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Commentary

NO "VICTOR'S JUSTICE" IN YUGOSLAVIA:
NATO Must be Held Accountable for Its War Crimes

Marjorie Cohn
Thomas Jefferson School of Law

After World War II, the Tokyo War Crimes Tribunal was established to try Japanese military and political leaders accused of committing atrocities. The United States, which was responsible for at least two of the greatest war crimes in the history of the world the atomic bombing of Hiroshima and Nagasaki was not brought before the tribunal. Only the vanquished Japanese were held accountable for their war crimes. In the words of dissenting Judge Radhabinod Pal of India, this was "victors' justice." The United States and its "victorious" NATO allies will once again escape responsibility for war crimes, this time for those committed against the people of Yugoslavia. One year ago, 120 countries adopted the Statute of the International Criminal Court as a multilateral treaty. Established under the aegis of the United Nations to operate independently starting in five years, the ICC will be the first permanent international body to try suspected war criminals. Its jurisdiction extends to genocide, crimes against humanity, war crimes and the crime of aggression. Art. 5(1), Statute of the International Criminal Court, U.N. Doc. A/CONF. 183/9 (17 July 1998). Seven countries including Libya, Iraq, China, India, Sudan, Israel and the United States voted against the establishment of the ICC. The U.S. sought to ensure the legal processes of the ICC would not jeopardize its role as global superpower, insulating its soldiers and policy-makers from becoming defendants in war crimes prosecutions.

The International Criminal Tribunal for the Former Yugoslavia

In 1993, the U.N. Security Council with significant financial aid from the leading NATO governments set up the International Criminal Tribunal for the Former Yugoslavia, or ICT-Y. S/RES/827 (1993), 32 ILM 1203 (1993). It has jurisdiction over grave breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and crimes against humanity, committed in the former Yugoslavia since 1991. The tribunal rightfully indicted President Slobodan Milosevic and other Yugoslav officials for war crimes. But thus far there have been no indictments against NATO for war crimes it committed during its 11-week aerial bombardment of Yugoslavia.

Mary Robinson, UN High Commissioner for Human Rights, had warned NATO it might be held accountable for war crimes after two buses in Kosovo were bombed, killing more than 50 civilians. She said "People are not collateral damage. They are people who are killed, injured, whose lives are destroyed."

Article 3 of the ICT-Y Statute prohibits "devastation not justified by military necessity." NATO bombs killed an estimated 1500 civilians and injured thousands more. "Smart" laser-guided weapons hit 50 bridges, 12 railroad lines, five civilian airports, 50 hospitals and clinics, 190 educational institutions, 16 medieval monasteries and shrines, and several factories, power plants, water mains, major roadways, media stations, libraries and homes. NATO Commander Wesley Clark said the goal was to disrupt, degrade, devastate and destroy the infrastructure of the country.

The United States used that same strategy in Iraq in 1991. When asked five years later on "60 Minutes," about the half million Iraqui children who had died as a result, Madeleine Albright said, "We think the price is worth it."

Spanish Captain Adolfo Luis Martin de la Hoz, who participated in NATO's bombing of Yugoslavia, reported that NATO consciously chose non-military targets and "every single" mission was planned by high U.S. military authorities.

Also prohibited by Article 3 of the ICT-Y Statute is the "employment of poisonous weapons or other weapons calculated to cause unnecessary suffering." NATO used cluster bombs banned by international conventions. Children (i.e., "soft targets," according to the manufacturer) are being mutilated and killed when unexploded bomblets blow up in their hands. Equally troubling is NATO's use of depleted uranium weapons, condemned in a 1991 U.S. Nuclear Defense Agency report as a "serious health threat."

One speck of DU dust lodged in a lung upon impact or ingestion can cause cancer. This deadly compound, first used on a large-scale by the United States during the Gulf War, has been linked to Gulf War Syndrome and high levels of stillbirths, birth defects and leukemia among Iraqui children.

