*** Fondo per lo sviluppo della democrazia, Belgrado: LETTERA APERTA
ALLA SIGNORA CARLA DAL PONTE (con traduzione in italiano)
*** R. Etinski, I. Cukalovic: L'AGGRESSIONE CONTRO LA RFJ ED IL DIRITTO
INTERNAZIONALE AL PASSAGGIO DEL SECOLO; LE TENDENZE GLOBALI NEL MONDO
*** M. Gee: I LEADERS OCCIDENTALI SONO CRIMINALI DI GUERRA?
Cronistoria del difficile tentativo di un gruppo di avvocati, guidati da
M. Mandel, per imporre al Tribunale dell'Aia di prendere in
considerazione le azioni genocide dei nostri governanti.
*** G. Samuely: PROCEDERE NEI CONFRONTI DELLA NATO
*** W.J. Rockler (ex-pubblico ministero del Tribunale di Norimberga che
giudico' i criminali nazisti): LA LEGGE SUI CRIMINI DI GUERRA SI APPLICA
ANCHE AGLI STATI UNITI
*** CILIEGINA !!! Carla Dal Ponte chiede agli imputati della NATO di
essere "piu' aggressivi" nel perseguire i criminali !!!
---
>Fund for the Development of Democracy
>11000 Beograd (YU), M. Birjuzova 13a
>Tel/Fax: +381 11/ 328 2898
>e-mail: fondbmb@...
>
>
>INTERNATIONAL CRIME TRIBUNAL FOR FORMER YUGOSLAVIA
>Chief Prosecutor Carla del Ponte
>AEGON Building, Churchillplein 1
>2517 JW
>The Hague (Netherlands
>
>Fax: +31 70/416 5345 Tel: 416 5000
>
>
>As the victims of international demonisation and isolation,
>
>Disposing with the data on a calculated dismemberment of the SFRY,
>ethical extermination and displacement of Serbs,
>
>Aware of organised demonisation and isolation of Serbs, deliberated to
>cover up the true reasons of Europes re-acrchitecturing and of the
>breach of the agreements from Westphalia, Versailles, Yalta, Triannon,
>
>Concerned over realising legal security,
>
>Familiar with the Tribunals regulations,
>
>As authorised initiators, we put forward a motion to the Tribunal on 18
>March 1999, six days before the bombing of Serbia started, to initiate
>proceedings against persons whom we consider organisers of Europes
>re-architecturing, notably responsible for the planning, preparing and
>committing of the crimes related to Articles 2-5 of the Tribunals
>Statute (killing Serbs because of their nationality, ethnicity or
>religious affiliation; intentionally causing great physical suffering,
>or undermining health of Serb nationals; subjecting Serb nationals to
>living conditions meant to bring forth their utter or partial physical
>destruction, ... etc.)
>
>Following your statement of 26 December 1999, that your justice shall
>not by-pass NATO officials, if they have violated regulations in the
>campaign against Serbia, and that legal proceedings shall be
>instituted also against them, we expect you to check the status of our
>motion regarding the responsibility, notably the role of Bill Clinton,
>NATO, Richard Holbrooke, Kofi Annan and Pope John Paul II in the
>dismemberment of the SFRY, displacement, ethnical cleansing,
>demonisation and international isolation of Serbs in the period June 25,
>1991 --March 18, 1999.
>
>Willing to believe that you yet wish to execute your office
>conscientiously and in accord with the rules of professional ethics,
>unlike your predecessors, we hope to soon see a response to our question
>
>and a decision to institute proceedings.
>
>Yours sincerely,
>BMB Fund
"
- In quanto vittime della demonizzazione e dell'isolamento
internazionale;
- avendo a disposizione i dati relativi allo smembramento programmato
della RFSJ, allo sterminio etico ed alla dispersione dei serbi;
- consci della demonizzazione e dell'isolamento organizzati a danno dei
serbi, mirati a coprire le vere ragioni della ristrutturazione
dell'Europa politica con la rottura degli accordi di Westphalia,
Versailles, Yalta, Triannon;
- preoccupati circa l'applicazione della sicurezza legale;
- essendo a conoscenza dei regolamenti di questo Tribunale;
In qualita' di suoi iniziatori indendiamo dare seguito alla Mozione
presentata al Tribunale il 18 marzo 1999, sei giorni prima dell'inizio
dei bombardamenti sulla Serbia, per dar vita ai procedimenti legali
contro quelle persone che consideriamo organizzatori della
ristrutturazione dell'Europa politica, in particolare responsabili della
pianificazione, preparazione ed esecuzione dei crimini di cui agli
Articoli 2-5 dello Statuto del Tribunale (uccisione di serbi in base
alla loro nazionalita', appartenenza etnica o religiosa; intenzionale
procuramento di gravi sofferenze fisiche o minaccia alla salute di
persone di nazionalita' serba; sottomissione dei serbi a condizioni di
vita atte a proseguire nella loro devastazione fisica totale o parziale,
eccetera).
In base alla sua dichiarazione del 26 dicembre 1999, per cui la
giustizia non dovrebbe scansarsi di fronte ai rappresentanti della NATO,
se questi hanno violato delle regole nella loro campagna contro la
Serbia, e che procedimenti legali sarebbero stati aperti anche contro di
loro, noi ci aspettiamo che Lei voglia considerare lo status della
nostra Mozione riguardante le responsabilita', in particolare il ruolo
di Bill Clinton, della NATO, di Richard Holbrooke, Kofi Annan e Papa
Giovanni Paolo II nello smembramento della RFSJ, nella dispersione,
pulizia etnica, demonizzazione ed isolamento internazionale dei serbi
nel periodo compreso tra il 25 giugno 1991 ed il 18 marzo 1999.
Nel desiderio di poter ritenere che Lei voglia ancora eseguire il suo
dovere coscienziosamente ed in accordo con le regole dell'etica
professionale, diversamente dai suoi predecessori, speriamo di vedere
presto un riscontro alla nostra richiesta e la decisione di aprire i
procedimenti.
Distinti saluti
Fondo BMB
"
---
Prof. Dr. Rodoljub Etinski
Prof. Dr. Ivan Cukalovic
AGGRESSION AGAINST THE FEDERAL REPUBLIC OF YUGOSLAVIA AND INTERNATIONAL
LAW AT A CROSSROADS OF CENTURIES AND GLOBAL INTERNATIONAL TRENDS
The basic and most important principles of international law,
forming
the basis of the United Nations, world peace and stability, have been
grossly
violated by the aggression of the NATO member States against the FR of
Yugoslavia. During this aggression, on 29 April 1999, the FR of
Yugoslavia
submitted an application and a request to the International Court of
Justice to
indicate preliminary measures against these States for gravest breaches
of
international law and for most serious crimes. Understandably, the
application
of our country was received with great attention worldwide, both by the
international public at large and even more by the international legal
profession, experts and scientific circles. A symbolic manifestation of
it was
the fact that the courtroom at the Palais de justice in the Hague was
packed
during the oral hearings held on 10-12 May 1999, regarding Yugoslavia's
request
for indication of temporary measures to stop the bombing.
The ICJ hearings were the focus of attention of the world media.
They
were attended by international lawyers, peace movement activists,
champions of
the cause against the use of depleted uranium from the remotest parts of
the
world and also by many people from the aggressor countries wishing to
support
and encourage representatives of the FR of Yugoslavia before the
Court(*1). All
ten respondent State appeared before the Court. On the benches for the
Respondents there sat representatives of the United States, Britain,
Germany,
France, Italy, the Netherlands, Canada, Belgium, Spain and Portugal. As
expected, they challenged the Court's jurisdiction in the case. This
fact
speaks for itself quite sufficiently. Why was it that these States were
reluctant at the time to accept the jurisdiction of the Court? Did they
doubt
that the Court, of whose fifteen judges six had the nationality of NATO
member
States, could be partial in favour of the FR of Yugoslavia?
In a situation where ten aggressor States rejected the Court's
jurisdiction, it did not accept the requested preliminary measures with
the
explanation that it did not find that it had a jurisdiction in these
cumulative
proceedings. The judges, however, were aware of the importance and
significance
of the dispute and in such a situation could not be silent on the
destruction
of a sovereign State, on daily deaths of civilians, women, children and
elderly
people. By its orders of 2 June 1999, the Court gave a "legal framework"
for
the settlement of the dispute. The Court indicated that all States which
appeared before it must fulfil their obligations under the United
Nations
Charter as well as those established under humanitarian law. The Court
used the
word "must", although it does not use such an imperative expression in
its
orders related to preliminary measures, in which it usually uses the
word
"should" so as to avoid prejudicing the adjudication. The Court,
further,
confirmed that the parties were bound to resolve the dispute by peaceful
means
in accordance with the UN Charter. Regardless of whether the
Respondents
accepted or refused the jurisdiction of the Court, the Court said, they
were
responsible for breaches of international law. Additionally, the Court
warned
the Respondents not to do anything that might complicate and widen the
dispute(*2). The Court set the deadline of 5 January 2000 for the FR of
Yugoslavia to submit its Memorial, which corresponds in our
jurisprudence to a
lawsuit, and the deadline of 5 July 2000 for the Respondents to submit
their
Counter-Memorials.
Besides competent Government authorities, prominent Yugoslav
experts in
some fields of law also participated in the preparation of the Yugoslav
Memorial. Its text was finalized with the help of the Federal Ministry
of
Foreign Affairs. It was elaborated on 350 pages and divided into four
parts.
The text of the Memorial is accompanied by documentary evidence
contained in a
separate annex, consisting of two volumes of the White Paper on NATO
Crimes,
described on 965 pages and published by the Federal Foreign Ministry.
Also
attached as an annex is the reprinted 1899 edition of the Department of
Foreign
Affairs of the Kingdom of Serbia entitled "Correspondence on the
Albanian
violence in the old Serbia 1898-1899" which comprises diplomatic
correspondence
of Mr. Stojan Novakovic, the then Serbian Envoy in Turkey, and deals
with the
crimes committed at that time by Albanian gangs against the Serbs in
Kosovo and
Metohija. These communications are important for understanding the
historical
background of problems in Kosovo and Metohija, i.e. to deny the argument
that
the problems started in 1989. Part I of the Memorial contains
information on
facts related to aerial bombardment and the genocide against the Serbs
and
persons belonging to other non-Albanian ethnic groups following the
deployment
of KFOR in Kosovo and Metohija. Part II presents the relevant law. Part
III is
devoted to the question of jurisdiction of the Court. The last part,
Part IV,
of the Yugoslav Memorial contains the application itself. The
application was
extended in comparison with the one submitted on 29 April 1999. Namely,
the
respondent States, as the States contributing to the Kosovo Force (KFOR)
under
United Nations Security Council resolution 1244 (1999), are obliged to
ensure
security for all the population of Kosovo and Metohija. They not only
failed to
do so, but failed to prevent the genocide of the Serb people and other
ethnic
groups living in Kosovo and Metohija, in breach of the obligation
established
by the Convention on the Prevention and Punishment of the Crime of
Genocide.
