An Impartial Tribunal?
by Chris Black, Lawyer, Toronto, Canada
The Transnational Foundation for Peace and Future
ResearchVegagatan 25, S - 224 57 Lund, Sweden Phone + 46 - 46
- 145909, Fax + 46 - 46 - 144512 http://www.transnational.org,
Private justice replacing public justice
The indictment of Slobodan Milosevic for alleged war crimes
raises important questions about the impartiality and, ultimately,
the purpose of the International Criminal Tribunal. For centuries,
the independence of judicial bodies has been considered one of
the fundamental precepts of the quest for justice. As Lord Hewart
stated in 1924, it is "...of fundamental importance that
justice should not only be done, but should manifestly and undoubtedly
be seen to be done." It has also been said that there is
nothing more important than the public administration of justice.
But in the case of the International Criminal Tribunal a compelling
argument can be made that private justice has replaced public
justice, that even the appearance of fundamental justice has been
replaced by an open contempt for justice.
It is clear that from the beginning, American, British, French
and German interests were behind the creation of the Tribunal
and worked ceaselessly behind the scenes in order to create it.
They first considered doing so in regards to Iraq and Saddam Hussein,
during the Gulf War. The idea apparently originated with the United
States Department of the Army, which alone should tell you something
about its true purpose. The rhetoric used to justify such a body
to the general public was of course heavily seasoned with concerns
for "human rights" the "dignity of the individual",
"genocide" and "democracy".
However, they had a problem. It was generally agreed that
no such tribunal could be created without the mechanism of a treaty
which had to be ratified by all those affected by it. There was
no time to create such a treaty with respect to Hussein so other
methods were used to put pressure on the Iraqi government. But
between 1991 and 1993, the use of an international criminal court
as a means of effecting policy and to be created by the members
of the Security Council, instead of by treaty, was pushed by those
A war crimes tribunal rather than a international court
A draft treaty to create a truly international criminal court,
one which applied to all states, the last in a long list of attempts
dating back to the 1890's, was put together. But its ratification
has not taken place as several important powers, particularly
the United States, refuse to sign it for fear of being caught
in its web. For thirty years the United States has tried to block
such a treaty. It opposes universal jurisdiction and it opposes
an independent prosecutor. It wants any prosecutions to go through
the Security Council subject to its right of veto. In fact, Jesse
Helms, the conservative US senator said such a treaty, if presented
to congress for ratification would be "dead on arrival".
It would seem that the treaty is itself nothing more than window
dressing to satisfy the public that the nations of the world really
care about human rights and war crimes in order to complement
their rhetoric about it. For without ratification by the major
powers it is a dead letter. The United States remains stubborn
in its opposition to this treaty but then it has a bit more to
worry about than most countries.
The next opportunity to try this experiment was Yugoslavia.
In order to accelerate the break up of that country into quasi-independent
colonies, principally of Germany and the United States, it was
necessary to discredit their leaderships. An effective propaganda
weapon in such an exercise is of course a tribunal with an international
character which the public will accept as a neutral instrument
of justice but which is controlled for political ends.
The Tribunal was created by the Security Council in its Resolutions
808 and 827 of 1993. Both resolutions stated that the situation
in Bosnia at that time, constituted a threat to international
peace and security and that a tribunal to prosecute war criminals
would help to restore peace. It all sounds very nice until one
realizes that there was no basis for the characterization of the
situation in Bosnia as a threat to international peace. It was
a civil war (partly controlled by the very countries which wanted
to create a tribunal). But the members of the Security Council
had to characterize it that way otherwise the members of the Security
Council had no jurisdiction to act. The setup for this characterization
was Resolution 688 of 1991 in which the Security Council stated
that disregard for human rights constitutes a threat to international
security and can no longer be treated as an internal matter.
Undermining the UN Charter to make the Tribunal possible
This reinterpretation, this revision of the UN Charter, which
in fact undermines the very basis of the Charter was forcefully
advocated by the German foreign minister Mr. Genscher in speeches
he gave to the German parliament and to the Canadian parliament
in Ottawa and by British, French and of course American ministers
in speeches and memorandums to each other.
