February 12, 2004
Re: The Trial of Slobodan Milosevic, Former President of the Federal Republic of Yugoslavia Before the International Criminal Tribunal for the Former Yugoslavia
Dear Secretary General Annan,
The Prosecution of the former President of the Federal Republic of Yugoslavia is scheduled to end its presentation of evidence to the International Criminal Tribunal for the Former Yugoslavia (ICTY) on February 19, 2004, more than two years after its first witness testified.*
Over 500,000 pages of documents and 5000 videocassettes have been placed in evidence. There have been some 300 trial days. More than 200 witnesses have testified. The trial transcript is near 33,000 pages.
The Prosecution has failed to present significant or compelling evidence of any criminal act or intention of President Milosevic. In the absence of incriminating evidence, the Prosecution apparently hoped to create a record so massive that it would be years, if the effort was ever made, before scholars could examine and analyze the evidence to determine whether it supported a conviction.
Meanwhile the spectacle of this huge onslaught by an enormous prosecution support team with vast resources pitted against a single man, defending himself, cut off from all effective assistance, his supporters under attack everywhere and his health slipping away from the constant strain, portrays the essence of unfairness, of persecution.
In contrast, the Prosecution of the “first trial in history for crimes against the peace of the world” at Nuremberg began November 20, 1945 against 19 accused and ended just over three months later on March 4, 1946 after four nations presented evidence. In his opening, Chief Prosecutor Robert H. Jackson observed
There is a dramatic disparity between the circumstances of the accusers and the accused that might discredit our work if we should falter, in even minor matters, in being fair and temperate. … We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.
The Prosecution began its investigation of President Milosevic under Richard Goldstone of South Africa in October 1994. When he left office in December 1996 he had found no evidence to support an indictment. His successor, Louise Arbour of Canada, continued the investigation without formal action until late May 1999 when President Milosevic was first indicted for acts allegedly committed earlier in 1999.
The indictment came during the heavy U.S./NATO bombing of all Serbia including Kosovo, a war of aggression. It had killed civilians throughout Serbia and destroyed property costing billions of dollars to replace. It had destroyed President Milosevic’s home in Belgrade in an assassination attempt on April 22, 1999. The Chinese Embassy in Belgrade had been bombed on May 7, 1999. Depleted uranium, cluster bombs and super bombs had targeted civilians and civilian facilities. Hundreds of civilian facilities were destroyed and civilians killed from Nova Sad to Nis to Pristina.
The initial indictment made no allegations of any crimes in Croatia, or Bosnia. It dealt exclusively with alleged acts by Serb forces in Kosovo in 1999. All of Serbia, including Kosovo, remained under heavy U.S./NATO bombardment at the time of the indictment. There were no U.S., or NATO forces, or ICTY investigators in Kosovo. Investigation was impossible. The indictment was purely a political act to demonize President Milosevic and Serbia and justify U.S. and NATO bombing of Serbia which was itself criminal and in violation of the U.N. and NATO Charters.
As U.S. Ambassador to the U.N., Madeleine Albright led the U.S. effort to cause the Security Council to create the ICTY. Later she wrote in her memoir that while she was U.S. Secretary of State she had sought removal of President Milosevic from office for years:
“With colleagues Joschka Fischer and others, I urged Serb opposition leaders to build a real political organization and focus on pushing Milosevic out… In public remarks I said repeatedly that the United States wanted Milosevic ‘out of power, out of Serbia, and in the custody of the war crimes tribunal.'”
President Milosevic was indicted and is on trial because he intended and acted to protect and preserve Yugoslavia, a federation that was essential to peace in the Balkans. Powerful foreign interests, supporting nationalist and ethnic groups and business interests within the several republics of Yugoslavia, were, for their various reasons, determined to dismember Yugoslavia. Foremost among these was the United States. Germany played a major role. Later NATO lent its name to the effort in violation of its own Charter. The violence that followed was foreseeable and tragic.
Throughout there was no more conciliatory leader than President Milosevic who avoided all out war as Slovenia, Croatia, Bosnia and Macedonia seceded from the Federal Republic. For his later defense of Yugoslavia, reduced to Serbia and Montenegro, he will be remembered primarily for his compromises at Dayton, Ohio and, later, to end the brutal U.S. bombing of Serbia from March to June 1999. His conduct intended peace and the survival of a core federation of southern Slavs which in a better day might seed a broader federation of Balkan states which is essential to peace, political independence and economic viability in the region. The U.S. and others intended otherwise.
The consequences have been disastrous for each of the former states of the federal republic. Today there is economic intervention and stagnation, political unrest, public dissatisfaction and growing threats of violence in former Yugoslavia. The U.S. is courting Croatia for membership in NATO as the base for European forces to control the region and maintain its division. Croatia has sent a small military unit to assist NATO in Afghanistan and is being pressured to send troops to Iraq, thereby continuing its confrontations with Muslim peoples in Croatian and Bosnia. U.S. Secretary of Defense Rumsfeld, met with the nationalist leadership of Croatia, including the President and Prime Minister, on February 8, 2004. He proclaimed “I look forward to the day when Croatia becomes a part” of NATO.
The former President of Yugoslavia is on trial for defending Yugoslavia in a court the Security Council had no power to create. In contrast, the President of the United States, who has openly and notoriously committed war of aggression, “the supreme international crime”, against a defenseless Iraq killing tens of thousands of people, spreading violence there and elsewhere, faces no charges. President Bush continues to threaten unilateral wars of aggression and presses for U.S. development of a new generation of nuclear weapons, tactical nuclear bombs, after invading Iraq on the fabricated claim it was a threat to the U.S. and possessed weapons of mass destruction. This can happen only because power, not principle, still prevails.
