Tribunal reviews anti-Nato chargesChief Hague Prosecutor Could Order Full War Crimes Investigation
By Charles Trueheart
Paris, Thursday, January 20, 2000
PARIS - As the NATO bombing campaign against Yugoslavia got under way in March, and talk of war crimes indictments against Slobodan Milosevic and other Serb leaders intensified, a loose network of anti-war activist law professors in Canada, Norway, Greece, Britain and France began plotting another strategy entirely.
Communicating by phone and e-mail, the law professors began building the case for war-crimes indictments against the NATO warmakers themselves. By the end of the 87-day war, the professors believed they had "overwhelming evidence" to demand the criminal prosecution of the leaders of the United States, Britain and the other alliance countries, as well as the leaders of the North Atlantic Treaty Organization itself.
Today, what may have seemed a quixotic legal campaign on the fringes of allied consensus has taken on a small and, to many, disturbing life of its own.
In a postwar effort to demonstrate independence and evenhandedness, prosecutors at the United Nations International Criminal Tribunal for the Former Yugoslavia began an internal review of the charges brought by the professors and others.
Seven months later, the chief tribunal prosecutor, Carla Del Ponte, is poised to decide whether to launch a formal investigation that might lead to indictments of President Bill Clinton, Prime Minister Tony Blair and more than five dozen other top officials - or to drop the matter entirely, as seems most probable.
The merits of the anti-NATO charges aside, the tribunal's reliance on the military assets of Western powers makes it unlikely any prosecutor would turn against her main sources of intelligence and arrests.
But already the mere consideration of the charges by the tribunal has irritated the United States and other NATO governments. Even the tribunal's most ardent champions in the human rights community and elsewhere are worried that the anti-NATO case may have damaged its reputation with an exercise in dangerous relativism.
Mrs. Del Ponte ventured into the belly of the beast Wednesday with her first visit to NATO headquarters and a meeting with its decision-making North Atlantic Council.
According to Graham Blewitt, the deputy prosecutor, almost all of the discussion was about NATO cooperation in arresting indicted war criminals, especially the former Bosnian Serb political leader Radovan Karadzic.
The charges against NATO leaders were raised by two people at the table, he said, and Mrs. Del Ponte made a single response, repeating the tribunal's position that it has a statutory responsibility to investigate all alleged war crimes in the former Yugoslavia.
Mrs. Del Ponte and her staff prepared for more of a confrontation than they got. "We were concerned about the potential harm this might do to our relations with NATO," Mr. Blewitt said. "But we were told that NATO is not above the law, and that for the tribunal to ignore the charges would have affected the integrity of the tribunal. And that is our position, too."
Those charges are sweeping. Michael Mandel, the Canadian law professor who has led the effort among his colleagues, describes the NATO bombing campaign as "a coward's war" and "not even partially legitimized by the Security Council of the United Nations."
What the NATO leadership portrayed as the first humanitarian intervention by great powers, to curtail the suffering of ethnic Albanian citizens in Kosovo, Mr. Mandel called "a terrorist war against the people of Yugoslavia to force President Milosevic to give up."
What has been reported widely as a military targeting process slowed and hampered by disagreement among allied leaders, and one vetted with unprecedented caution by lawyers obsessed about avoiding civilian casualties, Mr. Mandel described as "all-out total war."
NATO bombing from high altitudes "placed all the risk on civilians and made the military immune from risk; this is a violation of the Geneva Conventions," he said. The post-World War II conventions laid out the modern "rules" of war that are the legal foundations of the UN tribunal's jurisprudence.
In a telephone interview from Toronto, where he teaches at York University's Osgoode Hall Law School, Mr. Mandel said "most of the world" agrees with his position.
As for Mr. Milosevic's indictment by the tribunal in May, two weeks before the end of the bombing, Mr. Mandel said it was issued "with indecent haste" and was "dictated by the PR needs of NATO" to demonize its chief adversary.
Mr. Mandel and his colleagues prepared their complaint and brought it to a meeting in June with former Chief Prosecutor Louise Arbour and her staff in The Hague. Ms. Arbour said she would look into it, and ordered the preliminary review of the evidence and the applicable law.
Ms. Arbour was replaced by Mrs. Del Ponte in September, and Mrs. Del Ponte received the staff report just before Christmas. A tribunal source said it contained no recommendations, and did not merit even the term "investigation"; the source said "it was an internal memorandum."
Views differ about Mrs. Del Ponte's attitude toward the NATO dossier at a time when she has more pressing prosecutorial objectives.
Before Wednesday's meeting, NATO officials indicated that they had been assured by Mrs. Del Ponte that she would not carry this exercise far, and had suggested to them that she was embarrassed by having to deal with a tendentious process inherited from her predecessor.
But one former and one current U.S. official familiar with the UN tribunal's work said that Mrs. Del Ponte had given the complaint needless exposure and credibility, and painted the prosecutor's office more squarely into a corner, by discussing the existence of the internal report in the news media and stressing her prerogatives to investigate.
Paul Williams, a war-crimes expert at the American University in Washington, objected vehemently to the implied parity of offenses by the two sides in the Kosovo conflict - that is, accidental casualties by NATO and premeditated butchery by Serb authorities.
By publicly launching an internal review of the matter, even one bound for nowhere, Mr. Williams said, the tribunal was tacitly accepting the comparison, and revealing itself to be politically driven. "You become credible by doing independent prosecutions, not by doing pseudo-prosecutions," he said in a telephone interview from Washington.
NATO's secretary-general, George Robertson, said after the Del Ponte meeting Wednesday that the alliance's commitment to arresting war-crimes suspects remained "beyond question."
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