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NATO's war crimes
11 Jun 1999
Walter Rockler from Washington, D.C. is a former Nuremberg prosecutor. Michael Mandel and David Jacobs are two Canadian lawyers involved in making a legal case for the indictment of NATO's political and military leaders for war crimes committed in the illegal war of aggression against Yugoslavia. David Orchard is a founding member of the Ad Hoc Committee to Stop Canada's Participation in the Wqr on Yugoslavia, the author of a best selling book, THE FIGHT FOR CANADA: FOUR CENTURIES OF RESISTANCE TO AMERICAN EXPANSIONISM and a former candidate for the leadership of Canada's Progressive Conservative party.
(NOTE: this is the text of the initial statements in the press conference. Question and answer period in which David Jacobs also participated will follow. Also, real audio will be available in the very near future as well.)
...We have a distinguished panel of legal experts here today to speak about the issue of Canada's participation, and NATO's participation, in the bombardment in peacetime of a small, sovereign nation and the ramifications for the future of democracy and the future of the rule of law.
Our first speaker this morning is Walter Rockler. Walter Rockler served four years in the US military - one year in the US Navy, three years in the US Marines - during the Second World War. He was then prosecutor at the Nuremberg War Crimes Tribunals following the Second World War. He served for two years in that capacity at Nuremberg. On his return to the United States he practised law. He was the first director and set up the Office of Special Investigations in 1979. This was a US Justice Department programme to track down Nazi war criminals in the United States with the view to denaturalization and deportation. Mr. Rockler is a senior counsel in one of the largest law firms in Washington, DC. It is indeed a pleasure to have Mr. Rockler here in Toronto.
Thank you Mr. Orchard.
Some 60 years ago when I was relatively young, a well-known German woman film director produced a film which I believe was called, "The Triumph of Will." This was a film dedicated to the glory, heroism and military power of Nazi Germany. We have over the past few days been faced with a new triumph which in many respects has some of the same characteristics. This triumph is a triumph of credibility.
In my country, my president, my secretary of state assured the Serbs and the rest of the world that if they did not comply with our orders to them, we would bomb them and we would bomb them until they would give up, and this is occurring. The Serbs did not comply immediately. When we said "jump," they did not jump; therefore, we have bombed them for almost three months. I think the current statistics are something like 35,000 airplane sorties and something like 20- 25,000 bombs have been dropped on Serbia. Now you have to congratulate all the NATO powers because this was quite a demonstration. Of course the Serbs and the Yugoslavs did not have great anti-aircraft defences that would reach up to 30,000 feet; therefore, with these heroic sorties we ultimately y accomplished what we sought to do, although it was not quite as comprehensive and complete as represented.
We maintained throughout the splendid diplomatic posture of holding a non-negotiable position. In other words, whatever we told the Serbs to do we would not vary from one inch. Bombing itself was represented to be a demonstration of credibility. Now the American authors of this campaign actually in personal terms lacked some credibility but that's neither here nor there. The bombing campaign itself proved to be credible and, of course, I regard that as a great success.
What have we accomplished? What is this triumph? The triumph, in my judgment, is to undermine the UN Charter; destroy a substantial part of the Nuremberg judgments directed at Nazi war criminals; and reduce an imperfect international law to something more closely resembling anarchy and the use of untrammelled power. NATO, which was originally conceived to be a defensive alliance under the umbrella of the Security Council of the U.N., has been transformed into an instrument for aggression and that is my primary thesis.
The thing that I find particularly offensive to this campaign is that I am a citizen of the United States and it's being done in my nam. I object to that. I just don't have the characteristics used to describe a "good German." A "good German," for those of you who do not know what the expression means, was someone who did whatever his government told him to do.
Why do I say that this war is essentially, from the standpoint of law, a criminal enterprise? Because when the Nazis were tried at Nuremberg, the primary count was launching a war of aggression against their neighbours: invading Poland, invading Belgium, Holland, invading France, invading Norway, invading Denmark, invading, amongst other countries, Yugoslavia where their opponents were the Serbs, invading Greece. I don't want to go through the whole list because it's even longer.
But why were they charged? At that time they were defenders of the defendants who said well, war has been the experience of the human species since almost its inception. Well, the Germans had, among other things, signed a treaty in 1928 called, it was the Pact of Paris - along with about 75 other countries of the world including all the major powers. In that instrument, which Canada and the United States signed as well, the countries involved, represented that they would renounce war as an instrument of policy and you can match that up against the bombing campaign as see whether that pledge was honoured. The Germans as well as the Western powers have entered into a series of non-aggression treaties from time to time which are essentially repudiated by this act.
