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NATO-leaders are accused of war crimes in Kosovo by The International Criminal Tribunal for the Former Yugoslavia

York University
Osgoode Hall Law School
4700 Keele Street
Toronto, Ontario, CANADA M3J 1P3


Professor Michael Mandel
Telephone: 416-736-5039
Fax: 416-736-5736
E-mail: mmandel@yorku.ca


The Honourable Madam Justice Louise Arbour,
Prosecutor,
International Criminal Tribunal for the Former Yugoslavia,
Churchillplein 1, 2501 EW,
The Hague,
Netherlands

SENT BY COURIER AND ELECTRONIC MAIL
July 26, 1999

Dear Madam Justice Arbour:
Re William J. Clinton et al.

According to press reports, investigators for your Tribunal have been uncovering shocking evidence of war crimes in Kosovo. The list of reported massacres of civilians, including children, appears to grow longer and more hideous with each day of NATO's occupation. As you are no doubt aware, NATO leaders have been using this evidence to justify their bombing campaign of Yugoslavia. We find the chronological logic of this claim impossible to accept, since the atrocities now being reported and cited in justification of the attack all happened after the bombing started on March 24.

Furthermore, nobody seems to doubt that they were provoked by the bombing itself, even if, putting NATO's case at its strongest, the attack only provided an excuse for the massacre of ethnic Albanians left defenceless by the withdrawal of the international monitors. But there were doubtless a combination of factors involved in crimes against civilians in Kosovo -- the extent and nature of which, of course, remain to be established -- including predictably brutal anti- guerilla war tactics aimed at rooting out KLA fighters, as well as revenge for the massive bombing of Serbian civilians by the KLA's NATO allies. And we know that civilians died from NATO's own bombs (along the Prizren-Djavkovica road on April 15 and in Korisa on May 15 for two admitted examples).

The point we want to make is that, whatever the explanation, most of these crimes would not have been committed and most of the victims would be alive today if not for NATO's bombing. Nothing remotely like this had occurred in the three years of civil conflict that preceded the war, and nobody is saying anything like it would have occurred but for NATO's belligerence.

This means that, far from these crimes making NATO leaders feel justified, they should be weighing heavily on their consciences. These crimes should, in fact, be added to the terrible costs of NATO's bombing, along with the loss of life and limb by thousands of Serb civilians (including children), the billions of dollars of property and infrastructure damage, and the environmental disaster now spreading through the region from the bombing of chemical plants and the damage to the ozone layer, as well as the leftover effects of depleted uranium and cluster bombs. To this must also be added the revenge killing, looting and "ethnic cleansing" being perpetrated against Serbs in Kosovo since the entry of NATO forces.

Naturally this doesn't excuse the Serb leadership from their responsibility for the crimes in Kosovo. But neither can it permit NATO leaders to wash their own hands of responsibility for NATO's undeniable and unforgiveable contribution to the tragedy, especially since NATO's adventure in Kosovo was not just wrongful and harmful; it was, as we and many others have submitted to you, clearly illegal and, indeed, criminal.

That is why, when we met in the Hague last month, we were at pains to point out how critical a moment this is for the "anti-impunity" movement that you have been championing throughout your tenure. Charging the war's victors, and not only its losers, would be a watershed in international criminal law. It would inspire the world with a concrete demonstration that no one is above the law, not even the leaders of the world's most powerful countries. On the other hand, a failure to act notwithstanding the clear requirements of the law and the evidence would deal a mortal blow to the credibility of international law. It would show it to be nothing more than an instrument of the powerful countries -- a modern version of "might is right."

Unfortunately, as you know, many doubts have already been raised about the impartiality of your Tribunal. In the early days of the conflict, after a formal and, in our view, justified complaint against NATO leaders had been laid before it by members of the Faculty of Law of Belgrade University, you appeared at a press conference with one of the accused, British Foreign Secretary Robin Cook, who made a great show of handing you a dossier of Serbian war crimes. In early May, you appeared at another press conference with US Secretary of State Madeleine Albright, by that time herself the subject of two formal complaints of war crimes over the targeting of civilians in Yugoslavia. Albright publicly announced at that time that the US was the major provider of funds for the Tribunal and that it had pledged even more money to it. Within two weeks, indictments had been issued against Yugoslav President Slobodan Milosevic and four other Serb leaders, in what, with the greatest respect, might reasonably have seemed to an impartial observer to be a very indecent haste -- one dictated not by the needs of justice (which surely could have waited), but by NATO pressure in the face of flagging popular support for its war effort. And, of course, this flagging popular support was due precisely to the mounting civilian casualties that NATO leaders defined as "collateral damage" and the law defines as war crimes.

And now, after the bombing has stopped, with 185 member states in the United Nations, your Tribunal appears to have trusted only investigators from a few of the 19 NATO countries, led by the FBI and Scotland Yard, for the sensitive job of investigating war crimes in Kosovo. We cannot help thinking that this is a terrible mistake. NATO investigators, whose governments are themselves the subject of well- grounded complaints of war crimes committed in Kosovo and Serbia, have every incentive to falsify and cover up the evidence in order to protect their governments and to justify the war. The caché of illegal cluster bombs that resulted in the deaths of British and KLA soldiers is just one suspicious example. Not only is there a real danger of permanently tainting the evidence (we ask you to imagine the effect on an ordinary criminal investigation of sending a suspect to gather the evidence), there is also a grave risk to the Tribunal's reputation for impartiality and, by extension, to the cause of international criminal law.

As you know, last summer in Rome the US government opposed the establishment of an International Criminal Court with universal jurisdiction to punish crimes against humanity. Perhaps the US feels it has nothing to lose if the whole idea is discredited by the experience in Yugoslavia. But there is a lot at stake for those of us who insist that any "New World Order" be a democratic and law- governed one.

We trust that you share our concerns for impartial justice and the future of international criminal law. We therefore urge you to make every effort to bring the NATO leaders to justice. In our respectful submission, the Tribunal is already possessed of more than enough evidence to meet the established standards for prosecution. However, as we promised you in June, we will continue to accumulate and submit evidence in order to satisfy you that there is really no alternative for law or justice but to prefer indictments against these NATO leaders.

Yours very sincerely,

Michael Mandel,
Professor,
- for myself and for
Alejandro Teitelbaum, American Association of Jurists, 80 Quai Gillet, 69004 Lyon, France; - and
Glen Rangwala, Movement for the Advancement of International Criminal Law, Trinity College, University of Cambridge, Cambridge CB2 1TQ, United Kingdom. cc. Alexander Lykourezos, Attorney at Law, 19 Dimokritou St., 10673, Athens, Greece.
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