An Impartial Tribunal? - Part 4.
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 constructed.
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.