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House of Commons-Canada
Standing Committee on Foreign Affairs and International Trade
Tuesday February 22, 2000

Testimony of Professor Michael Mandel

Personal Note

Allow me to tell you a little bit about myself and how I became involved
in this. I am a professor of law at Osgoode Hall Law School where I have
taught for 25 years. I specialize in criminal law and comparative
constitutional law with an emphasis on domestic and foreign tribunals,
including United Nations tribunals such as the International Criminal
Tribunal for the Former Yugoslavia. I have no personal interest in the
conflict in Yugoslavia - I have no Serbs or Albanians in my family and I
am not being paid by anyone. I became involved in this as a Canadian
lawyer who witnessed a flagrant violation of the law by my government
with unspeakably tragic results for innocent people of all the Yugoslav
ethnicities. I became involved as a Jew appalled by the grotesque and
deliberate misuse of the Holocaust to justify the killing and maiming of
innocent people for what I am convinced were purely self-interested
motives, the farthest thing from humanitarianism, in a cynical attempt
to manipulate the desire of Canadians to help their fellows on the other
side of the world.

Illegality of the War

The first thing to note about NATO's war against Yugoslavia is that it
was flatly illegal both in the fact that it was ever undertaken and in
the way it was carried out. It was a gross and deliberate violation of
international law and the Charter of the United Nations. The Charter
authorizes the use of force in only two situations: self-defence or when
authorized by the Security Council.

The United Nations Charter provides in so far as is relevant:

Article 2
3. All Members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and
justice, are not endangered.

4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

Article 33
The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall,
first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means of their own choice.

Article 37
1. Should the parties to a dispute of the nature referred to in Article
33 fail to settle it by the means indicated in that Article, they shall
refer it to the Security Council.
2. If the Security Council deems that the continuance of the dispute is
in fact likely to endanger the maintenance of international peace and
security, it shall decide whether to take action under Article 36 or to
recommend such terms of settlement as it may consider appropriate.

Article 39
The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and
security.

Article 41
The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it
may call upon the Members of the United Nations to apply such measures.
These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.

Article 42
Should the Security Council consider that measures provided for in
Article 41 would be inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or
land forces of Members of the United Nations.

Article51
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence
shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council
under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and
security;

The jurisprudence of the International Court of Justice is also clear.
For instance, it stated in its ruling against United States intervention
in Nicaragua:

In any event, while the United States might form its own appraisal of
the situation as to respect for human rights in Nicaragua, the use of
force could not be the appropriate method to monitor or ensure such
respect. With regard to the steps actually taken, the protection of
human rights, a strictly humanitarian objective, cannot be compatible
with the mining of ports, the destruction of oil installations, or again
with the training, arming and equipping of the contras.

[CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST
NICARAGUA (NICARAGUA v. UNITED STATES OF AMERICA) (MERITS) Judgment of
27 June 1986, I.C.J. Reports, 1986, p.134-135, paragraphs 267 and 268]

It should also be noted that the preliminary decision of the World Court
last year in Yugoslavia's case against 10 NATO countries, including
Canada, does not in the slightest contradict this. As Mr. Matas has
pointed out to you in his statement, this decision was taken on purely
jurisdictional grounds, first the United States' shameful refusal to
recognize the World Court's jurisdiction in general, and second Canada's
objection to jurisdiction in this specific case. But it is worth quoting
some paragraphs from the decision of the Court:

15. Whereas the Court is deeply concerned with the human tragedy, the
loss of life, and the enormous suffering in Kosovo which form the
background of the present dispute, and with the continuing loss of life
and human suffering in all parts of Yugoslavia;

16. Whereas the Court is profoundly concerned with the use of force in
Yugoslavia; whereas under the present circumstances such use raises very
serious issues of international law;

17. Whereas the Court is mindful of the purposes and principles of the
United Nations Charter and of its own responsibilities in the
maintenance of peace and security under the Charter and the Statue of
the court;

18. Whereas the Court deems it necessary to emphasize that all parties
appearing before it must act in conformity with their obligations under
the United Nations Charter and other rules of international law,
including humanitarian law.

[CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA V. CANADA)
International Court of Justice, 2 June 1999]

To sum up, in the case of NATO's war on Yugoslavia, neither of the two
exclusive bases for the use of force (Security Council authorization or
self-defence) was even claimed by NATO.