Chapter VII of the UN Charter requires that there be a threat
to the peace or an act of aggression before the Security Council
can make use of its special powers set out in that Chapter. It
has always been interpreted to mean and was meant to mean a threat
to international peace not national peace. The members of the
Security Council recognized this and so had to redefine a national
problem as an international one. Yet in all those speeches and
memoranda there is not one compelling reason given for doing this
except vague references to the collapse of the socialist bloc,
and the imperative to establish a new world order.
In fact, Mr. Genscher in his speech to the Canadian parliament
stated unequivocally that no nation would any longer be allowed
to ignore Security Council decisions. Even if this redefinition
were a legitimate interpretation of the UN Charter, which it is
not, the UN Charter only speaks of economic measures and then
military measures, not judicial or criminal measures.
Chapter VII has to be read in context with Chapter I of the
Charter which speaks of international cooperation in solving international
problems of an economic, social, cultural or humanitarian character.
It says nothing of humanitarian problems of a national character.
It states that the UN is based on the principle of the sovereign
equality of its members, a fundamental principle of international
law, and the first guarantee of the right to self-determination
of the world's peoples. If a people does not have the right of
sovereignty, the right to self-determination is a sham. This principle
is completely denied by the creation of the Tribunal. The Tribunal
itself explicitly denies that this principle applies in its own
statements as do its political supporters, but never, of course,
in reference to themselves. Lastly, the
Charter states that nothing contained in the Charter shall
authorize the UN to intervene in matters which are essentially
within the domestic jurisdiction of any state. This fundamental
principle, put in the Charter so that the UN could not be used
by some members to bully others, has also been fatally undermined
by the creation of the Tribunal. The members of the Security Council,
more precisely, the permanent members, now hold the opposite position,
and I submit, do so for reasons connected more with imperialism
In light of these facts the Security Council's authority to
create such a tribunal is in my view more than questionable. That
it was created is to be credited to Madeleine Albright, who used
some effective persuasion with the Russian and Chinese members
to vote for its creation in return for economic consideration
and with a view to controlling smaller states within their own
spheres of interest.
Yugoslavia could be used
Yugoslavia was the first experiment in using a quasi-judicial
international body to attack the principle of sovereignty. And
as the Americans have learned so well, the best way to get your
domestic population behind you as you proceed to break another
country, economically and militarily is to get them to hate those
in power in that country. The Serb leadership was targeted, and
transformed into caricatures of evil. There were comparisons to
Adolf Hitler, a comparison used with surprising frequency by the
United States against the long list of nations it has attacked
in the last 50 years, though sometimes they are just labeled as
common criminals, like Manuel Noriega, or mad, like Ghadaffi,
if the leader or the country is too small to make the Hitler comparison
stick. I think Saddam Hussein was the first to be compared to
Hitler, and declared a common criminal and a madman all at the
The Tribunal from the outset was, as I have said, the creation
of particular governments. Their motives are clear from the preliminary
discussions in the Security Council on the creation of the court
which focused almost entirely on crimes allegedly committed by
Serbs and their leadership. Since its inception it has kept this
focus. The majority of indictments have been directed at Serbs
even though there is substantial evidence of the commission of
serious war crimes by Croats and Bosnian Muslims.
Aggression and crimes against peace left out
The Tribunal has jurisdiction over war crimes and crimes against
humanity, but crimes against peace, the worst crime under the
Nuremberg principles, are not within the purview of the tribunal.
The underlying reason for this is that the members of the Security
Council preferred to reserve to themselves competence in the field
of aggression and similar crimes against peace. The members of
the Security Council have a very keen sense of humour or perhaps
more accurately, self-preservation.
In a statement to the Secretary-General of the United Nation,
Mr. Boutros-Boutros Ghali, on January 21, 1994, by Antonio Cassese
the Tribunal's political character was made quite clear when he
said in reference to the role of the Tribunal, "The political
and diplomatic response (to the Balkans conflict) takes into account
the exigencies and the tempo of the international community. The
military response will come at the appropriate time." In
other words, the Tribunal is considered a political response.
