War Crimes: Goose and Gander

Former Yugoslav President Slobodan Milosevic was found dead in his jail cell at The Hague Saturday. Since 2001, he had been on trial for genocide in Bosnia, and war crimes and crimes against humanity in Bosnia, Croatia and Kosovo. Although many have already adjudged him guilty, we will never hear the official verdict of the International Criminal Tribunal for the Former Yugoslavia (ICTY).

We will also never see a trial in the ICTY for Bill Clinton, Madeleine Albright or Wesley Clark for the 1999 US-led NATO bombing of Yugoslavia. Nor will George W. Bush, Dick Cheney or Donald Rumsfeld be prosecuted by an international tribunal for their war crimes in Iraq.

NATO's invasion of Yugoslavia was a war of aggression that violated the United Nations Charter. It was not undertaken in self-defense nor did it carry the approval of the Security Council. Between 1500 and 2000 civilians were killed and many thousands injured. When I visited Belgrade a year after the NATO bombing, I saw schools, hospitals, bridges, libraries and homes reduced to rubble. The ICTY statute prohibits the targeting of civilians. And even though it also forbids the use of poisonous weapons calculated to cause unnecessary suffering, NATO used depleted uranium and cluster bombs, whose devastating character is widely known. NATO also targeted a petrochemical complex, releasing carcinogens into the air that reached 10,600 times the acceptable safety level.

The American Association of Jurists and a group of Canadian lawyers and law professors filed a war crimes complaint against NATO leaders in the ICTY. Yet that tribunal conducted only a perfunctory investigation of the serious charges. Both Amnesty International and Human Rights Watch criticized the ICTY for failing to thoroughly investigate.

By denouncing the International Criminal Court, Team Bush has ensured that US leaders will never be held to account for war crimes. Although virtually every Western democracy has ratified the statute under which the Court operates, the United States has thumbed its nose at this monumental international justice system.

Bush has reason to fear prosecution. He has used cluster bombs, depleted uranium, white phosphorous and napalm. And the torture of prisoners in US custody also constitutes a war crime. His war on Iraq is a war of aggression.

After the Holocaust, the International Military Tribunal at Nuremberg called the waging of aggressive war "essentially an evil thing ... to initiate a war of aggression ... is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." Associate United States Supreme Court Justice Robert Jackson, one of the prosecutors at the Nuremberg Tribunal, labeled the crime of aggression "the greatest menace of our times."

For the first time, at Nuremberg, individuals were held criminally accountable for war crimes and waging a war of aggression. Japanese leaders were also tried for atrocities committed during World War II, in the Tokyo War Crimes Tribunal.

Yet US leaders who were responsible for some of the most heinous war crimes ever committed - the atomic bombings of Hiroshima and Nagasaki and the fire bombings of Dresden, Tokyo and 66 other Japanese cities - were never brought to justice.

Only the vanquished Germans and Japanese were put on trial. Justice Radhabinod Pal of India, dissenting at the Tokyo Tribunal, called this "victor's justice."

Indeed, Robert McNamara, who participated in the bombing of Japan during World War II, admitted in the film Fog of War that he and General Curtis LeMay would have been tried for war crimes if the US had lost the war. He said, "LeMay said if we lost the war that we would have all been prosecuted as war criminals. And I think he's right. He ... and I'd say I ... were behaving as war criminals."

It is no accident that the Iraqi Special Tribunal where Saddam Hussein is currently on trial only has jurisdiction over Iraqi citizens for acts committed prior to May 1, 2003, the day the US-UK occupation of Iraq began. The United States opposed sending Hussein to an international tribunal, and manipulated the Iraqi tribunal to prevent any US leaders from being tried for their war crimes in Iraq.

What's good for the goose is good for the gander. But the leaders of the world's most powerful country continue to enjoy "victor's justice."

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Getting Away with Murder

As we walked out of Hotel Rwanda, my teenage son asked me, "So why did we go into Iraq, but not Rwanda?" This youngster was horrified that the United States not only sat on the sidelines during the genocide that killed 800,000 Rwandans in 1994, but then prevented the United Nations from acting to stop it.

What was a little genocide, after all, when the U.S. powers-that-be had no strategic interest in intervening to stop the Hutu from massacring the Tutsi in Rwanda? Bill Clinton, still smarting from the public relations disaster that followed the deaths of 18 American soldiers in Somalia, didn't want to get involved in Rwanda.

Clinton did, however, engineer NATO's war in Kosovo five years after the Rwandan genocide. He called it a "humanitarian intervention," to prevent ethnic cleansing of the Albanians by the Serbs.

Four years later, in the wake of the September 11 attacks, George W. Bush started a war in Afghanistan, justified as "self defense" against Al Qaeda and the Taliban.

After Bush ousted the Taliban and installed former Unocal consultant Hamid Karzai to protect U.S. interests in Afghanistan, he went after Iraq, two years ago yesterday.

Billed as necessary to save us from "weapons of mass destruction," Bush replaced Saddam Hussein with a U.S.-friendly regime, one that would welcome the 14 permanent military bases we are constructing in Iraq. When the dreaded weapons didn't materialize, Bush's rationale morphed into "bringing democracy to the Iraqi people."