As a violation of the United Nations Charter, the attack on Yugoslavia
was also a violation of the NATO Treaty itself and Canada's own domestic
law.

The NATO Treaty (1949), so far as is relevant, reads as follows:

[Preamble]: The Parties to this Treaty reaffirm their faith in the
purposes and principles of the Charter of the United Nations and their
desire to live in peace with all peoples and all governments.

Article 1: The Parties undertake, as set forth in the Charter of the
United Nations, to settle any international dispute in which they may be
involved by peaceful means in such a manner that international peace and
security and justice are not endangered, and to refrain in their
international relations from the threat or use of force in any manner
inconsistent with the purposes of the United Nations.

Article 7: This treaty does not affect, and shall not be interpreted as
affecting in any way the rights and obligations under the Charter of the
Parties which are members of the United Nations, or the primary
responsibility of the Security Council for the maintenance of
international peace and security.

The Canada Defence Act, in so far as relevant reads as follows:

31. (1) The Governor in Council may place the Canadian forces or any
component, unit or other element thereof or any officer or
non-commissioned member thereof on active service anywhere in or beyond
Canada at any time when it appears advisable to do so

(a) by reason of an emergency, for the defence of Canada; or

(b) in consequence of any action undertaken by Canada under the United
Nations Charter, the North Atlantic treaty or any other similar
instrument for collective defence that may be entered into by Canada.

The war's illegality is not disputed by any legal scholar of repute,
even those who had some sympathy for the war, for instance Mr. Mendes in
his presentation to this Committee. Of course, Mr. Mendes calls this a
"fatal flaw" in the UN Charter. I don't believe it is a flaw at all, for
reasons I'll elaborate. But I don't think the seriousness of this can be
glossed over one bit: the flagrant violation of the law by our
government is no small thing. Democracy is quite simply meaningless if
governments feel they can violate the law with impunity.

Humanitarian Justification

We all know that the leaders of the NATO countries sought to justify
this war as a humanitarian intervention in defence of a vulnerable
population, the Kosovar Albanians, threatened with mass atrocities.

A lot turns on this claim, but not the illegality of the war. In fact,
the reason why there is such unanimity among scholars on the illegality
of this war is that there is no "humanitarian exception" under
international law or the United Nations Charter. That does not mean that
there are no means for the international community to intervene to
prevent or stop humanitarian disasters, even to use force where
necessary. It just means that the use of force for humanitarian purposes
has been totally absorbed in the UN Charter. A state must be able to
demonstrate the humanity of its proposed intervention to the Security
Council, including, of course, the five permanent members possessing a
veto. Nor has the Security Council shown itself to be incapable of
acting in these situations. It issued numerous resolutions authorizing
action in this conflict (Resolutions 1160, 1199, and 1203 of 1998 and
Resolutions 1239 and 1244 of 1999, the last of which brought an end to
the bombing). The Security Council has also shown itself capable of
authorizing the use of force, for example its authorization of "all
necessary means" to restore the sovereignty of Kuwait in Resolution 678
of November 29, 1990, which gave Iraq until January 15, 1991 to
withdraw. Bombing by the Americans commenced on January 16.

But NATO did not even move a Resolution before the Security Council over
Kosovo. Nor did it use the alternative means of demonstrating to the
international community the necessity for its use of force in the
General Assembly's Uniting for Peace Resolution (1950), which allows the
General Assembly recommend action to the Security Council if 2/3 of
those present and voting agree:

[The General Assembly] Resolves that if the Security Council, because of
lack of unanimity of the permanent members, fails to exercise its
primary responsibility for the maintenance of international peace and
security in any case where there appears to be a threat to the peace,
breach of the peace or act of aggression, the General Assembly shall
consider the matter immediately with a view to making appropriate
recommendations to Members for collective measures, including in the
case of a breach of the peace or act of aggression the use of armed
force when necessary, to maintain or restore international peace and
security."

There are two basic reasons why these procedures were not utilized by
NATO in this case. In the first place, the most plausible explanation of
this whole war was that it was, at its foundation, nothing less than an
attempt by the United States, through NATO, to overthrow the authority
of the United Nations. In the second place, NATO could never have
demonstrated a humanitarian justification for what it was doing, because
it had none.