He went on to state, "Our tribunal will not be simply "window
dressing" but a decisive step in the construction of a new
The governing statute is continuously violated: independence
The governing statute of the Tribunal states in Article 16
that the Prosecutor shall act independently as a separate organ
of the Tribunal and shall not seek or receive instruction from
any government or any other source. Article 32 states that the
expenses of the Tribunal shall be borne by the regular budget
of the United Nations. Both of these provisions have been openly
and continuously violated.
The Tribunal itself, through its senior officials openly brags
about its particularly close ties to the American government.
In her remarks to the United States Supreme Court in Washington,
D.C. on April 5th of this year, Judge Gabrielle Kirk Mcdonald,
President of the Tribunal, and an American stated, "We 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". If she is the mother then Bill Clinton
is the father, as Louise Arbour confirmed by her action of reporting
to the President of the United States the decision to indict Milosevic
two days before she announced it to the rest of the world, in
blatant violation of her duty to remain independent. Further,
she and the current prosecutor have
made several public appearances with U.S officials, including
Madeleine Albright, and both have openly stated that they rely
on Nato governments for investigations, governments which have
a great interest in the undermining of the Yugoslavian leadership.
NATO, not the UN, the gendarme of the Tribunal
In 1996, the prosecutor met with the Secretary-General of
NATO and the Supreme Allied Commander in Europe to "establish
contacts and begin discussing modalities of cooperation and Assistance".
On May 9th, 1996 a memorandum of understanding between the
Office of the Prosecutor and Supreme Headquarters Allied Powers
Europe (SHAPE) was signed by both parties. Further meetings have
taken place since including that of the president of the Tribunal
with General Wesley Clarke. The memorandum of May 9th spelled
out the practical arrangements for support to the tribunal and
the transfer of indicted persons to the Tribunal. In other words,
NATO forces became the gendarmes of the Tribunal, not UN forces,
and the Tribunal put itself at the disposal of Nato. This relationship
has continued despite the Tribunal's requirement to be independent
of any national government and, therefore, group of national governments.
Primarily US, not UN, funding
The Tribunal has received substantial funds from individual
States, private foundations and corporations in violation of Article
32 of its Charter. Much of its money has come from the U.S. government
directly in cash and donations of computer equipment. In the last
year for which public figures are available, 1994/95, the United
States provided $700,000 in cash and $2,300,000 worth of equipment.
That same year the Open Society Institute, a foundation established
by George Soros, the American billionaire financier, to bring
"openness" to the former east bloc countries contributed
$150,000 and the Rockefeller family, through the Rockefeller Foundation,
contributed $50,000 and there have been donations from corporations
such as Time-Warner, and Discovery Products, both US corporations.
It also important to know that Mr. Soros' foundation not only
funds the Tribunal it also funds the main KLA newspaper in Pristina,
an obvious conflict of interest that has not been mentioned once
in the western press.
The Tribunal also receives money from the United States Institute
for Peace for its Outreach project, a public relations arm of
the Tribunal set up to overcome opposition in the former Yugoslav
republics to its work and the constant criticisms of selective
prosecution and the application of double standards; objections
which have obvious merit and which are never answered by anyone
at the Tribunal or by any of its sponsors. The Institute for Peace
is stated to be " an independent, non-partisan federal institution
created and funded by Congress to strengthen the nation's capacity
to promote the peaceful resolution of international conflict."
Established in 1984 under Ronald Reagan, its Board of Directors
is appointed by the President of the United States.
The Tribunal also receives support from the Coalition For
International Justice whose purpose is also to enhance public
opinion of the Tribunal. The CIJ was founded and is funded by,
again, George Soros' Open Society Institute and something called
CEELI, the Central and East European Law Institute, created by
the American Bar Association and lawyers close to the U.S. government
to promote the replacement of socialist legal systems with free
These groups also have supplied many of the legal staff of
the Tribunal. In her speech to the Supreme Court, Judge Mcdonald
said, "The Tribunal has been well served by the tremendous
work of a number of lawyers who have come to the Tribunal through
the CIJ and CEELI..." It is also interesting to note that
the occasion of Judge McDonalds speech was her acceptance of an
award from the American Bar Association and CEELI. In the same
speech she also said that "We are now seeking funding from
states and foundations to carry out this critical effort."