All three wars - Clinton/NATO's war in Yugoslavia, and Bush's wars in Afghanistan and Iraq, according to Canadian law professor Michael Mandel - were unlawful. None was undertaken in self-defense, or approved by the Security Council, the only two instances in which the United Nations Charter permits the use of armed force.

In his new book, How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes against Humanity, Canadian law professor Michael Mandel argues that NATO's Kosovo war set the precedent for the United States' wars in Afghanistan and Iraq. "It broke a fundamental legal and psychological barrier. When Pentagon guru Richard Perle 'thanked God' for the death of the UN," writes Mandel, "the first precedent he could cite in justification of overthrowing the Security Council's legal supremacy in matters of war and peace was Kosovo."

The 1999 war in Kosovo and other parts of Yugoslavia was not a "humanitarian intervention," but rather a crime against humanity, in the judgment of Mandel. He notes that "of the 385 murders in the original ICTY [International Criminal Tribunal for the Former Yugoslavia] indictment of former Yugoslav President Slobodan Milosevic, 340 were alleged to have occurred after the bombing started."

In support of his claim that NATO's bombing constituted a crime against humanity, Mandel cites its use of cluster bombs and depleted uranium, and the targeting of civilians. Between 500 and 1800 civilians of all nationalities were killed during the 78-day bombing campaign, which used "about 25,000 of the world's most devastating non-nuclear bombs and missiles," according to Mandel.

A year after the bombing, I visited Belgrade as a participant in an international conference on humanitarian intervention. Between meetings, we toured the surrounding area and saw the bombed out rubble of what were once apartments, schools, bridges, and a television and radio station. As I walked through the rubble, I was cautioned, much to my dismay, that the soil could contain depleted uranium.

Joining together with other Canadian law professors and lawyers and the American Association of Jurists, Mandel filed a complaint against NATO leaders with the ICTY. Although Amnesty International concurred that NATO had committed war crimes, the tribunal dismissed the complaint without serious investigation.

Mandel documents why this tribunal was created and functions in the service of United States interests. "For the first time in history," writes Mandel, we had "an international criminal tribunal established prior to the war whose criminals it was putting on trial, and therefore capable of playing a role in that war."

"The point is not that Milosevic was charged with atrocities in Kosovo, it's that Clinton wasn't too," writes Mandel.

NATO intervened militarily in Yugoslavia to assist the Kosovo Liberation Army (KLA) in its struggle against Milosevic. A year before, the United States government had listed the KLA, which had received assistance from Osama bin Laden, as a terrorist organization. After Milosevic's forces were defeated by NATO, the KLA moved into Kosovo and began a reign of terror against non-Albanians, which Mandel calls "reverse ethnic cleansing." When I was in Belgrade, I saw documentation of the destruction of 25 of Kosovo's medieval Serbian Christian Orthodox monasteries.

Mandel points to the Security Council Resolutions passed before the NATO bombing, which "were even-handed in their condemnation of 'the use of excessive force by Serbian police forces against civilians and peaceful demonstrators in Kosovo,' and 'all acts of terrorism by the Kosovo Liberation Army.'"

The "Racak massacre," widely viewed as the event that precipitated NATO's bombing of Yugoslavia, is the subject of considerable controversy. According to the Serb version, all 45 of the dead ethnic Albanians "were either KLA fighters or civilians caught in the crossfire. There was no massacre of civilians, but the KLA had plenty of time to dress their dead fighters in civilian clothes." A team of Finnish forensic investigators sent by the European Union to perform autopsies on the Racak bodies "confirmed the Serb version in most respects, though the change-of-clothes hypothesis was discounted," writes Mandel. In his opinion, Racak was a pretext to begin the bombing.

On the day before the bombing began, Clinton declared, "If we're going to have a strong economic relationship that includes our ability to sell around the world, Europe has got to be a key. That's what this Kosovo thing is all about." Supreme NATO Commander Wesley Clark admitted one month into the bombing campaign that it "was not designed as a means of blocking Serb ethnic cleansing."

I wrote in a 2002 article that the NATO bombing was about economic hegemony, access to Caspian Sea oil, and the promotion of a global free market economy, not ethnic cleansing. Milosevic's socialist government, which had tried to stop the market reforms imposed by the International Monetary Fund (IMF) and the World Bank, was in America's sights early in the 1990s.

Mandel describes "the history of the West's complicity in the 'Balkan tragedy,' which," he writes, "is a story of the rich countries of Europe and America taking advantage of the sad state of the post-Soviet economies to impose solutions (sometimes known as 'Shock Therapy') through powerful credit institutions like the IMF and the World Bank. Part of the goal was to encourage the fragmentation of the old Soviet bloc to create in its place 'hub and spoke' arrangements dependent on the West." This resulted in "the West's economic strangulation of Yugoslavia."

Against this backdrop, Milosevic was elected President in 1989. The Albanians employed a campaign of non-violent opposition to Serb rule, boycotting Serb institutions and setting up parallel ones. "The turn to violence came only in 1997, and appears to have had nothing to do with Serb repression," writes Mandel, but rather with the rise of the KLA.

In the year before NATO's bombing campaign, "violence dramatically increased in Kosovo, though the 2,000 dead on both sides combined were no more numerous than in many contemporary conflicts where the U.S. chose not to intervene," in Mandel's opinion. Rwanda is a prime example.