The extended application requested that the Court declare the respondent
States
responsible not only for breach of obligations committed by air strikes
but
also for breach of obligations committed through these failures or
omissions.
The case in point are the most important international obligations
including
the obligation not to use force against other States, not to interfere
in the
internal affairs of States, to respect the sovereignty of another State,
the
obligation to protect civilians, civilian facilities and other specially
protected facilities in international armed conflicts, the obligation
not to
use certain types of weapons, the obligation to protect the environment.
The
Court is requested to order these States to go back to the respect of
rights
and to carry out their obligations, as well as to compensate for the
damages.
Most of the Memorial is devoted to the information on the damage caused
by air
attacks that contains data on the destroyed bridges, residential
housing,
hospitals, roads, power supply system and material and other damage. The
Memorial cites information on the loss of lives of Sanja Milenkovic,
Milica
Rakic and other innocent and defenceless children, even though we know
that
such losses are irreparable.
The Yugoslav application was the subject of widespread interest
in the
world. Some people have asked how come that we submitted the application
to the
Court and yet we did not want to co-operate with it. In fact, there are
two
courts in the Hague: the International Court of Justice and the
International
Tribunal for the Prosecution of Persons Responsible for Grave Violations
of
International Humanitarian Law Committed in the Territories of the
Former
Yugoslavia Since 1991 (hereinafter: the International Criminal
Tribunal). These
are two fundamentally different courts, established at different
periods, in
different ways and for different reasons, and they have completely
dissimilar,
even opposite functions.
The International Court of Justice is the principal judicial
authority
of the United Nations, set up in 1945 under Article 92 of the UN
Charter(*3).
ICJ operates on the basis of its Statute, which forms an integral part
of the
Charter of the United Nations. All UN Member States are ipso facto
States
Parties to the Statute of the Court. The Court settles disputes between
States
and gives its opinions on legal matters of principle at the request of
the
Security Council, the General Assembly and an organization or body
authorized
by the General Assembly to seek an advisory opinion. The Court is based
on the
notion of sovereign equality of States, respect for the sovereignty and
independence of States, implying voluntary consent to the jurisdiction
of the
Court. Confidence in the ICJ, especially of small and medium-sized
countries,
has increased in the last twenty years. More and more States are
submitting
their disputes to the Court or are seeking its protection. Confidence in
this
Court has increased especially after the case Nicaragua v. the United
States of
America, concerning interference of the latter in the civil war in
Nicaragua,
ended by the Court declaring the United States responsible and obliged
to pay
the compensation. Thus, the Court has demonstrated that a small country
can win
a case against a large State. As a result of such an opinion of the
Court, it
is not favoured by those financing the United Nations, as reflected in
its
budget, number of personnel, etc.
Contrary to this, the Hague is also the site of the seat of the
International Criminal Tribunal, which often creates confusion and the
mixing
of the two institutions. The Tribunal is not very flattering for the
residents
of the Hague, and a Hague newspaper published some time ago a letter
from a
non-governmental organization proposing its residents to banish the
International Criminal Tribunal from this city, so that it may not
tarnish the
good reputation of the city as the seat of the headquarters of
respectable
international organizations. The International Criminal Tribunal was
established by Security Council resolution 827 (1993) with a purported
aim of
prosecuting serious violations of humanitarian law committed in the
territory
of the former Yugoslavia. Many international lawyers, Remsey Clark
included,
deny the validity of the establishment of the Tribunal by the decision
of the
Security Council. However, the composition, procedure, method of
funding,
gathering of evidence and bringing of indictments all indicate that the
International Criminal Tribunal is the tool of world power wielders,
which was
set up primarily with the political goal dictated, first and foremost,
by the
interests of those aspiring to an exclusive global power. The
composition of
judges sitting on the Tribunal does not reflect the geographic regions
as
elsewhere in the UN system, which is otherwise the practice and the rule
at the
United Nations. There is not a single Russian or a representative of
Orthodox
Christian nations, while representatives of some regions are
disproportionately
highly represented. The Tribunal has a budget and an administration that
are
several times those of the ICJ, a fact which speaks much of its
relationship
with the power wielders whose interests it protects. The Prosecutor of
the
International Criminal Tribunal has introduced the practice of sealed
indictments, unknown in any legal system. Indictees are tricked into
being
arrested lured by false promises, and sometimes by staging a show for
the
purposes of the media and interests standing behind these media. So
far, the
Tribunal mostly indicted and arrested Serbs. Those well-informed know
that the
Tribunal sticks to an unwritten formula: 70 per cent of Serbs, 25 per
cent of
Croats and 5 per cent of Muslims must be in its penitentiary unit or in
the
docks at any time(*4). Dr. Kovacevic died in detention because of the
lack of
appropriate care at the penitentiary unit, while the detainee Slavko
Dokmanovic
committed suicide. General Djukic died immediately after he had been
released
from prison. Indictees Simo Drljaca and Dragan Gagovic were killed
during the
action to arrest them. Gen. Momir Talic was arrested by means of
treachery as
he attended a meeting of military officials hoseds by the Organization
for
Security and Co-operation in Europe (OSCE) in Vienna. In both cases
there are
serious indications that powers had been exceeded, but no one was held
responsible. The international community rightfully asks, if the goal is
really
justice and not the diktat of the mighty, why similar tribunals were not
established to prosecute the crimes committed in Vietnam, Grenada,
Panama,
Ethiopia, in other words, wherever the crimes were done by soldiers of
the
great Powers. A great many individuals like Nikolai Rishkov, Chairman of
the
Russian State Duma Commission for the gathering and collation of
information on
crimes committed during the NATO aggression against the FR of
Yugoslavia; Greek
attorney Likouresos; Prof. Mendel and fifteen other professors from
Canada;
Monsieur R. Monsigni from France; British Professor of International Law
Glen
Rangwell and others have asked the Hague Tribunal to bring indictments
against
those responsible for the crimes committed during the aggression against
the FR
of Yugoslavia, against persons coming from the United States, Germany,
Britain,
France, etc. Although the evidence on this is abundant, Tribunal's
Prosecutor
Carla del Ponte has not reacted by issuing indictments, regardless of
the fact
that evidence on the crimes is notorious, thus proving once again that
the
Tribunal is not impartial and even-handed.
The Tribunal was set up riding the wave of international
developments
that run contrary to those beginning in the Hague in 1899 and that bring
into
question the results of the development of international law. The idea
of
international criminal justice is not a new one. It appeared after the
First
World War. However, it was not before 1998 that a Statute of the
Permanent
Criminal Court was adopted at the UN Conference in Rome. This Statute
substantially differs from the Statute of the International Criminal
Tribunal.
The Rome Statute, like the Statute of the ICJ, is based on the principle
of
voluntary consent that stems from the sovereign equality of States. It
is valid
not only for one territory and one time, especially not for members of
one
nation, but for all the States which have accepted it and for all future
times.
It does not relate only to violations of humanitarian law but includes
also the
most serious international crime, that of aggression, and other crimes.
The
position of its Prosecutor is fundamentally different in comparison with
the
position of the Prosecutor envisaged under the Statute of the
International
Criminal Tribunal.
Someone has written that the International Criminal Tribunal
serves
allegedly as a Security Council's Disciplinary Commission. As a matter
of fact,
it serves as a Disciplinary Commission of some permanent members of the
Security Council. They refuse to accept the Permanent Criminal Court,
which
could put them in the dock.
In brief, there is a substantial difference between the ICJ and
ICT.
The FR of Yugoslavia has, therefore, addressed the ICJ whose practice
has
proven that it can resist the pressures of world power wielders, rather
than to
the ICT which is, in essence, an extended hand of the above-mentioned
power
wielders.
* * *
Footnotes:
1. The FR of Yugoslavia, in addition to Yugoslav lawyers, was
represented by
reputed international lawyers such as Ian Brownlie, Professor of
International
Law at OXFORD University, member of the United Nations International Law
Commission (ILC), one of the leading international lawyers and a man who
has,
over the past twenty years, most defended victims in the cases before
the ICJ;
Eric Soy, Professor of International Law at Louvun, Belgium, former
Under-Secretary-General of the United Nations for Legal Affairs; Paul de
Vart,
Professor of International Law at Open University in Amsterdam; and
Olivier
Corten, a young and talented international lawyer from the Open
University in
Brussels. These are respectable lawyers who have, despite the fact that
they
come from the respondent States, agreed to represent the FR of
Yugoslavia
before the Court.
2. The Court, on that occasion, suspended proceedings against the United
States
and Spain, considering that there were no chances that it established
its
jurisdiction in the later stages of the dispute, since these two States
have
excluded the jurisdiction of the Court as envisaged under the Genocide
Convention by their reservations, while it decided to resume proceedings
against the eight other States.
3. Its forerunner is the Permanent Court of International Justice which
was the
principal judicial authority of the League of Nations. The latter Court,
in
turn, was preceded by the Permanent Court of Arbitration, established at
the
First Hague Peace Conference in 1899. Indeed, the Department of Foreign
Affairs
of the Kingdom of Serbia prepared for that conference the above
publication
containing the diplomatic corresondence of Envoy Stojan Novakovic, but
it was
never forwarded to the Conference. The roots of the ICJ, therefore, go
back to
the end of the nineteenth century. This instrument of peaceful
settlement of
disputes has developed and strengthened alongside the development and
strengthening of contemporary international law, whose foundations have
been
codified in the constitution of the international community, i.e. the
Charter
of the United Nations. It is a mechanism on whose improvement worked the
best
lawyers of the nineteenth and twentieth centuries. The Kingdoms of
Serbia and
Montenegro, later the Kingdom of Yugoslavia, and Democratic Federative
Yugoslavia all the way to the present Federal Republic of Yugoslavia
have
continuously participated in this process. The Kingdoms of Serbia and
Montenegro participated at the First Hague Peace Conference in 1899 and
they
were parties to the Convention on the Permanent Court of Arbitration.
