of its money has come from
 the U.S. government directly in cash and donations of
 computer equipment. In the last year for which public
 figures are available, 1994/95, the United States provided
 $700,000 in cash and $2,300,000 worth of equipment. That
 same year the Open Society Institute, a foundation
 established by George Soros, the American billionaire
 financier, to bring "openness" to the former east bloc
 countries contributed $150,000 and the Rockefeller family,
 through the Rockefeller Foundation, contributed $50,000
 and there have been donations from corporations such as
 Time-Warner, and Discovery Products, both US
 corporations. It also important to know that Mr. Soros'
 foundation not only funds the Tribunal it also funds the main
 KLA newspaper in Pristina, an obvious conflict of interest
 that has not been mentioned once in the western press.

 The Tribunal also receives money from the United States
 Institute for Peace for its Outreach project, a public
 relations arm of the Tribunal set up to overcome opposition
 in the former Yugoslav republics to its work and the
 constant criticisms of selective prosecution and the
 application of double standards; objections which have
 obvious merit and which are never answered by anyone at
 the Tribunal or by any of its sponsors. The Institute for
 Peace is stated to be " an independent, non-partisan
 federal institution created and funded by Congress to
 strengthen the nation's capacity to promote the peaceful
 resolution of international conflict." .Established in 1984
 under Ronald Reagan, its Board of Directors
 is appointed by the President of the United States.

 The Tribunal also receives support from the Coalition For
 International Justice whose purpose is also to enhance
 public opinion of the Tribunal. The CIJ was founded and is
 funded by, again, George Soros' Open Society Institute
 and something called CEELI, the Central and East
 European Law Institute, created by the American Bar
 Association and lawyers close to the U.S. government to
 promote the replacement of socialist legal systems with
 free market ones.

 These groups also have supplied many of the legal staff of
 the Tribunal. In her speech to the Supreme Court, Judge
 Mcdonald said, "The Tribunal has been well served by the
 tremendous work of a number of lawyers who have come
 to the Tribunal through the CIJ and CEELI..." It is also
 interesting to note that the occasion of Judge McDonalds
 speech was her acceptance of an award from the
 American Bar Association and CEELI. In the same speech
 she also said," We are now seeking funding from states
 and foundations to carry out this critical effort."

 The new prosecutor Carla Del Ponte, on September 30, at
 a press conference, thanked the director of the FBI for
 assisting the tribunal and stated "I am very appreciative of
 the important support that the U.S government has
 provided the tribunal. I look forward to their continued
 support." OnSeptember 29th, in response to a question as
 to whether the tribunal would be investigating crimes
 Committed in Kosovo after June 10, or crimes committed
 by others (meaning Nato) in the Yugoslav theatre of
 operations, "The primary focus of the Office of The
 Prosecutor must be on the investigation and prosecution of
 the five leaders of the FRY and Serbia who have already
 been indicted." Why this "must" be is not explained. Why, if
 the Tribunal is impartial wouldn't it be just as focussed on
 Nato war crimes, the war crimes of Clinton, Schroeder ,
 Chirac, Chretien etc? Why did it still need to investigate to
 support the indictments against the leaders of the
 government and military of Yugoslavia if there was already
 evidence to justify those indictments?

 Well, we can speculate why when we consider that the last
 prosecutor, Louis Arbour, who was asked to investigate all
 Nato leaders for war crimes, instead accepted a job from
 one of them, the Prime Minister of Canada, Jean Chretien.
 She now sits in the scarlet robes of a judge of the Supreme
 Court of Canada, a lifetime appointment, her reward for
 handing down the indictment against Mr. Milosevic, despite
 the lack of evidence and (if you believe the reports of the
 Spanish and RCMP forensic experts recently returned from
 Kosovo) the continuing lack of evidence of the systematic
 crimes he is accused of.

 On April 19th Judge McDonald "expressed her deep
 appreciation to the U.S. Government for its pledge of
 $500,000 for the Outreach project which was announced
 on April 16 by Harold Koh, U.S. Assistant Secretary of
 State.

