This essay first appeared in Z Magazine and Canadian Dimension Magazine in 2000
by Christopher Black and Edward 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, we will show that as Arbour and the 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 spokesperson 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 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.
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 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 U.S. FBI for helping the Tribunal, and expressed general thanks for “the important support the U.S. government has provided the Tribunal.” Arbour 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.
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 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.” 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 of 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 right.” 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.
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, 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 “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 the grounds that they pay taxes supporting the war machine or might some day become soldiers. The taking of an entire population 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, December 29, 1999). But the news report 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.
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).