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AN ABRIDGED HISTORY OF EUROPE
by William M. BrintonChapter Nine:
NATO'S Future RoleOver a period of 50 years, NATO was the most successful alliance of the Cold War.It won this war without firing a shot and acquired an aura of invincibility as an alliance of collective security against the threat of Communist Russia. Then, in 1989, the Soviet Union began its slow decline toward bankruptcy and political impotence. Today, a tottering Yeltsin in poor health can still fire a prime minister and even defeat the rancor of impeachment. Russia owes a huge but uncertain amount of money to the IMF and the World Bank. We should not forget its temporarily silent nuclear weaponry. However, only a rogue military would use one such weapon for fear of instant and massive retaliation or mutually assured destruction (MAD). No nuclear weapon was ever fired in anger after the two used against Japan in 1945. Rational leaders expect no less from their own military leaders, including China. True, China has new nuclear weapons or soon will have them, improved by use of technology perhaps stolen from Chinese scientists working in the United States without adequate supervision. China has so many fish to fry, it will be far less likely to flex its muscles in the Straits of Taiwan or argue with the terms of admission to the World Trade Organization. It is busy restoring market capitalism along with privatizing industries now state-owned and profitless. Massive unemployment would be certain and this would lead to destabilization of political measures. Its cities are seriously polluted by China's indifference to environmental conservation. It has already taken the wrong route to prevent further degradation. Working with General Motors, China will manufacture automobiles in staggering numbers to satisfy the auto-hunger of 20 percent of its population 200,000,000 autos by the year 2015. Even its own environmental engineers have had second thoughts about the Three Gorges Dam, said to be an environmental disaster. Over a million people will have to be relocated, and not one of them likes the idea. NATO is a distant menace to China. Except for immediate threats, its leaders will adopt a hands-off attitude even though expressing anger over isolated instances of arrogance or other losses of face.
U.S. President Kennedy in Berlin (1963)
(Photo and speech...)Except for the United States and Canada, every member of NATO is a member of the Council of Europe. Traditionally, the Council of Europe has been active in the realm of political and social rights, education, culture and heritage, the media and communication, health, planning, the environment, local democracy, youth, and sport. With over 155 conventions, it has touched on every aspect of the daily lives of the citizens and residents of Europe, creating the legal framework and reference texts for intergovernmental cooperation on vital matters such as fundamental and civil rights, workers' rights, social security, the protection of women and children, and the rights of the disabled. Admission to the Council of Europe can be revoked. Greece, for example, was forced to withdraw because of the colonels' dictatorship of 1969. It was not readmitted until democracy was restored in 1974. Turkey was suspended from the Council's parliamentary assembly's activities following the coup in 1980 and was not permitted to rejoin until the officers in power had kept to the timetable they had set for the return of democratic government. Yugoslavia was given special guest status in 1989, after it had all its links with the Council of Europe severed. Actually, the Council of Europe was the only intergovernmental organization to denounce the Serbian atrocities in 1991. In 1995, Slovenia became a member followed that same year by Macedonia. The countries of eastern Europe who aspire to membership must accept all the provisions of the European Convention on Human Rights. They are encouraged to bring their constitutions and laws into conformity with some of the recent conventions supplementing the terms of the original convention. These, for example, include the protocol that abolished the death penalty (1983) and the convention that explicitly outlaws torture and inhuman or degrading treatment or punishment (1989).
The official home page of NATO was updated on April 8, 1999. The nineteen members may be found at www.nato.int/family,countries.htm. The North Atlantic Treaty was signed by the United States on April 4, 1949, and its text may be read at www.nato.int/docu/basictxt/treaty.htm. On March 24, 1999, the secretary general of NATO, Dr. Javnier Solano Madariaga, and its commanding general, General Wesley Clark (SACEUR), held a press conference in Brussels. The full 11-page transcript may be read at www.nato.int/docu/speech/1999/s990325a.htm. On the previous day, the first air strike over Yugoslavia occurred and all aircraft returned to their base safely. Their targets were left undisclosed and this failure of NATO generated a lot of justifiable criticism from the print and electronic media. Those who criticize NATO for this military censorship may have a point. However, they should first review all the 50 years of NATO without this kind of carping. In Article 5 of the treaty itself, the text clearly notes that NATO is a combination of nations looking to collective self-defense, by referring to Article 51 of the United Nations Charter. Thus,
"The Parties agree that an attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that if such an armed attack occurs, each of them in exercise of the right of collective self-defense recognized by Article 51 of the United Nations Charter, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties such action as it deems necessary including the use of armed force, to restore and maintain the security of the North Atlantic area." Article 1 of the treaty makes it clear that the Parties invoking the Charter must "settle any international dispute... by peaceful means in such a manner that international peace and security and justice are not endangered." [Emphasis added.]Article 2 (3) of the United Nations Charter also provides that "All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. Article 2 (4) provides: "All members shall refrain in their international relations from the threat or use of force against the integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations." Unfortunately, the Charter states that any one of the five permanent members of the Security Council may veto any resolution before it. Even so the combination of these articles and various European conventions militate in favor of settling any real dispute using principles of nonviolence.
