Constitutional Opinions: A New World Order
Rabkin, Jeremy
CONST 1 TUT ONAL OPINIONS by Jeremy Ra bkin A New World Order The Clinton Doctrine could be turned against the U.S. s Kosovar refugees began streaming back to their homes in June, critics of...
...Oil refineries and chemical plants were also bombed, allowing toxic wastes to spill into rivers and farm fields, again raising questions about the degree of caution in NATO targeting...
...casualties of our own...
...There are many legal issues here to think through...
...Unlike so many subsequent human-rights treaties, they are not empty appeals to sentiment...
...may not act with NATO but on its own or in a smaller coalition...
...It is hard to dismiss demands for international scrutiny of NATO tactics as a mere propaganda ploy...
...Ottawa found her reliable enough to announce in June that she would be appointed to the Canadian Supreme Court...
...The Canadian jurist could not indict American leaders without indicting their Canadian counterparts...
...Had some NATO allies broken ranks, would the U.S...
...he case against NATO's bombing T campaign doesn't rest merely on a hostile interpretation of small details in the relevant Geneva Convention...
...But never forget if we can do this here," he told an audience of American troops preparing to enter Kosovo in late June, "we can then say to the people of the world, whether you live in Africa or Central Europe or any other place, if somebody comes after innocent civilians and tries to kill them en masse because of their race, their ethnic background or their religion, and it's within our power to stop it, we will stop it...
...s Kosovar refugees began streaming back to their homes in June, critics of the NATO "air campaign" had to acknowledge that it accomplished more than we expected...
...have maintained its resolve...
...Do we prefer to risk mocking our own creation —or our own Constitution...
...In a future humanitarian intervention, the U.S...
...authorities will hand them over...
...The decision on whether to prosecute is in the hands of an independent prosecutor, over whom NATO has no direct control...
...But along with the human misery and physical devastation, there are some shredded legal principles that still need tending...
...Now that NATO forces are on the ground in Kosovo, their conduct in fire-fights (even when acting in self-defense) will also come under the jurisdiction of the war crimes prosecutor at the Hague...
...It's not likely that Louise Arbour will indict President Clinton himself...
...Only a few days later, a group of Canadian lawyers and law professors submitted a well-argued brief to the prosecutor, calling for indictments of top NATO officials and top officials of the NATO member states...
...As the air war continued without success, NATO became more aggressive in its targeting...
...The American Spectator • August 1999 51...
...On these matters, the administration now seems to be thinking about as far ahead as when it launched the air war on March 24, promising it would be over in a few days...
...Should American marines act with what some observers regard as excessive force or reckless disregard for civilian casualties, they may have to answer to international authorities...
...lands...
...Drawn up after World War II, principally by the Allied powers, the Geneva Convention codified long-standing laws of war...
...Yet the prosecutor did indict President Milosevic during the war, when there wasn't much likelihood that Serbs would turn him in...
...President Clinton seems to think it does...
...Not only did the administration seek and win Security Council endorsement for the Kosovo occupation, a move that implies that the continuation of NATO's role in Kosovo will be subject to continuing U.N...
...Not only does Milosevic control the army and the police, but the country's constitution —in common with many Western constitutions —prohibits extradition of Yugoslav citizens to foreign tribunals...
...Dozens of hospitals, schools, and churches were hit, so many as to raise reasonable questions about NATO strategy...
...It is not clear we can now prevent the global criminal court from coming into force...
...Though it doesn't trust the U.N...
...Oddly, much of the world now seems prepared to embrace this openJEREMY RABKIN is a professor of government at Cornell University...
...Too bad it has to be done by an administration that regards law as nothing more than a game to be mastered by spin control...
...We are simultaneously urging more support for the local model while resisting the global extension...
...The Clinton administration has both offered up American forces to humanitarian missions around the world and submitted those forces (and, in principle, their civilian chiefs) to international supervision for their conduct of these missions— including even liability to criminal trials before foreign judges in the NetherNational sovereignty takes second place when outside intervention to protect human rights is needed...
...The charter of the Hague Tribunal for Yugoslavia specifically directs that the prosecutor "shall initiate investigations on the basis of information obtained from any source, particularly [including] .. _nongovernmental organizations...
...By endorsing the NATO occupation of Kosovo, the U.N...
...We have, in any case, established the precedent that the Security Council can put down courts whenever it wants to (as it did in Yugoslavia) and it is not clear we even have the will to stop new ventures of this kind...
...Serb forces committed many more murders under cover of the air campaign, perhaps over 9,00o...
...If the tribunal demands the delivery of a U.S...