The key to the U.S./NATO bombing of Yugoslavia can be found in a 1992 draft of the Pentagon Defense Planning Guidance on post-Cold War Strategy, prepared under the direction of Paul Wolfowitz. It advocated discouraging other advanced industrialized nations "from challenging our leadership" or "aspiring to a larger regional or global role." The document declares, "Our overall objective is to remain the predominant outside power in [the Middle East and Southwest Asia] to preserve U.S. and Western access to the region's oil."

Bush's wars on Afghanistan and Iraq are consistent with this strategy, as are his appointments of Wolfowitz, architect of the Iraq war and "preemptive war" doctrine, as head of the World Bank, and John Bolton, avowed U.N.-hater, as U.S. Ambassador to the United Nations.

After NATO conquered Yugoslavia, Halliburton's Brown and Root constructed Camp Bondsteel in Kosovo, the largest foreign U.S. military base built since the Vietnam War. Besides the Great Wall of China, the only other earthly thing visible from outer space is Camp Bondsteel. Brown and Root is also building the 14 permanent U.S. military bases in Iraq.

Mandel's indictment of the United States' policies in Yugoslavia, Afghanistan, Iraq and Rwanda does not ignore the complicity of the other dark forces in those conflicts. He writes, "The fact that the Americans and their allies have been the supreme criminals in Yugoslavia, Afghanistan and Iraq does not mean their enemies are innocent. The fact that the Americans and the Europeans were directly and indirectly complicit in the atrocities of Rwanda, and the fact that their Tutsi clients in the RPF [Rwandan Patriotic Front] committed them too, does not mean that the Hutu government and militias did not."

The Nuremberg Tribunal found the greatest sin to be the waging of aggressive war, or war as an instrument of national policy. Mandel characterizes the U.S. wars on Yugoslavia, Afghanistan and Iraq as wars of aggression. "Humanitarian intervention," he notes, (which violates the U.N. Charter anyway) "is forever doomed to be an 'asymmetrical right, the right of the powerful to intervene in the affairs of the weak and not vice versa.'" United States support for Croat soldiers in their 1995 ethnic cleansing of 200,000 Serbs from Krajina belies America's humanitarian motives four years later in Kosovo.

Michael Mandel's book is finally an indictment of international criminal law, of "victor's justice," in which only the vanquished are put on trial. "Exactly like the other elements of 'globalization,' the globalization ('universalization') of human rights is just a euphemism for the strong calling the shots."

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The Reincarnation of Saddam Hussein

"I am Saddam Hussein, president of the Republic of Iraq." So began the surreal public appearance of Saddam Hussein, his first since being dragged out of a spider hole by the "coalition forces" six months ago.

The proud, defiant Saddam who ruled Iraq with an iron hand for nearly 25 years was back with a vengeance.

Describing himself as always in the third person, he said Saddam "respected the will of the people that decided to choose Saddam Hussein as the leader of the revolution. Therefore, when I say president of the Republic of Iraq, it’s not a formality or a holding fast to a position, but rather to reiterate to the Iraqi people that I respect its will."

Reminiscent of the staged assassination followed by an immediate swearing in of Woody Allen as the new president of a mythical Latin American country in "Bananas," we were missing only Howard Cosell to narrate the charade.

According to the Los Angeles Times, "U.S. and Iraqi authorities took pains to make the court proceedings appear to be solely an Iraqi undertaking."

In spite of the Statute of the Iraqi Special Tribunal’s mandate of public hearings, no one save the two dozen or so people present in the courtroom were supposed to hear Saddam’s words. But an audiotape of the proceedings was smuggled out to the media and listeners throughout the world.

A team of U.S. military officers censored the media coverage of the proceeding. They destroyed the videotapes of Saddam in chains and deleted the legal record of the statements of the 11 senior members of Saddam’s regime who appeared at the same hearing.

One journalist present in the courtroom revealed: "We learned later that the judge didn't order us to turn off our sound. The Americans lied - it was they who wanted no sound. The judge wanted sound and pictures."

The 26-minute colloquy gave us a roadmap of how Saddam will defend himself. Showing utter contempt for the judge whom he identified as a tool of the occupiers, Saddam sneered: "So you are an Iraqi representing the coalition forces?" Indeed, the judge was appointed by Saddam’s successor, L. Paul Bremer.

Saddam added: "You know that this is all a theater by Bush the criminal, to help him win his election."

He was adamant that he had the right to invade Kuwait. Saddam declared that he "defended Iraq’s honor and revived its historical rights over those dogs," whom, he claimed, "said it will reduce Iraqi women to 10-dinar prostitutes."

The sight of Saddam standing up to his accusers played well throughout Iraq. Even many who had endured atrocities under Saddam’s regime saw him as the embodiment of their Arab land, shattered by bombs and occupied by Western infidels.

Yes, they suffered under Saddam. But Operation "Iraqi Freedom" has brought mostly misery to the people of Iraq. Tens of thousands of them have died in this illegal war. Almost 20 million of Iraq’s 26 million people have less available electricity than before the war began, according to the General Accounting Office. The Iraqi security forces are suffering from mass desertion. And the judicial system is more clogged than before the war; assassination attempts against judges are rampant.

