This commentary was first published in the Toronto GLOBE AND MAIL on July 20, 1999

Alliance leaders can’t be permitted to wash their hands of responsibility for NATO’s contribution to the Kosovo tragedy

Toronto - According to press reports, investigators for the International Criminal Tribunal for the Former Yugoslavia uncovered shocking evidence of war crimes in Kosovo. The list of massacres of civilians, including children, grows longer and more hideous every day. Leaders of the North Atlantic Treaty Organization have been pointing to this evidence in justifying their 78-day bombing campaign of Yugoslavia.

Those of us who opposed NATO’s war on Yugoslavia are having some difficulty understanding the chronological logic in this, since the atrocities now being cited in justification of the attack all happened after the bombing started on March 24. Furthermore, nobody seems to doubt that they were provoked by the bombing, even if, putting NATO’s case at it’s strongest, the attack only provided an excuse for the massacre of ethnic Albanians left defenceless by the withdrawal of international monitors.

Far from making NATO leaders feel justified, these crimes should be weighing heavily on their consciences. They should, in fact, be added to the terrible costs of NATO’s bombing, along with the loss of life and limb of thousands of Serb civilians (including children), the billions of dollars of property and infrastructure damage, and the environmental disaster now spreading through the region from the bombing of chemical plants and the damage to the ozone layer, as well as the leftover effects of depleted uranium and cluster bombs. To this must be added the revenge killing, looting and "ethnic cleansing" being perpetrated against Serbs in Kosovo since the entry of NATO forces.

Naturally, this doesn’t excuse Serb leaders one bit from their responsibility for the crimes in Kosovo. But neither can it permit NATO leaders to wash their own hands of responsibility for NATO’s unforgivable contribution to the tragedy - a contribution that was not just harmful but illegal and, indeed, criminal.

First, NATO’s bombing violated the laws of peace, since it was neither undertaken in self-defence nor authorized by the United Nations Security Council.

Second, by its strategy of displacing the risk of war onto the civilian population and deliberately attacking civilian targets, NATO violated the laws of war established by the Geneva Conventions. Numerous formal complaints from all over the world have been laid before the tribunal, charging the individual political and military leaders of the NATO countries with grave violations of humanitarian law within the tribunal’s jurisdiction.

Last month, I was among a team of lawyers from Canada, the United Kingdom, Greece and France who met with tribunal prosecutor Judge Louise Arbour to argue the case for the immediate prosecution of NATO leaders. We emphasized to her that this is a critical moment for the "anti-impunity" movement that she has been championing throughout her tenure. Charging the war’s victors, and not only the losers, would be a watershed in international criminal law, showing the world that no one is above the law. On the other hand, failure to act, despite the clear requirements of law and evidence, would show international law to be nothing more than an instrument of the powerful countries - a modern version of "might is right."

Doubts have already been raised about the tribunal’s impartiality. In the early days of the conflict, after a formal complaint against NATO leaders was laid before it by members of the faculty of law of Belgrade University, Judge Arbour appeared at a press conference with one of the accused, British Foreign Secretary Robin Cook, who made a great show of handing her a dossier of Serbian war crimes. In early May, she appeared at another press conference with U.S. Secretary of State Madeleine Albright, by that time herself the subject of two formal complaints of war crimes over the targeting of civilians in Yugoslavia.

Ms. Albright publicly announced at that time that the United States was the major provider of funds for the tribunal and had pledged even more money to it. Within two weeks, indictments were issued against Yugoslav President Slobodan Milosevic and four other Serb leaders, in what seemed indecent haste, dictated not by the needs of justice, which certainly could have waited, but by flagging popular support for NATO’s war effort in the face of mounting "collateral damage."

And now, after the bombing has stopped, with 185 member states in the United Nations, the tribunal appears to have trusted only investigators from a few of the 19 NATO countries, led by the FBI and Scotland Yard, for the sensitive job of investigating war crimes in Kosovo. Not only is there a real danger of permanently tainting the evidence (imagine the effect on an ordinary criminal investigation of sending a suspect to gather the evidence), but there is also a grave risk to the tribunal’s reputation for impartiality and, by extension, to the cause of international law.

Last summer in Rome, the U.S. government opposed the establishment of an international criminal court with universal jurisdiction to punish crimes against humanity. Perhaps the U.S. feels that it has nothing to lose if the whole idea is discredited by the experience in Yugoslavia. But there is a lot at stake for those who insist that any "New World Order" be a democratic and law-governed one.

Michael Mandel, a professor of law at York University in Toronto, is one of the complainants in Re William J. Clinton et al. Before the International Criminal Tribunal for the Former Yugoslavia.