Not anybody's war crimes
The new prosecutor Carla Del Ponte, on September 30, 1999
at a press conference, thanked the director of the FBI for assisting
the tribunal and stated "I am very appreciative of the important
support that the U.S government has provided the tribunal. I look
forward to their continued support." On September 29th, in
response to a question as to whether the tribunal would be investigating
crimes Committed in Kosovo after June 10, or crimes committed
by others (meaning NATO) in the Yugoslav theatre of operations,
"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 is not explained. Why, if the
Tribunal is impartial wouldn't it be just as focussed on Nato
war crimes, the war crimes of Clinton, Schroeder, Chirac, Chretien
etc? Why did it still need to investigate to support the indictments
against the leaders of the government and military of Yugoslavia
if there was already evidence to justify those indictments?
Well, we can speculate why when we consider that the last
prosecutor, Louis Arbour, who was asked to investigate all NATO
leaders for war crimes, instead accepted a job from one of them,
the Prime Minister of Canada, Jean Chretien. She now sits in the
scarlet robes of a judge of the
Supreme Court of Canada, a lifetime appointment, her reward
for handing down the indictment against Mr. Milosevic, despite
the lack of evidence and (if you believe the reports of the Spanish
and RCMP forensic experts recently returned from Kosovo) the continuing
lack of evidence of the systematic crimes he is accused of.
On April 19th Judge McDonald "expressed her deep appreciation
to the U.S. Government for its pledge of $500,000 for the Outreach
project which was announced on April 16 by Harold Koh, U.S. Assistant
Secretary of State.
In her speech to the Council On Foreign Relations in New York
on May 12 of this year Judge McDonald 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 three million dollars,
which will substantially enhance our operating capacity."
From the start, the Office of the Prosecutor has had meetings
with NGO's that are eager to "cooperate with and assist the
tribunal", many of them linked to George Soros through his
Open Society Foundation. All this money flows through a special
UN account which is financed by assessed contributions from member
states and voluntary contributions from states and corporations
again in violation of its statute.
As an aside it's interesting that its role as a propaganda
tool was indirectly acknowledged by its own staff when they failed
to provide for a courtroom or holding cells in their first budget
of approximately $ 32 million dollars. The Security Council sent
them back to redraft the budget to include those items. After
all, this was supposed to be a criminal tribunal! They did so.
The difference was an added expense of $500,000. It's also interesting
to know that three of its first four rooms in the Peace Palace
in the Hague were loaned to them by the Carnegie Foundation.
The Tribunal itself lays the charges
In order to give itself the appearance of a judicial body
the Tribunal has persons appointed as judges, prosecutors, clerks,
investigators, and has its own rules of procedure and evidence,
its own prison system. It says it applies the presumption of innocence.
However, unlike criminal courts, with which we are all familiar
(or, perhaps not), the court itself is involved in the
laying of the charges. When a charge is to be laid the approval
of one of the trial judges must be obtained. That approval is
only given if a prima facie case is established. That is, a case
which if not answered could result in a conviction. Yet, despite
this close relationship between the prosecutor and the judges
and the commitment to the charges the judges have made by signing
the indictment, the rules insist on the presumption of innocence.
The presumption of innocence is compromised: automatic detention
This presumption is compromised in other ways. The most egregious
is that upon arrest detention is automatic. There is no bail,
no form of release pending trial, unless the prisoner proves "exceptional
circumstances". Loss of job, loss of contact with friends,
family, indeed country is not sufficient. Even ill health has
not been sufficient to get bail. Prisoners are treated as if they
had been convicted. They are kept in cells and have to obey prison
rules, are subject to discipline if they do not, constant surveillance,
censored mail, restricted family visits, communication with family
at their own expense and there are restrictions on what they can
see or hear on radio or television.
Prisoners have had to wait many months before a trial takes
place, sometimes years. Yet, still they insist these men are presumed
innocent. The question is by whom? By the judges, one of whom
laid the charge in the first place?