The tribunal at Nuremberg - which was not a tribunal; it was a four-power court - held that the ultimate crime in international law, the ultimate war crime, is launching an unprovoked attack upon another state, another country. What is "unprovoked?" "Unprovoked" means when the other country has not attacked you, when it's not a defensive war - a defensive war under the Charter is permissible - but obviously Yugoslavia or Serbia has not gone outside its borders to attack anybody, never did at any point in the last 10 years. So, you read the classic definition of what is a war of aggression and this in the opinion of the tribunal, as I said, was the supreme crime. In other words, that launching a war carries with it every crime that may be committed in that war. That's what war is basically. It happens to be a sanction essentially of criminal activity inherently.
The UN Charter actually does not even give the Security Council the power to intervene in any state's domestic affairs. There are provisions in the Charter - Article 2, Sections 4 and 7, which prohibit interference in the domestic jurisdiction of any state; which prohibit the threat of military force; which prohibit the use of military force.
Now on what basis could the U.N. act? It would have to be if you had a state of affairs which truly threatened peace. That COULD arise out of a civil war but there is no provision in the UN Charter which says, 'any country may invade any other country to uphold what it represents to be human rights.' There just is no such a provision. There is no treaty which provides that. The United States was one of the authors of the UN Charter and it insisted on veto-power for the major powers in the Security Council. This was a characteristic of the Security Council which we wanted - so did the Soviets - for self-protection. In other words we could not be attacked in the Security Council over our veto. So this was the procedure set up.
NATO was created, as I said, as a defensive alliance but if you look at the treaty terms, it purports to be totally under the U.N. It's a defensive alliance subject to the control and oversight of the Security Council of the U.N. Obviously in this attack, which has always been labelled NATO, and which I regard as primarily American (and I regret to say that), the Security Council was deliberately bypassed. Now, you say, that's because we might have run into a veto on bombing. Yes, we might have, and that was the conception of the U.N - the U.N. essentially required that there be no veto with respect to military action. And we might have had that.
We never explored non-military means. In fact we didn't even utilize at the outset a pretext of humanitarian violations in the Kosovo case. That was batted around at some length with respect to Bosnia, but at the outset of the Kosovo crisis when the KLA [Kosovo Liberation Army], labelled by the United States earlier as a terrorist organization, was murdering Serb policemen and Serb officials in Kosovo - and let me say that I am not inherently pro-Serb or anti-Albanian but these are the facts - at that time the grounds on which the United States urged action to solve this situation were not widespread human-rights violations, it was a somewhat preposterous reading of history to the effect that (and I remember a speech by President Clinton along these lines), to the effect that the Balkans were always a source of all the world wars and we had to step in to make sure that they weren't troublesome. We would determine what would happen there.
The humanitarian violations, or alleged humanitarian violations, in effect followed the bombing; they were not the basis on which the bombing was undertaken. There was virtually no expulsion of Albanians; there were no murders, except essentially murders by the KLA of Serb policemen, 5 or 10 at a time in ambushes, which furnished the pretext for this military invasion.
So, why the military invasion? I have a lot of trouble explicating the reasons. For some reason which is not clear to me ever since the Yugoslavian civil war began, we adopted essentially an anti-Serbian position everywhere. Why there should be this hostility to the Serbs, I do not know, but this very quickly became something else. We were going to determine the conditions under which this country would live thereafter and this will, the "triumph of will" of Ms. Riefenstahl statement, is to me what is really involved. Now this triumph involves the shredding to me of international law. It involves substituting anarchy for an imperfect system of international law. It avoided any diplomatic negotiations of any kind between the NATO aggressors and the Yugoslav government. All our demands were non-negotiable and that to me is the key element of the situation. What does "non-negotiable" mean? It means you do as we say or we'll bomb you. And we'll bomb you endlessly and of course our bombs are not perfectly accurate so we will kill a certain number of civilians. We know that. We'll bomb bridges; we'll bomb factories; we'll bomb sanitariums; we'll bomb hospitals; we'll bomb roads; we'll bomb waterways; we'll bomb electric plants; we'll bomb your country out of existence. That is the triumph which has been achieved.
Thank you very much Mr. Rockler. We'll have questions at the close of. presentations for any of the panelists. The two guests on my right are David Jacobs and Michael Mandel, two lawyers here in Toronto, who were instrumental in filing the complaint in front of Louise Arbour in the Hague against the NATO countries for war crimes. Michael Mandel will speak, give a report on that. Mr. Mandel has just returned from his meeting with Louise Arbour yesterday, I believe, in the Hague. So, Michael is a little bit jet-lagged perhaps, but we're happy to have him here.