The timing of Thursday’s court appearance corroborates Saddam’s assertion that the whole thing was theater. The ink was hardly dry on the "sovereignty" transfer papers when Saddam was rushed into a televised court appearance to create the illusion that Iraqis are running the show.

Truthfully, however, American fingerprints are all over these proceedings. Bremer was responsible for drafting The Statute of the Iraqi Special Tribunal before which Saddam appeared. This "neutral" tribunal is financed by the United States. The FBI is leading the investigation. Also on the team are the Bureau of Alcohol, Tobacco and Firearms and the Department of Justice. And although Iraqis have been given legal custody of Saddam, he remains in the physical custody of the Americans.

Emmanuel Ludot, one of 22 lawyers designated by Saddam’s wife to defend him, told the French newspaper Liberation: "All our effort will consist of paralyzing the operation of the Iraqi special tribunal, the legality of which we contest. This tribunal has no basis in law, since Iraq has no National Assembly today to create a special jurisdiction." He called the trial preparations "a masquerade of justice."

Ludot said: "The tribunal being put in place by the Americans is a disguised execution squad ... These judges are still under the shock of emotion and pain." Saddam, he warned, "will either be judged in fear or in vengeance."

"The first thing Saddam will say is that he is and remains the Iraqi President," according to Ludot. "Two countries, the United States and Great Britain, have invaded Iraq without a mandate and in violation of international law. Legally, that’s an aggression and everything that has happened since this invasion is tinged with irregularity."

Asked where Saddam should be tried if this court is not competent, Ludot answered: "Since the United States did not want the International Criminal Court, there is a complete legal vacuum."

But not one of Saddam’s 22 lawyers was with him in court Thursday. The tribunal’s statute provides for the right to counsel. The judge told Saddam: "I’m investigating, interrogating you." Saddam asked for his lawyer before he signed the document the judge instructed him to sign. But when Saddam refused, the judge signed it for him.

Ludot said: "Clearly, we are not welcome in Iraq. The new authorities would prefer Iraqi lawyers easy to intimidate and a quick trial." British attorney Tim Hughes said he and his colleagues were "kept in the dark" about the proceedings.

Another member of the legal defense team received threats from someone claiming to be from the Iraqi Justice Ministry. Anyone who tried to defend Saddam, the caller said, would be "chopped to pieces."

Many Iraqis sympathize with Saddam. "It’s a humiliation, not just for Iraqis but for all Arab peoples," Aamer Eliisa, a Shiite, told the Los Angeles Times. Eliisa said Saddam has become "a symbol for all Iraqis."

Saddam’s harsh words about Kuwait hit a chord with Iraqis. Akram Adil said: "He’s right. Kuwait is a part of Iraq. He was defending our national rights ... Kuwait was stealing oil from Iraq and trying to destroy our national economy."

Kuwaitis have earned a reputation for "arrogant, drunken, lecherous and vulgar behavior," according to the Los Angeles Times. And they have been implicated in the looting of the Iraqi National Museum that followed the march of the foreign forces into Baghdad last April.

Former president of Yugoslavia Slobodan Milosevic has defended himself against the same heinous charges Saddam will face. Like Milosevic, who was removed from his presidency by U.S.-led forces engaged in illegal regime change, Saddam will put America on trial.

This will be interesting in light of the support the United States furnished to Saddam in the 1980s, including the provision of chemical weapons. That support is embodied in the photograph of Donald Rumsfeld’s warm handshake with Saddam even with the knowledge that Saddam was gassing the Kurds.

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Milosevic Defense Will Put NATO on Trial

The most significant international war crimes trial since Hitler’s henchmen were tried at Nuremberg is scheduled to begin on February 12. Former Yugoslav President Slobodan Milosevic will appear in the dock at the International Criminal Tribunal for the Former Yugoslavia at The Hague to answer charges of war crimes, crimes against humanity and genocide.

But Milosevic, often referred to in Western circles as the “Butcher of the Balkans,” maintains it is really the leaders of NATO who should be tried for their crimes against the people of Yugoslavia. In 1999, thousands of Yugoslavs were killed or wounded by NATO’s bombs, allegedly to stop the ethnic cleansing of the Albanians in Kosovo.

As The New York Times said on February 9: “When Mr. Milosevic sneers at the tribunal here as ‘victor’s justice,’ he is not entirely wrong.” Former President William Clinton, former Secretary of State Madeleine Albright and U.S. military leaders orchestrated the use of laser-guided and cluster bombs and depleted uranium that devastated the people and the land of Yugoslavia. They will never face charges at The Hague.

Milosevic contends he acted in defense of the Serbs against Muslim extremists. He claims he was fighting the same type of terrorism the United States is now battling in Afghanistan and elsewhere. At that time, the United States gave active support to the Kosovo Liberation Army, a Muslim terrorist group financed by the Third World Relief Agency, through which Osama bin Laden and others funneled $350 million. Milosevic insists that his pleas to Clinton to get bin Laden out of Kosovo were ignored; instead, Clinton allied with the Albanian Muslims against the Serbs.

A centerpiece of Milosevic’s defense is that he maintained friendly relations with U.S. and British leaders after the wars in Bosnia and Croatia. He was even called a peacemaker when the Dayton Peace Accords were signed in 1995, ending the war in Bosnia. He reportedly plans to call Western leaders such as Clinton, British Prime Minister Tony Blair, and former NATO Secretary General Javier Solana to testify. It is unlikely they will appear, however, since the tribunal has no subpoena power.