No jury, sealed indictments, possibly secret trials and suspects
can be detained for up to 90 days without charge!
Its rules of evidence are relaxed so that protections on the
admission of hearsay evidence developed over centuries in all
national courts are set aside and replaced by an anything is admissible
if deemed relevant approach even if it is hearsay. There is no
jury. Witnesses can testify anonymously, or not be shown in court.
In its yearbook for 1994, this statement appears, "The tribunal
does not need to shackle itself with restrictive rules which have
developed out of the ancient trial-by-jury system." There
are provisions in the rules for closed hearings, in circumstances
which are vaguely defined, secret trials, the very essence of
injustice and of political courts. It is now increasing its use
of sealed indictments, so that no one knows if they have been
charged until the military police swoop down on them on the street
in any country. Suspects, persons not indicted, can be detained
for up to ninety days without charge. We all know from experience
what prisoners can undergo in a day or two at the mercy of most
police forces. Ninety days. Anyone one of us, you and I, could
be detained by the Tribunal for that length of time. All they
have to say is they have some reason to suspect you. This is easily
Confessions free after custody in 90 days?
Perhaps its most dangerous rule is Rule 92 that states confessions
shall be presumed to be free and voluntary unless the contrary
is established (by the prisoner). Just think - presumed to be
free and voluntary after 90 days at the mercy of military police
and prosecutors. Almost every other court in the world presumes
the opposite or, because of the notorious unreliability of confessions
made in police custody are moving to prohibit their use entirely.
This Tribunal goes back to the days of Star Chamber and the justice
of the 13th century. Finally, we have imprisonment of those sentenced
in foreign countries so that not only are they imprisoned, they
are at the same time exiled.
There is even a special provision for the obtaining of evidence
from NGO's such as George Soros Open Society Foundation, whose
conflict of interest has already been mentioned. Accused have
the right to choose counsel on paper but in reality that right
is infringed by the Registrar who can disqualify counsel for all
sorts of reasons including being unfriendly to the Tribunal. Such
a counsel will be supplied if the accuses insists strongly enough
but it is not made easy. There are cases in which the Registrar
has barred lawyers from particular countries because there are
deemed to be too many of them already representing accused persons,
and the use of its contempt powers is a powerful weapon to intimidate
counsel. Lawyers have been subject to large fines for contempt.
Not a judicial body worthy of international respect
No citizen of any country in the world would consider themselves
fairly tried before a court that was paid for, staffed and assisted
by private citizens or corporations which had a direct stake in
the outcome of the trial and who were, themselves, in practical
terms, immune from that court. It is a well established principle
of law that a party in a legal action, whether civil or criminal,
is entitled to ask for the removal of any judge sitting on the
case when there exists a reasonable apprehension of bias.
In this instance, a compelling argument can be made that the
bias is not only apprehended, it is real, that it is not of one
judge but of the entire tribunal, that this is not a judicial
body worthy of international respect but a kangaroo court, a bogus
court, with a political purpose serving very powerful and identifiable
A crime against peace under the Nuremberg Principles?
To be consistent with my thesis, I will go further and say
that as a political instrument designed to violate, to destroy,
the integrity and sovereignty of a country, its creation is a
crime against peace under the Nuremberg Principles. Instead of
resolving conflict as it claims, it is used to justify conflict,
instead of creating peace, it is used to justify war and therefore
is an instrument of war.
Will Slobodan Milosevic receive a fair trial if they take
him? Will the leaders of NATO, even be investigated let alone
indicted for war crimes committed in the brutal attack on the
civilian population of Yugoslavia, as my colleagues in Canada,
South and Central America, Spain, Norway, Greece, Britain, and
the United States have requested?
As the English say, the proof is in the pudding. Our requests
have met with empty words and no action. We made the requests
in order to bring to the attention of the world the crimes that
were being committed by Nato. We believe we have succeeded in
that. If we have not succeeded in bringing to justice the war
criminals of Nato, it is because we have exposed the political
nature of this Tribunal instead. It is up to all of us to act
on this knowledge.
The author can be reached at: email@example.com