The
Kingdom of Yugoslavia, which resolved its disputes before the Permanent
Court
of International Justice, had its citizens among the judges of that
court.
Yugoslavia is a founding Member of the United Nations and as such, is
party to
the 1945 Statute of the International Court of Justice since 1945. Judge
Zoricic was a permanent judge of this Court.
4. Currently, the following Serbs are detained in the penitentiary unit
at
Scheweningen: Mladjo Radic, Miroslav Kvocka, Milojica Kos, Zoran Zigic,
Dragan
Kolund`ija, Damir Dosen, Milorad Krnojelac, Dragoljub Kunarac, Goran
Kovac,
Zoran Vukovic, Miroslav Tadic, Dusko Tadic, Goran Jelisic, Simo Zoric,
Brdjanin, Momir Talic, Svetislav Galic, Radoslav Krstic, Stevan
Todorovic and
Miroslav Simic; the following Croats: Zdravko Mucic, Vlatko, Marijan and
Zoran
Kupreskic, Vlado Santic, Drago Josipovic, Tihomir Blaskic, Dario Kordic,
Mario
Cerkez, Martinovic; and the following Muslims: Hazim Delic and Esad
Landzo.
AMBASCIATA DELLA REPUBBLICA FEDERALE
DI JUGOSLAVIA PRESSO LA SANTA SEDE
Via dei Monti Parioli, 20 - 00197 Roma
Tel: 06 3200 099/06 3214 998
Fax: 06 3204 530
E-Mail: sveta.stolica@...
---
STOP NATO: ¡NO PASARAN! - HTTP://WWW.STOPNATO.HOME-PAGE.ORG
THE GLOBE AND MAIL, Saturday, January 29, 2000 p. A13
Are Western leaders war criminals?
Group wants top officials tried for NATO's bombing campaign
MARCUS GEE
The Globe and Mail
Is Jean Chretien a war criminal?
Michael Mandel says so, and he thinks he can prove it.
The Toronto law professor is in the vanguard of an international effort
to have the Prime Minister and 67 other Western leaders charged with war
crimes before a United Nations tribunal in The Hague.
Along with colleagues from Greece, Norway and Britain, he has compiled a
thick dossier of potential charges against the leaders for their conduct
in last spring's bombing campaign against Yugoslavia, an assault Prof.
Mandel calls a "coward's war."
Those charges include "willful killing," wanton destruction of cities,
town or villages," and waging unlawful war. Along with Mr. Chretien, the
dossier names Foreign Affairs Minister Lloyd Axworthy and Defence
Minister Art Eggleton.
"They might not match the archetype of a war criminal," Prof. Mandel
said, "but they snuffed out a lot of lives, and they should be condemned
for it."
The Mandel dossier now rests in the hands of Carla Del Ponte, the Swiss
lawyer who is the chief prosecutor for the UN International Tribunal for
the Former Yugoslavia. She must decid whether to launch a formal
investigation into the conduct of the North Atlantic Treaty organization
during the 78-day war.
Legal experts say that is unlikely. Ms. Del Ponte needs NATO's help to
gather evidence and apprehend suspected war criminals in Bosnia and
other parts of the former Yugoslavia. Indicting NATO leaders would hurt
that relationship.
But Prof. Mandel and his friends won't give up, and their relentless
campaign against NATO has caused a stir of discomfort in the alliance.
Cases such as his are precisely why the United States is so worried
about the spreading grasp of international law. Washington opposed the
creation of a new international criminal court partly because of
concerns that Americans might be hauled before it for overseas military
intervention such as the invasion of Grenada or the bombing of Cambodia
during the Vietnam War.
So when the tribunal revealed last month that it had prepared an
internal report on the accusations against NATO, the White House lashed
out. It said the idea of investigating NATO was "completely
unjustified." Ms. Del Ponte rushed to clarify things, saying that no
formal investigation of NATO was under way.
That prompted Prof. Mandel to write a sharp letter to Ms. Del Ponte,
urging her to take the accusations against NATO seriously.
"The tribunal has not given us much reason to trust in its
impartiality," said Prof. Mandel, who teaches at York University's
Osgoode Hall Law School.
An intense 51-year-old in black wire-framed glasses, he has thrown
himself into many causes over his 25 years of teaching, from the Israeli
peace movement to the international campaign for nuclear disarmament.
Few have seized him as powerfully as the campaign against NATO's war.
He was a visiting professor at the University of Bologna in Italy in
March when NATO started bombing Yugoslavia in an attempt, NATO said, to
stop President Slobodan Milosevic from crushing the ethnic Albanians in
the rebellious province of Kosovo.
As civilian casualties in Yugoslavia rose and Albanians fled Kosovo by
the hundreds of thousands, Prof. Mandel's anger grew.
As a peace activist, he was appalled by the use of overwhelming military
force against a far weaker adversary.
As a teacher of international law for 25 years, he was shocked by NATO's
decision to go ahead with their air strikes without the approval of the
UN Security Council.
As a Jew, he was offended that NATO justified the bombing by equating
what was happening to the Kosovo Albanians to what had happened to the
Jews of Europe in the Second World War – a grotesque comparison, he
says.
"It was a crime against the truth and a crime against the victims of the
Holocaust."
Returning to Canada, he began communicating by phone and e-mail with law
professors in other countries who opposed the war. Their original aim
was to end the bombing. "There was this horrible thing going on," Prof.
Mandel said, "and the question was how to stop it."
Now that the war is over, they want to hold NATO to account for its
actions. Drawing on Yugoslav government figures, Prof. Mandel says that
1,800 people were killed and 5,000 wounded in Yugoslavia during the
bombing campaign.
Many were children or old people. Flipping through a Yugoslav government
booklet filled with colour pictures of blackened bodies and horrifying
wounds, he recalls the long series of NATO accidents: the accidental
attack on a passenger train crossing a bridge, the accidental bombing of
a Belgrade hospital, the accidental destruction of a bridge filled with
people at the height of a busy market day.
He says he is not sure those were accidents at all, but even if they
were, NATO had to know that such things would happen. It went ahead
anyway.
"We believe they knowingly killed people with no justifiable excuse, and
that's murder," he said in an interview in his cramped university
office.
Under his interpretation of the laws of war, only two things could
excuse NATO's conduct: bombing for a lawful reason such as self-defence
or bombing without knowing their bombs would cause such carnage.
He dismisses both. NATO, he says, broke off negotiations with Mr.
Milosevic over Kosovo and started bombing without bothering about the
niceties of international law.
As for the casualties, NATO leaders said over and over that they knew
that some civilians would be killed as a side effect of the bombing.
Such "collateral damage" was, in their words, "inevitable."
Far from being a humanitarian intervention in defence of human rights,
Prof. Mandel says, the bombing was a deliberate attempt to terrorize the
Yugoslav population.
Few experts share that view. "I don't know of a campaign in history
where targets have been selected so painstakingly," said David Rudd,
executive director of the Canadian Institute of Strategic Studies. "NATO
had the power to level Serbia's cities, but it didn't."
Michael Byers, a Canadian who teaches law at Duke University, agrees
that the accidental casualties caused by NATO didn't compare with the
executions and mass expulsions carried out by Mr. Milosevic's forces.
All the same, he is glad that Prof. Mandel is pressing his case. "Of
course NATO doesn't like it," he said, "but if you accept that there
should be some kind of international legal system, you have to
understand that it applies to all sides, including yourself."
---
STOP NATO: ¡NO PASARAN! - HTTP://WWW.STOPNATO.HOME-PAGE.ORG
Prosecute NATO
by George Szamuely
New York Press
1/25/99
"I must do my job, otherwise I am not independent, and the independence
of the prosecutor is the most important element... I just depend on the
law, and that's it." The noble sentiments are those of Carla Del Ponte,
chief prosecutor of the International Criminal Tribunal for the former
Yugoslavia (ICTY). She'd just been asked whether she intended to
investigate the possibility that NATO might have committed war crimes
during its murderous bombing spree last year. What about those
smashed-up refugee convoys, the destroyed housing estates, the bridges
turned into rubble, trains full of dead passengers, devastated
monasteries, bombed electrical grids and tv stations, cluster bombs,
depleted uranium? What about all of that? "It's not my priority," she
explained, "because I have inquiries about genocide, about bodies who
are in mass graves, and that's what I am doing now."
Oh, that's all right then. These inquiries, carried out by NATO
government agencies like the FBI and Scotland Yard, have one objective
only: to nail NATO's enemies. Though the media likes to paint her as an
upright Katharine Hepburn type, Del Ponte is a shameless liar. She is
not "independent" in any sense whatsoever. Her Tribunal is a creature of
the United States. Established in 1993 by Resolution 827 of the UN
Security Council, its objective was to use the aura of "international
law" to persecute the Serbs. Startup funds of $6 million came courtesy
of the U.S. ambassador to the UN, Madeleine Albright. She also hired the
initial staff of 25 lawyers. As the president of the Tribunal, Judge
Gabrielle Kirk McDonald, explained in a speech at the U.S. Supreme Court
last April: "[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.'" In May, before the Council on
Foreign Relations, she 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 $3 million."
During last year's bombing, moreover, Bill Clinton secured a $27 million
appropriation for the Tribunal. In other words, money is rolling in from
people who have a vested interest in the outcome of the trials. This is
a flagrant violation of the Statutes of the Tribunal. Article 32 states
that the "the expenses of the International Tribunal shall be borne by
the regular budget of the United Nations." Soon after NATO launched its
bombing campaign, Louise Arbour, Del Ponte's predecessor, appeared at a
press conference where British Foreign Secretary Robin Cook made a great
show of presenting her with a dossier of Serbian war crimes.
Last year, Prof. Michael Mandel of Toronto wrote to Arbour arguing that,
according to its Statutes, the Tribunal is obligated to investigate
NATO. Article 2, for instance, states that the Tribunal "shall have the
power to prosecute persons committing or ordering to be committed grave
breaches of the Geneva Conventions...willful killing...willfully causing
great suffering or serious injury to body or health; extensive
destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly." Article 3 cites
"wanton destruction of cities, towns or villages, or devastation not
justified by military necessity" and the "attack, or bombardment, by
whatever means, of undefended towns, villages, dwellings, or
buildings..."
There is not the slightest chance that Del Ponte will investigate NATO's
war crimes. She cannot do it for a simple reason. Yugoslavia broke no
international laws whatsoever and got bombed. NATO broke every
international law in the book and still got to decide who had to stand
trial. And it is the NATO governments that pay her wages.
