The indictment of Slobodan Milosevic for alleged war crimes has raised serious questions about the impartiality 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can be made that private justice has replaced public justice, that even the appearance of fundamental justice has been replaced by an open contempt for justice.
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. The Tribunal has openly and continuously violated both of these provisions.
The Tribunal from the outset was the creation of the United States Government. Its 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.
It must also be kept in mind that the United States has for 30 years blocked every attempt to create a truly international criminal court. It has refused to even consider the ratification of new treaty establishing such a court. It wants any prosecutions by such a court to be approved by the Security Council subject to its right of veto. It is opposed to universal jurisdiction and it opposes an independent prosecutor. All for fear that its soldiers and officials, from Kissinger to Clinton would be subject to indictments for war crimes. Jesse Helms, the conservative U.S. Senator once remarked that such a treaty, if presented to Congress for ratification would be "dead on arrival".
There is strong evidence that the Tribunal for Yugoslavia, although neutral and independent on paper, was created and is staffed and funded primarily by the United States precisely because it will not act against the hand that feeds it; that its purpose is to provide a legal cover for American political and economic objectives.
The Tribunal itself, through its senior officials openly brags about its 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, the prosecutor has made several public appearances with U.S officials, including Madeleine Albright, and she openly states that she relies on NATO governments for her investigations, governments which have a great interest in the undermining of the Serb leadership.
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 U.S. 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.
The Tribunal also receives money from the United States Institute for Peace for its outreach project. This Institution is " 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 to enhance public opinion of the Tribunal. The CIJ was founded and is funded by 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 market ones.
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," We are now seeking funding from states and foundations to carry out this critical effort."
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."
No citizen of any country in the world would consider himself or herself fairly tried before a court which claimed to be independent and unbiased paid for by private citizens or corporations which had a direct stake in the outcome of the trial. 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.
Will Slobodan Milosevic have a fair trial if he is taken? Will the leaders of NATO, who have also been accused of war crimes before the tribunal by legal experts around the world, including Canadians, even be investigated? The answers to these questions lie not in the high sounding phrases of the Tribunal's statute but in the realities of political and financial control. Christopher Black is a Toronto defence lawyer and writer and is one of the lawyers who made the request to the War Crimes Tribunal to indict NATO leaders for war crimes.
Christopher Black is a Toronto defence lawyer and writer and is one of the lawyers who made the request to the War Crimes Tribunal to indict NATO leaders for war crimes.
He recently returned from Bonn, Germany where he was a guest speaker at a conference on the causes and consequences of the war in Yugoslavia. It was organised by German, French and British journalists, writers, publishers, scientists, physicians, historians and legal experts for the purpose of exchanging information and developing a collective resistance to the "New World Order".
Christopher Black can be reached at this E-mail address
This Week's Other Articles:
Antiwar Demonstration in San Francisco by Nancy Stark (and Gilles d'Aymery's follow-up)
The Bombing of Yugoslavia by Valeria Bradley
American Democracy at Work by Gilles d'Aymery
Ethics in Journalism by Sabine Maubouché (in French)
What Reporters Knew About Kosovo Talks -- But Didn't Tell by FAIR