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.
Copyright © 2001 Globe Interactive
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