Milosevic has also challenged the legitimacy of the tribunal itself. Because he refuses to recognize it as an independent and impartial court, he has refused to appoint counsel to represent him. Against his will, the judges have appointed three “amici curiae” or friends of the court to help Milosevic with his defense. But these lawyers have filed motions with no supporting documentation, and they sat mute when Milosevic’s microphone was cut off in mid-speech as he tried to address the court. Milosevic has been denied the right to confidential consultation with his unofficial counsel.

The charges against Milosevic stem from incidents in Bosnia, Croatia and Kosovo. They were initially filed in three separate indictments, but Prosecutor Carla Del Ponte successfully convinced the Appeals Chamber to consolidate all three for trial. In December, the Trial Chamber had joined the Bosnia and Croatia indictments, which deal with events that occurred from 1991-1995. But the Trial Chamber had refused to consolidate the Kosovo indictment with the other two.

The events alleged in the Kosovo indictment occurred in 1999, more than three years after the Bosnia and Croatia incidents. Under the tribunal’s statute, two or more crimes may be joined together in one indictment if the underlying events formed the same transaction, which was part of a common scheme, strategy or plan.

In a lengthy opinion, the Trial Chamber rejected the prosecutor’s argument that Milosevic participated in a joint criminal enterprise, a plan to create a Greater Serbia. The Trial Chamber considered the nexus “too nebulous” to constitute a common scheme, strategy or plan. Finally, the Trial Chamber was concerned about prejudice to the fair trial rights of the accused if the Kosovo indictment was joined with the others.

Scheduled to begin the trial on the Kosovo indictment in February, the prosecutor became very concerned about the lack of witnesses to testify about Milosevic’s alleged involvement in the Kosovo atrocities. As a result, she appealed the Trial Chamber’s joinder decision to the Appeals Chamber. Without giving reasons, the Appeals Chamber saved the prosecution’s case from imminent collapse by ordering the Kosovo indictment consolidated with the others in one trial. The Appeals Chamber stated that the acts alleged in all three indictments formed the same transaction.

Ironically, some contend that Milosevic himself effectively argued for joinder when he told the tribunal that the NATO countries formed a joint criminal enterprise with the Albanian Muslim terrorists and the narco-mafia, against the Serbs and other non-Muslim Albanians.

In spite of overwhelming public opinion against Milosevic in the West, the prosecutor faces some significant proof problems in this trial. Under the doctrine of “command responsibility,” she must prove Milosevic knew or had reason to know his subordinates were about to commit the criminal acts, and he failed to prevent them.

This case could set an important precedent if it establishes that a commander is responsible for atrocities that occur far away. Christopher Black, the Canadian lawyer who heads the International Committee to Defend Slobodan Milosevic, told me: “It would be easier to pin command responsibility on President Nixon for the My Lai massacre or President Bush for the mass murder of prisoners by US forces at Mazar e-Sharif.”

Del Ponte hopes to call Milosevic’s close associates to testify against him, but many who are facing criminal indictments will likely refuse to incriminate themselves. The prosecutor may offer them immunity in exchange for their testimony, but it is uncertain whether they would ever agree to testify even in the face of contempt charges. Reportedly, much of the evidence against Milosevic comes from Western intelligence sources, who may be unwilling to compromise their security by revealing the evidence in court.

If convicted, Milosevic faces life in prison, as the tribunal’s statute does not allow for the death penalty. He could serve his sentence in Norway, Sweden, Finland, France, Spain, Italy or Austria, all of which have agreements with the Hague tribunal to incarcerate convicted prisoners.

There is speculation the prosecutor will ask for a postponement on Feb. 12 to secure witnesses for the Kosovo portion, which will comprise the first part of the trial. Whenever the trial ultimately begins, it will likely span two or three years. The tribunal - and the court of public opinion - will hear allegations not just about Milosevic’s atrocities, but those of NATO as well.

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The Deportation of Slobodan Milosevic

The deportation of former Yugoslav leader Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia was a direct result of blackmail by the United States. Desperate to rebuild its economy, the Serbian government capitulated to U.S. threats: deliver Milosevic to the war crimes tribunal in The Hague, Netherlands, or the U.S. would see to it that Yugoslavia didn't get the foreign aid it critically needs.

Ten years of punishing sanctions against the people of Yugoslavia coupled with U.S.-led NATO's 78-day bombing campaign have left the country's economy in shambles. Damage to the Yugoslav economy is estimated at $4 billion. One million people live below the poverty level, half the population is unemployed, and Yugoslavia has an annual inflation rate of 150 percent and a foreign debt of $12 billion.

The U.S. destroyed the economy of Yugoslavia, killed or wounded thousands of its people - including civilians - and then promised megabucks to the Serbs if they would cough up Milosevic. Usually the ransom is paid to end the kidnapping. This time it was ponied up as a reward for the kidnap. And the payoff? $1.28 billion in aid from the July 29 donors conference, orchestrated by the United States.