Here is a quick summary of just a few of the international laws NATO
violated: Article 2 (4) of the UN Charter states: "All Members shall
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any
state." Article 39 states: "The Security Council shall determine the
existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall
be taken." The Rambouillet Agreement, Serbia's refusal to sign which
provoked the bombing campaign, violated Article 51 of the 1969 Vienna
Convention on the Law of Treaties: "The expression of a State's consent
to be bound by a treaty which has been procured by the coercion of its
representative through acts or threats directed against him shall be
without legal effect." Not to mention the Geneva Convention and the
targeting of civilians.
Del Ponte's little court is a truly sinister organization. It operates
on the basis of sealed indictments, so that people do not even know if
there is an arrest warrant pending against them. They can be seized
anywhere and hauled off to the Hague. There, cut off from family,
friends and country, they can be held up to 90 days without being
charged. There is no bail or any form of release before trial. Detention
without trial could last several years. Mail is censored. Visits are
severely restricted. Trial witnesses can testify anonymously.
Prosecutors do not have to disclose the sources of their information.
Prosecutors may even appeal an acquittal and ensure that the accused
remain in detention during such an appeal.
The International Criminal Court for the former Yugoslavia serves for
the United States the same purpose courts of this nature served for
Hitler and Stalin: it terrorizes the opposition. A couple of weeks ago
the U.S. Export-Import Bank, the European Bank for Reconstruction and
Development (EBRD), the World Bank and the U.S.-based
Albanian-Macedonian-Bulgarian Oil Company (AMBO) met and resolved to
build an oil pipeline extending from the Bulgarian Black Sea across
Macedonia and Albania to Western Europe. This is what U.S. policy in the
Balkans is about. Anyone likely to object will find himself bombed and
then yanked off to the Hague–there to rot forever.
---
Chicago Tribune, Sec 2 Perspective, Sunday, May 23, 1999, pp1 and 5
WAR CRIMES LAW APPLIES TO U.S. TOO
by Walter J. Rockler
As justification for our murderously destructive bombing campaign in
Yugoslavia, it is of coarse necessary for the U.S. to charge that the
Serbs have engaged in inhuman conduct, and that President Slobodan
Milosevic, the head Serb demon, is a war criminal almost without peer.
President Clinton assures us of this in frequent briefings, during which
he engages in rhetorical combat with Milosevic. But shouting "war
criminal" only emphasizes that those who live in glass houses should be
careful about throwing stones.
We have engaged in fragrant military aggression, ceaselessly attacking a
small country primarily to demonstrate that we run the world. The
rationale that we are simply enforcing international morality, even if
it were true, would not excuse the military aggression and wide spread
killing that it entails. It also does not lessen the culpability of the
authors of this aggression.
As a primary source of international law, the judgment of the Nuremberg
Tribunal in the 1945-1946 case of the major Nazi war criminals is plain
and clear. Our leaders often invoke and praise the judgement, but
obviously have not read it. The International Court declared:
"To initiate a war of aggression, therefore, is not only an
international crime, it is the supreme international crime deferring
only from other war crimes in that it contains within itself the
accumulated evil of the whole."
At Nuremberg, the United States and Britain pressed the prosecution of
Nazi leaders for planing and initiating aggressive war. Supreme Court
Justice Robert Jackson, the head of American prosecution staff, asserted
"that launching a war aggression is a crime and that no political or
economic situation can justify it." He also declared that "if certain
acts in violation of treaties are crimes, they are crimes whether the
United States does them or whether Germany does them, and we are not
prepared to lay down a rule of criminal conduct against others which we
would not be willing to have invoked against us."
The United Nations Charter views aggression similarly. Articles 2(4) and
(7) prohibit interventions in the domestic jurisdiction of any country
and threats of force or the use of force by one state against the
another. The General Assembly of the UN in Resolution 2131, "declaration
on the Inadmissibility of Intervention," reinforced the view that a
forceful military intervention in any country is aggression and crime
without justification.
Putting a "NATO" label on aggressive policy and conduct does not give
that conduct any sanctity. This is simply a perversion of the North
Atlantic Treaty organization, formed as a defensive alliance under the
UN Charter. The North Atlantic Treaty pledged its signatories to
refrain from the threat or use of force in any manner inconsistent with
the purposes of the United Nations, and it explicitly recognized "the
primary responsibility of the Security Council (of United Nations) for
the maintenance of international peace and security." Obviously, in
bypassing UN approval for the current bombing, the U.S. and NATO have
violated the basic obligation.
>>From another standpoint of international law, the current conduct of the
bombing by United States and NATO constitutes a continued war crime.
Contrary to the beliefs of our war planners, unrestricted air bombing is
barred under international law. Bombing the "infrastructure" of a
country - waterworks, electricity, plants, bridges, factories,
television and radio locations -is not an attack limited to legitimate
military objectives. Our bombing has also caused an excessive loss of
life and injury to civilians, which violates another standard. We have
now killed hundreds, if not thousands, of Serbs, Montenegrins and
Albanians, even some Chinese, in our pursuit of humanitarian ideals.
In addition to shredding the UN Charter and perverting the purpose of
NATO, Clinton also has violated at least two provisions of the United
States Constitution. Under Article I, Section 8, of the Constitution,
Congress, not the president, holds the power to declare war and to
punish offenses against the law of nations. Alexander Hamilton in The
Federalist No. 69 pointed out one difference between a monarchy and the
presidency under the new form of government: A king could use his army
as he pleased; the president would have no such unlimited power. Under
Article VI of the Constitution, treaties, far from being mere scraps of
paper as we now deem them to be, are part of the supreme law of the
United States. Of course, these days a supine Congress, fascinated only
by details of sexual misconduct, can hardly be expected to enforce
constitutional requirements.
Nor can a great deal be expected from the media. Reports rely on
controlled handouts of the State Department, Pentagon and NATO, seeing
their duty as one adding colorful details to official intimations of
Serbs atrocities. Thus, the observation of a NATO press relations
officer that a freshly plowed field, seen from 30,000 feet up, might be
the site of a massacre has been disseminated as news.
The notion that humanitarian violations can be redressed with random
destruction and killing by advanced technological means is inherently
suspect. This is mere pretext for our arrogant assertion of dominance
and power in defiance of international law. We make the nonnegotiable
demands and rules, and implement them by military force. It is all
remindful of Henrik Ibsen's "Don't use that foreign word "ideals." We
have that excellent word "lies."
---------------------------------------------------------------
Walter J. Rockler, a Washington lawyer, was a prosecutor at Nuremberg
War Crimes Trial.
---
http://www.iwpr.net
TRIBUNAL UPDATE 160
Last Week in The Hague (January 17-22, 2000)
DEL PONTE ASKS NATO TO BE "MORE AGGRESSIVE"
In addition to visiting the EC, Prosecutor Carla Del Ponte also visited
NATO (North Atlantic Treaty Organisation) headquarters in Brussels last
week.
During talks with NATO Secretary General Lord George Robertson and the
permanent representatives of the 19 member states, Del Ponte urged NATO
to be more aggressive in hunting down and arresting indictees, in
particular "the most wanted Radovan Karadzic", the former leader of the
Bosnian Serbs.
"He is the symbol of this year, the fugitive who has been longest on the
loose," Del Ponte said before adding that capturing him is "crucial for
a stable peace."
Addressing journalists after the meeting Del Ponte, Robertson said
NATO's commitment to apprehending all those indicted of war crimes in
Yugoslavia was "beyond question."
Robertson returned to the same question two days later when talking to
journalists at NATO headquarters.
Talking about his and NATO's priorities for the year 2000, Robertson
said it was essential that those indicted but still at large be brought
to The Hague for trial and concluded: "I have got a personal commitment
to making sure that they do."
British commandos, as members of SFOR, have carried out as many as 90%
of operations aimed at arresting people accused of war crimes. These
operations only really got underway after Robertson became British
Secretary of Defence in 1997. Karadzic and other accused still at large
should not, therefore, brush away or underestimate such "personal
commitment" from the NATO Secretary General.
Copyright (c) 2000 The Institute for War & Peace Reporting.
-
Tribunal Update 161
Issue 161: January 24-29, 2000
DEL PONTE DISMISSES CHARGES SHE "BACKPEDALLED" ON NATO DOSSIER.
In an interview with Tribunal Update last week we asked ICTY Chief
Prosecutor Carla Del Ponte to clarify the position on the famous
'dossier'
on alleged breaches of the Geneva Conventions by NATO forces during the
air
strikes on Serbia. We asked whether she had studied the evidence, drawn
any
conclusions and whether the fierce criticism levelled against her by
some in
Washington D.C. had caused her to "backpedal" on the issue as claimed by
U.S. Senator Jesse Helms.
"First I will tell you something - I never backpedal, never, never! If
the
press received it in some other way - that is another question. I am not
responsible for that. I have only one voice and I am always saying the
same!" Del Ponte declared.
"What I said in that interview [to London's Observer newspaper on
December
26, 1999] was that no formal investigation is opened against NATO, that
is,
against individuals of NATO. I said that to the journalist: No formal
inquiry! I said I have just received a preliminary report on the
documentation and complaints that [former Chief Prosecutor Louise]
Arbour
had received from many different sources."
"Second, I said I would read it and take a decision. But in the meantime
I
received professor Mandel here and he brought to me another pile of
documents. A few day before Christmas I received a group of members from
the
Russian parliament who brought me a lot of new documents. They told me
that
the Duma [Russian parliament] had created an inquiry commission, which
is
working together with Belgrade, so they have a lot of information."
"I gave all those documents to the same working group in our office to
analyse them. They are doing that now."
"In the meantime I studied the first report and for it I need some
answers
from NATO. So I was in Brussels and spoke with the people there and said
I
have some questions on which I needed answers. So now we are preparing
the
questions and we will send them to NATO."
"In the meantime I am waiting for the second report and an analysis of
the
other documentation. And after, when I finish my work on the preliminary
analysis of that, I will take a decision on whether I must or not open
an
investigation. That's the whole story. So I did not absolutely
backpedal! E
una bruta parola [It is an ugly word]: 'backpedalling'! And it is not my
way
of working. I pedal only forwards."
Copyright (c) 2000 The Institute for War & Peace Reporting.