...Now, when most countries have sought to establish a truly International Criminal Court, potentially reaching any country for war crimes anywhere, the Clinton administration has been isolated in its opposition to this larger venture...
...It dropped cluster bombs from high altitudes, which guaranteed civilian casualties...
...took the lead in getting the Security Council to establish these earlier tribunals...
...And the Canadian lawyers do present a plausible case for their charges...
...A month earlier, the International Court of Justice rejected Serbia's plea for condemnation of NATO...
...NATO seized on the indictment as a propaganda coup anyway...
...investigations of its genocidal predecessor...
...Consider the strains in the NATO alliance as the air campaign escalated...
...The other is for Rwanda, where the war is over and the new government is quite happy to cooperate with U.N...
...This last item is particularly notable because, by the terms of its charter, this tribunal in the Hague has jurisdiction over all forces in the region — including NATO's...
...to authorize humanitarian interventions, it still wants to have international sanction for them and international standards for their conduct...
...That is greater than the number of Albanians killed in Kosovo in the months preceding the air war...
...Our Balkan intervention, in short, has provided strong support for what most legal scholars acknowledge is a new and controversial principle —that national sovereignty must take second place when outside intervention is needed to protect human rights...
...That, in turn, may mean we will rely on high-level bombing regardless of the "collateral damage" that might result...
...Are we certain that Greece or Italy or Hungary, for example, would still have swallowed all their doubts if an independent prosecutor had handed down indictments for the conduct of the war...
...The World Court invoked rather technical, jurisdictional grounds for its ruling, but it had ignored the very same jurisdictional obstacles when it condemned U.S...
...ended bombing commitment from Washington...
...and its allies help to mobilize critics in othercountries, will we continue to press forward to liberate threatened people...
...The Clinton administration seems determined to make this an international doctrine...
...They're set up to spin out their own rules of procedure—rules quite remote from our own notions of due process...
...The implication of this Clinton Doctrine is that it is all a matter of power — "our power," as he put it...
...We may think we can keep these tribunals within safe limits, but they were set up without any mechanism of control...
...The international criminal tribunal for the former Yugoslavia is only one of two such existing bodies...
...High Commissioner Robinson claimed that in her warnings she was simply relaying the official view of the independent prosecutor, Louise Arbour...
...We have promised full cooperation with the tribunal, which means in principle that we should deliver up any Americans who are indicted...
...Even if her successor should decide to make an example of Sandy Berger or Madeleine Albright, there is not much danger that U.S...
...The charter of the tribunal stipulates that it is to have "primacy over national courts," which seems to give it jurisdiction even over soldiers acquitted in American proceedings...
...But the U.S...
...In mid-May, as the bombing intensified, Mary Robinson, the U.N.'s high commissioner for human rights, pointedly noted that excessive NATO bombings might well constitute war crimes...
...The qualification may mean that we will only act when we have the "power" to do so without taking many (or any...
...soldier indicted for war crimes, do we hand him over...
...interventions against the Sandinista regime in Nicaragua in 1986...
...In deliberately destroying electric power plants and water pumping stations, NATO seemed to be pursuing a strategy designed to impose suffering on civilians—knowing 50 The American Spectator • August 1999 that such hardships could have particularly devastating consequences for children, the ill, and the elderly...
...But deaths attributable to NATO bombing are at least as many as the initial killing NATO intervened to stop...
...was quick to insist that the Serb government accord them all the rights stipulated in the Geneva Convention on the treatment of prisoners of war—and the Serbs largely did so...
...The Geneva Convention on protection of civilians in wartime (signed by all NATO states) clearly condemns such actions...
...The same resolution also "demands full cooperation by all concerned, including the international security presence [i.e., the NATO occupation force], with the International Tribunal for the Former Yugoslavia...
...Even so, if indictments of the U.S...
...When three American soldiers were captured early in this war, the U.S...
...By the end of the air campaign, Serb authorities reported at least 2,000 civilian deaths, with many thousands more injured...
...There is, to start with, the question of whether we now understand international law to give open license to this sort of humanitarian intervention, when the intervening power makes no claim to be acting in self-defense nor to be repelling aggression across an international boundary...
...Could such a gesture be used against the United States...
...Security Council resolution of June so appeared to ratify the Clinton Doctrine...
...approval...
...The tribunal for Yugoslavia, for example, has allowed prosecutors to introduce evidence from unnamed witnesses, not available for cross-examination, which any American court would instantly reject as improper "hearsay" evidence...
...Perhaps quite easily...
Vol. 32 • August 1999 • No. 8
