Unindicted War Criminal
by Christopher Black and 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 as Arbour and her 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
In the midst of NATO's 78-day bombing campaign against Yugoslavia, Arbour
participated 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 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 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 needs of the NATO leadership. There had been
growing criticism of NATO's increasingly civilian infrastructure-oriented bombing of
Serbia. 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: for example, 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).
Arbour herself noted that "I am mindful of the impact that this indictment
may have on the peace process," and 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, May 27). So
Arbour not only understood the political significance of her indictment, she suggested
that interference with diplomatic efforts was justified because the indicted individuals,
though not yet found guilty, were 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.
The Tribunal's Politicization
Arbour's service to NATO in indicting Milosevic was the logical outcome of the
Tribunal's de facto control and purpose. Established by the Security Council in the early
1990s to serve the Balkan policy ends of its dominant members, the Tribunal's funding and
interlocking functional relationship with the leading NATO powers have made it NATO's
Although Article 32 of the Tribunal's Charter declares that its 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, and 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 deciding on who should be
charged for war crimes.
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 Judge Gabrielle Kirk McDonald, president of
the Tribunal). In 1996 Arbour 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.
Arbour acknowleged (April 20) that "the real danger is whether we would fall
into [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's April 20 reference to the
"morality of the [NATO] 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.
The Arbour-Tribunal bias was dramatically illustrated by the disposition of an
internal Tribunal report on Operation Storm, which described war crimes committed by the
Croatian armed forces in their expulsion of more than 200,000 Serbs from Krajina in August
1995. In only four days "at least 150 Serbs were summarily executed, and many
hundreds disappeared," totals that exceeded the 241 victims of the Serbs named in the
indictment of Milosevic. But as the United States supported the
Croat's ethnic cleansing of Serbs in Krajina, and refused to provide requested
information, no indictment of any Croat officer named in the report, or head of state
Tudjman, was ever brought by the Tribunal.