Genocide Convention has never been recognized by the United States, but Washington is willing to let it apply to others
Few doubt that the NATO air strikes against Yugoslavia initiated on March 24, 1999, were in flagrant violation of international law on numerous counts. The real question is: Can any semblance of a neutral, independent, impartial international law be salvaged from the United States' drive to impose its own "law of the strongest" on the entire world under cover of lofty moral imperatives?
On May 7, a team of lawyers from Canada and Europe submitted a brief to Louise Arbour, the Canadian chief prosecutor at the International Criminal Tribunal for Former Yugoslavia (ICT), accusing U.S. and other NATO officials of war crimes including "wanton destruction of cities, towns, or villages, or devastation not justified by military necessity, attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings." One of the lawyers, Professor Michael Mandel of Osgoode Hall Law School of York University in Toronto, where Ms. Arbour herself once taught, argued that "charging the war's victors, and not only the losers, would be a watershed in international criminal law, showing the world that no one is above the law."
This and a number of other initiatives by international jurists pointing to the illegality of the NATO action were widely ignored by mainstream media. Instead, considerable space was given to pundits developing the notion of "humanitarian intervention" which henceforth, it was said, superseded the outworn notion of "national sovereignty."
In fact, there is absolutely nothing new about appeals to a "higher justice" to excuse violating the law. Nineteenth century imperialist conquests were usually undertaken "to defend" some group or other, and Hitler (the real one) marched into Czechoslovakia and invaded Poland, setting off World War II, in order to rescue allegedly abused German ethnic minorities. Respect for national sovereignty and territorial integrity were incorporated into international law after World War II precisely in order to protect weaker nations from humanitarian crusades of this sort. Apparently Clinton administration policy-makers feel that U.S. monopoly of fearsome power is now so unchallenged that any such rules can only get in the way.
A few liberals timidly criticized the NATO bombing on the imaginary grounds that it might provoke Serbian "terrorism." In reality, throughout the air strikes there was never the slightest hint of any propensity on the part of Serbs to take up terrorism. On the contrary, Serbs were notably shocked by the flagrant violations of the legal order constructed primarily by the very western powers who were now violating it, and a number of Yugoslavs both in Serbia and in the diaspora, have tried to seek legal redress. The Yugoslav government itself tried on April 29 to institute proceedings at the International Court of Justice in The Hague against NATO governments for a broad range of war crimes and crimes against humanity. Western media, in brief reports, let it be known that such an initiative was "not serious." It was finally thrown out of court because the Genocide Convention, the legal basis for Belgrade's suit, has never been recognized by the United States as applying to itself, although Washington is willing to let it apply to others.
The big news was, of course, the indictment of Milosevic. On May 27, Ms. Arbour, who had failed to act on the May 7 complaint against NATO leaders, initiated proceedings against Milosevic and other senior officials in the Yugoslav and Serbian governments for crimes against humanity and war crimes allegedly committed in Kosovo. Some of the charges were substantially identical to those filed earlier against the officials responsible for the NATO bombing, to wit: "the widespread shelling of towns and villages; the burning of homes, farms and businesses, and the destruction of personal property."
The indictment of Milosevic and the others was hardly the act of an impartial body, rising above the conflict between mighty NATO and little Yugoslavia. Ms. Arbour signed warrants for the arrest of Milosevic and the Serbian leaders on the basis of material turned over to her the day before by a party to the conflict, the United States government. The information leading to the indictment of Yugoslav leaders was provided by a special U.S. intelligence unit called the "Interagency Balkan Task Force," housed at the CIA with input from the Defense Intelligence Agency, the National Security Agency, and the State Department.
Part of Arbour's job as chief prosecutor has been fund-raising in the "international community," notably among the governments of NATO member states. She and chief Judge Gabrielle Kirk McDonald (a former federal judge in Texas) frequently appear in public with Madeleine Albright ("the mother of the Tribunal," in the words of Judge McDonald, who before the war had already judiciously branded Yugoslavia "a rogue state") and praise the U.S. for its financial and other support to the Tribunal. When asked on May 17 what would happen if NATO itself were brought before the Tribunal, NATO spokesman Jamie Shea retorted that without NATO countries there would be no such tribunal, since it was the NATO countries which had been in the forefront of getting it set up and which funded and supported its activity on a daily basis. The International Criminal Tribunal gets material as well as political support from the United States government, other NATO governments, financial tycoon George Soros, and even private corporations. If the Clinton administration cannot count on "higher justice," it may get a helping hand from hired justice.
Serbian opposition leader Vuk Draskovic has pointed to the fact that the ICT indictment serves to tighten Milosevic's grip on power. With his popularity plummeting to new lows, the chances of persuading Milosevic to resign for the sake of his country are seriously reduced by the prospect of being turned over to the U.S.-dominated war crimes tribunal. The ICT has further complicated the task of easing Milosevic out of office by also indicting his most likely successor, Serbia's elected President, Milan Milutinovic. This indictment, based solely on the notion of "command responsibility," without any evidence of having desired or ordered the crimes cited, only confirms the widespread impression that the tribunal is a political instrument manipulated by Washington.
In July 1999, the Connecticut-based International Ethical Alliance also filed charges against President Clinton and Defense Secretary William Cohen for "non-defensive aggressive military attacks on former Yugoslavia." At the same time, IEA general counsel Jerome Zeifman called for the dismissal of prosecutor Arbour, charging her with "selective prosecution by intentionally failing to consider and act on evidence which incriminates defendants Clinton and Cohen, ... conflicts of interest, or the appearance thereof, in receiving compensation from funds contributed in whole or in part by governments of NATO; and bias in favor of the attacks by NATO on former Yugoslavia." Zeifman called for replacement of the prosecutor and recusal of five judges, including McDonald, and selection of a truly independent prosecutor as well as new judges and staff from non-NATO countries who would not be compensated directly or indirectly by funds from NATO countries. Such a truly neutral tribunal, suggested the IEA, could then go on to weigh the charges against leaders on both sides, including Milosevic, Clinton and the rest.