NATO'S PONTIUS PILATE By Jerry Zeifman

Carla Del Ponte, the current prosecutor of the UN's International Criminal Tribunal for the Former Yugoslavia (ICTY) has declined to investigate evidence of War Crimes committed by NATO leaders. She has issued a press release stating "NATO is not under investigation...There is no formal inquiry into the actions of NATO during the conflict in Kosovo."

Viewed simply in ethical terms her posture is an abdication of her professional responsibilities. On a legal level her position is even more indefensible. Article 18 of the ICTY's own statute states specifically, "The Prosecutor shall initiate investigations. . . on the basis of information obtained from any source. The Prosecutor shall assess the information and decide whether there is sufficient basis to proceed." Yet Del Ponte disavows any need for an investigation or inquiry.

Del Ponte's press release was issued on December 30, 1999. It is remarkably inconsistent with prior statements emanating from her and her aides. Just one day before, on December 29, the Associated Press published a story by its Hague reporter, stating:

The United Nations chief war crimes prosecutor is reviewing the conduct of NATO pilots and their commanders during last spring's 78-day bombing campaign against Yugoslavia, her spokesman said yesterday. Carla Del Ponte's staff compiled a report on the air strikes at the urging of several "interested parties" ...[who have] ...filed complaints before the the Tribunal, said spokesman Paul Risley...The contents of the tribunal's report are confidential...

Her statement is also inconsistent with a variety of other prior assurances by her that she would investigate evidence of NATO- committed war crimes submitted by a wide variety of sources.

On December 26, the London Observer reported: "A dossier of NATO war crimes lands in prosecutor's lap." In response to a question concerning her willingness to investigate such crimes she said: "If I am not willing to do that, I am not in the right place, I must give up my mission."

The recent AP and Observer articles were hardly the first personal assurances by the office of the prosecutor of an intention to at least investigate, if not indict, NATO leaders. For more than six months a number of reputable lawyers and private organizations from such NATO countries as Canada, the United States, Greece, Norway, and Germany have been submitting evidence of such crimes to the Tribunal. Among the first of these has been a group of Canadian lawyers headed by Professor David Mandel of York University.

In June 1999 the Canadian group submitted extensively documented complaints that NATO leaders have admitted knowledge of the inevitability of civilian death, injury and destruction and persisted their bombing attack despite that knowledge. The complaints also charged them with deliberately choosing civilian targets in defiance of Geneva Conventions, the UN Charter and other relevant provisions of international law.

Several weeks after filing its complaint the group met with then-Prosecutor Louise Arbour who, though non committal on the merits of the case, at least indicated a willingness to consider submitted evidence impartially. Subsequently, Arbour resigned from the Tribunal to accept a judgeship on Canada's supreme court -- a position which many of NATO's critics in Canada consider a reward for not acting on the complaint of the Mandel group. On September 15, Carla Del Ponte replaced Arbour as ICTY's prosecutor.

On November 15, 1999 David Mandel had a personal meeting with Del Ponte. He submitted a supplementary written brief outlining the case and three additional thick volumes of evidence documenting the war crimes. The supplementary brief and evidence included what Mandel described as:

Overwhelming evidence of war crimes, crimes against humanity and grave breaches of the Geneva Conventions committed by the named leaders, involving the wilful killing and injury of thousands of civilians, as well as the destruction of billions of dollars worth of civilian property...

As reported by Mandel, the Prosecutor re-affirmed that she had jurisdiction over any crime committed by the NATO leaders, that the case was under study, that it was her intention to study it further and that she would seek the assistance of his group in the future.

On July 8, 1999 the International Ethical Alliance (www.iethical.org) of which I am general counsel had also submitted formal legal pleadings to the prosecutor calling for the indictment of NATO leaders. However, our submission differed significantly from that of the Canadian groups in two major respects.

First, unlike most other groups we expressly supported the prosecution of Slobodan Milosevic for war crimes. In short, ours was a plea for even handed justice that applied the same international laws to NATO leaders that the prosecutor was applying to the Serbian leaders. In support of our legal arguments we called testimony from a list of specific expert witnesses on international law including former President Jimmy Carter and former Nuremberg prosecutor for the United States, Walter Rockler.

Second, unlike any other groups of which I am aware, our pleadings -- consistent with our plea for even handed justice -- called for the Tribunal to disqualify Louise Arbour (as well as four other justices) for appearances of conflicts of interest, including:

"receiving compensation from funds contributed to the Tribunal in whole or in part by NATO countries; and biases in favor of NATO countries."