These other conventions include the European Convention on Human Rights, the Convention for the Prevention and Punishment of the Crime of Genocide, the Convention Against Torture, and finally, in a limited number of cases, the International Court for War Crimes by Yugoslavia Against Those Harmed Since 1991. The latter court was created by the United Nations. Furthermore, disposition of its cases has been made free of the veto by a permanent member of the Security Council. In mid-May 1999, Yugoslavia filed a complaint with the International Court of Justice in the Hague. It named the United States and some but not all NATO powers bombing Yugoslavia as defendants. This court was created by the terms of the Charter of the United Nations. Yugoslavia asks for injunctive relief and damages from bombing and the use of force contrary to Article 2 (4). Pursuant to international law, Yugoslavia may have a case, but it seems clear that Yugoslavia cannot go into court with "clean hands." Thus, it may not profit from its own wrong, the pervasive impact of violations of human rights does not permit such a result, particularly when the president of Yugoslavia and a person who could stop the violations of human rights, including genocide, might be indicted and tried for war crimes.
"The threat or use of force by NATO without Security Council authorization has assumed importance because of the Kosovo crisis and the debate about a new strategic concept for the alliance. The October 1998 threat of air strikes against the Federal Republic of Yugoslavia breached the UN Charter, despite NATO's effort to rely on the doctrines of necessity and humanitarian intervention and to conform with the sense and logic of relevant Security Council resolutions. But these are 'hard cases' involving terrible dilemmas in which imperative political and moral considerations leave no choice but to act outside the law. The more isolated these instances remain, the less is their potential to erode the rule of international law..."The quote here is from the abstract of an article appearing in the 1998 European Journal of International Law, written by Professor Bruce Summa, a professor of International and Community European Law at the Institute für Internationales Recht-Volkerecht, Ludwig-Maximilians-Universitet in Munich, Germany.
Professor Summa continued,
"The potential boomerang effect of such breaches can never be excluded, but the danger can be reduced by spelling out the factors that make an ad hoc decision distinctive and minimize its precedential significance. In the case of Kosovo, only a thin red line seperates NATO's action from international legality. But, should such an approach become a regular part of its strategic program for the future, it would undermine the universal system of collective security. To resort to illegality as an explicit ultima ratio for reasons as convincing as those put forward in the Kosovo case is one thing. To turn such an exception into a general policy is quite another. If the Washington Treaty has a hard legal core which even the most dynamic and innovative [reinterpretation] cannot erode, it is NATO's subordination to the principles of the U.N. Charter."Evidence of mass slaughter has been available since at least 146 B.C., e.g., the siege of Carthage. In that year, the Romans slew some 150,000 of the estimated 200,000 residents. In the first millennium, Genghis Khan presided over more than one such slaughter in the 13th century, and Tamerlane did so in the 14th century. Slaughter of heretics in the 16th century occurred under the Inquisition. Genocide acquired its contemporary character in 1915 with the mass slaughter of Armenians by the Turks. At Nuremberg, it was shown that the Nazis had murdered Jews with the intent to exterminate them as a people. In the second half of the 20th century, the mass killing of tribal groups in Rwanda occurred in the 1980s, and then in the 1990s Serbs engaged in genocide in the Balkans.The war that began in Bosnia-Herzegovina in early 1992 rapidly superseded the conflict in Croatia. The atrocities committed there by the Serbs shocked the world. In fact, the story by John Burns in The New York Times on November 27, 1992, even galvanized Congress and the American press with its pages of atrocities committed in Yugoslavia.
