Louise Arbour:
Unindicted War Criminal
by Christopher Black and Edward S. Herman
Part 2
Tribunal's Kangaroo Court Processes
According to Arbour, 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," thus precluding "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: among others, it fails to
separate prosecution and judge; witnesses can testify anonymously; confessions are
presumed free and voluntary unless the contrary can be established by the prisoner; and
"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'" (Laughland).
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 within a month of her
elevation to the Canadian Supreme Court she joined a court majority that grafted onto
Canadian law the dangerous 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 to June 8 1999, NATO
violated the UN Charter requirement that it not use force without UN Security
Council sanction. It was also guilty of 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 justified seemingly serious law violations. This reply sanctions law violations on
the basis of self-serving judgments that contradict the rule of law, but it is
also dubious on its own grounds. 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. Furthermore, NATO refused to
negotiate a settlement in Kosovo and insisted on a violent solution; 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 allegeldy carried out by Serbs.
Thus on March 8, 1996, the Serb leader Milan Martic was indicted for allegeldy 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." But the same case 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 bombing 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);
targets were gradually extended to factories of all kinds, electric
power stations, water and sewage processing facilities, transport, public buildings, and
even 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 international law makes civilian targets off limits; the
"wanton destruction of cities, towns or villages or devastation not justified by
military necessity" is prohibited (Sixth Principle of Nuremberg, formulated in
1950 by a UN-sponsored international law commission). "Military
necessity" 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 because they pay taxes supporting the war machine or might some day become
soldiers. Making an entire population a hostage is a blatant
violation of international law and its implementing acts are war crimes.
In December 1999, it was finally reported that post-Arbour prosecutor Carla 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, Dec. 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 decided 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.
Beyond Orwell
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 desired
quick victory. Arbour and the Tribunal helped NATO by indicting
Milosevic, thereby giving NATO the moral cover needed for 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.