The United Nations cannot hope to end the scourge of war until it finds the will to outface power and stands united for the principles of peace. What better evidence is needed of U.S. intention to stand above the law and rule by force than the extensive U.S. efforts to destroy the International Criminal Court and coerce bilateral treaties in which nations agree not to surrender U.S. citizens to the ICC. Compound this obstruction of justice with the June 30, 2002 statement of the U.S. Permanent Representative to the U.N., Ambassador John Negroponte, demanding immunity for the U.S. from foreign prosecution, to which the Security Council submitted. Negroponte threatened that the U.S. would veto a pending Security Council resolution to renew the U.N. peacekeeping mission in Bosnia-Herzegovina, unless the Security Council provided immunity, that is impunity, for personnel contributed to Security Council authorized peace keeping missions. The purpose was to place U.S. personnel and U.S. surrogates above the law while U.S. enemies are victims of discriminatory prosecution in illegal courts.
The ICTY and other ad hoc criminal tribunals crated by the Security Council are illegal because the Charter of the United Nations does not empower the Security Council to create any criminal court. The language of the Charter is clear. Had such power been placed in the Charter in 1945 there would be no U.N. None of the five powers made permanent members of the Security Council in the Charter would have agreed to submit to a U.N. criminal report.
The ICC was created by treaty, recognizing the U.N. had no power without amendment of its Charter to create such a court. Creation of the ICC should preclude creation of any additional criminal tribunals and calls for the abolition of those that exist. They were created to serve geo political ambitions of the U.S. The issue is of the highest importance. It determines whether the Security Council itself is above the Charter and the rule of law.
The ad hoc criminal tribunals are inherently discriminatory, evading the principles of equality in the administration of justice. The discrimination is intended to destroy enemies. The International Criminal Tribunal of Rwanda has not indicted a single Tutsi after nine years, though Faustin Twagirimungu, the first Prime Minister under the Tutsi RPF government in 1994 and 1995, testified before it that he believed more Hutu’s than Tutsi’s were killed in Rwanda in the tragic violence of 1994. Hundreds of thousands of Hutu’s were slaughtered later in Zaire, now the Democratic Republic of Congo, and remain endangered today. The ICTR is an instrumentality for U.S. support of Tutsi control in Uganda, Rwanda, Burundi, and for a time and perhaps again, the Democratic Republic of Congo.
ICTY prosecutions are overwhelmingly against Serbs and only Serb leaders have been indicted by it, including not only President Milosevic and Serb leadership, but Serb leaders in Srpska, the segregated Serb part of Bosnia.
As the prosecution of the former President of Yugoslavia draws to a close his health is seriously impaired and has become life threatening. Hearings were cancelled last week because he was too ill to participate, but the Tribunal added onerous hours of hearings for the two final weeks of the prosecution case. Only yesterday the Tribunal was forced to reduce the hearings to half days because of a medical report on President Milosevic prepared by court appointed doctors. President Milosevic has been kept in total isolation for months during the period he headed the socialist party’s ticket in parliamentary elections and when his party joined the coalition which elected the new speaker of the Parliament last week. Earlier this week the Tribunal extended his isolation for another month because of political events in Serbia.
President Milosevic, imprisoned, his health dangerously impaired, defending himself alone in the courtroom, has been given less than three months to prepare his defense to more than two years of evidence before the defense presentation is scheduled to begin in May. These most recent actions of the Tribunal are representative of the gross consistent unfairness of the proceedings during the years of President Milosevic imprisonment and the prosecution case against him.
To properly prepare the defense, it will be necessary to secure and review tens of thousands of documents, find and interview hundreds of potential witnesses and organize the evidence into a coherent and effective presentation.
The United Nations must take the following acts in the interest of simple justice, to right former wrongs, to assess the legality and fairness of a court it created and to maintain credibility in the eyes of the Peoples of the United Nations:
1. Declare a moratorium on all proceedings in all U.N. ad hoc criminal tribunals for a period of at least six months and for such additional periods as may prove necessary for the United Nations to:
A. Create a Commission of international public law scholars and historians to examine the precedents, the drafting, language and intention of the Charter of the United Nations to determine whether the Charter empowers the Security Council to create any criminal tribunal and, if so, the basis, authority and scope of such power, or refer the issue to the International Court of Justice for decision.
B. Create a commission of international criminal law scholars to review the trial proceedings in the case against President Milosevic to determine whether legal errors, violations of due process of law, or unfairness in the conduct of the trial compel dismissal of the proceedings, and whether the evidence presented by the prosecution against former President Milosevic to is sufficient under international law, before any defense is presented, to support and justify continuation of the trial.
C. Provide former President Milosevic with funds to retain advisory counsel, investigators, researchers, document examiners and other experts sufficient to effectively respond to the evidence presented against him and assure the time required to complete the task before any further trial proceedings resume, such efforts being essential even if the court is abolished, or the prosecution has been dismissed in order to help establish historic fact for future peace.
D. Provide funds to secure independent medical diagnoses, treatment and care for former President Milosevic in facilities in Serbia.
Respectfully submitted,
Ramsey Clark
The identical letter has been sent to:
-Members of the UN Security Council
-The President of the UN General Assembly
-The Secretary General of the UN
-The President of the United States
-The International Criminal Tribunal for Former Yugoslavia
* Submitted with this letter is a 31-page document entitled Divide and Conquer which supports in greater detail the facts, law and arguments set forth and the relief requested herein. Its Table of Contents provides a ready reference to the pages where subject matters of particular interest will be found.