Michael Mandel is a professor of criminal and constitutional law at Osgoode Hall Law School. He's a visiting professor at Hebrew University of Jerusalem and he also teache in the Law Faculty at the University of Bologna in Italy.
Thank you, David.
I've just come back from the Hague. Actually I spoke with Justice Arbour and her staff two days ago and we outlined this indictment that David has mentioned. I want to emphasize, however, and I think that what Mr. Rockler said is very important, that we?re pursuing this indictment of powerful case against the NATO leaders but the success or failure of the tribunal to prosecute cannot detract from the fact that this has been a violation of international law and that serious war crimes have been committed. We hope to indict and we want to see them on trial; we want to see them behind bars but whether this happens or not, there is nobody that can deny that there have been horrible war crimes committed.
I am part of an international team. We, lawyers and law professors in Canada formulateld these indictments against 67 political and military leaders of NATO. Our initiative was entirely independent, but the same initiative has been taken all over the world. Lawyers from Greece were with us with a complaint against NATO for war crimes signed by 6,000 Greek citizens. Lawyers from Norway were with us with a complaint against NATO signed by thousands of Norwegians. There was a lawyer from the United Kingdom, who has concentrated on Tony Blair, Robin Cook and George Robinson and there was a lawyer from the American Association of Jurists which has NGO status in Geneva, and includes lawyers from all over the western hemisphere - from South America up to Canada. So this is an international movement, something that appeals to people, and I must say not only lawyers, people from all over the world, who have written to us and have echoed our complaint, who have jammed the International Criminal Tribunal's systems by demanding that these NATO leaders be brought to justice.
We met with Judge Arbour and her senior legal advisors. We spoke for two and a half hours with her. She welcomed our contribution. It was a very friendly and professional atmosphere in the Tribunal. We presented what we believe to be irrefutable evidence, compelling and irrefutable evidence, of war crimes by the individual NATO leaders - and as usual there is some misunderstanding in the press - the NATO leaders are not restricted to President Clinton and Madeline Albright and William Cohen. They include all the prime ministers, all the defence ministers, all the foreign ministers of all the 19 NATO countries. That includes our own Prime Minister, Jean Chrétien, and Lloyd Axworthy and Art Eggelton, and of course the leaders of NATO - Javier Solana and Jamie Shea - 67 leaders (I won't go through the list of them) because the Tribunal makes the leaders, heads of state, people who conspire and aid and abet and encourage these crimes, also guilty, and the position as head of state or senior official - I must say we included Jamie Shea as a major player in this activity - are all specifically liable. I must say that Judge Arbour and the officials from the Tribunal reaffirmed there is no limitation on their jurisdiction, that all of these individual NATO leaders are subject to their jurisdiction and there's no immunity from this. The International Tribunal is part of a movement against impunity for leaders and the indictment of Milosovic, the indictment of Pinochet, these respond to a worldwide dem and that even most powerful people be held responsible when they commit these horrible crimes.
The crimes we have charged the NATO leaders with are among the most severe in the Tribunal's jurisdiction. They include willful killing; willful causing of great suffering or injury to body or health; extensive destruction - these are quotes from the Tribunal's statute - any extensive destruction not justified by military necessity carried out unlawfully and wantonly; the employment of poisonous weapons or other weapons causing 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 and buildings. And you know we've all been watching that, we watched it for two months of the campaign. We saw with our own eyes, the world saw this with its own eyes these crimes committed, and we saw the NATO leaders admit these crimes, and we saw them admit the targeting of civilian populations. We saw them admit that the death of civilians would be inevitable. So, we have this clear, compelling evidence of severe crimes which include the deliberate and cowardly attacks on civilian targets, killing hundreds and injuring thousands, and the important thing, Mr. Rockler emphasized that this is a clear violation of international law, a very serious violation of international law, the making of aggressive war, one of the FUNDAMENTALS of international law. I must say, and we pointed out to the Tribunal, nobody doubts this. There is no legal expert of any credibility in the world who doubts this was an illegal war, that failure to have AT LEAST the authorization of the Security Council made it an outlaw war. Actually, an article written recently by a judge of the International Tribunal for the former Yugoslavia, Judge Cassesi, who wrote clearly that there is no question about it. This is an illegal war.
So, what we have here is the willful killing of people, the admitted killing of people, and the destruction of property and bombing of civilian targets without any lawful excuse and all the NATO leaders, each one of the prime ministers, each one of the defence ministers, each one of the foreign ministers, admittedly participated in that and it should be remembered that the unity of NATO was stressed throughout. Javier Solana stressed that in the face of all this killing and destruction, this illegal killing and destruction that the NATO leaders were all united. You didn't hear a word against this. You heard some grumbling by people, but you didn?t hear any disassociation from this so you have individual criminal responsibility by all these people at the very heights of power. So that's one thing: it was an illegal war.
