Just What Is a War Criminal?

0 Comments | Insight on the News, August 2, 1999 | by James P. Lucier

Jerome Zeifman, former Watergate committee counsel, has filed charges before the International Criminal Tribunal that threaten Bill Clinton with a war-crimes indictment.

We have achieved a victory for a safer world, for our democratic values and for a stronger America.... Unnecessary conflict has been brought to a just and honorable conclusion," said President Clinton in his address from the Oval Office on June 10.

Victory? "The decision to attack Yugoslavia [was] counterproductive, and our destruction of civilian life [is] senseless and excessively brutal," wrote former President Jimmy Carter in a New York Times op-ed article on May 27.

"The proposed deployment to Kosovo does not deal with any threat to American security as traditionally conceived," former secretary of state Henry Kissinger wrote in the Washington Post on Feb. 22, a month before the bombing campaign was unleashed.

There is a pattern here, and it is creating concern on both left and right. "The armed forces of the United States have participated in nondefensive, aggressive military attacks on former Yugoslavia, which have not been necessary to defend the national security of the United States," writes Jerome Zeifman, former chief counsel for the House Watergate committee, in allegations seeking the indictment of Clinton and Secretary of Defense William Cohen for alleged war crimes and crimes against humanity. These formal legal documents have been submitted to the [U.N.-established] International Criminal Tribunal for the former Yugoslavia, or ICTY, at The Hague. Obtained exclusively by Insight the proposed indictment has been transmitted to the ICTY on behalf of a new organization, the International Ethical Alliance, or IEA. Tom Warrick, deputy to the ambassador-at-large in the Office of War Crimes Issues of the Department of State, said after seeing a copy of the papers, "We think this is ridiculous. U.S. and NATO forces incorporated the laws of armed conflict in planning and carrying out their operations in Kosovo."

Zeifman, a lifelong Democrat whose meticulous preparation of the case against Richard Nixon forced the Republican president out of the White House, is serious. And it raises concerns that, in an age of internationalism and depreciated national sovereignty, the president of the United States as well as the defense secretary could be placed in the same defendant's box as Slobodan Milosevic, the indicted Yugoslavian war criminal.

Zeifman tells Insight the proposed indictment specifically incorporates all the charges of war crimes already pending against Milosevic and his henchmen and supplements them with the charges against Clinton and Cohen. Since the "aggressive military attacks" against Serbia and Kosovo were not necessary to defend the United States, the proposal argues, they fall under the category of "nondefensive aggressive wars" as defined and prohibited in the charter of the Nuremberg tribunal in 1945 and since included in the 1947 U.N. Charter and subsequent Geneva conventions on the treatment of civilians during wartime.

In particular, the proposed indictment cites "War Crimes: namely, violations of the laws or customs of war [including] murder, ill-treatment... of civilian population, ... wanton destruction of cities, towns or villages, or devastation not justified by military necessity. Crimes against Humanity: namely, murder ... and other inhumane acts committed against any civilian population, before or during the war."

Zeifman anticipates that Carter would be called as a witness -- as well as Walter Rockler, a former Nuremberg prosecutor for the United States -- and notes that Carter charged in May that the United States had launched 14,000 missiles and bombs, 4,000 of which were not precision-guided. These included cluster bombs "that have resulted in damage to hospitals, offices and residences of ambassadors, and the senseless and brutal killing of innocent civilians and conscripted troops."

Zeifman's case also takes another tack: He calls upon Justice Louise Arbour, a Canadian, to step down from the case, since she has a conflict of interest by coming from a NATO nation. Indeed, the salaries of the 14 justices on the court, including five from NATO members, are paid in part by NATO countries. The chief justice, Gabrielle Kirk McDonald, is from the United States. Zeifman tells Insight that you can't have even the appearance of impartiality if justices from NATO nations are allowed to handle the cases.

Whether Zeifman is off on a quixotic mission or has caught the essence of me moral dilemma posed by NATO's air war depends on one's view of international law. The classic reference, Restatement of the Law of the Foreign Relations of the United States, published by the American Law Society, says simply, "The international political system is loose and decentralized. Its principle component -- `sovereign states' -- retain their essential autonomy. There is no `world government' as the term `government' is commonly understood. There is no central legislature with general lawmaking authority.... There is no executive institution to enforce law.... There is no international judiciary with general, comprehensive and compulsory jurisdiction."