--------- COORDINAMENTO ROMANO PER LA JUGOSLAVIA -----------
RIMSKI SAVEZ ZA JUGOSLAVIJU
e-mail: crj@... - URL: http://marx2001.org/crj
------------------------------------------------------------
ALLA SIGNORA CARLA DAL PONTE (con traduzione in italiano)
*** R. Etinski, I. Cukalovic: L'AGGRESSIONE CONTRO LA RFJ ED IL DIRITTO
INTERNAZIONALE AL PASSAGGIO DEL SECOLO; LE TENDENZE GLOBALI NEL MONDO
*** M. Gee: I LEADERS OCCIDENTALI SONO CRIMINALI DI GUERRA?
Cronistoria del difficile tentativo di un gruppo di avvocati, guidati da
M. Mandel, per imporre al Tribunale dell'Aia di prendere in
considerazione le azioni genocide dei nostri governanti.
*** G. Samuely: PROCEDERE NEI CONFRONTI DELLA NATO
*** W.J. Rockler (ex-pubblico ministero del Tribunale di Norimberga che
giudico' i criminali nazisti): LA LEGGE SUI CRIMINI DI GUERRA SI APPLICA
ANCHE AGLI STATI UNITI
*** CILIEGINA !!! Carla Dal Ponte chiede agli imputati della NATO di
essere "piu' aggressivi" nel perseguire i criminali !!!
---
>Fund for the Development of Democracy
>11000 Beograd (YU), M. Birjuzova 13a
>Tel/Fax: +381 11/ 328 2898
>e-mail: fondbmb@...
>
>
>INTERNATIONAL CRIME TRIBUNAL FOR FORMER YUGOSLAVIA
>Chief Prosecutor Carla del Ponte
>AEGON Building, Churchillplein 1
>2517 JW
>The Hague (Netherlands
>
>Fax: +31 70/416 5345 Tel: 416 5000
>
>
>As the victims of international demonisation and isolation,
>
>Disposing with the data on a calculated dismemberment of the SFRY,
>ethical extermination and displacement of Serbs,
>
>Aware of organised demonisation and isolation of Serbs, deliberated to
>cover up the true reasons of Europes re-acrchitecturing and of the
>breach of the agreements from Westphalia, Versailles, Yalta, Triannon,
>
>Concerned over realising legal security,
>
>Familiar with the Tribunals regulations,
>
>As authorised initiators, we put forward a motion to the Tribunal on 18
>March 1999, six days before the bombing of Serbia started, to initiate
>proceedings against persons whom we consider organisers of Europes
>re-architecturing, notably responsible for the planning, preparing and
>committing of the crimes related to Articles 2-5 of the Tribunals
>Statute (killing Serbs because of their nationality, ethnicity or
>religious affiliation; intentionally causing great physical suffering,
>or undermining health of Serb nationals; subjecting Serb nationals to
>living conditions meant to bring forth their utter or partial physical
>destruction, ... etc.)
>
>Following your statement of 26 December 1999, that your justice shall
>not by-pass NATO officials, if they have violated regulations in the
>campaign against Serbia, and that legal proceedings shall be
>instituted also against them, we expect you to check the status of our
>motion regarding the responsibility, notably the role of Bill Clinton,
>NATO, Richard Holbrooke, Kofi Annan and Pope John Paul II in the
>dismemberment of the SFRY, displacement, ethnical cleansing,
>demonisation and international isolation of Serbs in the period June 25,
>1991 --March 18, 1999.
>
>Willing to believe that you yet wish to execute your office
>conscientiously and in accord with the rules of professional ethics,
>unlike your predecessors, we hope to soon see a response to our question
>
>and a decision to institute proceedings.
>
>Yours sincerely,
>BMB Fund
"
- In quanto vittime della demonizzazione e dell'isolamento
internazionale;
- avendo a disposizione i dati relativi allo smembramento programmato
della RFSJ, allo sterminio etico ed alla dispersione dei serbi;
- consci della demonizzazione e dell'isolamento organizzati a danno dei
serbi, mirati a coprire le vere ragioni della ristrutturazione
dell'Europa politica con la rottura degli accordi di Westphalia,
Versailles, Yalta, Triannon;
- preoccupati circa l'applicazione della sicurezza legale;
- essendo a conoscenza dei regolamenti di questo Tribunale;
In qualita' di suoi iniziatori indendiamo dare seguito alla Mozione
presentata al Tribunale il 18 marzo 1999, sei giorni prima dell'inizio
dei bombardamenti sulla Serbia, per dar vita ai procedimenti legali
contro quelle persone che consideriamo organizzatori della
ristrutturazione dell'Europa politica, in particolare responsabili della
pianificazione, preparazione ed esecuzione dei crimini di cui agli
Articoli 2-5 dello Statuto del Tribunale (uccisione di serbi in base
alla loro nazionalita', appartenenza etnica o religiosa; intenzionale
procuramento di gravi sofferenze fisiche o minaccia alla salute di
persone di nazionalita' serba; sottomissione dei serbi a condizioni di
vita atte a proseguire nella loro devastazione fisica totale o parziale,
eccetera).
In base alla sua dichiarazione del 26 dicembre 1999, per cui la
giustizia non dovrebbe scansarsi di fronte ai rappresentanti della NATO,
se questi hanno violato delle regole nella loro campagna contro la
Serbia, e che procedimenti legali sarebbero stati aperti anche contro di
loro, noi ci aspettiamo che Lei voglia considerare lo status della
nostra Mozione riguardante le responsabilita', in particolare il ruolo
di Bill Clinton, della NATO, di Richard Holbrooke, Kofi Annan e Papa
Giovanni Paolo II nello smembramento della RFSJ, nella dispersione,
pulizia etnica, demonizzazione ed isolamento internazionale dei serbi
nel periodo compreso tra il 25 giugno 1991 ed il 18 marzo 1999.
Nel desiderio di poter ritenere che Lei voglia ancora eseguire il suo
dovere coscienziosamente ed in accordo con le regole dell'etica
professionale, diversamente dai suoi predecessori, speriamo di vedere
presto un riscontro alla nostra richiesta e la decisione di aprire i
procedimenti.
Distinti saluti
Fondo BMB
"
---
Prof. Dr. Rodoljub Etinski
Prof. Dr. Ivan Cukalovic
AGGRESSION AGAINST THE FEDERAL REPUBLIC OF YUGOSLAVIA AND INTERNATIONAL
LAW AT A CROSSROADS OF CENTURIES AND GLOBAL INTERNATIONAL TRENDS
The basic and most important principles of international law,
forming
the basis of the United Nations, world peace and stability, have been
grossly
violated by the aggression of the NATO member States against the FR of
Yugoslavia. During this aggression, on 29 April 1999, the FR of
Yugoslavia
submitted an application and a request to the International Court of
Justice to
indicate preliminary measures against these States for gravest breaches
of
international law and for most serious crimes. Understandably, the
application
of our country was received with great attention worldwide, both by the
international public at large and even more by the international legal
profession, experts and scientific circles. A symbolic manifestation of
it was
the fact that the courtroom at the Palais de justice in the Hague was
packed
during the oral hearings held on 10-12 May 1999, regarding Yugoslavia's
request
for indication of temporary measures to stop the bombing.
The ICJ hearings were the focus of attention of the world media.
They
were attended by international lawyers, peace movement activists,
champions of
the cause against the use of depleted uranium from the remotest parts of
the
world and also by many people from the aggressor countries wishing to
support
and encourage representatives of the FR of Yugoslavia before the
Court(*1). All
ten respondent State appeared before the Court. On the benches for the
Respondents there sat representatives of the United States, Britain,
Germany,
France, Italy, the Netherlands, Canada, Belgium, Spain and Portugal. As
expected, they challenged the Court's jurisdiction in the case. This
fact
speaks for itself quite sufficiently. Why was it that these States were
reluctant at the time to accept the jurisdiction of the Court? Did they
doubt
that the Court, of whose fifteen judges six had the nationality of NATO
member
States, could be partial in favour of the FR of Yugoslavia?
In a situation where ten aggressor States rejected the Court's
jurisdiction, it did not accept the requested preliminary measures with
the
explanation that it did not find that it had a jurisdiction in these
cumulative
proceedings. The judges, however, were aware of the importance and
significance
of the dispute and in such a situation could not be silent on the
destruction
of a sovereign State, on daily deaths of civilians, women, children and
elderly
people. By its orders of 2 June 1999, the Court gave a "legal framework"
for
the settlement of the dispute. The Court indicated that all States which
appeared before it must fulfil their obligations under the United
Nations
Charter as well as those established under humanitarian law. The Court
used the
word "must", although it does not use such an imperative expression in
its
orders related to preliminary measures, in which it usually uses the
word
"should" so as to avoid prejudicing the adjudication. The Court,
further,
confirmed that the parties were bound to resolve the dispute by peaceful
means
in accordance with the UN Charter. Regardless of whether the
Respondents
accepted or refused the jurisdiction of the Court, the Court said, they
were
responsible for breaches of international law. Additionally, the Court
warned
the Respondents not to do anything that might complicate and widen the
dispute(*2). The Court set the deadline of 5 January 2000 for the FR of
Yugoslavia to submit its Memorial, which corresponds in our
jurisprudence to a
lawsuit, and the deadline of 5 July 2000 for the Respondents to submit
their
Counter-Memorials.
Besides competent Government authorities, prominent Yugoslav
experts in
some fields of law also participated in the preparation of the Yugoslav
Memorial. Its text was finalized with the help of the Federal Ministry
of
Foreign Affairs. It was elaborated on 350 pages and divided into four
parts.
The text of the Memorial is accompanied by documentary evidence
contained in a
separate annex, consisting of two volumes of the White Paper on NATO
Crimes,
described on 965 pages and published by the Federal Foreign Ministry.
Also
attached as an annex is the reprinted 1899 edition of the Department of
Foreign
Affairs of the Kingdom of Serbia entitled "Correspondence on the
Albanian
violence in the old Serbia 1898-1899" which comprises diplomatic
correspondence
of Mr. Stojan Novakovic, the then Serbian Envoy in Turkey, and deals
with the
crimes committed at that time by Albanian gangs against the Serbs in
Kosovo and
Metohija. These communications are important for understanding the
historical
background of problems in Kosovo and Metohija, i.e. to deny the argument
that
the problems started in 1989. Part I of the Memorial contains
information on
facts related to aerial bombardment and the genocide against the Serbs
and
persons belonging to other non-Albanian ethnic groups following the
deployment
of KFOR in Kosovo and Metohija. Part II presents the relevant law. Part
III is
devoted to the question of jurisdiction of the Court. The last part,
Part IV,
of the Yugoslav Memorial contains the application itself. The
application was
extended in comparison with the one submitted on 29 April 1999. Namely,
the
respondent States, as the States contributing to the Kosovo Force (KFOR)
under
United Nations Security Council resolution 1244 (1999), are obliged to
ensure
security for all the population of Kosovo and Metohija. They not only
failed to
do so, but failed to prevent the genocide of the Serb people and other
ethnic
groups living in Kosovo and Metohija, in breach of the obligation
established
by the Convention on the Prevention and Punishment of the Crime of
Genocide.