On April 18, 1999, NATO bombed three major industrial plants in Pancevo, a city near Belgrade. Levels of the carcinogen vinyl-chloride monomer (VHM) released into the air reached 10,600 times more than accepted safety levels. This has poisoned the air, the land, the crops and the Danube River. Teams from the U.N. Environmental Programme and the U.N. Centre for Human Settlements in Yugoslavia warn of the dangers of "miscarriages, birth defects and incurable diseases of the nervous system and liver."

Physicians in Pancevo have recommended privately that all women who were present in the town the night of the bombing avoid pregnancy for the next two years. They also advised women less than nine months pregnant to obtain abortions. Most have reportedly complied.

Dr. Slobodan Tosovic, chief ecotoxicologist at Belgrade's Public Institute of Health, said, "It's enough to make me believe the Americans and NATO were making a biochemical experiment with us."

The United States was well aware of the consequences of bombing the petrochemical complex. "The Americans built that factory, so they knew precisely what was inside when they bombed it," said Pancevo Mayor Mikovic.

A recently released U.N. report said the 11 weeks of NATO air strikes have had "a devastating impact" on the environment, industry, employment, essential services and agriculture of Yugoslavia.

Walter Rockler, former prosecutor at the Nuremberg War Crimes Tribunal said, "The Nuremberg Court found that to initiate a war of aggression, as the U.S. has done against Yugoslavia, is not only an international crime, it is the supreme international crime." Rockler also claims the NATO bombing of Yugoslavia violated the U.N. Charter and the charter of NATO itself, prohibiting aggression and forceful military intervention.

Bombing the infrastructure of Yugoslavia went beyond legitimate military targets. "The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect," Rockler wrote in an op-ed in the Chicago Tribune. "This is mere pretext for our arrogant assertion of dominance and power in defiance of international law."

Article 18 of the ICT-Y Statute requires the Prosecutor to "initiate investigations" ex-officio or "on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations." Upon determining that a prima facie case exists, the Prosecutor shall prepare an indictment.

Complaint Lodged with ICT-Y Prosecutor

In May of 1999, a group of Canadian lawyers and professors as well as the American Association of Jurists, a non-governmental organization with consultative status before the U.N. Social and Economic Council, lodged a complaint with the tribunal. It asked Prosecutor Louise Arbour to "immediately investigate and indict for serious crimes against international humanitarian law" the 67 named heads of state, ministers and NATO officials.

The alleged crimes include "willful killing, willfully causing great suffering or serious injury to body or health, extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly, employment of poisonous weapons or other weapons to cause unnecessary suffering, 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, 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."

The complaint also charges "open violation" of the U.N. Charter, NATO's own treaty, the Geneva Conventions and the principles of international law recognized by the Nuremberg Tribunal. It points to the bombing of civilian targets and alleges that NATO leaders "have admitted publicly to having agreed upon and ordered these actions, being fully aware of their nature and effects."

The Independent Commission of Inquiry Indictment

It is unclear whether the Prosecutor will initiate an investigation of these allegations. However, on July 31, 1999, the International Action Center in New York convened the Independent Commission of Inquiry Hearing to Investigate U.S./NATO War Crimes Against the People of Yugoslavia. Former U.S. Attorney General Ramsey Clark prepared a multi-charge indictment, naming President William J. Clinton, Secretary of State Madeleine Albright, Secretary of Defense William Cohen, various U.S./NATO generals and others, as defendants for their part in the war against Yugoslavia.

The charges are based on crimes against peace, crimes against humanity and war crimes. The Commission of Inquiry will examine the laws of armed conflict, the Hague and Geneva Conventions, the Nuremberg Tribunal, the U.N. Charter, the NATO Charter, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international treaties and international law as well as the Constitution and domestic laws of the United States. Several months of mass hearings will be held followed by a War Crimes Tribunal. Hearings have been scheduled in several countries. The Commission will ask internationally acclaimed jurists, human rights activists, trade unionists, leaders of civil rights and women's organizations, members of parliaments and others to review the body of evidence and issue a public verdict.