In law, as in morals, it is not enough for a humanitarian justification
to be claimed, it must also be demonstrated. To use an odious example,
but one which makes the point clearly enough, Hitler himself used a
humanitarian justification for invading Poland and unleashing World War
II: he claimed he was doing it to protect the German minority from
oppression by the Poles.

In the case of NATO, what had to be justified as a humanitarian
intervention was a bombing campaign that, in dropping 25,000 bombs on
Yugoslavia, directly killed between 500 and 1800 civilian children,
women and men of all ethnicities and permanently injured as many others;
a bombing campaign that caused 60 to100 billion dollars worth of damage
to an already impoverished country; a bombing campaign that directly and
indirectly caused a refugee crisis of enormous proportions, with about 1
million fleeing Kosovo during the bombing; a bombing campaign that
indirectly caused the death of thousands more, by provoking the brutal
retaliatory and defensive measures that are inevitable when a war of
this kind and intensity is undertaken, and by giving a free hand to
extremists on both sides to vent their hatred. What also has to be
justified is the ethnic cleansing that has occurred in Kosovo since the
entry of the triumphant KLA, fully backed by NATO's might, which has
seen hundreds of thousands of Serb (and Roma and Jewish) Kosovars driven
out and hundreds murdered, a murder rate that is about 10 times the
Canadian rate per capita.

These results were to be expected and they were predicted by NATO's
military and political advisers in their very careful planning of the
war which went back more than a year before the bombing commenced.

A humanitarian justification would have to show that this disaster was
outweighed by a greater disaster that was about to happen and would have
happened but for this intervention. The evidence for this, which must be
carefully scrutinized by this Committee, is meagre to say the least.

Nobody could seriously maintain that the conditions for a repeat of the
Bosnian bloodbath were there: this was not an all out civil war with
well-armed parties of roughly equal strength on each side and huge
ethnic enclaves fighting for their existence. These conditions simply
did not exist in Kosovo.

Nor did the facts indicate a humanitarian disaster would have occurred
but for NATO's bombing. A total of 2,000 people had been killed on both
sides in the prior two years of fighting between the KLA and the Serbs,
and violence was declining with the presence of UN observers. The
alleged massacre of 45 ethnic Albanians at Racak must be regarded with
the greatest suspicion, not only because of the circumstances, but also
because of involvement of the American emissary Mr. William Walker, with
his history of covert and illegal activities on behalf of the Americans
in Latin America.

Nor is the Report recently released by the OSCE of much value in
assessing the situation, since it was written and paid for by the NATO
countries themselves.

Even more importantly, the evidence is overwhelming that NATO did not
make serious efforts at averting a disaster and was not at all serious
about peace.

If we look at the Rambouillet negotiations, a number of perplexing
questions are raised: Why was the irredentist and insurrectionary KLA
preferred as the NATO interlocutor to the only popularly elected leader,
the moderate Ibrahim Rugova? Why, for that matter was Rugova ignored
during the war? Why did the US insist on a secret annex to the
Rambouillet Accord (Annex B) that would have allowed it to occupy all of
Serbia? Why did the final peace agreement look so much like what the
Serbs had agreed to before the bombing? Do we really think that NATO
could not have put the 10 billion dollars of bombs it dropped to working
out and under-writing a peace agreement that would have accommodated and
protected all sides if it were interested in humanity and not war? Why
are NATO countries so unwilling to spend money on reconstruction of
Kosovo, claiming that they have run out of money with less than one
billion dollars spent?

And where, to resolve these enormous doubts about whether NATO acted out
of humanitarian motives this time, is the evidence that these people
have ever acted from humanitarian motives before? With such huge holes
in its argument, we are entitled to cross-examine the leopard on his
spots. What about the failure to intervene with force in Rwanda? What
about the United States' own bankrolling of the repressive Suharto
regime in Indonesia? What about Turkey's violent repression of the
Kurds, a humanitarian disaster that has claimed 30,000 lives, not 2,000?
What about the United States itself? The richest country in the world
which creates social conditions so violent and racist that its normal
murder rate is in the realm of 20,000 per year, almost as high, per
capita as Kosovo right now - a country that puts 2 or 3 of its own
people to death by lethal injection every week. NATO has no humanitarian
lessons to teach the world.

