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A Politicized ICTY Should Come to an End

Professor Jianming Shen
St. John's University School of Law

I was deeply dismayed with the announcement by the Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY) of the indictment of Milosevic and a few other top Yugoslav officials on May 27. The indictment was shocking but not surprising. It was not surprising because, given the paths of the much politicized works and statements of the prosecution office of the ICTY in the past few years and recent weeks in particular, this indictment was bound to take place. It was shocking because the Chief Prosecutor of the ICTY ignored the call of the international community at large upon it to show some degree of impartiality and justice, and the good will of the international community that the ICTY should refrain from functioning as a political tool of Western Powers.

The basis for the very existence of the ICTY and its jurisdiction is questionable, at least controversial. I am not going to address this issue here. For the purpose of this article, I shall presume that the ICTY was legally created and does have jurisdiction over people responsible for atrocities in the former Yugoslavia. The international community has every reason to expect the Tribunal to work as an impartial ad hoc institution independent of any bias, personal belief, cultural value, politics, and policy of any particular State or group of States. This expectation, unfortunately, the Tribunal, especially its prosecution office, has largely failed to meet.

In the more than two-month long Balkan war currently underway, the illegality and criminality of NATO's behavior is so obvious and so clear that there is certainly something the ICTY can and should do in that respect. Not long ago, a group of Canadian law professors and attorneys petitioned the Chief Prosecutor for indicting some named leaders of NATO countries for crimes against peace, crimes against humanity and war crimes. This petition, not surprisingly, has been disregarded. While there was growing sign of the Tribunal's Chief Prosecutor accusing the Serbs and their leaders of violating international humanitarian law, she merely indicated that she was "satisfied" that NATO would not violate such law (ICTY press release of May 13, 1999) when NATO had already committed serious violations by bombing, in some cases even admittedly deliberately, civilian targets such as bridges, buses, trains, refugee convoys, villages, factories, residential buildings, power facilities, refineries, hospitals, prisons, and foreign embassies.

It was against this background that I wrote and faxed a letter, on May 26 (dated May 25), to the Chief Prosecutor, whom I met in Hong Kong one year ago, advising her (if she does not know yet) that "NATO has been creating and contributing to much more calamitous humanitarian disasters in spite of the alleged good will". In that letter, I emphasized that

the ICTY, by taking action within its power, duty and jurisdiction, can make a great contribution to bringing the world back to peace and rule of law from rules of the jungle and power politics. The ICTY, which happens to possess criminal jurisdiction over offences taking place in the FY, can and should send an even clearer and stronger signal to NATO and all concerned that no violations of international law constituting international crimes are immune from prosecution and punishment.
What came out, just one day later, from the Hague was a big disappointment. I am not suggesting that a particular figure should or should not be indicted. What I worry about is the more and more obvious lack of impartiality and justice in the system. If particular Serbian leaders were partly responsible for some of the atrocities caused to the Kosovar Albanians and therefore subject to indictment, then, why didn't the Chief Prosecutor indict those of the NATO block who are also responsible for causing and aggravating these same atrocities? What is the reason for not showing any sign of indicting those responsible for the much greater atrocities suffered by the sovereign State of Yugoslavia and its people? What is the rationale for not chasing after those blamable for the brutal (and by no means accidental and mistaken) bombing of the Chinese Embassy that killed three Chinese journalists and wounded more than twenty Chinese diplomats and journalists? Why are some people "concerned" about the human rights of the ethnic Albanians while being so indifferent to the human rights of the Serbs, the Yugoslav minorities, and the Chinese? And why after all hasn't the Tribunal made any gesture towards indicting those committing the crimes against peace (crimes of aggression) that unquestionably are the causes and sources of much of the atrocities and the refugee crisis?

The timing of the indictment was a particularly bad one. If Milosevic is among those that should be indicted, for the sake of neutrality and impartiality alone, the Tribunal should defer the indictment until the illegal and immoral war is over, or at least until it is ready to indict some NATO figures as well. The announcement of the indictment of Milosevic and other Yugoslav leaders alone at this time hinders the ongoing diplomatic efforts towards ending the bombing and achieving a political settlement of the Kosovo crisis. More dangerously, it is sending a wrong message to NATO leaders and the international community as if it were OK to breach fundamental principles of international law and the Charter of the United Nations by violating the sovereignty of another nation, interfering in its internal affairs, and waging prohibited war against it. It was sending a wrong message to the world as if, to prevent some atrocities, it were OK to commit greater atrocities, as if the human rights and dignity of some ethnic groups were less valuable than some others', and as if it were OK to violate international humanitarian laws and the laws of war by great powers by not by small nations. One may say that it would be unrealistic to expect the ICTY, which itself is largely financed by Western Powers, to charge against NATO countries. If the ICTY could not indict those within the NATO block responsible for various international crimes, then it should not indict anyone else.

The ICTY system is a lopsided one. Whom to indict, when to indict, and what evidence to collect and use, are all under the control of one single individual, and there is no checking and review mechanism except for the judges of the chambers of the Tribunal who in theory may reject a prosecution. This system is a copy of the domestic criminal system of some States, does not at all reflect the nature of the international community, and is inappropriate for international prosecution. Indeed, the Chief Prosecutor of the Tribunal is too powerful, so powerful that she or he is vulnerable to abusing or misusing her or his power, and so powerful that his or her decision may turn some political leaders in the Balkans down and change the course of history while harboring or neglecting to prosecute truer criminals.

It is obvious that the power to decide to indict individuals, especially to indict political leaders, should not be placed in the hands of one single Chief Prosecutor. Rather, such decisions should come within the powers of a collegial and democratically constituted body of prosecutors, with each prosecutor possessing one and equal voice, on the basis of majority vote. It is time to reform the Tribunal's prosecution office. And it is time for a politicized and unbalancingly-staffed ICTY to come to an end.

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