Serbian Prime Minister Zoran Djindjic arranged the deportation by circumventing the recently elected President of Yugoslavia, Vojislav Kostunica. According to Sara Flounders, National Co-Director of the International Action Center, "Milosevic was sold to the U.S. by their man in Belgrade. Imagine a governor of a state in the U.S. overriding the federal government and constitution to surrender a U.S. citizen to another country."

Kostunica, adamantly committed to due process, insisted that Yugoslavia's judicial procedures be followed before Milosevic was delivered to the ICTY in The Hague. The deportation, which Kostunica said could not be characterized as legal and constitutional, violated Yugoslavia's constitution, parliament, Constitutional Court, and decisions of President Kostunica. Former U.S. Attorney General Ramsey Clark denounced the deportation as "an enormous tragedy for Yugoslavia, the Serbian people and the rule of law."

While the leaders of the Western world cheer the "extradition" of Milosevic - a misnomer because he wasn't sent to another country, but to an international tribunal - the fragile democracy in Yugoslavia has been dealt a severe blow. Ramsey Clark thinks the real purpose of the deportation, sanctions, bombing and demonization of the Serbs "is to reduce all of the former Yugoslavia to the status of a U.S./NATO colony."

Kostunica has decried the partiality of the ICTY for its hypocrisy in indicting Serbs, but refusing to indict NATO leaders for war crimes committed in the course of the 1999 bombing. NATO bombs killed 1500-2000 civilians and injured thousands more. When I was in Yugoslavia last year, I saw schools, hospitals, bridges, libraries and homes reduced to rubble. The ICTY statute prohibits the targeting of civilians. And even though it also forbids the use of poisonous weapons calculated to cause unnecessary suffering, NATO used depleted uranium and cluster bombs whose devastating character is widely known. NATO also targeted a petrochemical complex, releasing carcinogens into the air that reached 10,600 times the acceptable safety level.

Yet the ICTY conducted only a perfunctory investigation of charges of NATO war crimes. Both Amnesty International and Human Rights Watch criticized the ICTY for failing to thoroughly investigate these serious charges. Kostunica's allegation of the ICTY's bias is not surprising. NATO spokesperson Jamie Shea stated in May 1999, "Of course NATO supports the ICTY - NATO created it."

The prosecutors of the Vietnam War - Lyndon Baines Johnson, Henry Kissinger and Robert McNamara - were never tried for war crimes for causing the deaths of 3 million Vietnamese people. It was McNamara who defined most of the Vietnamese countryside, populated by peasants, as a free-fire zone. He wrote in a letter to LBJ in 1967: "The picture of the world's greatest superpower killing or seriously injuring 1,000 noncombatants a week, while trying to pound a tiny backward nation into submission on an issue whose merits are hotly disputed, is not a pretty one." McNamara admitted his complicity in a 1995 memoir.

Indeed, the hypocrisy of the United States government is no more evident than in its refusal to ratify the statute for the International Criminal Court, out of fear that U.S. leaders might become defendants in war crimes prosecutions. Yet, our government was baffled when the United States -- the world's human rights policeman -- was voted off the United Nations Commission on Human Rights.

Most of the Serbs I have spoken with are outraged by Milosevic's alleged atrocities, and they feel he should be tried and punished for crimes he committed. But there is a widespread perception in Yugoslavia that Serbs are being collectively targeted for what their leaders have done. Many feel that Milosevic and other indicted Yugoslav leaders should be tried first in Yugoslavia for crimes committed against the Yugoslav people.

A fundamental principle of international law is complementarity: the international tribunals complement - they don't supplant - the courts of nation states. Most of the former Latin American military leaders charged with human rights abuses that occurred in the 1970s and 1980s are facing justice in their respective countries. The Yugoslavians should be able to judge their own leaders before the they are judged by the international community.

Count 1 of the Indictment against Slobodan Milosevic charges him with "Deportation, a crime against humanity . . ." He must be accountable for what he has done. But the U.S.-engineered deportation of Milosevic is a crime against the people of Yugoslavia.

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Milosevic Empowered by Punishment Politics

One year after NATO's bombs devastated Yugoslavia, Slobodan Milosevic remains firmly entrenched as the nation's leader. Although he was previously prevented from seeking another term, a "constitutional coup" by the Serbian-controlled parliament earlier this month resulted in constitutional amendments allowing Milosevic to run for re-election, and changing the requirements for election of president and Parliament.

Prior to the changes, it would have been impossible for Milosevic to continue his tenure as President of Yugoslavia beyond July of 2001. The amendment gives Milosevic the option of running for two additional four-year terms. Whereas the constitution had required the election of the president by the federal Parliament, the amendment provides for presidential election by a majority of the popular vote, which would blunt the effect of an opposition boycott. Finally, the election of Parliamentary deputies will now result from a popular vote, instead of by separate votes of the Montenegrin and Serbian assemblies. This change dilutes the power of the government of Montenegro to elect deputies hostile to Milosevic.

Parliamentary and local elections had been scheduled to take place in November 2000 and the presidential election was set for January 2001. Last week, however, Milosevic announced that Serbia and the Yugoslav federation will hold presidential, parliamentary and local elections September 24.

I was told at a recent international conference in Belgrade that there is widespread opposition to Milosevic in Yugoslavia. Results of a public opinion poll published last week shows Milosevic with only 13.7 percent support. So how can he be confident he would win a popular election?