Finally and very importantly, we must ask some serious questions about
the way in which this supposed humanitarian intervention was handled.
With the Kosovars supposedly in the hands of genocidal maniacs, NATO
gave 5 days warning between the withdrawal of the observers and the
launch of the attack. This was followed by seven days of bombing that
mostly ignored Kosovo itself. In other words, an invitation to genocide
that was not accepted, but one that was guaranteed to produce a refugee
flow to legitimate a massive bombing campaign.

As Ambassador Bissett told this committee last week, that NATO leaders
have no respect for the truth should startle no one. What of the claim
by Jamie Shea that it was the Serbs who bombed the Albanian refugee
convoy (until the independent journalists found bomb fragments "made in
U.S.A.")? What of the claim by a NATO general, with video up on the
screen, that the passenger train on the Grdelica bridge was going too
fast to avoid being hit (until somebody pointed out that the video had
been speeded up to three times its real speed)? What of the claim that
the Chinese Embassy was bombed because NATO's maps were out of date? Let
alone the claims by Mr. Clinton (and Mrs. Clinton) and Mr. Cohen that a
"Holocaust" was occurring in which perhaps 100,000 Kosovar men had been
murdered (until the bombing was over and the numbers dwindled to 2,108 -
and we have yet to be told who they were or how they died).

In fact most people in the world simply did not believe NATO's claim of
humanitarianism. A poll taken in mid-April and published by The
Economist shows that this was a very unpopular war, opposed by perhaps
most of the world's population both outside and inside the NATO
alliance.( "Oh what a lovely war!", The Economist, April 24, 1999
showing more than a third opposed in Canada, Poland, Germany, France and
Finland, almost an even split in Hungary, an even split in Italy and a
majority opposed in the Czech Republic, Russia and Taiwan) A poll taken
in Greece between April 29th and May 5th showed 99.5% against the war,
85% believing NATO's motives to be strategic and not humanitarian, and,
most importantly, 69% in favour of charging Bill Clinton with war
crimes, 35.2% for charging Tony Blair and only 14% for charging Slobodan
Milosevic, not far from the 13% in favour of charging NATO General
Wesley Clark and the 9.6% for charging NATO Secretary General Javier
Solana.( "Majority in Greece wants Clinton tried for war crimes", The
Irish Times, May 27, 1999).

Much more plausible than the humanitarian thesis is the one that the
United States deliberately provoked this war, that it deliberately
exploited and exacerbated another country's tragedy - a tragedy partly
of its own creation (we should not forget that the West's aggressive and
purely selfish economic policies that have beggared Yugoslavia over the
last ten years). NATO exists to make war, not peace. The arms industry
exists to make profits from dropping bombs. And the United States, by
virtue of its military might dominates NATO the way it does not dominate
the United Nations. The most plausible explanation then is that this
attack was not about the Balkans at all. It was an attempt to overthrow
the authority of the United Nations and make NATO, and therefore the
United States, the world's supreme authority, to establish the
"precedent" that NATO politicians have been talking about since the
bombing stopped. To give the United States the free hand that the United
Nations does not, in its conflicts with the Third World and its
rivalries with Russia, China and even Europe.

In other words, this was not a case of the United Nations being an
obstacle to humanitarianism. It was a case of using a flimsy pretext of
humanitarianism to overthrow the United Nations.

Not only was this an illegal war that had no humanitarian justification.
It was a war pursued by illegal means. According to admissions made in
public throughout the war (for instance during NATO briefings),
according to eye-witness reports and according to powerful
circumstantial evidence displayed on the world's television screens
throughout the bombing campaign -- evidence good enough to convict in
any criminal court in the world - these NATO leaders deliberately and
illegally made targets of places and things with only tenuous or slight
military value or no military value at all. Places such as city bridges,
factories, hospitals, marketplaces, downtown and residential
neighbourhoods, and television studios. The same evidence shows that, in
doing this, the NATO leaders aimed to demoralize and break the will of
the people, not to defeat its army.

The American group Human Rights Watch has just issued a lengthy report
documenting a systematic and massive violation of international
humanitarian law by NATO in Yugoslavia. They estimate the civilian
victims to be about 500. This figure should be taken as a minimum
because it is a number Human Rights watch says it can independently
confirm and that can be attributed directly to the bombing. It excludes
persons known to be killed as an indirect result of the bombing. Every
benefit of the doubt is given to NATO, a fact exemplified by the
Report's puzzling and actually undefended distinction between these
grave "violations of humanitarian law" and "war crimes". Human rights
Watch has also documented the use of anti-personnel cluster bombs in
attacks on civilian targets.

