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
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
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
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) US.Defence.com (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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