Etter en krig råder seierherrenes justis.
Her følger en analyse av hvordan det internasjonale
krigsforbrytertribunalet fungerer i dag. Deler av innholdet er sikkert
kjent for mange av KK-forums brukere fra før av. Jeg poster artikkelen
likevel, siden dette er den mest oversiktlige og best sammenfattede
argumentasjonen jeg hittil har sett om hvordan dette tribunalet misbrukes
politisk. En interessant parallell trekkes mellom krigsforbrytelser serbere
har blitt tiltalt for å ha begått i Kroatia (bruk av klasebomber) og NATOs
krigføring.
Øistein Holen
----------
http://www.egroups.com/group/decani/24031.html?raw=1
The following is an article by Chris Black and Ed Herman (Herman is
co-author with Noam Chomsky of the book 'Manufacturing Consent'), and has
written many other books and articles on these issues; he is currently a
professor at the University of Pennsylvania. Black is a Canadian lawyer who
has authored many articles on events in the Balkans and has presented
briefs to the ICTY regarding NATO atrocities. He has recently been asked to
defend accused before the Rwandan War Crimes Tribunal.
----------
Louise Arbour: Unindicted War Criminal
Christopher Black and Edward S. Herman
Among the many ironies of the NATO war against Yugoslavia was the role of
the International Criminal Tribunal and its chief prosecutor, Louise
Arbour, elevated by Canadian Prime Minister Jean Chretien to Canada's
highest court in 1999. It will be argued here that that award was entirely
justified on the grounds of political service to the NATO powers, but a
monumental travesty if the question of the proper administration of justice
enters the equation. In fact, it will be shown below that as Arbour and her
Tribunal played a key role in EXPEDITING war crimes, an excellent case can
be made that in a just world she would be in the dock rather than in
judicial robes.
Arbour To NATO's Rescue
The moment of truth for Arbour and the Tribunal came in the midst of NATO's
78-day bombing campaign against Yugoslavia, when Arbour appeared, first, in
an April 20 press conference with British Foreign Secretary Robin Cook to
receive from him documentation on Serb war crimes. Then on May 27, Arbour
announced the indictment of Serb President Slobodan Milosevic and four of
his associates for war crimes. The inappropriateness of a supposedly
judicial body doing this in the midst of the Kosovo war, and when Germany,
Russia and other powers were trying to find a diplomatic resolution to the
conflict, was staggering.
At the April 20 appearance with Cook, Arbour stated that "It is
inconceivable...that we would in fact agree to be guided by the political
will of those who may want to advance an agenda." But her appearance with
Cook and the followup indictments fitted perfectly the agenda needs of the
NATO leadership. There had been growing criticism of NATO's increasingly
intense and civilian infrastructure-oriented bombing of Serbia, and Blair
and Cook had been lashing out at critics in the British media for
insufficient enthusiasm for the war. Arbour's and the Tribunal's
intervention declaring the Serb leadership to be guilty of war crimes was a
public relations coup that justified the NATO policies and helped permit
the bombing to continue and escalate. This was pointed out repeatedly by
NATO leaders and propagandists: Madeleine Albright noted that the
indictments "make very clear to the world and the publics in our countries
that this [NATO policy] is justified because of the crimes committed, and I
think also will enable us to keep moving all these processes [i.e.,
bombing] forward" (CNN, May 27). State Department spokesman James Rubin
stated that "this unprecedented step...justifies in the clearest possible
way what we have been doing these past months" (CNN Morning News, May 27).
Although the Tribunal had been in place since May 1993, and the most
serious atrocities in the Yugoslav wars occurred as the old Federation
disintegrated from June 1991 through the Dayton peace talks in late 1995,
no indictment was brought against Milosevic for any of those atrocities,
and the May 27 indictment refers only to a reported 241 deaths in the early
months of 1999. The indictment appears to have been hastily prepared to
meet some urgent need. Arbour even mentioned on April 20 that she had
"visited NATO" to "dialogue with potential information providers in order
to generate unprecedented support that the Tribunal needs if it will
perform its mandate in a time frame that will make it relevant to the
resolution of conflict...of a magnitude of what is currently unfolding in
Kosovo." But her action impeded a negotiated resolution, although it helped
expedite a resolution by intensified bombing.
Arbour herself noted that "I am mindful of the impact that this indictment
may have on the peace process," and she said that although indicted
individuals are "entitled to the presumption of innocence until they are
convicted, the evidence upon which this indictment was confirmed raises
serious questions about their suitability to be guarantors of any deal, let
alone a peace agreement." (CNN Live Event, Special, May 27). So Arbour not
only admitted awareness of the political significance of her indictment,
she suggested that her possible interference with any diplomatic efforts
was justified because the indicted individuals, though not yet found
guilty, are not suitable to negotiate. This hugely unjudicial political
judgment, along with the convenient timing of the indictments, points up
Arbour's and the Tribunal's highly political role.