The bombing, the economic sanctions and Milosevic's war crimes indictment just weeks before the peace agreement all serve to perpetuate his power. It is the Serbian people who are being held hostage by NATO's misguided and failed policy of punishment politics.

In 1992, to facilitate the secession of Slovenia, Croatia and later Bosnia and Kosovo from Yugoslavia, the United States pushed the U.N. Security Council to impose economic sanctions, a total blockade of the country. Enforced by military means, the sanctions blockade was policed by the U.S. Navy and its NATO allies who patrolled the Adriatic Sea and the Danube River, stopping all vessels possibly bound for Yugoslavia. Air traffic to and from Yugoslavia was blocked by NATO jets, and a 1995 bombing campaign in Bosnia ended with the Dayton Accords. The United States has continued to prevent Yugoslavia from receiving new credit and loans.

The 78-day bombing campaign last year was followed by the occupation of Kosovo, new sanctions and an oil embargo against Yugoslavia. The United States recently renewed these sanctions, and the European Union tightened trade sanctions in April.

Although responsible for an estimated $4 billion worth of damage to the infrastructure of Yugoslavia, the West has refused to provide economic assistance for reconstruction as long as Milosevic remains in power.

Yet Milosevic holds a tight reign while his people suffer. Roughly one-third of the labor force remains unemployed and the United Nations estimates that about two-thirds of the population lives in poverty. Production levels are way down, there is no exportation of goods and Yugoslavia is cut off from most international markets. Credit cards are no longer available to the people. They cannot send money abroad, and the airport looks deserted. Dozens of bridges and hundreds of apartments remain damaged by the bombs.

Secretary of State Madeleine K. Albright made it clear that the United States would only agree to lift the sanctions if free elections are held. A recent public opinion poll showed that although two-thirds of Serbs want political change, 40 percent of eligible voters don't know which party to vote for in the local and federal elections.

Although life was tough before the sanctions, it has worsened since. Many Serbs blame the West for the sanctions, as well as the bombing. The indictment of Milosevic just before the peace accord was signed effectively prevented any possibility he might step down as part of the agreement. His best chance to avoid prosecution for war crimes is by staying in power.

As the Bay of Pigs tightened Castro's hold on power in Cuba, so did the NATO bombing solidify nationalist sentiments in favor of the government in Yugoslavia. And like the U.S. economic blockade of Cuba failed in its goal of overthrowing Castro, the sanctions against Yugoslavia have failed to unseat Milosevic. An overthrow requires a strong, organized internal opposition, which doesn't exist in Yugoslavia, or in Cuba. The sanctions have failed in their goals and have only punished the people. The West should rethink its policies in both of these countries.

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No "Victor's Justice" in Yugoslavia: NATO Must be Held Accountable for Its War Crimes

After World War II, the Tokyo War Crimes Tribunal was established to try Japanese military and political leaders accused of committing atrocities. The United States, which was responsible for at least two of the greatest war crimes in the history of the world – the atomic bombing of Hiroshima and Nagasaki – was not brought before the tribunal. Only the vanquished Japanese were held accountable for their war crimes. In the words of dissenting Judge Radhabinod Pal of India, this was "victors' justice." The United States – and its "victorious" NATO allies – will once again escape responsibility for war crimes, this time for those committed against the people of Yugoslavia.One year ago, 120 countries adopted the Statute of the International Criminal Court as a multilateral treaty. Established under the aegis of the United Nations to operate independently starting in five years, the ICC will be the first permanent international body to try suspected war criminals. Its jurisdiction extends to genocide, crimes against humanity, war crimes and the crime of aggression. Art. 5(1), Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (17 July 1998). Seven countries – including Libya, Iraq, China, India, Sudan, Israel and the United States – voted against the establishment of the ICC. The U.S. sought to ensure the legal processes of the ICC would not jeopardize its role as global superpower, insulating its soldiers and policy-makers from becoming defendants in war crimes prosecutions.

The International Criminal Tribunal for the Former Yugoslavia

In 1993, the U.N. Security Council – with significant financial aid from the leading NATO governments – set up the International Criminal Tribunal for the Former Yugoslavia, or ICT-Y. S/RES/827 (1993), 32 ILM 1203 (1993). It has jurisdiction over grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity, committed in the former Yugoslavia since 1991. The tribunal rightfully indicted President Slobodan Milosevic and other Yugoslav officials for war crimes. But thus far there have been no indictments against NATO for war crimes it committed during its 11-week aerial bombardment of Yugoslavia.

Mary Robinson, UN High Commissioner for Human Rights, had warned NATO it might be held accountable for war crimes after two buses in Kosovo were bombed, killing more than 50 civilians. She said "People are not collateral damage. They are people who are killed, injured, whose lives are destroyed."

Article 3 of the ICT-Y Statute prohibits "devastation not justified by military necessity." NATO bombs killed an estimated 1500 civilians and injured thousands more. "Smart" laser-guided weapons hit 50 bridges, 12 railroad lines, five civilian airports, 50 hospitals and clinics, 190 educational institutions, 16 medieval monasteries and shrines, and several factories, power plants, water mains, major roadways, media stations, libraries and homes. NATO Commander Wesley Clark said the goal was to disrupt, degrade, devastate and destroy the infrastructure of the country.