The extended application requested that the Court declare the respondent
States
responsible not only for breach of obligations committed by air strikes
but
also for breach of obligations committed through these failures or
omissions.
The case in point are the most important international obligations
including
the obligation not to use force against other States, not to interfere
in the
internal affairs of States, to respect the sovereignty of another State,
the
obligation to protect civilians, civilian facilities and other specially
protected facilities in international armed conflicts, the obligation
not to
use certain types of weapons, the obligation to protect the environment.
The
Court is requested to order these States to go back to the respect of
rights
and to carry out their obligations, as well as to compensate for the
damages.
Most of the Memorial is devoted to the information on the damage caused
by air
attacks that contains data on the destroyed bridges, residential
housing,
hospitals, roads, power supply system and material and other damage. The
Memorial cites information on the loss of lives of Sanja Milenkovic,
Milica
Rakic and other innocent and defenceless children, even though we know
that
such losses are irreparable.
The Yugoslav application was the subject of widespread interest
in the
world. Some people have asked how come that we submitted the application
to the
Court and yet we did not want to co-operate with it. In fact, there are
two
courts in the Hague: the International Court of Justice and the
International
Tribunal for the Prosecution of Persons Responsible for Grave Violations
of
International Humanitarian Law Committed in the Territories of the
Former
Yugoslavia Since 1991 (hereinafter: the International Criminal
Tribunal). These
are two fundamentally different courts, established at different
periods, in
different ways and for different reasons, and they have completely
dissimilar,
even opposite functions.
The International Court of Justice is the principal judicial
authority
of the United Nations, set up in 1945 under Article 92 of the UN
Charter(*3).
ICJ operates on the basis of its Statute, which forms an integral part
of the
Charter of the United Nations. All UN Member States are ipso facto
States
Parties to the Statute of the Court. The Court settles disputes between
States
and gives its opinions on legal matters of principle at the request of
the
Security Council, the General Assembly and an organization or body
authorized
by the General Assembly to seek an advisory opinion. The Court is based
on the
notion of sovereign equality of States, respect for the sovereignty and
independence of States, implying voluntary consent to the jurisdiction
of the
Court. Confidence in the ICJ, especially of small and medium-sized
countries,
has increased in the last twenty years. More and more States are
submitting
their disputes to the Court or are seeking its protection. Confidence in
this
Court has increased especially after the case Nicaragua v. the United
States of
America, concerning interference of the latter in the civil war in
Nicaragua,
ended by the Court declaring the United States responsible and obliged
to pay
the compensation. Thus, the Court has demonstrated that a small country
can win
a case against a large State. As a result of such an opinion of the
Court, it
is not favoured by those financing the United Nations, as reflected in
its
budget, number of personnel, etc.
Contrary to this, the Hague is also the site of the seat of the
International Criminal Tribunal, which often creates confusion and the
mixing
of the two institutions. The Tribunal is not very flattering for the
residents
of the Hague, and a Hague newspaper published some time ago a letter
from a
non-governmental organization proposing its residents to banish the
International Criminal Tribunal from this city, so that it may not
tarnish the
good reputation of the city as the seat of the headquarters of
respectable
international organizations. The International Criminal Tribunal was
established by Security Council resolution 827 (1993) with a purported
aim of
prosecuting serious violations of humanitarian law committed in the
territory
of the former Yugoslavia. Many international lawyers, Remsey Clark
included,
deny the validity of the establishment of the Tribunal by the decision
of the
Security Council. However, the composition, procedure, method of
funding,
gathering of evidence and bringing of indictments all indicate that the
International Criminal Tribunal is the tool of world power wielders,
which was
set up primarily with the political goal dictated, first and foremost,
by the
interests of those aspiring to an exclusive global power. The
composition of
judges sitting on the Tribunal does not reflect the geographic regions
as
elsewhere in the UN system, which is otherwise the practice and the rule
at the
United Nations. There is not a single Russian or a representative of
Orthodox
Christian nations, while representatives of some regions are
disproportionately
highly represented. The Tribunal has a budget and an administration that
are
several times those of the ICJ, a fact which speaks much of its
relationship
with the power wielders whose interests it protects. The Prosecutor of
the
International Criminal Tribunal has introduced the practice of sealed
indictments, unknown in any legal system. Indictees are tricked into
being
arrested lured by false promises, and sometimes by staging a show for
the
purposes of the media and interests standing behind these media. So
far, the
Tribunal mostly indicted and arrested Serbs. Those well-informed know
that the
Tribunal sticks to an unwritten formula: 70 per cent of Serbs, 25 per
cent of
Croats and 5 per cent of Muslims must be in its penitentiary unit or in
the
docks at any time(*4). Dr. Kovacevic died in detention because of the
lack of
appropriate care at the penitentiary unit, while the detainee Slavko
Dokmanovic
committed suicide. General Djukic died immediately after he had been
released
from prison. Indictees Simo Drljaca and Dragan Gagovic were killed
during the
action to arrest them. Gen. Momir Talic was arrested by means of
treachery as
he attended a meeting of military officials hoseds by the Organization
for
Security and Co-operation in Europe (OSCE) in Vienna. In both cases
there are
serious indications that powers had been exceeded, but no one was held
responsible. The international community rightfully asks, if the goal is
really
justice and not the diktat of the mighty, why similar tribunals were not
established to prosecute the crimes committed in Vietnam, Grenada,
Panama,
Ethiopia, in other words, wherever the crimes were done by soldiers of
the
great Powers. A great many individuals like Nikolai Rishkov, Chairman of
the
Russian State Duma Commission for the gathering and collation of
information on
crimes committed during the NATO aggression against the FR of
Yugoslavia; Greek
attorney Likouresos; Prof. Mendel and fifteen other professors from
Canada;
Monsieur R. Monsigni from France; British Professor of International Law
Glen
Rangwell and others have asked the Hague Tribunal to bring indictments
against
those responsible for the crimes committed during the aggression against
the FR
of Yugoslavia, against persons coming from the United States, Germany,
Britain,
France, etc. Although the evidence on this is abundant, Tribunal's
Prosecutor
Carla del Ponte has not reacted by issuing indictments, regardless of
the fact
that evidence on the crimes is notorious, thus proving once again that
the
Tribunal is not impartial and even-handed.
The Tribunal was set up riding the wave of international
developments
that run contrary to those beginning in the Hague in 1899 and that bring
into
question the results of the development of international law. The idea
of
international criminal justice is not a new one. It appeared after the
First
World War. However, it was not before 1998 that a Statute of the
Permanent
Criminal Court was adopted at the UN Conference in Rome. This Statute
substantially differs from the Statute of the International Criminal
Tribunal.
The Rome Statute, like the Statute of the ICJ, is based on the principle
of
voluntary consent that stems from the sovereign equality of States. It
is valid
not only for one territory and one time, especially not for members of
one
nation, but for all the States which have accepted it and for all future
times.
It does not relate only to violations of humanitarian law but includes
also the
most serious international crime, that of aggression, and other crimes.
The
position of its Prosecutor is fundamentally different in comparison with
the
position of the Prosecutor envisaged under the Statute of the
International
Criminal Tribunal.
Someone has written that the International Criminal Tribunal
serves
allegedly as a Security Council's Disciplinary Commission. As a matter
of fact,
it serves as a Disciplinary Commission of some permanent members of the
Security Council. They refuse to accept the Permanent Criminal Court,
which
could put them in the dock.
In brief, there is a substantial difference between the ICJ and
ICT.
The FR of Yugoslavia has, therefore, addressed the ICJ whose practice
has
proven that it can resist the pressures of world power wielders, rather
than to
the ICT which is, in essence, an extended hand of the above-mentioned
power
wielders.
* * *
Footnotes:
1. The FR of Yugoslavia, in addition to Yugoslav lawyers, was
represented by
reputed international lawyers such as Ian Brownlie, Professor of
International
Law at OXFORD University, member of the United Nations International Law
Commission (ILC), one of the leading international lawyers and a man who
has,
over the past twenty years, most defended victims in the cases before
the ICJ;
Eric Soy, Professor of International Law at Louvun, Belgium, former
Under-Secretary-General of the United Nations for Legal Affairs; Paul de
Vart,
Professor of International Law at Open University in Amsterdam; and
Olivier
Corten, a young and talented international lawyer from the Open
University in
Brussels. These are respectable lawyers who have, despite the fact that
they
come from the respondent States, agreed to represent the FR of
Yugoslavia
before the Court.
2. The Court, on that occasion, suspended proceedings against the United
States
and Spain, considering that there were no chances that it established
its
jurisdiction in the later stages of the dispute, since these two States
have
excluded the jurisdiction of the Court as envisaged under the Genocide
Convention by their reservations, while it decided to resume proceedings
against the eight other States.
3. Its forerunner is the Permanent Court of International Justice which
was the
principal judicial authority of the League of Nations. The latter Court,
in
turn, was preceded by the Permanent Court of Arbitration, established at
the
First Hague Peace Conference in 1899. Indeed, the Department of Foreign
Affairs
of the Kingdom of Serbia prepared for that conference the above
publication
containing the diplomatic corresondence of Envoy Stojan Novakovic, but
it was
never forwarded to the Conference. The roots of the ICJ, therefore, go
back to
the end of the nineteenth century. This instrument of peaceful
settlement of
disputes has developed and strengthened alongside the development and
strengthening of contemporary international law, whose foundations have
been
codified in the constitution of the international community, i.e. the
Charter
of the United Nations. It is a mechanism on whose improvement worked the
best
lawyers of the nineteenth and twentieth centuries. The Kingdoms of
Serbia and
Montenegro, later the Kingdom of Yugoslavia, and Democratic Federative
Yugoslavia all the way to the present Federal Republic of Yugoslavia
have
continuously participated in this process. The Kingdoms of Serbia and
Montenegro participated at the First Hague Peace Conference in 1899 and
they
were parties to the Convention on the Permanent Court of Arbitration.
