Illegal Tribunal - Illegal Indictment

The International Progress Organization hereby presents the following legal observations on today's "indictment" by the "International Criminal Tribunal":

1. The "indictment" issued by the "Chief Prosecutor" of the so-called "International Criminal Tribunal for the Former Yugoslavia" is legally invalid because this "Tribunal" has no jurisdiction whatsoever in the present or any other case.

2. The "Tribunal" derives its raison d'être exclusively from Security Council resolution 827, adopted at the Council's 3217th meeting on 25 May 1993. In this resolution, establishing the so-called "International Criminal Tribunal," the Security Council states that it acts "under Chapter VII of the Charter of the United Nations."

3. When adopting the above resolution, the Security Council acted ultra vires. According to the provisions of the U.N. Charter, the Council has no competence whatsoever in judicial matters. The provisions of Chapter VII determine the Council's competence in matters of international security but not in matters of criminal justice or other judicial matters. The sole authority in international judicial matters rests with the International Court of Justice.

4. The "determination," in the preamble of Security Council resolution 827, paragraph four, that the "widespread and flagrant violations of international humanitarian law" on the territory of the former Yugoslavia "constitute a threat to international peace and security" does not provide a sound legal basis for the Security Council acting as a surrogate judicial authority or establishing an international court with jurisdiction in this or any other case.

5. It is regrettable that the institution of the Security Council, while being unable to stop the undeclared war waged by NATO countries against Yugoslavia in violation of international law, and while being prevented, because of the veto power of countries conducting the present war, from restoring international peace and security in Yugoslavia, is now being used to take a so-called "judicial" action against the legitimate Head of State and other high officials of the country under attack.

6. Under the present circumstances, the move by the "Chief Prosecutor" of the so-called "Tribunal," Ms. Louise Arbour, can only be considered of political nature. This interpretation is confirmed by today's statement of the President of the United States who declared that the "indictment" by the "Tribunal" can be seen as an endorsement of NATO's campaign.

7. The purely political nature of the "indictment" and the lack of any legal validity of this decision can further be seen from the fact that the "President" of the so-called "Tribunal," Ms. Gabrielle Kirk McDonald (United States of America), the "Chief Prosecutor," Ms. Louise Arbour (Canada), and the investigating "judge" in the present case, Mr. David Anthony Hunt (Australia), are citizens either of NATO member countries directly responsible for the undeclared war against Yugoslavia or of a country fully endorsing the NATO war. If the "Tribunal" would have taken general legal standards of impartiality seriously, it would have been obliged to determine that there is a conflict of interest for "judges" from countries waging an undeclared war against Yugoslavia to sit on such a panel initiating "judicial" action against the Head of State of the country under attack.

8. The political nature of the "indictment" was further made obvious by the "Chief Prosecutor's" press statement earlier today in which she expressed her view that the "indicted" Head of State cannot be considered a partner of any negotiations about a peaceful settlement of the conflict. Such a statement makes a mockery of whatever legal standards the so-called "Tribunal" claims to adhere to. By her statement, the "Chief Prosecutor" has tried to act as a surrogate politician and to influence political events in the interest of those NATO countries presently waging war against Yugoslavia.

9. When, in violation of the United Nations Charter, a self-appointed group of states claiming to act on behalf of international peace and human rights, wages an all-out war against a sovereign member state of the United Nations and deliberately destroys the civilian infrastructure of that country with impunity, the present move by functionaries of the so-called "Tribunal" to declare the legitimate leaders of the country under attack as criminals, can only be seen as an act to hamper the international community's efforts to settle the conflict in Yugoslavia by peaceful means. This move undermines all efforts to settle the conflict within the framework of the United Nations and only prolongs the suffering of the people of Yugoslavia including the Kosovar Albanians.

10. It would be fitting that the so-called "Tribunal"- if it wants, at least, to prove its credibility in terms of basic moral standards, in spite of its legal incompetence as explained above - should also turn its attention to the practices applied by the NATO coalition in its undeclared war against the people of Yugoslavia (including the province of Kosovo).

The provisions of Article 3 of the so-called "Tribunal" identify, among others, the following practices as "violations of the laws or customs of war":

(a) "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;" (c) "attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;" etc.

NATO's use of depleted uranium missiles and of cluster bombs, NATO's attacks on villages, civilian buses etc. fall clearly within the definition of "violations of the laws or customs of war" as given in the Statute of that very "Tribunal" not to speak of the numerous grave breaches of the Geneva Conventions of 1949 committed by the NATO alliance, for which the "Tribunal" also claims to be competent according to Article 2 of its Statute. As long as the "Tribunal" does not take action against those NATO politicians and military officers responsible for these grave breaches of international humanitarian law, the "Tribunal" can only be considered as one more futile exercise in the political use of judicial procedures within the framework of a "policy of double standards" which seems to be the essence of power politics in NATO's "New World Order."

11. A dangerous precedent is being created by this new use of judicial procedures for the purposes of power politics. The separation of powers, one of the basic requirements of the rule of law, is being completely neglected when a purely political organ of the United Nations, the Security Council, arrogates to itself judicial powers by establishing an "International Criminal Tribunal," and when the functionaries of this "Tribunal" act as surrogate politicians effectively hindering a political settlement of an international armed conflict. The sole responsibility for whichever judicial matters in international affairs rests with the International Court of Justice. It is this institution alone that decides on the legal questions related to aggression by one state or a coalition of states against another state, and that decides on issues of international humanitarian law.

12. Because of the regrettable paralysis of the Security Council, the member states of the United Nations as represented in the General Assembly should take immediate action on the basis of the "Uniting for Peace Resolution" (res. 377 A [V] of the General Assembly) in order to prevent a further dangerous deterioration of the situation in Yugoslavia. When otherwise invalid legal procedures are being used to prevent a just political settlement and when the ongoing large-scale bombing of Yugoslavia causes an ecological disaster rendering large areas uninhabitable, urgent action is required by the international community. If this new form of self-righteous power politics is not being checked, similar action may be taken in the time to come against other sovereign countries and their leadership. In this case, the "rule of force" will replace whatever remains of the "rule of law" in international relations. International anarchy will be the inevitable result. All political leaders and people of good will should unite against this most serious threat to the international order since the end of the Cold War.

arch/ive/ief (2000 - 2005)