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|Meeting with Carla
del Ponte on NATO's Crimes of War
by Michael Mandel (posted 11-26-99)
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Toronto lawyer David Jacobs and I met with the new Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia at Tribunal headquarters in The Hague on Friday November 19. The meeting lasted an hour and a half and was attended by the Prosecutor, Justice Carla Del Ponte (of Switzerland) and two of her Senior Legal Advisers, William Fenrick (of Canada) and Gavin Ruxton (of Scotland).
This was the second meeting we have had in the Hague -- the first was with former Prosecutor Justice Louise Arbour -- in pursuance of our complaint against 68 named leaders of NATO and the NATO countries for war crimes committed in Yugoslavia during the bombing campaign of March 24 - June 10.
At our meeting with the Prosecutor we delivered a written brief outlining our case and three thick volumes of evidence documenting the war crimes. The brief is attached.
In our brief and in our oral argument we made the following points:
1.. That there is overwhelming evidence of war crimes, crimes against humanity and grave breaches of the Geneva Conventions committed by the named leaders, involving the willful killing and injury of thousands of civilians, as well as the destruction of billions of dollars worth of civilian property;
2.. That this was deliberate on the part of the named leaders and that there was no lawful excuse, the war being illegal from start to finish;
3.. That whatever the responsibilities of the Balkan actors themselves, an enormous measure of moral and legal responsibility for the ongoing disaster in the Former Yugoslavia must be placed squarely on the shoulders of the NATO leaders;
4.. That the evidence was so strong that it warranted the addition of a count of murder contrary to Article 5 (a) of the Tribunal Statute for each of the civilians on all sides killed during the attack and in its violent aftermath, continuing to this day in Kosovo;
5.. That to the list of the named accused (which includes all the heads of government, foreign ministers and defence ministers of the NATO countries, as well as the leaders of NATO itself) must be added the name of Lt. General Michael C. Short, who has emerged as one of the main protagonists propelling NATO towards the commission of war crimes; 6.. That the prosecutor is under a legal duty to indict each of the
7.. That this is not only a requirement of law, it is a requirement of justice to the victims and of deterrence to powerful countries such as those in NATO who, in their military might and in their control over the media, are lacking in any other natural restraint such as might deter less powerful
8.. That the decision during the war to indict Milosevic and other members of the Serb leadership placed an especially heavy duty on the Prosecutor to indict the NATO leaders, because the failure to do so allowed
the Tribunal to be used as a crucial propaganda device by the NATO countries to help fight their illegal, aggressive war; 9.. That the continued failure to indict NATO leaders falsely legitimates the crippling sanctions being imposed on Yugoslavia
10.. That there is highly credible evidence that the United States intended the Tribunal for just these propaganda purposes;
11.. That the decision by Judge Arbour to indict Milosevic in the midst of the attack raised serious questions about the impartiality of the Tribunal; and
12.. That the failure to indict NATO would be a mortal blow to the credibility of the Tribunal because the world believes the NATO leadership to be at least as guilty of war crimes as the Serbian leadership, if not guiltier.
During the presentation of our arguments and the evidence we had the opportunity to engage in a fairly free-ranging discussion of some of the legal and evidential issues raised by the case. The question of the
relevance of the illegality of the war to NATO leaders' liability was raised by one of the Prosecutor's advisers. He took the position that the illegality of the attack itself, and by extension everything necessarily
incidental to it, could not form the basis of a war crimes charge. We took the position that this was an unduly narrow and, indeed, incorrect reading of the Statute and that it would have the effect of immunizing war criminals of the powerful countries for some of the most terrible crimes. We also pointed out that the NATO leaders' criminal liability was based not only the illegality of the war, but also the criminal means by which it was carried out, including the deliberate strategy of terrorizing the civilian population.
The Prosecutor herself suggested that the cases of Milosevic and NATO were very different; but we argued that, however that might be, legally and morally speaking the NATO leaders were still guilty of very serious crimes that had caused at least as much death, injury, and destruction as that alleged against Milosevic, if not more. The Prosecutor also suggested, without elaborating, that she thought that the evidence she had against Milosevic was stronger than that so far presented against NATO. To this we argued that, since much of the evidence she had against Milosevic came from NATO sources, it was extremely suspect. We also argued that, on the other hand, the evidence against NATO was in the public domain, and that it was the duty of the Tribunal itself to follow up the many reliable sources we had provided. Finally, we argued that the investigation, indictment and prosecution of NATO had to made the highest priority of the Tribunal.
While taking no position on the merits, the Prosecutor re-affirmed that she had jurisdiction over any crime committed by the NATO leaders, that the case was under study, that it was her intention to study it further and, indeed, that she would seek our assistance with it in the future.
For our part we expressed our willingness to help the Tribunal with the case in any way we could, but we concluded by submitting that there was no excuse for any further delay.
Our brief concluded as follows:
In conclusion, the Complainants are forced to say that they cannot understand the failure of the Tribunal to act on these and the many other complaints against the NATO leaders. The law is clear. The evidence is overwhelming. More than enough time has passed, especially given the speed with which the Milosevic indictment was issued. The failure of the Tribunal to act is raising strong suspicions of bias and continues to directly contribute to the suffering in Yugoslavia. The Tribunal must act now.
For a critique of NATO's war against Serbia, click on Hawks and Eagles: 'Greater NATO' Flies to the Aid of 'Greater Albania' or go to http://emperors-clothes.com/articles/Johnstone/hawks.html
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