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NATO and international law

By George Thomas - posted Saturday, 15 May 1999


NATO's unqualified and unrestrained bombing campaign that includes the infrastructure is more likely to kill hundreds of thousands of Yugoslav citizens in the long run, through lack of proper medical facilities, polluted water supply, atmospheric poisoning, ozone depletion, and climatic change. If NATO committed genocide in Yugoslavia, then it is also likely that it will have committed genocide in the long term.

The moral justification for NATO's military assault is a retroactive post hoc rationalisation, viz., that President Milosevic had planned the total expulsions of the Albanians from Kosovo. Dr. Jan Oberg of the Transnational Foundation in Sweden has argued that Madeleine Albright's and NATO's claims are dubious. There was no such talk before the bombing began. The bombing was tied to the Rambouillet ultimatum to Yugoslavia that it either sign the Western diktat or get bombed severely. It had nothing to do with the post bombing humanitarian catastrophe. There were other troubling questions.

Why did the West not plan for this contingency if it knew of such a plan? How could Milosevic have got rid of all Albanians from Kosovo when some 1,800 OSCE monitors and several more UNHCR and International Red Cross personnel, not to mention journalists, were in Kosovo before the ultimatum was issued? It was NATO that pulled them out although Yugoslavia had agreed to nearly all of the provisions of the political terms of Rambouillet. How was it that OSCE, UNHCR and other international agencies never knew or sensed any such plan? Finally, if NATO knew of such an ethnic cleansing plan, why did it not plan its bombing campaign more carefully?

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If NATO had the right to intervene in Kosovo, does it now have the right to intervene in Palestine, Kashmir, Tibet and "Kurdistan where human rights violations are also taking place? Can any state now bypass the UN Security Council and attack another state by invoking humanitarian considerations? NATO cannot unilaterally invoke the 1948 Genocide Convention , the 1948 Universal Declaration of Human Rights, and other humanitarian laws, and proceed to attack independent states. Only the Security Council can do so which was deliberately bypassed by NATO knowing that Russia and China would veto such an attack.

There was no humanitarian intervention by the US and the West when the Nigerian authorities crushed the Biafra separatist movement between 1967 and 1970 causing the deaths of one million Ibos, when Pakistani forces killed one million and drove out 10 million Bengalis during the East Pakistani secessionist struggle in 1971, when the Pol Pot regime killed one million Cambodians, to name just a few cases. In the latter two cases, the US condemned India and Vietnam for their military interventions and threatened military action against them. However, both India and Vietnam intervened AFTER the human catastrophes had taken place. On the other hand, NATO's rush to bomb CAUSED the human catastrophe in Kosovo, as did Western interventions earlier in Croatia and Bosnia by promoting and rushing to recognize Croatia and Bosnia as independent states against the wishes of the Serbian populations.

Ethnic cleansing is not genocide. If it were, the Allied powers were guilty of genocide for endorsing the expulsion of some 12 million Germans from Poland, Czechoslavkia and elsewhere at the end of the Second World War, and surely European Jews committed genocide when it drove out nearly a million Palestinians to carve out the state of Israel in 1948. Many of those Palestinian refugees still remain more than 50 years later. What was definitely genocide was the European invasion of North America in earlier centuries and the near extermination of the native Indian population. There is a difference between driving populations out of a territory and of destroying them physically, although the Turkish expulsions of Armenians in 1914 led to their destruction and thereby their extermination which the Turkish authorities knew would happen.

There is now an ethnically pure Greater Croatia. At the end of the Bosnian and Croatian wars, almost 900,000 Serbian refugees have been ethnically cleansed from Croatia and the federation, 300,000 in Republika Srpska and 600,000 in Serbia.

This is more than any other ethnic group, including Albanians, but not counting internally displaced people.. Croatia conducted the largest single ethnic cleansing of the war with American military support. Yet there have been no cries for NATO military action against Croatia, obviously because of American political and military complicity in these expulsions.

III. The Question of NATO Aggression and War Crimes

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Russia, China and India assessed NATO actions correctly. NATO, the only alliance left after the Cold War, committed aggression on Serbia. This illegal act by NATO, bypassing the United Nations Security Council, was all about saving NATO's face at a very heavy physical, mental, economic and ecological price for the Serbs. Washington's determination to achieve military victory against Serbia at any price is a display of revenge, retaliation, fanaticism and megalomania; not reason, prudence, fairness and wisdom.

In Eugene Davidson's account of the Nuremberg Trials of 1945-46, Mr. Justice Jackson's clause on aggression defined the chief "Crime Against Peace" for which indictments against the Nazi political leaders were prepared: (a) Planning, preparation, initiation, or waging war of aggression,or war in violation of international treaties, agreements, or assurances; or (b) Participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing. An application of this definition to NATO's actions against Serbia shows criminal culpability that calls for its own separate war crimes trial. Indeed, the UN human rights chief Mary Robinson warned that NATO too could be tried by the International Criminal Tribunal for the Former Yugoslavia (ICTY). Robinson pointed out that large numbers of civilians have been "incontestably" killed, civilian installations were targeted, and "NATO remains the sole judge of what is or is not acceptable to bomb." However, the illegality of NATO's aggression is the real issue which needs to be judged by the International Court of Justice, not the ICTY.

(Revised May 17, 1999)

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About the Author

Raju G C Thomas is the Allis Chalmers distinguished professor of International Affairs at Marquette University, Milwaukee, Wisconsin. His most recent book is as contributing editor of Yugoslavia Unraveled : Sovereignty, Self-Determination, Intervention, Lexington Books, 2004

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