The other thing is that of course it is a violation of the CLEAR Geneva Convention provisions to protect the civilian population from the effects of war. War is between soldiers and the Geneva Conventions from the Second World War and on have obligated states to protect civilian population but this was far from protecting the civilian population, we have a lot of evidence - compelling evidence presented by this international team - that they deliberately targeted civilian populations. This was a terrorist war. You know when you bomb a bridge in broad daylight - a market bridge on market day - and then you come back four minutes later and you bomb it again, this can only be interpreted as terrorism and deliberate targeting of the civilian population. We have admitted evidence of this. When the NATO officials were asked how could you justify this as a military necessity in broad daylight on a market day, killing people and then coming back four minutes later and bombing the same bridge, they had no answer. They had no answer at all because there is no answer. They are guilty in front of the world and this Tribunal has jurisdiction over them.
It's been called "a coward's war," by a former judge of a UN tribunal, because even on the most charitable view, even taking their incredible explanations at face value, they displaced all the risk on the civilian population of Yugoslavia. They bombed from 15,000 feet to make sure that not one pilot risked danger of being struck by anti-aircraft missiles. Now from 15,000 feet you cannot distinguish between civilian and military targets. So, not only are they cowards, the leaders who sent other people to do their fighting, but the notion that no soldiers of NATO would be at risk and the only ones to be at risk would be the civilian population. This is prohibited by the Geneva Convention. CLEARLY, there's a duty to take care about the civilian populations that they deliberately targeted and even on their own admission took no care to protect them and made it inevitable - we have statements from Jean Chrétien, Art Eggelton, we have statements from all around the world from people saying they knew civilians were going to die. So, this is willful killing without any lawful excuse.
We underlined to the tribunal that there was plenty of evidence to act right now, that this was a crime committed in public in front of everybody. These were crimes admitted by these leaders in front of everybody. We urged the Tribunal to act immediately. The Tribunal said it has a policy that it wouldn't say what is was going to do or when it was going to do it but we, the UK people, the Norwegians, the French and Greeks, emphasized to the Tribunal that there was plenty of evidence to act now.
We also emphasized to the Tribunal this was an historic moment for international law, that charging these powerful people with war crimes, even though they're the president of the United States, prime minister of Canada, the president of this and that, would inspire people all around the world, would prove, would demonstrate, that international criminal law could be even-handed, that the law was the same for everybody, that this would be an historic moment for international criminal law. Judge Arbour has expressed over and over again that she sees this as part of a movement for international criminal law and said to us as well that when the 19 NATO countries bomb Yugoslavia, even though the United States had resisted the formation of an international criminal tribunal, when they bombed Yugoslavia they submitted themselves to international law. This Tribunal has the power to charge, arrest and imprison these people. So, this is a historic moment. It would inspire the world.
We have received messages and letters and emails and information and statements from all around the world. The Russian Duma is setting up a commission to investigate these crimes. The Spaniards, Germans, Argentinians, people all over the world are expecting this to happen because they've seen it committed before their very eyes. This would be a historic moment to show that the law reaches everywhere and to dispel the idea that these trials are about victors?'justice. I know that Mr. Rockler will remember Justice Jackson, the chief counsel at the Nuremberg Tribunals saying the GREAT danger of these international tribunals are that they're only victors' justice, that only the victors in the war go to trial. We urged the Tribunal that this is a moment where we could change history and prove that even the most powerful people in the world are subject to law, in a clear case, but that's also why the entire enterprise is on the line - the entire enterprise of international law is on the line - because a failure to indict these people who have committed clear crimes in public, would destroy international law because the charging of Milosevic, the charging of one side, the charging of the losing side without charging the winning side would once again, would demonstrate once and for all that international criminal law was a form of impunity, was a way in which powerful people protected themselves and supposedly this is what has been stated as the goal of this.
So, this is a do-or-die moment for the credibility not just of this Tribunal but of international criminal law in general. The precedent would be awesome if powerful countries could not only get away this flagrant violation of law - in other words saying the law doesn.t matter to them. This would be a terrible precedent that we live in a lawless world where powerful countries could feel free - not only could do what they want but could feel free - could state clearly that the law doesn't apply to them. I don't want to live in a world where the powerful people are free to do this, but it would also create a terrible precedent for international criminal law, that it could be used as a tool of aggressive, illegal war by one side, that they could cynically claim to be acting in favour of criminal law, that they were guaranteed would not apply to them.
Make no mistake, if these people are not indicted, then international criminal law will go down in history as a great and a terrible farce.
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