An Unindicted War Criminal

& 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, 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.

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 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



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.

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, 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
(Peter Lang, 1999).