The
Kingdom of Yugoslavia, which resolved its disputes before the Permanent
Court
of International Justice, had its citizens among the judges of that
court.
Yugoslavia is a founding Member of the United Nations and as such, is
party to
the 1945 Statute of the International Court of Justice since 1945. Judge
Zoricic was a permanent judge of this Court.
4. Currently, the following Serbs are detained in the penitentiary unit
at
Scheweningen: Mladjo Radic, Miroslav Kvocka, Milojica Kos, Zoran Zigic,
Dragan
Kolund`ija, Damir Dosen, Milorad Krnojelac, Dragoljub Kunarac, Goran
Kovac,
Zoran Vukovic, Miroslav Tadic, Dusko Tadic, Goran Jelisic, Simo Zoric,
Brdjanin, Momir Talic, Svetislav Galic, Radoslav Krstic, Stevan
Todorovic and
Miroslav Simic; the following Croats: Zdravko Mucic, Vlatko, Marijan and
Zoran
Kupreskic, Vlado Santic, Drago Josipovic, Tihomir Blaskic, Dario Kordic,
Mario
Cerkez, Martinovic; and the following Muslims: Hazim Delic and Esad
Landzo.
AMBASCIATA DELLA REPUBBLICA FEDERALE
DI JUGOSLAVIA PRESSO LA SANTA SEDE
Via dei Monti Parioli, 20 - 00197 Roma
Tel: 06 3200 099/06 3214 998
Fax: 06 3204 530
E-Mail: sveta.stolica@...
---
STOP NATO: ¡NO PASARAN! - HTTP://WWW.STOPNATO.HOME-PAGE.ORG
THE GLOBE AND MAIL, Saturday, January 29, 2000 p. A13
Are Western leaders war criminals?
Group wants top officials tried for NATO's bombing campaign
MARCUS GEE
The Globe and Mail
Is Jean Chretien a war criminal?
Michael Mandel says so, and he thinks he can prove it.
The Toronto law professor is in the vanguard of an international effort
to have the Prime Minister and 67 other Western leaders charged with war
crimes before a United Nations tribunal in The Hague.
Along with colleagues from Greece, Norway and Britain, he has compiled a
thick dossier of potential charges against the leaders for their conduct
in last spring's bombing campaign against Yugoslavia, an assault Prof.
Mandel calls a "coward's war."
Those charges include "willful killing," wanton destruction of cities,
town or villages," and waging unlawful war. Along with Mr. Chretien, the
dossier names Foreign Affairs Minister Lloyd Axworthy and Defence
Minister Art Eggleton.
"They might not match the archetype of a war criminal," Prof. Mandel
said, "but they snuffed out a lot of lives, and they should be condemned
for it."
The Mandel dossier now rests in the hands of Carla Del Ponte, the Swiss
lawyer who is the chief prosecutor for the UN International Tribunal for
the Former Yugoslavia. She must decid whether to launch a formal
investigation into the conduct of the North Atlantic Treaty organization
during the 78-day war.
Legal experts say that is unlikely. Ms. Del Ponte needs NATO's help to
gather evidence and apprehend suspected war criminals in Bosnia and
other parts of the former Yugoslavia. Indicting NATO leaders would hurt
that relationship.
But Prof. Mandel and his friends won't give up, and their relentless
campaign against NATO has caused a stir of discomfort in the alliance.
Cases such as his are precisely why the United States is so worried
about the spreading grasp of international law. Washington opposed the
creation of a new international criminal court partly because of
concerns that Americans might be hauled before it for overseas military
intervention such as the invasion of Grenada or the bombing of Cambodia
during the Vietnam War.
So when the tribunal revealed last month that it had prepared an
internal report on the accusations against NATO, the White House lashed
out. It said the idea of investigating NATO was "completely
unjustified." Ms. Del Ponte rushed to clarify things, saying that no
formal investigation of NATO was under way.
That prompted Prof. Mandel to write a sharp letter to Ms. Del Ponte,
urging her to take the accusations against NATO seriously.
"The tribunal has not given us much reason to trust in its
impartiality," said Prof. Mandel, who teaches at York University's
Osgoode Hall Law School.
An intense 51-year-old in black wire-framed glasses, he has thrown
himself into many causes over his 25 years of teaching, from the Israeli
peace movement to the international campaign for nuclear disarmament.
Few have seized him as powerfully as the campaign against NATO's war.
He was a visiting professor at the University of Bologna in Italy in
March when NATO started bombing Yugoslavia in an attempt, NATO said, to
stop President Slobodan Milosevic from crushing the ethnic Albanians in
the rebellious province of Kosovo.
As civilian casualties in Yugoslavia rose and Albanians fled Kosovo by
the hundreds of thousands, Prof. Mandel's anger grew.
As a peace activist, he was appalled by the use of overwhelming military
force against a far weaker adversary.
As a teacher of international law for 25 years, he was shocked by NATO's
decision to go ahead with their air strikes without the approval of the
UN Security Council.
As a Jew, he was offended that NATO justified the bombing by equating
what was happening to the Kosovo Albanians to what had happened to the
Jews of Europe in the Second World War – a grotesque comparison, he
says.
"It was a crime against the truth and a crime against the victims of the
Holocaust."
Returning to Canada, he began communicating by phone and e-mail with law
professors in other countries who opposed the war. Their original aim
was to end the bombing. "There was this horrible thing going on," Prof.
Mandel said, "and the question was how to stop it."
Now that the war is over, they want to hold NATO to account for its
actions. Drawing on Yugoslav government figures, Prof. Mandel says that
1,800 people were killed and 5,000 wounded in Yugoslavia during the
bombing campaign.
Many were children or old people. Flipping through a Yugoslav government
booklet filled with colour pictures of blackened bodies and horrifying
wounds, he recalls the long series of NATO accidents: the accidental
attack on a passenger train crossing a bridge, the accidental bombing of
a Belgrade hospital, the accidental destruction of a bridge filled with
people at the height of a busy market day.
He says he is not sure those were accidents at all, but even if they
were, NATO had to know that such things would happen. It went ahead
anyway.
"We believe they knowingly killed people with no justifiable excuse, and
that's murder," he said in an interview in his cramped university
office.
Under his interpretation of the laws of war, only two things could
excuse NATO's conduct: bombing for a lawful reason such as self-defence
or bombing without knowing their bombs would cause such carnage.
He dismisses both. NATO, he says, broke off negotiations with Mr.
Milosevic over Kosovo and started bombing without bothering about the
niceties of international law.
As for the casualties, NATO leaders said over and over that they knew
that some civilians would be killed as a side effect of the bombing.
Such "collateral damage" was, in their words, "inevitable."
Far from being a humanitarian intervention in defence of human rights,
Prof. Mandel says, the bombing was a deliberate attempt to terrorize the
Yugoslav population.
Few experts share that view. "I don't know of a campaign in history
where targets have been selected so painstakingly," said David Rudd,
executive director of the Canadian Institute of Strategic Studies. "NATO
had the power to level Serbia's cities, but it didn't."
Michael Byers, a Canadian who teaches law at Duke University, agrees
that the accidental casualties caused by NATO didn't compare with the
executions and mass expulsions carried out by Mr. Milosevic's forces.
All the same, he is glad that Prof. Mandel is pressing his case. "Of
course NATO doesn't like it," he said, "but if you accept that there
should be some kind of international legal system, you have to
understand that it applies to all sides, including yourself."
---
STOP NATO: ¡NO PASARAN! - HTTP://WWW.STOPNATO.HOME-PAGE.ORG
Prosecute NATO
by George Szamuely
New York Press
1/25/99
"I must do my job, otherwise I am not independent, and the independence
of the prosecutor is the most important element... I just depend on the
law, and that's it." The noble sentiments are those of Carla Del Ponte,
chief prosecutor of the International Criminal Tribunal for the former
Yugoslavia (ICTY). She'd just been asked whether she intended to
investigate the possibility that NATO might have committed war crimes
during its murderous bombing spree last year. What about those
smashed-up refugee convoys, the destroyed housing estates, the bridges
turned into rubble, trains full of dead passengers, devastated
monasteries, bombed electrical grids and tv stations, cluster bombs,
depleted uranium? What about all of that? "It's not my priority," she
explained, "because I have inquiries about genocide, about bodies who
are in mass graves, and that's what I am doing now."
Oh, that's all right then. These inquiries, carried out by NATO
government agencies like the FBI and Scotland Yard, have one objective
only: to nail NATO's enemies. Though the media likes to paint her as an
upright Katharine Hepburn type, Del Ponte is a shameless liar. She is
not "independent" in any sense whatsoever. Her Tribunal is a creature of
the United States. Established in 1993 by Resolution 827 of the UN
Security Council, its objective was to use the aura of "international
law" to persecute the Serbs. Startup funds of $6 million came courtesy
of the U.S. ambassador to the UN, Madeleine Albright. She also hired the
initial staff of 25 lawyers. As the president of the Tribunal, Judge
Gabrielle Kirk McDonald, explained in a speech at the U.S. Supreme Court
last April: "[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.'" In May, before the Council on
Foreign Relations, she 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 $3 million."
During last year's bombing, moreover, Bill Clinton secured a $27 million
appropriation for the Tribunal. In other words, money is rolling in from
people who have a vested interest in the outcome of the trials. This is
a flagrant violation of the Statutes of the Tribunal. Article 32 states
that the "the expenses of the International Tribunal shall be borne by
the regular budget of the United Nations." Soon after NATO launched its
bombing campaign, Louise Arbour, Del Ponte's predecessor, appeared at a
press conference where British Foreign Secretary Robin Cook made a great
show of presenting her with a dossier of Serbian war crimes.
Last year, Prof. Michael Mandel of Toronto wrote to Arbour arguing that,
according to its Statutes, the Tribunal is obligated to investigate
NATO. Article 2, for instance, states that the Tribunal "shall have the
power to prosecute persons committing or ordering to be committed grave
breaches of the Geneva Conventions...willful killing...willfully causing
great suffering or serious injury to body or health; extensive
destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly." Article 3 cites
"wanton destruction of cities, towns or villages, or devastation not
justified by military necessity" and the "attack, or bombardment, by
whatever means, of undefended towns, villages, dwellings, or
buildings..."
There is not the slightest chance that Del Ponte will investigate NATO's
war crimes. She cannot do it for a simple reason. Yugoslavia broke no
international laws whatsoever and got bombed. NATO broke every
international law in the book and still got to decide who had to stand
trial. And it is the NATO governments that pay her wages.
