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avgust 20, 2008

















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.