The reason these civilian targets are illegal is that civilians are very
likely to be killed or injured when such targets are hit. And all of the
NATO leaders knew that. They were carefully told that by their military
planners. And they still went ahead and did it.

And they did it without any risk to themselves or to their soldiers and
pilots. That's why this war was called a "coward's war". The cowardice
lay in fighting the civilian population and not the military, in bombing
from altitudes so high that the civilians, Serbians, Albanians, Roma,
and anybody else on the ground, bore all the risks of the "inevitable
collateral damage".

War Crimes Charges before the International Tribunal

But the fact that this war was illegal and unjustified has further very
serious implications. Mr. Chretien, Mr. Axworthy and Mr. Eggleton, along
with all the other NATO leaders, planned and executed a bombing campaign
that they knew was illegal and that they knew would cause the death and
permanent injury of thousands of civilian children women and men. Hard
as it is for us to accept, or even to say, killing hundreds or thousands
of civilians knowingly and without lawful excuse is nothing less than
mass murder. Milosevic was indicted in The Hague for 385 victims. The
total victims of the 98 people executed for murder in the United States
in 1999 was 129. Our leaders killed between 500 and 1800.

That is why, starting in April of last year and continuing to the
present day, dozens of lawyers and law professors, a pan-American
association representing hundreds of jurists, some elected legislators,
and thousands of private citizens from around the world, have lodged
formal complaints with the International Criminal Tribunal in the Hague
charging NATO leaders with war crimes.

The particular complaint I am involved in was filed in May, 1999 and
names 68 individuals, including all the heads of government, foreign
ministers and defense ministers of the 19 NATO countries (including US
President Clinton, Secretaries Cohen and Albright, Canadian Prime
Minister Chretien, Ministers Axworthy and Eggleton and so on down the
list), and the highest ranking NATO officials, from then Secretary
General Javier Solana, through Generals Wesley Clark, Michael Short, and
official spokesman Jamie Shea.

The charges against them include the following:

Grave breaches of the Geneva Conventions of 12 August 1949, contrary to
article 2 of the Statue of the Tribunal, namely the following acts
against persons or property protected under the provisions of the
relevant Geneva Convention: (a) wilful killing; (c) wilfully causing
great suffering or serious injury to body or health; (d) extensive
destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly.

Violations of the laws or customs of war, contrary to Article 3 namely:
(a) employment of poisonous weapons or other weapons to cause
unnecessary suffering; (b) wanton destruction of cities, towns or
villages, or devastation not justified by military necessity; (c)
attack, or bombardment, by whatever means, of undefended towns,
villages, dwellings, or buildings;(d) seizure of, destruction or willful
damage done to institutions dedicated to religion, charity and
education, the arts and sciences, historic monuments and works of art
and science.

Crimes against humanity contrary to Article 5, namely: (a) murder; (i)
other inhumane acts.

Article 7 of the Statute provides for "individual criminal
responsibility" thus:

1. A person who planned, instigated, ordered, committed or otherwise
aided and abetted in the planning, preparation or execution of a crime
referred to in articles 2 to 5 of the present Statute, shall be
individually responsible for the crime.
2. The official position of any accused person, whether as Head of State
or Government or as a responsible Government official, shall not relieve
such person of criminal responsibility or mitigate punishment.

3. The fact that any of the acts referred to in articles 2 to 5 of the
present Statute was committed by a subordinate does not relieve his
superior of criminal responsibility if he knew or had reason to know
that the subordinate was about to commit such acts or had done so and
the superior failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof.

We have been in frequent contact with the Tribunal, travelling to the
Hague twice to argue our case with Chief Prosecutors Louise Arbour and
Carla Del Ponte and their legal advisers, filing evidence, legal briefs
and arguments in support of the case. I am filing with this Committee a
book of the evidence we have filed with the tribunal. I understand that
you already have the two volumes prepared by the government of
Yugoslavia. I would point out that these volumes have been confirmed as
"largely credible" by the Human Rights Watch Report.

