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UN: Does The Hague Tribunal Dispense 'Victor's Justice?'

  • Daisy Sindelar

As the International Criminal Tribunal for the former Yugoslavia logs its first conviction on charges of genocide in the former Yugoslavia, some observers are questioning whether NATO and UN peacekeeping forces should escape censure for their own roles in the region's devastation. Some legal experts continue to argue that NATO, in its 78-day air war against Yugoslavia in 1999, violated key precepts of the rules of war and international law. But efforts to call the military alliance to task for its actions have failed, despite evidence NATO did not do enough to prevent civilian casualties. RFE/RL correspondent Daisy Sindelar reports that as The Hague tribunal prepares to try Slobodan Milosevic for crimes against humanity in Kosovo, lingering doubts about NATO's role in the province have caused some to question whether such tribunals merely dispense victor's justice.

Prague, 6 August 2001 (RFE/RL) -- From 24 March to 10 June 1999, the North Atlantic Treaty Organization conducted an air campaign against the Federal Republic of Yugoslavia and then-President Slobodan Milosevic aimed at halting Serbian aggression against Kosovar Albanians.

Over 38,000 sorties were flown during the 78-day "Operation Allied Force" campaign. By 10 June full withdrawals of Yugoslav military, police, and paramilitary forces from Kosovo had begun, and NATO concluded its campaign, pronouncing it a success.

But some outside observers thought differently. Human rights groups criticized the bombing campaign, saying the Western military alliance had failed in its obligation under international law to minimize civilian casualties and the destruction of civilian objects.

Michael Mandel, a law professor at York University in Toronto, puts it more bluntly. He says that NATO acted illegally even before the air strikes began:

"It was a criminal bombing, and -- this is very important -- it was a violation of what the Nuremberg Tribunal calls the 'supreme law.' It was the commission of the supreme crime, which is the crime against peace. Because this was a totally illegal war, and nobody thinks it was legal. It was a violation of the United Nations charter -- it was neither taken in self-defense, nor was it authorized by the Security Council."

Mandel's remarks underscore what for many is the most troublesome aspect of the evolving field of international criminal law -- a possible bias in determining who is judged and by what standards. Operation Allied Force, while securing the Serbian withdrawal from Kosovo, was not a bloodless campaign. Although the alliance released no official estimates of people killed during the air war, Serbian and independent Western estimates put the range between 400 and 600 civilian casualties.

Human Rights Watch published a detailed report (available at http://www.hrw.org/reports/2000/nato/Natbm200.htm) listing 90 separate incidents that caused the deaths of as few as 488 and as many as 527 Yugoslav civilians. HRW concluded that although there was no evidence of war crimes, NATO had violated international humanitarian law.

There are also indications that the NATO intervention caused an escalation in the violence between Serbs and Kosovar Albanians on the ground. According to an October 2000 report issued by the Independent International Kosovo Commission -- an 11-member team led by Justice Richard Goldstone, formerly the chief prosecutor of both the Yugoslavia and Rwanda criminal tribunals -- casualties were relatively low in the year that preceded Operation Allied Force, with an estimated 2,000 people killed and 400,000 displaced.

During the bombing, however, nearly 10,000 people died, the vast majority of whom were Kosovar Albanians killed by Serbian troops and paramilitary forces. Some 860,000 civilians were forced into refuge outside Kosovo, and an additional 590,000 were internally displaced. No NATO forces died in combat during the air war.

The Kosovo Commission report (http://www.reliefweb.int/library/documents/thekosovoreport.htm) stated that while the NATO air campaign did not "provoke" the attacks on the civilian Kosovar population, the bombing "created an environment that made such an operation feasible."

The Commission concluded that the war was "illegal but legitimate," saying that the humanitarian crisis and diplomatic deadlock in the war justified NATO's bypassing of normal process through the Security Council.

With the exception of the NATO strike against the Chinese Embassy in Belgrade -- an embarrassing gaffe for the alliance -- no official investigation was ever made into the incidents of civilian casualties or those responsible for the strategy of the air campaign.

Mandel was among a group of professors from York University's Osgoode Hall Law School spearheading efforts to hold the alliance legally accountable for its actions. On 6 May 1999, Mandel and others filed a formal complaint with the International Criminal Tribunal for the former Yugoslavia against the individual leaders of the NATO countries and a number of NATO officials.

The complaint charged a total of 68 officials -- including (former U.S. President) Bill Clinton, (former U.S. Secretary of State) Madeleine Albright, (former NATO Secretary-General) Javier Solana, and (former NATO spokesperson) Jamie Shea -- with a list of crimes that included the "willful killing [and] extensive destruction of property, not justified by military necessity and carried out unlawfully and wantonly." The complaint also charged the officials with waging a war that was "flatly illegal."

A year after the complaint was filed, the ICTY announced it would make no criminal investigation into NATO's actions in the air war, with Chief Prosecutor Carla del Ponte telling the Security Council there was "no basis" for opening such an investigation.

In a 45-page report documenting its decision, the tribunal review committee admitted that it had "not spoken to those involved in directing or carrying our the bombing campaign." But it went on to state that "on the basis of the information reviewed, [the] committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified."

The independent Kosovo Commission accepted the ICTY's decision in its report later that year. In the end, the Commission said, "the NATO war was neither a success nor a failure; it was in fact both."

Several days after the ICTY announced its decision, Amnesty International issued its own report on Operation Allied Force (http://www.amnesty.org/ailib/intcam/kosovo/). The report, which examined a series of attacks during the air campaign, stated: "On the basis of available evidence, including NATO's own statements and accounts of specific incidents, Amnesty International believes that -- whatever their intentions -- NATO forces did commit serious violations of the laws of war leading in a number of cases to the unlawful killings of civilians."

Ramesh Thakur is the vice-rector of the Peace and Governance program at United Nations University in Tokyo. He says that while NATO's war was generally believed to be in violation of international law, the ICTY may not be the "proper forum" for determining its legality overall. Thakur adds that the tribunal's close ties with the Western powers make it difficult to dispute claims that it acted with bias in refusing to open a case against NATO:

"Should the ICTY take up allegations of certain atrocities by NATO during the war? Well, by going to war, NATO did put itself within the jurisdiction of the ICTY. And after that it is for the particular tribunal to decide whether to pursue those, and Carla del Ponte decided not to. The difficulty there is that we have every reason to believe that the decision was taken on merits. But ICTY is so closely and so inextricably tied in to various support functions provided by the same leading major NATO powers, that perceptions of bias and conflicts of interests are very difficult to shake off."

Last week's (2 August) ICTY conviction of Bosnian Serb General Radislav Krstic on charges of genocide for the July 1995 massacre at Srebrenica has rekindled debate about the responsibility of Western forces in aggravating the crisis in the former Yugoslavia. In the case of Srebrenica -- which was a UN-designated "safe haven" -- a contingent of Dutch peacekeepers failed to prevent the death of more than 8,000 unarmed Bosnian Muslim men.

Krstic's guilty verdict may also pave the way for raising the charges against Milosevic to genocide, a possibility that observers hail as a triumph for the eight-year-old tribunal. But with every new success in indicting and convicting war criminals from the former Yugoslavia, the ICTY seems less likely to extend its jurisdiction to include the role of Western forces in the wars. It's that tendency, says Mandel of York University, that have led some -- including Milosevic himself -- to accuse the tribunal of dispensing victor's justice.

In his opinion, "the failure to prosecute NATO is something the tribunal can't overcome."

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