Background of the Tribunal's Politicization
Arbour's service to NATO in indicting Milosevic was the logical outcome of
the Tribunal's de facto control and purpose. It was established by the
Security Council in the early 1990s to serve the Balkan policy ends of its
dominant members, especially the United States. (China and Russia went
along as silent and powerless partners, apparently in a trade-off for
economic concessions.) And its funding and interlocking functional
relationship with the top NATO powers have made it NATO's instrument.
Although Article 32 of its Charter declares that the Tribunal's expenses
shall be provided in the general budget of the United Nations, this proviso
has been regularly violated. In 1994-1995 the U.S. government provided it
with $700,000 in cash and $2.3 million in equipment (while failing to meet
its delinquent obligation to the UN that might have allowed the UN itself
to fund the Tribunal). On May 12, 1999, Judge Gabrielle Kirk McDonald,
president of the Tribunal, stated that "the U.S. government has very
generously agreed to provide $500,000 [for an Outreach project] and to help
to encourage other states to contribute." Numerous other U.S.-based
governmental and non-governmental agencies have provided the Tribunal with
resources.
Article 16 of the Tribunal's charter states that the Prosecutor shall act
independently and shall not seek or receive instruction from any
government. This section also has been systematically violated. NATO
sources have regularly made claims suggesting their authority over the
Tribunal: "We will make a decision on whether Yugoslav actions against
ethnic Albanians constitute genocide," states a USIA Fact Sheet, and Cook
asserted at his April 20 press conference with Arbour that "we are going to
focus on the war crimes being committed in Kosovo and our determination to
bring those responsible to justice, " as if he and Arbour were a team
jointly and cooperatively deciding on who should be charged for war crimes,
and obviously excluding himself from those potentially chargeable. Earlier,
on March 31, two days after Cook had promised Arbour supportive data for
criminal charges, she announced the indictment of Arkan.
Tribunal officials have even bragged about "the strong support of concerned
governments and dedicated individuals such as Secretary Albright," further
referred to as "mother of the Tribunal" (by Gabrielle Kirk McDonald). The
post-Arbour chief prosecutor Carla Del Ponte at a September 1999 press
conference thanked the US FBI for helping the Tribunal, and expressed
general thanks for "the important support the U.S. government has provided
the Tribunal." Arbour herself informed President Clinton of the forthcoming
indictment of Milosevic two days before the rest of the world, and in 1996
the prosecutor met with the Secretary-General of NATO and its supreme
commander to "establish contacts and begin discussing modalities of
cooperation and assistance." Numerous other meetings have occurred between
prosecutor and NATO, which was given the function of Tribunal gendarme. In
the collection of data also, the prosecutor has depended heavily on NATO
and NATO governments, which again points to the symbiotic relation between
the Tribunal and NATO.
Serb-Specific Focus
The NATO powers focused almost exclusively on Serb misbehavior in the
course of their participation in the breakup of Yugoslavia, and the
Tribunal has followed in NATO's wake. A great majority of the Tribunal's
indictments have been of Serbs, and those against Croatians and Muslims
often seemed to have been timed to counter claims of anti-Serb bias (e.g.,
the first non-Serb indictment [Ivica Rajic], announced during the peace
talks in Geneva and bombing by NATO in September 1995).
Arbour herself did state (April 20) that "the real danger is whether we
would fall into that [following somebody's political agenda] inadvertently
by being in the hands of information- providers who might have an agenda
that we would not be able to discern." But even an imbecile could discern
that NATO had an agenda and that simply accepting the flood of documents
offered by Cook and Albright entailed advertently following that agenda.
Arbour even acknowledged her voluntary and almost exclusive
"dependencies...on the goodwill of states" to provide information that
"will guide our analysis of the crime base." And her April 20 reference to
the "morality of the [NATO's] enterprise" and her remarks on Milosevic's
possible lack of character disqualifying him from negotiations, as well as
her rush to help NATO with an indictment, point to quite clearly understood
political service.