On October 6, 1992, the United Nations Security adopted Council Resolution 780 calling on the secretary general to establish a commission to collect evidence of war crimes. The story by John Burns was a beginning. Burns had interviewed Borislov Herak, a Serb who admitted to rape-murders in 29 of these crimes and was awaiting trial for war crimes. He was tried, convicted and sentenced to death. His trial appeared in the United States on Court-TV. Despite opposition from some members of Congress, the Security Council vote on February 22, 1993, was unanimous, and the United Nations created a court to try war crimes. Two factors supported the Security Council vote. Bosnian Serbs overran the UN "safe haven" established for Srebrenica and murdered as many as 8,000 Muslim men and boys in that city's stadium. On July 25, 1995, Generals Mladic and Karadzic were indicted by the tribunal the UN has established. Even before this mass slaughter, the largest since World War II, the people of Vukovar were also killed by Bosnian Serbs in 1991. This outline strongly suggests that the International Criminal Tribunal exists to expedite the trial of those indicted for war crimes. One should note, however, that few people will be tried unless NATO arrests and delivers them to the court in the Hague. If for no other reason than that NATO may have to act as a policeman, these courts seem appropriate. The notion that NATO has gone beyond the thin red line seems absurd. There must be a reason for the existence of this court. Furthermore, intervention to stop war crimes and try those thought to have committed them is a rational approach fully understood by Germany (Nuremberg) and Japan (Tokyo war crimes trials). See In re Yamashita, 327 U.S. 1 (1946).
The Hunters in the Snow (1565)
Pieter Bruegel (the Elder)
Mark Harden's ArtchiveIn this case, a military commission was created to try General Tomoyuki Yamashita for war crimes in the Philippines. The Petitioner Yamashita was represented by counsel who argued that, among other things, the military commission had no jurisdiction and that it admitted evidence in violation of Petitioner's rights under the Fifth Amendment. Chief Justice Stone delivered the opinion of the court. Justice Jackson did not participate, and a dissent by Justices Rutledge and Murphy was filed. The military commission had convicted Petitioner and sentenced him to death, essentially for failing to prevent the atrocities by Japanese troops under his command. It cited Article 43 of the Hague Convention of 1907, which required that the commander of a force occupying enemy territory "shall take all measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." This section plus footnotes 3 and 4 cited by the court "plainly imposed on petitioner, who, at the time was military governor of the Philippines, as well as commander of the Japanese forces, an affirmative duty to take such measures as were within his power and appropriate in the circumstances to protect prisoners of war and the civilian population." The Supreme Court held that Petitioner had breached his duty to control the operations of members of his command. By itself, this was enough to require the military commission to hear evidence tending to establish Yamashita's culpable failure to perform the duty imposed on him by the laws of war and to pass upon its sufficiency to establish Petitioner's guilt.
Time has passed since this decision in 1946. A few years ago, the United Nations created an International Criminal Court sited at the Hague. On May 27, 1999, this court released the text of an indictment of Slobodan Milosevic and others for crimes against humanity and murder, the latter being consistent with common Article 3(1) of the Fourth Geneva Conventions of 1949, as amended in 1977. See www.un.org/icty/indictmrnt/english/24-05-99mili.htm. This indictment is the first ever of a sitting president of a country, something of historical moment.
Unless Milosevic submits voluntarily to the International Criminal Court by appearing personally therein, the Court itself has a remedy provided by Rule 61 of the Court. If, within a reasonable time, a warrant of arrest has not been executed, and personal service of the indictment has consequently not been effected, the judge who confirmed the indictment shall invite the Prosecutor to report on the measures taken. When he is satisfied that all reasonable steps have been taken, that judge shall order that the indictment be submitted by the Prosecutor of the Trial Chamber of which he shall be a member. Thereafter, the Prosecutor shall submit the indictment to the Trial Chamber in open court, together with all the evidence that was before the judge who initially confirmed the indictment.
If the Trial Chamber is satisfied that there are reasonable grounds for believing that the accused has committed any or all of the crimes charged in the indictment, it shall so determine in open court. These proceedings may all be filmed for release to television and Court-TV. Thus, all of the Americas, Europe and parts of Asia will be able to see and hear this trial in absentia of the principal defendant, Slobodan Milosevic. President Clinton has said that Yugoslavia will get no money for reconstruction of bomb-damaged targets in Yugoslavia until Milosevic is removed from office. If removed, as he certainly will be, in due course there will be a trial wherein Milosevic has been indicted for war crimes. A judgment of guilty should symbolize what the International Criminal Court is all about. Western society has created standards governing international behavior. It simply will not tolerate any violations of those standards. One may wondetr whether NATO has a future if European countries who are members may no longer have to rely on NATO forces to punish non-members like Rumania and Bulgaria.
Human Rights Watch is another organization dedicated to pursuing people like Idi Amin, Mengistu Haule Miriam of Ethiopia and Emanuel Constant, the former chief of a right wing paramilitary group in Haiti. There are others, but the point is that human rights conventions do not permit former presidents to escape prosecution for torture and other crimes. Justice must be served.
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All contents © 1999 William M. Brinton