 In her speech to the Council On Foreign Relations in New
 York on May 12 of this year Judge McDonald stated," The
 U.S. government has very generously agreed to provide
 $500,000 and to help to encourage other States to
 contribute. However, the moral imperative to end the
 violence in the region is shared by all, including the
 corporate sector. I am pleased, therefore, that a major
 corporation has recently donated computer equipment
 worth three million dollars, which will substantially enhance
 our operating capacity."

 From the start, the Office of the Prosecutor has had
 meetings with NGO's that are eager to " cooperate with
 and assist the tribunal", many of them linked to George
 Soros through his Open Society Foundation. All this money
 flows through a special UN account which is financed by
 assessed contributions from member states and voluntary
 contributions from states and corporations again in violation
 of its statute. As an aside it's interesting that its role as a
 propaganda tool was indirectly acknowledged by its own
 staff when they failed to provide for a courtroom or holding
 cells in their first budget of approximately $ 32 million
 dollars. The Security Council sent them back to redraft the
 budget to include those items. After all, this was supposed
 to be a criminal tribunal! They did so. The difference was
 an added expense of $500,000. It's also interesting to
 know that three of its first four rooms in the Peace Palace
 in the Hague were loaned to them by the Carnegie
 Foundation.

 In order to give itself the appearance of a judicial body the
 Tribunal has persons appointed as judges, prosecutors,
 clerks, investigators, and has its own rules of procedure
 and evidence, its own prison system. It says it applies the
 presumption of innocence. However, unlike criminal
 courts, with which we are all familiar (or, perhaps not), the
 court itself is involved in the laying of the charges. When a
 charge is to be laid the approval of one of the trial judges
 must be obtained. That approval is only given if a prima
 facie case is established. That is, a case which if not
 answered could result in a conviction. Yet, despite this
 close relationship between the prosecutor and the judges
 and the commitment to the charges the judges have made
 by signing the indictment , the rules insist on the
 presumption of innocence. This presumption is
 compromised in other ways. The most egregious is that
 upon arrest detention is automatic. There is no bail, no form
 of release pending trial, unless the prisoner proves
 "exceptional circumstances". Loss of job, loss of contact
 with friends, family, indeed country is not sufficient. Even ill
 health has not been sufficient to get bail. Prisoners are
 treated as if they had been convicted. They are kept in
 cells and have to obey prison rules, are subject to discipline
 if they do not, constant surveillance, censored mail,
 restricted family visits, communication with family at their
 own expense and there are restrictions on what they can
 see or hear on radio or television. Prisoners have had to
 wait many months before a trial takes place, sometimes
 years. Yet, still they insist these men are presumed
 innocent. The question is by whom? By the judges, one of
 whom laid the charge in the first place?

 Its rules of evidence are relaxed so that protections on the
 admission of hearsay evidence developed over centuries in
 all national courts are set aside and replaced by an
 anything is admissible if deemed relevant approach even if
 it is hearsay. There is no jury. Witnesses can testify
 anonymously, or not be shown in court. In its yearbook for
 1994, this statement appears, "The tribunal does not need
 to shackle itself with restrictive rules which have developed
 out of the ancient trial-by-jury system." There are provisions
 in the rules for closed hearings, in circumstances which are
 vaguely defined, secret trials, the very essence of injustice
 and of political courts. It is now increasing its use of sealed
 indictments, so that no one knows if they have been
 charged until the military police swoop down on them on the
 street in any country. Suspects, persons not indicted, can
 be detained for up to ninety days without charge. We all
 know from experience what prisoners can undergo in a day
 or two at the mercy of most police forces. Ninety days.
 Anyone one of us here could be detained by the Tribunal
 for that length of time. All they have to say is they have
 some reason to suspect you. This is easily constructed.

 Perhaps its most dangerous rule
 is Rule 92 that states confessions shall be
 presumed to be free and voluntary unless the contrary is
 established (by the prisoner). Just think - presumed to be
 free and voluntary after 90 days at the mercy of military
 police and prosecutors. Almost every other court in the
 world presumes the opposite or, because of the notorious
 unreliability of confessions 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.

 Christopher Black is a Toronto defence lawyer and writer
 and is one of the lawyers who made the request to the War
 Crimes Tribunal to indict NATO leaders for war
 crimes.
 

---

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