In a dramatic illustration of Arbour-Tribunal bias, a 150 page Tribunal
report entitled "The Indictment Operation Storm: A Prima Facie Case,"
describes war crimes committed by the Croatian armed forces in their
expulsion of more than 200,000 Serbs from Krajina in August 1995, during
which "at least 150 Serbs were summarily executed, and many hundreds
disappeared." This report, leaked to the New York Times (to the dismay of
Tribunal officials), found that the Croatian murders and other inhumane
acts were "widespread and systematic," and that "sufficient material" was
available to make three named Croatian generals accountable under
international law. (Raymond Bonner, "War Crimes Panel Finds Croat Troops
'Cleansed' the Serbs," NYT, March 21, 1999). But the Times article also
reports that the United States, which supported the Croat's ethnic
cleansing of Serbs in Krajina, not only defended the Croats in the Tribunal
but refused to supply requested satellite photos of Krajina areas attacked
by the Croats, as well as failing to provide other requested information.
The result was that the Croat generals named in the report on Operation
Storm were never indicted, and although the number of Serbs executed and
disappeared over a mere four days was at least equal to the 241 victims of
the Serbs named in the indictment of Milosevic, no parallel indictment of
Croat leader Tudjman was ever brought by the Tribunal. But this was not a
failure of data gathering--the United States opposed indictments of its
allies, and thus the Tribunal did not produce any.
Tribunal's Kangaroo Court Processes
Arbour has claimed that the Tribunal was "subject to extremely stringent
rules of evidence with respect to the admissibility and the credibility of
the product that we will tender in court" so that she was guarded against
"unsubstantiated, unverifiable, uncorroborated allegations" (April 20).
This is a gross misrepresentation of what John Laughland described in the
Times (London) as "a rogue court with rigged rules" (June 17, 1999). The
Tribunal violates virtually every standard of due process: it fails to
separate prosecution and judge; it does not accord the right to bail or a
speedy trial; it has no clear definition of burden of proof required for a
conviction; it has no independent appeal body; it violates the principle
that a defendant may not be tried twice for the same crime (Article 25
gives the prosecutor the right to appeal against an acquittal); suspects
can be held for 90 days without trial; under Rule 92 confessions are
presumed to be free and voluntary unless the contrary is established by the
prisoner; witnesses can testify anonymously, and as John Laughland notes,
"rules against hearsay, deeply entrenched in Common Law, are not observed
and the Prosecutor's office has even suggested not calling witnesses to
give evidence but only the tribunal's own 'war crimes investigators.'"
As noted, Arbour presumes guilt before trial; the concept of "innocent till
convicted" is rejected, and she can declare that people linked with Arkan
"will be tainted by their association with an indicted war criminal" (March
31). Arbour clearly does not believe in the basic rules of Western
jurisprudence, and Laughland quotes her saying "The law, to me, should be
creative and used to make things tight." And within a month of her
elevation to the Canadian Supreme Court she was a member of a court
majority that grafted onto Canadian law the dangerously unfair Tribunal
practice of permitting a more liberal use of hearsay evidence in trials.
The consequent corruption of the Canadian justice system, both by her
appointment and her impact, mirrors that in the Canadian political system,
whose leading members supported the NATO war without question.
NATO's Crimes
In bombing Yugoslavia from March 24 into June 1999, NATO was guilty of the
serious crime of violating the UN Charter requirement that it not use force
without UN Security Council sanction. It was also guilty of criminal
aggression in attacking a sovereign state that was not going beyond its
borders. In its defense, NATO claimed that "humanitarian" concerns demanded
these actions and thus justified seemingly serious law violations. Apart
from the fact that this reply sanctions law violations on the basis of
self- serving judgments that contradict the rule of law, it is also called
into question on its own grounds by counter-facts. First, the NATO bombing
made "an internal humanitarian problem into a disaster" in the words of
Rollie Keith, the returned Canadian OSCE human rights monitor in Kosovo.
Second, the evidence is now clear that NATO refused to negotiate a
settlement in Kosovo and insisted on a violent solution; that in the words
of one State Department official, NATO deliberately "raised the bar" and
precluded a compromise resolution because Serbia "needed to be bombed."
These counter-facts suggest that the alleged humanitarian basis of the law
violations was a cover for starkly political and geopolitical objectives.
NATO was also guilty of more traditional war crimes, including some that
the Tribunal had found indictable when carried out by Serbs. Thus on March
8, 1996, the Serb leader Milan Martic was indicted for launching a rocket
cluster-bomb attack on military targets in Zagreb in May 1995, on the
ground that the rocket was "not designed to hit military targets but to
terrorize the civilians of Zagreb." The Tribunal report on the Croat
Operation Storm in Krajina also provided solid evidence that a 48 hour
Croat assault on the city of Knin was basically "shelling civilian
targets," with fewer than 250 of 3,000 shells striking military targets.
But no indictments followed from this evidence or for any other raid.
The same case for civilian targeting could be made for numerous NATO
bombing raids, as in the cluster-bombing of Nis on May 7, 1999, in which a
market and hospital far from any military target were hit in separate
strikes--but no indictment has yet been handed down against NATO.
