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NATO Accused of War Crimes

A Force More Equal Than Others

13 June 2000
There are few legal documents in existence that can be claimed to be as lucid as the Geneva Convention. Its drafting has been the outcome of the systematic collaboration of some of the 20th century's most brilliant legal experts. The 1977 Protocol I of the Convention is a characteristically powerful clause, which regulates the use of military or paramilitary force against civilians. Specifically, it prohibits attacks on civilians and non-military installations, unless the risk of civilian deaths that might result from such actions is proportional to direct and justifiable military objectives.

On the early hours of 23 April 1999, NATO warplanes bombed and destroyed to the ground the Serb Radio and Television (RTS) headquarters, killing 16 civilians -namely 10 television technicians, 3 cleaners and 3 doormen. No military casualties were reported. Following the bombing, NATO General Wesley Clarke remarked that "we knew when we struck that there would be alternate means of getting the Serb Television [...], but we thought it was a good move to strike it, and the political leadership agreed with us" (1).

In a report published on 07 June 2000, highly acclaimed human rights group Amnesty International described the above attack as a crime of war. According to the report, NATO deliberately attacked a civilian installation in order to disrupt "Serb television broadcasts in the middle of the night for approximately three hours. It is hard", claims the report, "to see how this can be consistent with the rule of proportionality" (1) as laid out by Protocol I of the Geneva Convention.

The incident described above is but one of dozens of war crimes, serious violations of international treaties and unlawful killings, which the Amnesty International report directs against NATO. Among other things, the latter is accused for up to 1,500 unlawful civilian deaths in Kosovo, the deliberate bombing of schools and hospitals, as well as the destruction of community centres, churches, water supplies, civilian electricity generators, bridges and civilian emergency centres.

NATO decision-makers were aware of these discrepancies from the outset. In fact, we now know that, as the bombing of the RTS building was being discussed at NATO headquarters, many of the Alliance's core-members were partly or even totally antithetical. Strong French disapproval delayed the attack for almost 2 weeks, while the British simply refused to take part in the operation (1). The presence of legal -certainly not ethical- dilemmas within NATO was indeed considerable.

Yet, last week, NATO sources were quick to reject Amnesty's allegations. The Alliance's Secretary General, George Robinson, described them as "baseless and ill-founded". He justified operation Allied Force as a move that brought an end to what he described as "the most brutal ethnic violence seen in Europe since World War II" (2).

Of course, to describe the ethnic clashes in Kosovo as "the most brutal ethnic violence seen in Europe since World War II" is itself a baseless and ill-founded statement, which has been described as "revisionist" and as an "insult to the victims of Hitler" (3). But then again NATO has never been known for its self-critical stance.

With NATO immediately rejecting the accusations, all eyes turned to the United Nations (UN) International War Crimes Tribunal, which -as the title suggests- normally handles such allegations of war crimes. But the Tribunal was equally swift in ruling out, not only a trial, but even a preliminary investigation on the matter. As soon as Amnesty's report saw the light of publicity, International War Crimes Prosecutor Carla Del Ponte declared to the UN that, as far as the Tribunal was concerned, Amnesty's claims had no basis whatsoever (4). Some observers were surprised by the Tribunal's swiftness in taking sides on the issue, prior to even conducting a preliminary investigation. Things started making more sense when inside sources explained that the amount of monetary contributions the Tribunal receives from NATO's 19 member states renders almost unthinkable any move by the Tribunal against the Alliance (2).

But Amnesty International does not seem prepared to let go. It has already urged NATO members to "bring to justice any of their nationals suspected of being responsible for serious violations under international humanitarian law" (4). In a parallel development, it decided to assist families of Serb civilians killed by NATO bombs, to press charges against those responsible. A trial is already under way in The Hague, in which NATO's member states' government ministers stand accused of the murder of 39 victims of the bombings (5).

