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Yugoslavia: World Opinion Will Judge Legality Of NATO Air Strikes

Prague, 13 May 1999 (RFE/RL) -- In taking its case against NATO bombardment to the International Court of Justice in the Hague, Yugoslavia really is arguing before the court of world opinion. Any legal decision by the Court of Justice will be moot as soon as rendered.

Moot, as a legal term, describes a judgment or action that lacks any but purely hypothetical force, one without practical application.

NATO began air bombardment of Yugoslavia in March in response to what Western governments allege are atrocities committed by Serbian forces in the Yugoslav province of Kosovo against ethnic Albanians.

Yugoslavia denounced the bombings at the outset as contrary to international law. Subsequently, Yugoslavia appealed to the International Court of Justice to rule the bombardment illegal and require compensation for damages. More urgently, it asked the court to issue an injunction, or legal order, to NATO nations immediately to halt the bombing.

The suit named as defendants in 10 separate complaints the 10 NATO member countries involved in the attacks. It could not sue NATO itself because the Court of Justice deals only with disputes among nations, not international organizations.

A 20-judge panel of the court convened in the Hall of Justice in the Peace Palace in The Hague this week to hear oral arguments in the cases.

The United Nations Charter of 1945 set up the International Court of Justice as a world court, the principal judicial organ of the UN. The court succeeded the Permanent Court of International Justice, which also had its seat in the Peace Palace from 1922 until 1946. The court's charter empowers it to render advisory opinions on matters of international law and to decide international legal disputes.

Yugoslavia's claim is that NATO's air strikes breach the UN charter and other international treaties, including the 1948 Genocide Convention.

In various published reactions, a number of legal authorities, including many who deplored the bombing as unjustified, scoffed at Yugoslavia's claim that the bombing amounted to genocide. NATO officials insist the bombs are aimed only at military targets and that civilian casualties are accidental and incidental.

But many authorities also assign little value to a key defense of the NATO nations ----that the attacks are justified under international law because they seek to avert what the Alliance calls a "humanitarian catastrophe." The action by NATO against a sovereign nation is unprecedented and NATO began and is continuing the attacks without the benefit of UN authority.

Many cases that come before the court never reach the point of actual decision on the merits. That's because the court ordinarily finds that it lacks jurisdiction when one of the parties denies the court's authority.

Under its rules, the court has jurisdiction only in three instances:

A. When a cause is submitted to it by one of the UN's 185 member states or by one of two non-member states --Switzerland and the Pacific island state of Nauru -- which have made themselves parties to the court's statute; and

B. When both parties to a dispute have concluded between themselves a special agreement to submit the dispute to the court;.

C. When both sides are parties to a treaty containing a clause declaring that the International Court of Justice would have jurisdiction in case of a dispute. The NATO defendants in Yugoslavia's suit have raised a jurisdictional objection. They argue that Yugoslavia isn't a bona fide UN member and therefore has no standing before the court.

The UN itself continues to list Yugoslavia as a member state that joined in October 1945. The Yugoslavia that existed then has since broken into several component parts. Bosnia-Herzegovina, Croatia, and Slovenia applied for independent admission and rejoined the U. in May 1992. The former Yugoslav Republic of Macedonia rejoined under that name in April 1993.

The NATO defendants argue that the present Yugoslavia, comprising Serbia and Montenegro, aren't proper UN members because they never reapplied for admission in their new configuration.

They also argue that Yugoslavia's genocide claim is a cynical and transparent legal ploy. The Genocide Convention has a clause giving the court jurisdiction of disputes arising under the convention.

Even that line to jurisdiction wouldn't apply to the United States, which reserves the right to refuse to go to the court under the Genocide Convention. State Department assistant legal advisor John Crook said Monday (May 10) that the U.S. would exercise that right in this case.

On the merits of the case, Yugoslav representative Rodoljub Etinski told the court in oral arguments: "The acts of bombing of the territory of Yugoslavia are not just illegal acts. They constitute a crime against peace and also the crime of genocide."

NATO representatives justify the air campaign as a necessary intervention. British representative John Morris said that the Yugoslav regime is engaged, in his words, "in one of the most systematic and horrific campaigns of repression in Europe" since the court was established in 1945. He said the court shouldn't even contemplate supporting a request designed to allow atrocities to continue.

Under its ordinary practices, the court could decide in the next few days or weeks on Yugoslavia's request for an injunction. It could take months or even years to adjudicate the entire case.

Its decision, in any case, will have no effect. First, it may find that it lacks jurisdiction. Second, even if it claims jurisdiction, its final adjudication almost certainly will come long after the Kosovo crisis has ended through diplomatic or other means.

Finally, even if it claims jurisdiction and finds unambiguously for one side and against the other, the court lacks any means of enforcement. Its charter provides that aggrieved members may apply to the UN Security Council for that purpose. The U.S. and the Britain hold a veto power in the Security Council. So does Russia, a traditional supporter of Yugoslavia's Serb rulers.

However, any decision by the court --in the plea for an immediate injunction or in the larger case-- that seemed to fault one party or another likely would mean substantial embarrassment before world public opinion for the faulted party.