CHICAGO TRIBUNE - Sunday, May 23, 1999

WAR CRIMES LAW APPLIES TO U.S. TOO
By Walter J. Rockler

AS JUSTIFlCATION 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. RockIer, a Washington lawyer, was a prosecutor at the Nuremberg War
Crimes Trial.