It is incumbent upon the ICT-Y prosecutor to take the complaints seriously and initiate an official investigation into NATO's war crimes. We must not allow "victors' justice" to repeat itself in Yugoslavia.


Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego.

March 27, 2000

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Discussion

  • This is more anti-American propaganda. The fact is, it was Britain that led the political and moral fight against Serbia. He [UK Prime Minister Tony Blair] had to cajole Clinton into backing him up. The US forces were probably used more simply because they are larger and just as well trained and equiped.

    The second point is, as the author states, Article 3 of the ICT-Y Statute prohibits "devastation not justified by military necessity." So obviously attacks against civilian targets are not the issue, as the author tries to prove. But whether they were necessary.

    The Serbian people supported the constant wars with their neighbors, the Genocide first of Bosnians, Croats, Muslims, then Albanians. When evidence of genocide was shown, at least TWICE in the past decade, the Serbs pretended not to see it.

    Because the Serbs, not just their goverment, were activily involved and supported the government, this support had to be broken, along with their war machine and ability to produce weapons.

    Certainly carpet-bombing cities during the day would be awful. But precision attacks against factories and such at night when there were less people around was the most humane way to achieve these two objectives.

    Chris Buchholz
    Chicago

  • Dr. Cohn makes a good deal of sense in her comments on NATO (and US) accountability for the undeclared war against the Slavs.

    She might consider, however, in her designation of Hiroshima as an attack on a civilian population, that perhaps that had something to do with the fact that we were at war with Japan at the time, and that there was the small matter of the precipitation of that official state of belligerancy by a sneak attack on Pearl Harbor which killed a large nuymber of American sailors and others . . . in peacetime!

    Rabbi Dr Allen Podet
    New York, NY

  • I think NATO leaders are guilty of war crimes in Yugoslavia but as in the past the victors always get more favorable justice than the losers. The human species has always operated on the might is right principle. Although we might pretend to be civilized, I don't think we have made it yet. And I don't think that the NATO leaders are much more civilized than Milosevic. It is a bit naive to think that the NATO leaders were entirely motivated by noble purposes. Politicians are more likely to be motivated by some perceived selfish advantage that they hope to obtain for themselves.

    Robert Gillies
    Reliance, Tennessee

  • War is a terrible thing. What happened in Yugoslavia was obviously ugly and the only possible justification (and a bad one at that) is the neccessity of circumstances. Whilst I fully concur with the writers views on the 'justice for victors'. I think that such a view is inappropriate in the context of Yugoslavia. NATO or the Americans did not initiate the war. They intervened to prevent further Genocide. An intervention which was at the time politically inconvenient. One must therefore admire the courage of the American administration in making that decision to intervene. The political reality (and an ugly one at that) is that the sight of an American soldier in a body bag has very dire political consequences for the administrators that put him there by sending him to a war in a foreign land where America is not directly threatened. The spectre of the Vietnam War still looms over the American psychi. The consequent stratergy is one of minimal field force engagement. The price - innocent victims.

    The question is who bears moral culpability for these victims?

    The author suggests that everyone does. The Americans and NATO for the stratergy and methods of war that they chose and Milosevic for starting the whole thing.

    I respectfully disagree. I think the time has come for people to bear some responsibility for the choice of leaders that they pick. If the Germans did not allow Hitler to assume the power that he did - he would not have been able to perpetrate the violence and mayhem that he did. To say coyly that that the German people knew nothing of what was going on - or that they were 'innocent victims' of the war - is in my mind ridiculous. Ditto for the Japanese.

    The Yugoslav people allowed this man Milosevic to wreck the havoc that he did. To suggest that then, innocent people should risk their lives and be killed to bring this man down, when other technologies are available to achieve the same ends without the same casualties is utter 'self conscious hypocrisy'.

    Would you risk the life of your child in order to bring down an homicidal and genocidal, racist bigot?

    Dr Siva Ananthan PhD DBA LLB(Hons)
    Nirwana College - School of Laws
    Kuala Lumpur, MALAYSIA

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