KK-Forum,
mer om Milosevic anklagene
Knut Rognes
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http://www.globeandmail.ca/gam/Commentary/20010706/COMANDEL.html
Milosevic has a point
The former Serb leader has about as much chance of getting
a fair trial from this court as he had of defeating NATO
in an air war, says law professor Michael Mandel
MICHAEL MANDEL
Friday, July 6, 2001
Legal experts this week dismissed Slobodan Milosevic's condemnation of The
Hague Tribunal as "unhelpful to his defence" and "unlikely to help him win an
acquittal."
That's really rich. Mr. Milosevic has about as much chance of getting
a fair trial
from this court as he had of defeating NATO in an air war.
In fact there is a lot to be said for Mr. Milosevic's claim that the
tribunal is "false
tribunal, and indictments false indictments." When the former Serb leader said
"This trial's aim is to produce false justification for the war crimes of
NATO,
committed in Yugoslavia," he was, in fact, just echoing the words of Michael
Scharf, the man who wrote the original tribunal statute for then U.S.
secretary of state Madeleine Albright.
Mr. Scharf wrote in October, 1999, in the Washington Post that "the
tribunal was widely perceived within the government as little more than a
public
relations device and as a potentially useful policy tool." He said that
indictments
would serve "to isolate offending leaders diplomatically, strengthen the
hand of their domestic
rivals and fortify the international political will to employ
economic sanctions or use force."
Treating the tribunal as a propaganda arm of NATO is, in fact, the only way to
make sense of its violation of the principles of judicial
impartiality. The indictment against Mr. Milosevic was issued on May 22,
1999, even as NATO's bombs were
falling on Yugoslavia; most of the charges, concerning actions alleged to have
occurred after the bombing had commenced, relied on undisclosed evidence
supplied by none other than NATO itself. This in the middle of a war!
An impartial
prosecutor should have viewed such evidence as questionable.
If there were an honest tribunal in The Hague, Mr. Milosevic would
not be the only
government leader on trial. NATO's leaders, from Bill Clinton and
Jean Chrétien to
Tony Blair and Jose Maria Aznar committed what the Nuremberg judgment called
"the supreme international crime" -- resorting to war.
As chief prosecutor Robert Jackson said at Nuremberg: "An honestly defensive
war is, of course, legal and saves those lawfully conducting it from
criminality. But
inherently criminal acts cannot be defended by showing that those who
committed
them were engaged in a war, when war itself is illegal."
NATO's war was a conscious violation of international law and the
Charter of the
United Nations. Was it a "humanitarian intervention" as some call it?
Not likely.
What was humanitarian about bombing Belgrade?
Let's not forget either the West's aggressive economic policies that plunged
Yugoslavia into depression and civil war in the first place, or the
sponsorship of
Balkan republics on the basis of ethnic divisions that left huge
minorities within
them waiting only to be turned on by the majorities. Remember NATO's
cultivation
of the KLA, the compromising of every single chance of peace, from the
Vance-Owen efforts in Bosnia to the farce of Rambouillet, to the bombing
campaign itself.
The need to invent a new role for NATO after the Cold War, the U.S. effort to
undermine the United Nations, a desire to make an example of those who think
they can oppose American will, the appeal of waging a war without losing one
American life in combat, even Monica Lewinsky -- all explain this war
better than
humanitarianism.
The statute of The Hague Tribunal does not include "aggressive war" as a
crime.
The U.S. didn't want it there, just as it didn't want it in the Rome
Statute of 1998
that seeks to create an International Criminal Court. But the statute
does include
"crimes against humanity" including "murder" and "other inhumane acts."
I believe the NATO leaders planned and executed a bombing campaign that they
knew was contrary to the most fundamental tenets of international law
and that they
knew would cause the death of hundreds of civilian children, women and men.
They admitted this even as they apologized for what they called "collateral
damage," the kind that happens in any war. Slobodan Milosevic was indicted for
the murder of 385 victims. The NATO leaders killed at least 500 and perhaps as
many as 1,800 people, without any legal excuse.
Then there are the Geneva Conventions and the "laws and customs of war" which
make it a crime, even in a legal war, to kill and injure civilians
intentionally or
carelessly. These NATO leaders made targets of places and things with only
tenuous or slight military value or no military value at all: city
bridges, factories,
hospitals, marketplaces, downtown and residential neighbourhoods, and
television
studios.
Michael Dobbs, Madeleine Albright's biographer, wrote in the
Washington Post, in
July, 1999, that "it is obvious to anyone who visited Serbia during
the war that
undermining civilian morale formed an essential part of the
alliance's war-winning
strategy."
So the only legal difference between Mr. Milosevic and the NATO leaders is
that
the Serb leader lost the war and stands now as an indicted war
criminal, while they,
the victors, are un-indicted war criminals.
Indeed, the NATO leaders never will be indicted. A year ago, Carla Del Ponte
issued a report declaring that she was absolving the NATO leaders of
their crimes
without even opening an investigation. Read the report if you want to know how
much sense Mr. Milosevic was talking at The Hague on Tuesday. Read the report
by Amnesty International that came out at the same time.
Where Amnesty's report carefully details a whole host of war crimes against
civilians, Ms. Del Ponte's reads like a brief for NATO. In fact, it
was written by an
ex-NATO lawyer, William J. Fenrick, Canadian Armed Forces frigate
captain (ret.)
who went to the tribunal directly from his post as director of law
for operations and
training in the Canadian Department of Defence.
The punch-line of this report comes at the end when it notes that the
review of
NATO's actions relied primarily on public documents produced by NATO. It
explained that the committee "tended to assume that the NATO and NATO
countries' press statements are generally reliable and that
explanations have been
honestly given."
Can you imagine what kind of law enforcement a country would have if the
police
took alleged criminals' explanations at face value? Yet, after a
year, the tribunal
declined to even open an investigation.
Contrast this approach to the Racak incident of Jan. 15, 1999, (the
other major item
in the Milosevic indictment), when prosecutor Louise Arbour flew to
Kosovo, with
CNN cameras on hand, and dramatically opened an investigation on the say-so of
one U.S. diplomat. It took her just two weeks of consultations with NATO to
declare the incident a war crime.
Mr. Milosevic may be guilty of the crimes he is alleged by Ms. Arbour and Ms.
Del Ponte to have committed, but he'll never get a fair trial at The
Hague. And the
failure to prosecute NATO's crimes renders this tribunal worse than
no tribunal at
all.
Michael Mandel, professor of law at Osgoode Hall Law School of York
University, headed an international team of lawyers seeking to have NATO
leaders charged with war crimes for the 1999 bombing campaign against
Yugoslavia.
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