Global Policy Forum

By by Michael Mandel*

The former Serb leader has about as much chance of getting a fair trial from this court as he had of defeating NATO in an air war, says law professor.

Legal experts this week dismissed Slobodan Milosevic's condemnation of The Hague Tribunal as "unhelpful to his defence" and "unlikely to help him win an acquittal."

That's really rich. Mr. Milosevic has about as much chance of getting a fair trial from this court as he had of defeating NATO in an air war.

In fact there is a lot to be said for Mr. Milosevic's claim that the tribunal is "false tribunal, and indictments false indictments." When the former Serb leader said "This trial's aim is to produce false justification for the war crimes of NATO, committed in Yugoslavia," he was, in fact, just echoing the words of Michael Scharf, the man who wrote the original tribunal statute for then U.S. secretary of state Madeleine Albright.

Mr. Scharf wrote in October, 1999, in the Washington Post that "the tribunal was widely perceived within the government as little more than a public relations device and as a potentially useful policy tool." He said that indictments would serve "to isolate offending leaders diplomatically, strengthen the hand of their domestic rivals and fortify the international political will to employ economic sanctions or use force.

"Treating the tribunal as a propaganda arm of NATO is, in fact, the only way to make sense of its violation of the principles of judicial impartiality. The indictment against Mr. Milosevic was issued on May 22, 1999, even as NATO's bombs were falling on Yugoslavia; most of the charges, concerning actions alleged to have occurred after the bombing had commenced, relied on undisclosed evidence supplied by none other than NATO itself. This in the middle of a war! An impartial prosecutor should have viewed such evidence as questionable.

If there were an honest tribunal in The Hague, Mr. Milosevic would not be the only government leader on trial. NATO's leaders, from Bill Clinton and Jean Chrétien to Tony Blair and Jose Maria Aznar committed what the Nuremberg judgment called "the supreme international crime" -- resorting to war.

As chief prosecutor Robert Jackson said at Nuremberg: "An honestly defensive war is, of course, legal and saves those lawfully conducting it from criminality. But inherently criminal acts cannot be defended by showing that those who committed them were engaged in a war, when war itself is illegal."NATO's war was a conscious violation of international law and the Charter of the United Nations. Was it a "humanitarian intervention" as some call it? Not likely. What was humanitarian about bombing Belgrade?Let's not forget either the West's aggressive economic policies that plunged Yugoslavia into depression and civil war in the first place, or the sponsorship of Balkan republics on the basis of ethnic divisions that left huge minorities within them waiting only to be turned on by the majorities. Remember NATO's cultivation of the KLA, the compromising of every single chance of peace, from the Vance-Owen efforts in Bosnia to the farce of Rambouillet, to the bombing campaign itself.

The need to invent a new role for NATO after the Cold War, the U.S. effort to undermine the United Nations, a desire to make an example of those who think they can oppose American will, the appeal of waging a war without losing one American life in combat, even Monica Lewinsky -- all explain this war better than humanitarianism.

The statute of The Hague Tribunal does not include "aggressive war" as a crime. The U.S. didn't want it there, just as it didn't want it in the Rome Statute of 1998 that seeks to create an International Criminal Court. But the statute does include "crimes against humanity" including "murder" and "other inhumane acts."

I believe the NATO leaders planned and executed a bombing campaign that they knew was contrary to the most fundamental tenets of international law and that they knew would cause the death of hundreds of civilian children, women and men. They admitted this even as they apologized for what they called "collateral damage," the kind that happens in any war. Slobodan Milosevic was indicted for the murder of 385 victims. The NATO leaders killed at least 500 and perhaps as many as 1,800 people, without any legal excuse.

Then there are the Geneva Conventions and the "laws and customs of war" which make it a crime, even in a legal war, to kill and injure civilians intentionally or carelessly. These NATO leaders made targets of places and things with only tenuous or slight military value or no military value at all: city bridges, factories, hospitals, marketplaces, downtown and residential neighbourhoods, and television studios.

Michael Dobbs, Madeleine Albright's biographer, wrote in the Washington Post, in July, 1999, that "it is obvious to anyone who visited Serbia during the war that undermining civilian morale formed an essential part of the alliance's war-winning strategy.

"So the only legal difference between Mr. Milosevic and the NATO leaders is that the Serb leader lost the war and stands now as an indicted war criminal, while they, the victors, are un-indicted war criminals.

Indeed, the NATO leaders never will be indicted. A year ago, Carla Del Ponte issued a report declaring that she was absolving the NATO leaders of their crimes without even opening an investigation. Read the report if you want to know how much sense Mr. Milosevic was talking at The Hague on Tuesday. Read the report by Amnesty International that came out at the same time.

Where Amnesty's report carefully details a whole host of war crimes against civilians, Ms. Del Ponte's reads like a brief for NATO. In fact, it was written by an ex-NATO lawyer, William J. Fenrick, Canadian Armed Forces frigate captain (ret.) who went to the tribunal directly from his post as director of law for operations and training in the Canadian Department of Defence.

The punch-line of this report comes at the end when it notes that the review of NATO's actions relied primarily on public documents produced by NATO. It explained that the committee "tended to assume that the NATO and NATO countries' press statements are generally reliable and that explanations have been honestly given.

"Can you imagine what kind of law enforcement a country would have if the police took alleged criminals' explanations at face value? Yet, after a year, the tribunal declined to even open an investigation.

Contrast this approach to the Racak incident of Jan. 15, 1999, (the other major item in the Milosevic indictment), when prosecutor Louise Arbour flew to Kosovo, with CNN cameras on hand, and dramatically opened an investigation on the say-so of one U.S. diplomat. It took her just two weeks of consultations with NATO to declare the incident a war crime.

Mr. Milosevic may be guilty of the crimes he is alleged by Ms. Arbour and Ms. Del Ponte to have committed, but he'll never get a fair trial at The Hague. And the failure to prosecute NATO's crimes renders this tribunal worse than no tribunal at all.

*Michael Mandel, professor of law at Osgoode Hall Law School of York University, headed an international team of lawyers seeking to have NATO leaders charged with war crimes for the 1999 bombing campaign against Yugoslavia.