NOTE: Our comments are in [square brackets].
Washington, April 3 - From the brief room at the
State Department to the corridors of Whitehall in London and NATO
headquarters in Brussels, a word usually avoided by policy makers
is being uttered ever more frequently to describe events in
It is not used merely to cudgel the Yugoslav leader, Slobodan
Milosevic, and to warn that he could be held culpable for atrocities
and to press him to stop. Nor is it used solely to place him in the
public mind squarely in the ranks of this century's tyrants and to
ally Americans and Europeans to defeat him.
Policy makers in the United States and Europe are invoking
provide a legal justification for their military campaign against Serbia.
It is one based in part on concepts of humanitarian law, where no word
is more evocative.
At the same time, the public invocation of genocide -
something political leaders had been distinctly reluctant to do
during the strife in Bosnia and Rwanda - is itself helping to
create a new model of international law that may be used to justify
similar interventions in sovereign countries.
A broad spectrum of legal scholars agree that
there is currently NO simple, straignhtforward or obvious LEGAL BASIS
for the bombing of Serbian targets to be found in treaties, the United Nations'
Charter or binding resolutions or *ANY* OTHER WRITTEN INTERNATIONAL
"The traditional view of international law would
clearly prohibit what is happening."
Professor Abraham Chayes, of the Harvard Law School, said in an interview.
One feature of this approach is to bypass
the United Nations whose Charter is the fundamental legal document
on the international peace and security. In fact,
the Charter explicitly forbids
regional alliances like NATO from taking military
action without first seeking the Security Council's prmission.
United States policy makers did not seek such authorization, officials
have acknowledged, in part because of Russia and China would be expected
to veto it.
While [Clinton] Administration officials said they did not set out
to create any new broad precedents for military intervention, they have
insisted that there is an adequate basis for their action.
Col. P.J. Crowley, a spokesman for the National Security Council,
said, "We believe there is legitimate and sufficient legal grounds
for the United States and NATO for the use of force in this situation."
He cited two recent United Nations resolutions calling on Yugoslavia to take
measures to end the suffering in Kosovo. Those resolutions do not, however,
contain any authorization of the use of force.
A senior Administration official said that the resolutions have been
made to "support rather than authorize" the use of force. The
official who spoke on the condition of anonymity [!], said that there are several
factors the United States and its allies believe provide a legal foundations
for the military action.
The "humanitarian crisis unfolding" is prominent among them,
the official said. In addition to accusations of genocide, the official said,
there are "abhorrent crimes against humanity that violate international
law and that are every bit as serious as genocide,"
Genocide is defined in a specific convention, which the United States
and Yugoslavia have both signed, that does not explicitly provide for armed
intervention as remedy.
Russian and Yugoslav leaders have loudly asserted that the bombing is
a clear violation of international law, which traditionally elevates
the value of national sovereignty in most situations.
But Professor Chayes, a former State Department legal adviser,
said that while there is little traditional justification for the
current bombing campaign, "some people have argued for a
humanitarian exception allowing for the intervention with force to
prevent large-scale violations of human rights."
"That certainly is in many ways a new idea in
terms of international law and raises a lot of difficult questions,"
In the amorphous field of humanitarian law, "There's a great
deal of debate about what the threshold for intervention should be,"
said Diane F. Orentlicher, a human rights lawyer and law professor at
American University." But the treaty does provide a bright line
in saying that states should not stand idly by when there is genocide
but have a duty to put stop to it. It is the legal embodiment of the
vow 'never again.'"
The [anonymous] Administration official said that another important
element of the humanitarian factor is the legacy of the Nuremberg Tribunal
set up after World War II, which prohibits systematic abuses of civilians,
even by a state within its own borders.
W. Michael Reisman, a professor of international law at Yale
University, said he believes that what is occuring in Central [sic!]
Europe "has produced a critical moment and a basic change in
international legal practice." Although he believes that
international law has been used to deal with humanitarian issues,
Professor Reisman said what is happening in Central [sic!] Europe
is of an unprecedented scale.[!?]
"We now have something that goes far beyond the usual
notion of using force for self-defense," he said "We
have a massive use of force against a Government over inappropriate
treatment of their own nationals." It may also bring about the
redrawing of a sovereign state's borders.
Traditionally, the cases in which military intervention has been
sanctioned for humanitarian reasons have applied to campaigns with
limited objectives. Professor Ruth Wedgwood of the Yale Law School said
the classic example is the Israeli raid at Entebbe, Uganda, in 1976
to rescue its citizens from terrorists who had hijacked their plane.
"The idea of humanitarian bombing is much heavier."
[Actually, it is exactly Orwellian. "Humanitarian bombing!"
is contradiction in terms and represent a nice example of Orwellian
Nonetheless, Professor Wedgwood said she believes what is
happening may provide a model for the future. [Would this model
then be reimplemented to punish America - the main violator
of human rights? Should US be humanitarily bombed?] "We are
pushing the envelope, being legally
innovative," she said.
What underlines the discussion is a deeply held anxiety among
international legal authorities about how fully international law
is respected by political leaders. International law has traditionally
been derided as something to which policy makers claim fealty when
it is to their advantage and ignore or interpret very loosely
when it is not on their side.
Professor Thomas M. Franck, of the New York University Law School,
said he believes that the allies can justify their action by arguing
that even if they have violated the United Nations Charter and international
law, it was necessary to counteract even greater
violations by the Belgrade Government [which was trying to defend integrity
of its own country against separatists and terrorists armed, trained and
equipped by the West] of laws that prohibit a government from abusing
its own citizens [who like to carry bazookas on their sholders].