The United States used that same strategy in Iraq in 1991. When asked five years later on "60 Minutes," about the half million Iraqui children who had died as a result, Madeleine Albright said, "We think the price is worth it."

Spanish Captain Adolfo Luis Martin de la Hoz, who participated in NATO's bombing of Yugoslavia, reported that NATO consciously chose non-military targets and "every single" mission was planned by high U.S. military authorities.

Also prohibited by Article 3 of the ICT-Y Statute is the "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering." NATO used cluster bombs banned by international conventions. Children (i.e., "soft targets," according to the manufacturer) are being mutilated and killed when unexploded bomblets blow up in their hands. Equally troubling is NATO's use of depleted uranium weapons, condemned in a 1991 U.S. Nuclear Defense Agency report as a "serious health threat."

One speck of DU dust lodged in a lung upon impact or ingestion can cause cancer. This deadly compound, first used on a large-scale by the United States during the Gulf War, has been linked to Gulf War Syndrome and high levels of stillbirths, birth defects and leukemia among Iraqui children.

On April 18, 1999, NATO bombed three major industrial plants in Pancevo, a city near Belgrade. Levels of the carcinogen vinyl-chloride monomer (VHM) released into the air reached 10,600 times more than accepted safety levels. This has poisoned the air, the land, the crops and the Danube River. Teams from the U.N. Environmental Programme and the U.N. Centre for Human Settlements in Yugoslavia warn of the dangers of "miscarriages, birth defects and incurable diseases of the nervous system and liver."

Physicians in Pancevo have recommended privately that all women who were present in the town the night of the bombing avoid pregnancy for the next two years. They also advised women less than nine months pregnant to obtain abortions. Most have reportedly complied.

Dr. Slobodan Tosovic, chief ecotoxicologist at Belgrade's Public Institute of Health, said, "It's enough to make me believe the Americans and NATO were making a biochemical experiment with us."

The United States was well aware of the consequences of bombing the petrochemical complex. "The Americans built that factory, so they knew precisely what was inside when they bombed it," said Pancevo Mayor Mikovic.

A recently released U.N. report said the 11 weeks of NATO air strikes have had "a devastating impact" on the environment, industry, employment, essential services and agriculture of Yugoslavia.

Walter Rockler, former prosecutor at the Nuremberg War Crimes Tribunal said, "The Nuremberg Court found that to initiate a war of aggression, as the U.S. has done against Yugoslavia, is not only an international crime, it is the supreme international crime." Rockler also claims the NATO bombing of Yugoslavia violated the U.N. Charter and the charter of NATO itself, prohibiting aggression and forceful military intervention.

Bombing the infrastructure of Yugoslavia went beyond legitimate military targets. "The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect," Rockler wrote in an op-ed in the Chicago Tribune. "This is mere pretext for our arrogant assertion of dominance and power in defiance of international law."

Article 18 of the ICT-Y Statute requires the Prosecutor to "initiate investigations" ex-officio or "on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations." Upon determining that a prima facie case exists, the Prosecutor shall prepare an indictment.

Complaint Lodged with ICT-Y Prosecutor

In May of 1999, a group of Canadian lawyers and professors as well as the American Association of Jurists, a non-governmental organization with consultative status before the U.N. Social and Economic Council, lodged a complaint with the tribunal. It asked Prosecutor Louise Arbour to "immediately investigate and indict for serious crimes against international humanitarian law" the 67 named heads of state, ministers and NATO officials.

The alleged crimes include "willful killing, willfully causing great suffering or serious injury to body or health, extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, employment of poisonous weapons or other weapons to cause unnecessary suffering, wanton destruction of cities, towns or villages, or devastation not justified by military necessity, attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science."

The complaint also charges "open violation" of the U.N. Charter, NATO's own treaty, the Geneva Conventions and the principles of international law recognized by the Nuremberg Tribunal. It points to the bombing of civilian targets and alleges that NATO leaders "have admitted publicly to having agreed upon and ordered these actions, being fully aware of their nature and effects."

The Independent Commission of Inquiry Indictment

It is unclear whether the Prosecutor will initiate an investigation of these allegations. However, on July 31, 1999, the International Action Center in New York convened the Independent Commission of Inquiry Hearing to Investigate U.S./NATO War Crimes Against the People of Yugoslavia. Former U.S. Attorney General Ramsey Clark prepared a multi-charge indictment, naming President William J. Clinton, Secretary of State Madeleine Albright, Secretary of Defense William Cohen, various U.S./NATO generals and others, as defendants for their part in the war against Yugoslavia.
The charges are based on crimes against peace, crimes against humanity and war crimes. The Commission of Inquiry will examine the laws of armed conflict, the Hague and Geneva Conventions, the Nuremberg Tribunal, the U.N. Charter, the NATO Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international treaties and international law as well as the Constitution and domestic laws of the United States. Several months of mass hearings will be held followed by a War Crimes Tribunal. Hearings have been scheduled in several countries. The Commission will ask internationally acclaimed jurists, human rights activists, trade unionists, leaders of civil rights and women's organizations, members of parliaments and others to review the body of evidence and issue a public verdict.

It is incumbent upon the ICT-Y prosecutor to take the complaints seriously and initiate an official investigation into NATO's war crimes. We must not allow "victors' justice" to repeat itself in Yugoslavia.

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