As justification for our murderously destructive bombing campaign in Yugoslavia, it is of course necessary for the U.S. to charge that the Serbs have engaged in inhuman conduct, and that President Slobodan Milosevic, the head Serb demon, is a war criminal almost without peer.
President Clinton assures us of this in frequent briefings, during which he engages in rhetorical combat with Milosevic. But shouting “war criminal” only emphasizes that those who live in glass houses should be careful about throwing stones.
We have engaged in a flagrant military aggression, ceaselessly attacking a small country primarily to demonstrate that we run the world. The rationale that we are simply enforcing international morality, even if it were true, would not excuse the military aggression and widespread killing that it entails. It also does not lessen the culpability of the authors of this aggression.
As a primary source of international law, the judgment of the Nuremberg Tribunal in the 1945-1946 case of the major Nazi war criminals is plain and clear. Our leaders often invoke and praise that judgment, but obviously have not read it. The International Court declared:
“To initiate a war of aggression, therefore, is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
At Nuremberg, the United States and Britain pressed the prosecution of Nazi leaders for planning and initiating aggressive war. Supreme Court Justice Robert Jackson, the head of the American prosecution staff, asserted “that launching a war of aggression is a crime and that no political or economic situation can justify it.” He also declared that “if certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”
The United Nations Charter views aggression similarly. Articles 2(4) and (7) prohibit interventions in the domestic jurisdiction of any country and threats of force or the use of force by one state against another. The General Assembly of the UN in Resolution 2131, “Declaration on the Inadmissibility of Intervention,” reinforced the view that a forceful military intervention in any country is aggression and a crime without justification.
Putting a “NATO” label on aggressive policy and conduct does not give that conduct any sanctity. This is simply a perversion of the North Atlantic Treaty Organization, formed as a defensive alliance under the UN Charter. The North Atlantic Treaty pledged its signatories to refrain from the threat or use of force in any manner inconsistent with the purposes of the United Nations, and it explicitly recognized “the primary responsibility of the Security Council (of the United Nations) for the maintenance of international peace and security.” Obviously, in bypassing UN approval for the current bombing, the U.S. and NATO have violated this basic obligation. From another standpoint of international law, the current conduct of the bombing by the United States and NATO constitutes a continuing war crime. Contrary to the beliefs of our war planners, unrestricted air bombing is barred under international law. Bombing the “infrastructure” of a country– waterworks, electricity plants, bridges, factories, television and radio locations–is not an attack limited to legitimate military objectives. Our bombing has also caused an excessive loss of life and injury to civilians, which violates another standard. We have now killed hundreds, if not thousands, of Serbs, Montenegrins and Albanians, even some Chinese, in our pursuit of humanitarian ideals.
In addition to shredding the UN Charter and perverting the purpose of NATO, Clinton also has violated at least two provisions of the United States Constitution. Under Article I, Section 8, of the Constitution, Congress, not the president, holds the power to declare war and to punish offenses against the law of nations. Alexander Hamilton in The Federalist No. 69 pointed out one difference between a monarchy and the presidency under the new form of government: A king could use his army as he pleased; the president would have no such unlimited power. Under Article VI of the Constitution, treaties, far from being mere scraps of paper as we now deem them to be, are part of the supreme law of the United States. Of course, these days a supine Congress, fascinated only by details of sexual misconduct, can hardly be expected to enforce constitutional requirements.
Nor can a great deal be expected from the media. Reporters rely on the controlled handouts of the State Department, Pentagon and NATO, seeing their duty as one of adding colorful details to official intimations of Serb atrocities. Thus, the observation of a NATO press relations officer that a freshly plowed field, seen from 30,000 feet up, might be the site of a massacre has been disseminated as news. The notion that humanitarian violations can be redressed with random destruction and killing by advanced technological means is inherently suspect. This is mere pretext for our arrogant assertion of dominance and power in defiance of international law. We make the non-negotiable demands and rules, and implement them by military force. It is all remindful of Henrik Ibsen’s “Don’t use that foreign word `ideals.’ We have that excellent native word `lies.’ ”
Walter J. Rockler, a Washington lawyer, was a prosecutor at the Nuremberg War Crimes Trial. This essay originally appeared in the Chicago Tribune