There is a reason for all that ado: a new permanent United Nations International Criminal Court is currently being scheduled for operation next year. The Court will charge and prosecute those responsible for war crimes and crimes against humanity. Amnesty International hopes to bring NATO officials it accuses of war crimes before that new permanent Court, once it is operational.

Although figures such as Sadam Hussein, Slobodan Milosevic and Foday Sankoh currently top the list of international war criminals, it is reasonable to expect that the more a nation is involved in armed conflicts, the more it will risk exposing its military officials to accusations of war crimes. As members of the most aggressive military force on Earth, United States military personnel would be particularly susceptible to accusations of that nature. If that were indeed to occur, then it would appear that the recent Amnesty International report has been the initial sign of a wave of powerful legal barriers against the global patterns of American military aggression.

It seems that State Department officials gave considerable thought to the possibility of American citizens being prosecuted for war crimes under a UN international Criminal Court. In a report that seems to have completely originated from State Department sources, Associated Press recently described the possibility of Americans being tried for international war crimes or crimes against humanity by the new UN Criminal Court as not too far reaching a scenario (6).

The Department's solution would appears terrifying to a democratic thinker, yet effective to a government technocrat: the United States and its citizens should be exempted from being hunted down and prosecuted by the new Court.

Let me write this again, for those who wish to do a double take on what they 've just read: on Monday 12 June 2000, the United States sent a team of government lawyers to the UN Headquarters in New York, to begin pressing for immunity of American citizens from the United Nations permanent International Criminal Court. That's right, under the US proposal, any person, or group of persons on the planet will be able to be tried and convicted by the UN of war crimes and crimes against humanity, as long as they are not from the US (6).

The proposal may at first seem absurd, but it makes perfect sense to the eyes and ears of US officials: according to David Scheifer, for instance, the State Department's Ambassador for War Crimes, "immunity for US troops is crucial given the numbers of American soldiers deployed overseas [...]. It is a very inhibiting risk", explains Scheifer, "to put on the table every time you decide whether or not to intervene" (6). In other words, how are we going to go on about bullying and terrorising the rest of the world, when we have to worry about potentially having to face up to the legal and ethical consequences that follow such behaviour?

UN officials in New York will be told that US citizens can enjoy immunity from prosecution by the International Criminal Court because the US has its own military justice system and does not need to abide by international law (6). If this argument doesn't work, then the US will refuse to recognise the Court and will continue about its business as usual (ibid.). In fact, numerous members of the US Senate have already ruled out the possibility of the nation's military being subjected to international war crimes regulation. Jesse Helms (NC-R), chairman of the Senate Foreign Relations Committee, has described the proposal for the new UN court as "flawed and dangerous". He recently declared that "so long as there is breath in me, the US will never -I repeat, never- allow its national security decisions to be judged by an International Criminal Court" (ibid.).

There have been many recent international developments that have exposed the endless pits of American bullying, double standards and political arrogance, but none were as gob smacking and utterly unbelievable as this latest diplomatic U-turn. In an important sense, the United States does not any more pretend to be ethically oriented, it does not even try to portray itself as the righteous arbiter. Instead, it uses its energy on trying to construct the definitive universe according to which ethics and righteousness, democracy and fairness are perceived by those not immune to criminal persecution.

© The News Insider 2000

(1) R. Fisk (2000) Amnesty International: NATO Deliberately Attacked Civilians In Serbia , The Independent, 07 June.

(2) (2000) NATO Rejects War Crimes Charge in Yugoslavia , 08 June.

(3) N. Chomsky (1999) ( Print Interview ), Z Magazine, 08 April.

(4) BBC News (2000) Nato Accused of War Crimes , 07 June.

(5) 7AM News Freewire (2000) U.S. Seeking Immunity From U.N. Court , 12 June.

(6) G. Gedda (2000) U.S. Seeks to Exempt its Troops from Proposed U.N. Court's Reach , Associated Press, 11 June.

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