Recently, Justice Del Ponte disclosed that she was studying an internal
document analyzing the many claims that have been made against NATO. My
latest word from her (February 8) is that she is still studying the
case.

Justice Del Ponte has said that if she is not prepared to prosecute NATO
she should pack up and go home, and I have to agree with her, because,
in that case, the Tribunal would be doing far more harm than good, only
legitimating NATO's violent lawlessness against people unlucky enough to
be ruled by "indicted war criminals", as opposed to the un-indicted kind
that govern the NATO countries.

This was the very purpose for which the United States sponsored this
tribunal in the first place, at least according to Michael Scharf,
Attorney-Advisor with the U.S. State Department, who, under Madeleine
Albright's instructions, actually drafted the Security Council
resolution establishing the Tribunal.

"the tribunal was widely perceived within the government as little more
than a public relations device and as a potentially useful policy
tool...Indictments also would serve to isolate offending leaders
diplomatically, strengthen the hand of their domestic rivals and fortify
the international political will to employ economic sanctions or use
force" (The Washington Post, October 3, 1999)

I must confess to you that my colleagues and I and the thousands of
others who have complained to the Tribunal have grave doubts about its
impartiality. We have given it the benefit of every doubt even in the
face of mounting evidence that it didn't deserve it: when, in January,
1999, then prosecutor Judge Louise Arbour made a rather dramatic
appearance at the border of Kosovo, lending credibility to contested
American accounts of atrocities at Racak, a precipitating justification
of the war itself; when, only days after the bombing had commenced, she
made an announcement of the Arkan indictment that had been secret from
1997; when she made television appearances with NATO leader Robin Cook,
already the subject of numerous complaints during the war to receive war
crimes dossiers; when she met with Madeleine Albright, herself by then
the subject of well-grounded complaints before the tribunal, and
Albright took the opportunity to announce that the United States was the
major provider of funds to the Tribunal; when, two weeks later, in the
midst of bombing, Judge Arbour announced the indictment of Milosevic, on
the basis of undisclosed evidence, for Racak and events which had
occurred only six weeks earlier in the middle of a war zone - on what,
in other words, must have been very flimsy and suspicious evidence; and
when, at the conclusion of the bombing Judge Arbour handed over the
investigation of war crimes in Kosovo to NATO countries' police forces
themselves - notwithstanding that they had every motive to falsify the
evidence.

I am sad to say, because the former prosecutor is now a judge of the
Supreme Court of Canada and an old colleague and friend of mine, of whom
we all want to be proud, that these could not be regarded as the acts of
an impartial prosecutor. Not when NATO was in the midst of a disastrous
war in flagrant violation of international law.

We sincerely hoped for better things from Judge Del Ponte coming as she
did from a country outside of the NATO alliance. But our expectations
have been progressively lowered. First, when she declared, immediately
upon taking the job, that her priorities were the prosecution of
Milosevic, something which clearly suited the NATO countries but which,
as we told her in November, could in no way be compatible with her sworn
duties. A prosecutor cannot declare that she is going to concentrate
only on some crimes and grant effective immunity to other criminals.
Then, when she made the observation that she was indeed investigating
complaints against NATO, and NATO reacted in its typically outrageous
fashion by attacking the Tribunal, Judge Del Ponte quickly issued
unseemly appeasing statements and went on a conciliatory mission to
Brussels.

I am saying all this to put the Committee on guard against delegating
its own judgment to this Tribunal which was set up as an instrument of
United States foreign policy and has given us so many grounds to suspect
that it sees itself the same way. Whatever this Tribunal decides to do
or not to do, it is incumbent on this Committee to scrutinize its
reasons and the evidence with the utmost care.

Let me end by citing to you the words of Justice Robert Jackson from his
opening statement to the Nurnberg Tribunal on November 21, 1945:

"But the ultimate step in avoiding periodic wars, which are inevitable in
a system of international lawlessness, is to make statesmen responsible
to law. And let me make clear that while this law is first applied
against German aggressors, the law includes, and if it is to serve a
useful purpose it must condemn aggression by any other nations,
including those which sit here now in judgment. We are able to do away
with domestic tyranny and violence and aggression by those in power
against the rights of their own people only when we make all men
answerable to the law." (The Nurnberg Case As Presented by Robert H.
Jackson, Chief Counsel for the United States (New York: Cooper Square
Publishers Inc, 1971) at page 93)