But NATO was also guilty of the bombing of non-military targets as
systematic policy. On March 26, 1999, General Wesley Clark said that "We
are going to very systematically and progressively work on his military
forces...[to see] how much pain he is willing to suffer." But this focus on
"military forces" wasn't effective, so NATO quickly turned to "taking
down...the economic apparatus supporting" Serb military forces (Clinton's
words), and NATO targets were gradually extended to factories of all kinds,
electric power stations, water and sewage processing facilities, all
transport, public buildings, and large numbers of schools and hospitals. In
effect, it was NATO's strategy to bring Serbia to its knees by gradually
escalating its attacks on the civil society.
But this policy was in clear violation of international law, one of whose
fundamental elements is that civilian targets are off limits; international
law prohibits the "wanton destruction of cities, towns or villages or
devastation not justified by military necessity" (Sixth Principle of
Nuremberg, formulated in 1950 by an international law commission at the
behest of the UN). "Military necessity" clearly does not allow the
destruction of a civil society to make it more difficult for the country to
support its armed forces, any more than civilians can be killed directly on
he ground that they pay taxes supporting the war machine or might some day
become soldiers. The rendering of an entire population a hostage is a
blatant violation of international law and acts carrying it out are war
crimes.
On September 29, 1999, in response to a question on whether the Tribunal
would investigate crimes committed in Kosovo after June 10, or those
committed by NATO in Yugoslavia, prosecutor Carla del Ponte stated that
"The primary focus of the Office of the Prosecutor must be on the
investigation and prosecution of the five leaders of the FRY and Serbia who
have already been indicted." Why this "must" be the focus, especially in
light of all the evidence already assembled in preparing the favored
indictments, was unexplained. In late December, it was finally reported
that Del Ponte was reviewing the conduct of NATO, at the urging of Russia
and several other "interested parties" ("U.N. Court Examines NATO's
Yugoslavia War," NYT, Dec. 29, 1999). But the news report itself indicates
that the focus is on the conduct of NATO pilots and their commanders, not
the NATO decision-makers who made the ultimate decisions to target the
civilian infrastructure. It also suggests the public relations nature of
the inquiry, which would "go far in dispelling the belief...that the
tribunal is a tool used by Western leaders to escape accountability." The
report also indicates the delicate matter that the tribunal "depends on the
military alliance to arrest and hand over suspects." It also quotes Del
Ponte saying that "It's not my priority, because I have inquiries about
genocide, about bodies in mass graves." We may rest assured that no
indictments will result from this inquiry.
An impartial Tribunal would have gone to great pains to balance NATO's
flood of documents by internal research and a welcoming of rival
documentation. But although submissions have been made on NATO's crimes by
Yugoslavia and a number of Western legal teams, the Tribunal didn't get
around to these until this belated and surely nominal inquiry that is "not
my priority," as the Tribunal "must" pursue the Serb villains, for reasons
that are only too clear.
Beyond Orwell
NATO's leaders, frustrated in attacking the Serb military machine, quite
openly turned to smashing the civil society of Serbia as their means of
attaining the quick victory desired before the 50th Anniversary celebration
of NATO's founding. Although this amounted to turning the civilian
population of Serbia into hostages and attacking them and their means of
sustenance--in gross violation of the laws of war--Arbour and her Tribunal
not only failed to object to and prosecute NATO's leaders for war crimes,
by indicting Milosevic on May 27 they gave NATO a moral cover permitting
escalated attacks on the hostage population.
Arbour and the Tribunal thus present us with the amazing spectacle of an
institution supposedly organized to contain, prevent, and prosecute for war
crimes actually knowingly facilitating them. Furthermore, petitions
submitted to the Tribunal during Arbour's tenure had called for prosecution
of the leaders of NATO, including Canadian Prime Minister Jean Chretien,
for the commission of war crimes. If she had been a prosecutor in Canada,
Britain or the United States, she would have been subject to disbarment for
considering and then accepting a job from a person she had been asked to
charge. But Arbour was elevated to the Supreme Court of Canada by Chretien
with hardly a mention of this conflict of interest and immorality.
In this post-Orwellian New World Order we are told that we live under the
rule of law, but as Saint Augustine once said, "There are just laws and
there are unjust laws, and an unjust law is no law at all."
-----------------------
Christopher Black is a Toronto defense lawyer and writer and one of the
lawyers who made the request to the War Crimes Tribunal to indict NATO
leaders for war crimes.
Edward Herman is an economist and media analyst; his most recent book is
The Myth of the Liberal Media: An Edward Herman Reader (Peter Lang, 1999).
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