Here is a quick summary of just a few of the international laws NATO
violated: Article 2 (4) of the UN Charter states: "All Members shall
refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any
state." Article 39 states: "The Security Council shall determine the
existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall
be taken." The Rambouillet Agreement, Serbia's refusal to sign which
provoked the bombing campaign, violated Article 51 of the 1969 Vienna
Convention on the Law of Treaties: "The expression of a State's consent
to be bound by a treaty which has been procured by the coercion of its
representative through acts or threats directed against him shall be
without legal effect." Not to mention the Geneva Convention and the
targeting of civilians.
Del Ponte's little court is a truly sinister organization. It operates
on the basis of sealed indictments, so that people do not even know if
there is an arrest warrant pending against them. They can be seized
anywhere and hauled off to the Hague. There, cut off from family,
friends and country, they can be held up to 90 days without being
charged. There is no bail or any form of release before trial. Detention
without trial could last several years. Mail is censored. Visits are
severely restricted. Trial witnesses can testify anonymously.
Prosecutors do not have to disclose the sources of their information.
Prosecutors may even appeal an acquittal and ensure that the accused
remain in detention during such an appeal.
The International Criminal Court for the former Yugoslavia serves for
the United States the same purpose courts of this nature served for
Hitler and Stalin: it terrorizes the opposition. A couple of weeks ago
the U.S. Export-Import Bank, the European Bank for Reconstruction and
Development (EBRD), the World Bank and the U.S.-based
Albanian-Macedonian-Bulgarian Oil Company (AMBO) met and resolved to
build an oil pipeline extending from the Bulgarian Black Sea across
Macedonia and Albania to Western Europe. This is what U.S. policy in the
Balkans is about. Anyone likely to object will find himself bombed and
then yanked off to the Hague–there to rot forever.
---
Chicago Tribune, Sec 2 Perspective, Sunday, May 23, 1999, pp1 and 5
WAR CRIMES LAW APPLIES TO U.S. TOO
by Walter J. Rockler
As justification for our murderously destructive bombing campaign in
Yugoslavia, it is of coarse necessary for the U.S. to charge that the
Serbs have engaged in inhuman conduct, and that President Slobodan
Milosevic, the head Serb demon, is a war criminal almost without peer.
President Clinton assures us of this in frequent briefings, during which
he engages in rhetorical combat with Milosevic. But shouting "war
criminal" only emphasizes that those who live in glass houses should be
careful about throwing stones.
We have engaged in fragrant military aggression, ceaselessly attacking a
small country primarily to demonstrate that we run the world. The
rationale that we are simply enforcing international morality, even if
it were true, would not excuse the military aggression and wide spread
killing that it entails. It also does not lessen the culpability of the
authors of this aggression.
As a primary source of international law, the judgment of the Nuremberg
Tribunal in the 1945-1946 case of the major Nazi war criminals is plain
and clear. Our leaders often invoke and praise the judgement, but
obviously have not read it. The International Court declared:
"To initiate a war of aggression, therefore, is not only an
international crime, it is the supreme international crime deferring
only from other war crimes in that it contains within itself the
accumulated evil of the whole."
At Nuremberg, the United States and Britain pressed the prosecution of
Nazi leaders for planing and initiating aggressive war. Supreme Court
Justice Robert Jackson, the head of American prosecution staff, asserted
"that launching a war aggression is a crime and that no political or
economic situation can justify it." He also declared that "if certain
acts in violation of treaties are crimes, they are crimes whether the
United States does them or whether Germany does them, and we are not
prepared to lay down a rule of criminal conduct against others which we
would not be willing to have invoked against us."
The United Nations Charter views aggression similarly. Articles 2(4) and
(7) prohibit interventions in the domestic jurisdiction of any country
and threats of force or the use of force by one state against the
another. The General Assembly of the UN in Resolution 2131, "declaration
on the Inadmissibility of Intervention," reinforced the view that a
forceful military intervention in any country is aggression and crime
without justification.
Putting a "NATO" label on aggressive policy and conduct does not give
that conduct any sanctity. This is simply a perversion of the North
Atlantic Treaty organization, formed as a defensive alliance under the
UN Charter. The North Atlantic Treaty pledged its signatories to
refrain from the threat or use of force in any manner inconsistent with
the purposes of the United Nations, and it explicitly recognized "the
primary responsibility of the Security Council (of United Nations) for
the maintenance of international peace and security." Obviously, in
bypassing UN approval for the current bombing, the U.S. and NATO have
violated the basic obligation.
>>From another standpoint of international law, the current conduct of the
bombing by United States and NATO constitutes a continued war crime.
Contrary to the beliefs of our war planners, unrestricted air bombing is
barred under international law. Bombing the "infrastructure" of a
country - waterworks, electricity, plants, bridges, factories,
television and radio locations -is not an attack limited to legitimate
military objectives. Our bombing has also caused an excessive loss of
life and injury to civilians, which violates another standard. We have
now killed hundreds, if not thousands, of Serbs, Montenegrins and
Albanians, even some Chinese, in our pursuit of humanitarian ideals.
In addition to shredding the UN Charter and perverting the purpose of
NATO, Clinton also has violated at least two provisions of the United
States Constitution. Under Article I, Section 8, of the Constitution,
Congress, not the president, holds the power to declare war and to
punish offenses against the law of nations. Alexander Hamilton in The
Federalist No. 69 pointed out one difference between a monarchy and the
presidency under the new form of government: A king could use his army
as he pleased; the president would have no such unlimited power. Under
Article VI of the Constitution, treaties, far from being mere scraps of
paper as we now deem them to be, are part of the supreme law of the
United States. Of course, these days a supine Congress, fascinated only
by details of sexual misconduct, can hardly be expected to enforce
constitutional requirements.
Nor can a great deal be expected from the media. Reports rely on
controlled handouts of the State Department, Pentagon and NATO, seeing
their duty as one adding colorful details to official intimations of
Serbs atrocities. Thus, the observation of a NATO press relations
officer that a freshly plowed field, seen from 30,000 feet up, might be
the site of a massacre has been disseminated as news.
The notion that humanitarian violations can be redressed with random
destruction and killing by advanced technological means is inherently
suspect. This is mere pretext for our arrogant assertion of dominance
and power in defiance of international law. We make the nonnegotiable
demands and rules, and implement them by military force. It is all
remindful of Henrik Ibsen's "Don't use that foreign word "ideals." We
have that excellent word "lies."
---------------------------------------------------------------
Walter J. Rockler, a Washington lawyer, was a prosecutor at Nuremberg
War Crimes Trial.
---
http://www.iwpr.net
TRIBUNAL UPDATE 160
Last Week in The Hague (January 17-22, 2000)
DEL PONTE ASKS NATO TO BE "MORE AGGRESSIVE"
In addition to visiting the EC, Prosecutor Carla Del Ponte also visited
NATO (North Atlantic Treaty Organisation) headquarters in Brussels last
week.
During talks with NATO Secretary General Lord George Robertson and the
permanent representatives of the 19 member states, Del Ponte urged NATO
to be more aggressive in hunting down and arresting indictees, in
particular "the most wanted Radovan Karadzic", the former leader of the
Bosnian Serbs.
"He is the symbol of this year, the fugitive who has been longest on the
loose," Del Ponte said before adding that capturing him is "crucial for
a stable peace."
Addressing journalists after the meeting Del Ponte, Robertson said
NATO's commitment to apprehending all those indicted of war crimes in
Yugoslavia was "beyond question."
Robertson returned to the same question two days later when talking to
journalists at NATO headquarters.
Talking about his and NATO's priorities for the year 2000, Robertson
said it was essential that those indicted but still at large be brought
to The Hague for trial and concluded: "I have got a personal commitment
to making sure that they do."
British commandos, as members of SFOR, have carried out as many as 90%
of operations aimed at arresting people accused of war crimes. These
operations only really got underway after Robertson became British
Secretary of Defence in 1997. Karadzic and other accused still at large
should not, therefore, brush away or underestimate such "personal
commitment" from the NATO Secretary General.
Copyright (c) 2000 The Institute for War & Peace Reporting.
-
Tribunal Update 161
Issue 161: January 24-29, 2000
DEL PONTE DISMISSES CHARGES SHE "BACKPEDALLED" ON NATO DOSSIER.
In an interview with Tribunal Update last week we asked ICTY Chief
Prosecutor Carla Del Ponte to clarify the position on the famous
'dossier'
on alleged breaches of the Geneva Conventions by NATO forces during the
air
strikes on Serbia. We asked whether she had studied the evidence, drawn
any
conclusions and whether the fierce criticism levelled against her by
some in
Washington D.C. had caused her to "backpedal" on the issue as claimed by
U.S. Senator Jesse Helms.
"First I will tell you something - I never backpedal, never, never! If
the
press received it in some other way - that is another question. I am not
responsible for that. I have only one voice and I am always saying the
same!" Del Ponte declared.
"What I said in that interview [to London's Observer newspaper on
December
26, 1999] was that no formal investigation is opened against NATO, that
is,
against individuals of NATO. I said that to the journalist: No formal
inquiry! I said I have just received a preliminary report on the
documentation and complaints that [former Chief Prosecutor Louise]
Arbour
had received from many different sources."
"Second, I said I would read it and take a decision. But in the meantime
I
received professor Mandel here and he brought to me another pile of
documents. A few day before Christmas I received a group of members from
the
Russian parliament who brought me a lot of new documents. They told me
that
the Duma [Russian parliament] had created an inquiry commission, which
is
working together with Belgrade, so they have a lot of information."
"I gave all those documents to the same working group in our office to
analyse them. They are doing that now."
"In the meantime I studied the first report and for it I need some
answers
from NATO. So I was in Brussels and spoke with the people there and said
I
have some questions on which I needed answers. So now we are preparing
the
questions and we will send them to NATO."
"In the meantime I am waiting for the second report and an analysis of
the
other documentation. And after, when I finish my work on the preliminary
analysis of that, I will take a decision on whether I must or not open
an
investigation. That's the whole story. So I did not absolutely
backpedal! E
una bruta parola [It is an ugly word]: 'backpedalling'! And it is not my
way
of working. I pedal only forwards."
Copyright (c) 2000 The Institute for War & Peace Reporting.
--------- COORDINAMENTO ROMANO PER LA JUGOSLAVIA -----------
RIMSKI SAVEZ ZA JUGOSLAVIJU
e-mail: crj@... - URL: http://marx2001.org/crj
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