15 May 1999

Lawyers charge Nato leaders before U.N. war crimes tribunal

15 May 1999
The Times of India


By Siddharth Varadarajan
The Times of India News Service

The Hague - In a novel case that is bound to test the
impartiality of the UN's International Criminal
Tribunal for the former Yugoslavia (ICTY), a group of
North American lawyers has filed a formal complaint
accusing NATO leaders of committing war crimes in their
military campaign against Yugoslavia. Those named
include the heads of government of the US, Canada,
Britain and several other belligerent states. The
Hague-based ICTY was set up in 1993 by a resolution of
the UN Security Council and is mandated to prosecute
persons responsible for serious violations of
international humanitarian law committed on the
territory of the former Yugoslavia.

So far, 84 individuals, mostly Serbs, have been
indicted for a wide range of crimes dating back to the
Bosnian civil war. The court's statute specifically
states that its prosecutor can initiate investigations
ex-officio or on the basis of information obtained from
any source, particularly from governments, UN organs
and NGOs. Moreover, the official position of any
accused person, "whether as Head of State or government
or as a responsible government official, shall not
relieve such person of criminal responsibility of
mitigate punishment". Several NATO leaders have said
they would like the ICTY to indict Yugoslav President
Slobodan Milosevic and his top commanders for war
crimes in Kosovo. But since the statute of the court
applies to all belligerents, NATO's actions also fall
under the ICTY's jurisdiction.

The list of crimes which the ICTY is mandated to
prosecute includes, "wilful killing, wilfully 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...wanton
destruction of cities, towns of villages..."

Prof Michael Mandel of York University in Toronto, who
has initiated the formal complaint against NATO at the
ICTY, says that the bombing of civilian targets,
including trains, buses, refugee convoys and television
stations, as well as the use of highly poisonous
depleted uranium weapons all constitute war crimes and
should be investigated and prosecuted by the tribunal.
"The bombing of civilians is not only immoral, it is
criminal and punishable under the laws governing the
tribunal...You cannot kill a woman and child in
Belgrade on the theoretical possibility that it might
save (an ethnic Albanian) woman and child elsewhere,"
he said.

Louise Arbour, the Canadian judge who has been the
ICTY's chief prosecutor since 1996, has publicly stated
that by launching military operations in Yugoslavia,
the NATO countries have "voluntarily submitted
themselves to the jurisdiction" of the tribunal. She
told a public gathering in The Hague on Thursday that
she accepted NATO's assurances that its military
operations were "in full compliance with international
humanitarian law." However, she refused to comment on
how NATO's bombing record measures up to those
assurances. Graham Blewitt, the deputy prosecutor, told
The Times of India that Prof Mandel's complaint had
been received but refused to say whether the matter was
being investigated or not. "The ICTY does not comment
publicly on which cases it is investigating," he said.
When asked by this correspondent why Ms Arbour had
publicly stated that she was investigating the crimes
allegedly committed by Yugoslav forces, Mr Blewitt said
that was "an exception" in order to "deter the Serbs."
NATO, he felt, did not need a similar warning. "So far,
I have not seen any evidence to suggest NATO is
committing war crimes...History will be the final
judge." However, he did concede that the judgment of
history would be of little value to those civilians who
are being killed by NATO bombs today.

A non-NATO judge on the ICTY told The Times of India
requesting anonymity that since Ms Arbour, who is from
a NATO country, is being asked to rule on whether to
launch proceedings against NATO leaders, she needs to
be as transparent as possible. "If she decides not to
launch a case, she should give a public explanation,"
the judge said. Mr Blewett, however, denied that Ms
Arbour had any such obligation.

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