As was subsequently first reported in the United States in Washington Weekly by Christopher Black, an eminent Canadian lawyer with more than 20 years in criminal defense practice, there is more than a mere appearance of pro-NATO bias by ICTY. Black noted that ICTY is not financed solely from the UN budget, as required by its authorizing statute.

According to Black, in the last year for which public figures are available, 1994/95, despite its delinquency in the payment of its general dues to UN the U.S. directly provided the ICTY with $700,000 in cash and $2,300,000 worth of equipment. In the same year, ICTY received substantial tax deductible private financing from such groups as: the Open Society Institute (a foundation established by billionaire George Soros); the Rockefeller Foundation; and the Central and East European Law Institute (created by the American Bar Association and lawyers with close financial ties to NATO's multinational defense contractors).

In alleging that the prosecutor was ignoring war crimes by President Clinton, IEA's pleadings included verbatim quotes from an article by Jimmy Carter in the New York Times of May 27, 1999. stating:

"[Our attack] has been counterproductive, and our destruction of civilian life has now become senseless and excessively brutal...

"The American-led force has expanded targets to inhabited areas and resorted to the use of anti-personnel cluster bombs. The result has been damage to hospitals, offices and residences of a half-dozen ambassadors, and the killing of innocent civilians...

"[Our] insistence on the use of cluster bombs, designed to kill or maim humans, is condemned almost universally and brings discredit to our nation."

On June 18, consistent with President Carter's condemnation of the NATO attacks, London Times journalist John Laughlin wrote:

The International Criminal Tribunal shows little sign of caring that NATO has itself broken nearly every rule of war... It displays considerable contempt for the very thing which distinguishes the rule of law from retributive justice, namely due process.

In our July complaint to the tribunal IEA charged that the specific acts described by President Carter were indisputable violations of international criminal laws, including among others those which specifically provide:

"Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict...

It is prohibited to attack, destroy, remove or render useless...objects indispensable to the survival for the civilian population, such as foodstuffs...drinking water installations...[and] works or installations containing dangerous forces...even where these objects are military objectives..."

With the replacement of prosecutor Louise Arbour by Carla Del Ponte on September 15, 1999, IEA and other groups who had filed complaints with the Tribunal were given at least a ray of hope that the evidence of specific war crimes we had alleged would be investigated by a prosecutor by who was not a financial or political captive of NATO. However, any respect I had for the new prosecutor was soon diminished by a personal letter that she sent to me dated November 12, 1999.

Ms. Del Ponte's letter simply ignored IEA's and Christopher Blacks' charges of her office's unlawful financial dependence on NATO and private sources. It made the following duplicitous statement:

"The independence of the Prosecutor of the ICTY is both enshrined in the Statute of the Tribunal and fully demonstrated in practice."

It is true that Article 32 of the Statute expressly requires that the expenses of Tribunal "shall be borne by the regular budget of the United Nations." That law is in fact violated in practice. In addition, Article 16 of statute states that the prosecutor's shall act independently as a separate organ of the Tribunal and shall not seek or receive instruction from any government or any other source. Both of these provisions have been openly and continuously violated.

Ms. Del Ponte's letter to me also pays only lip service to Article 18.1 of the Statute which gives her a mandate to "initiate investigations." She admits it gives her a "jurisdiction that is not...confined to any side in the conflict." Her letter simply opens with the statement "your views and information are noted" It reflects no intention to "investigate" IEA's or any other charges against NATO leaders.

She then explained her reticence on the subject of "investigating" NATO by stating:

"However, until such time as evidence is presented to a Judge or Trial Chamber of the ICTY, it is not the Prosecutor's policy to reveal her strategy or give opinions about the criminality or otherwise of the actions of the parties to the conflict.

That statement is also duplicitous. Ever since her appointment she has repeatedly made public statements relating to investigations and opinions of the actions of Serbian war crimes. At her November 16 meeting with the Mandel group -- as well in her letter to me and later statements to London Observer and AP -- she paid but lip service service to her legal duty to investigate NATO.

Del Ponte's ethical flaws are now transparent. Like Arbour, she is a captive of the NATO interests that are unlawfully financing the Tribunal. However, unlike Arbour -- who was a closet hand- maiden of NATO -- Del Ponte has become a modern day Pontius Pilate. In publicly washing her hands of NATO's crimes -- she has shamelessly unveiled her immoral fealty to our world's most powerful military leaders.

Jerry Zeifman and the International Ethical Alliance may be reached at jzeifman@yahoo.com Published in the Jan. 17, 2000 issue of The Washington Weekly Copyright 2000 The Washington Weekly