The Anomalities of the International Criminal Tribunal are Legion

This is not victors' justice in the former Yugoslavia -
in fact, it is no justice at all'



By John Laughland

The Times, London, June 18, 1999


Emotion may be a spur to justice, but it is rarely its guarantor. The allegations of war crimes eagerly funnelled out of Kosovo by the thousands of journalists in the province have provoked a demand for retribution. That cry for justice is natural. But the International Criminal Tribunal for the Former Yugoslavia, the body charged with pursuing those accused of war crimes in Kosovo, is a rogue court with rigged rules.

The tribunal was established to override the key principle of the international order - the belief written into the UN charter that states were sovereign within their own borders. State sovereignty, it was claimed, merely provided a cover for dictators to wield unfettered power and therefore international authority must override it. It is a seductive argument but one which may simply allow the "international community" to wield unfettered power instead.

The International Criminal Tribunal shows little sign of caring that Nato has itself broken nearly every rule of war, or that the peace deal concluded with Belgrade is null and void in international law, since Yugoslavia's signature was obtained by force. Instead, it displays considerable contempt for the very thing which distinguishes the rule of law from retributive justice, namely due process.

One of the oldest principles of law is that a defendant may not be tried twice for the same crime. Dating from 15th-century England and expressed in the 5th Amendment to the US Constitution, this ancient rule is calmly brushed aside by Article 25 of the tribunal's statute, which gives the Prosecutor the right to appeal against an acquittal and obtain a conviction instead. Three such appeals have already been launched in cases the tribunal is now trying.

Another deeply-rooted principle is that no man may be judge in his own cause. This does not apply to the tribunal. During one trial it was alleged that the tribunal itself was illegal because the United Nations Charter does not give the Security Council authority to create a body with supranational powers to prosecute individuals.

Although it is a key requirement for due process that a defendant be tried by a body "established by law", the Security Council is not a l aw-making body. Faced with the allegation that it had no legitimacy, the tribunal did not refer the matter to another body, such as the International Court of Justice, but instead decided to deal with the charge itself. Not surprisingly, it found in its own favour.

Other anomalies are legion. The tribunal does not accord the right to bail or to a speedy trial. It does not have any definitions of the burden of proof required for a conviction, such as "beyond reasonable doubt". It does not have juries. There is no independent appeal body. 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". This flouts the rule that a defendant must be able to confront his accusers and prepare a cross-examination of them.

The tribunal gives itself powers as it goes along. Louise Arbour, the recently departed Chief Prosecutor, has said: "The law, to me, should be creative and used to make things tight," and the tribunal dips into a potpourri of different legal systems from around the world. In one case, the tribunal defended itself against charges that it had illegally seized documents from the Bosnian Government by saying that its procedures were compatible with the law in Paraguay. General Stroessner evidently has a place in the tribunal's judicial pantheon alongside Sir Edward Coke and William Blackstone.

As if this were not enough, the tribunal is not funded by disinterested parties, but by those who waged or supported the attacks on Yugoslavia. These include the leading Nato governments (especially the United States) and various non-governmental organisations like George Soros's Open Society Institute, whose head of office in Kosovo is a militant supporter of the Kosovo Liberation Army.

Might, it seems, is always right. Just ask the Nato spokesman Jamie Shea. On May 17, he was asked whether Nato leaders could ever be indicted by the tribunal. "As you know," he replied, "without Nato countries there would be no International Court of Justice, nor would there be any International Criminal Tribunal for the former Yugoslavia because Nato countries are in the forefront of those who have established these two tribunals, who fund these tribunals and who support on a daily basis their activities." This is not victors' justice - it is no justice at all.


© The Times 1999












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