International Law May Halt the Bombing

International law now constrains U.S. military operations in Serbia in ways that the United States has never faced before. The Clinton administration’s plan of constantly increasing bombing pressure until Serbia submits will fail, not because air power cannot bring a nation to its knees, but because long before that point, international law will force the bombings to a halt.

In 1993, the United Nations Security Council created the International War Crimes Tribunal for the Former Yugoslavia. Responding to initiatives from the U.S. and its NATO allies, the Security Council acted to end the impunity of the perpetrators of atrocities in the former Yugoslavia. The tribunal is the first international war crimes tribunal since Nuremberg. It now has an active trial calendar, with 26 individuals in custody, and has issued indictments against more than 80 suspects. All major NATO countries have actively supported the tribunal. However if NATO is not careful, its leaders could find themselves threatened with indictments.

The initial premise of NATO’s bombing campaign was that if it inflicted sufficient damage on the Serbian military, the Serbians would eventually withdraw their forces from Kosovo to escape further punishment. Moreover, an extreme variant of this proposition, that the infliction of enough damage on Serbia will force its withdrawal from Kosovo, is undoubtedly correct. An indiscriminate NATO bombing campaign, targeting not just the Serbian military, but gradually including all Serbian infrastructure, factories and government buildings, would probably produce results. After enough suffering, any nation will surrender.

The catch is that simply inflicting suffering without the justification of military necessity violates the law of war. An air force may reasonably bomb a bridge to impede military supplies and may bomb a refinery to block the supply of fuel for military vehicles, regardless of the discomforts the loss imposes on the civilian population.

At a certain point, however, bombing crosses the line from merely causing collateral effects on the civilian population to being directed at the civilian population. Recent decisions to temporarily deprive most of Serbia of electric power and to bomb a cigarette plant, a television station and a political party headquarters are hard to describe as military necessity. Moreover, errors like the bombing of the Chinese Embassy (in seeking to bomb a nondescript government building) will increase as nonmilitary urban sites get targeted.

The war crimes tribunal has jurisdiction over any individual responsible for serious violations of the law of war in the former Yugoslavia since 1991. Among the crimes to be prosecuted is the war crime of “wanton destruction of cities, towns or villages, or devastation not justified by military necessity.” NATO officials, senior military officers and even common servicemen could be prosecuted by the tribunal if bombings are not dictated by military necessity.

The tribunal’s prosecutor, former Canadian judge Louise Arbour, works closely with the NATO allies in gathering evidence on the crimes being committed by the Serbian forces in Kosovo. She recently met with the U.S. secretary of State and the secretary of Defense to receive further commitments of assistance. However the need to maintain impartiality will inevitably also require her to caution NATO officials on their bombing targets, if she has not already.

Judge Arbour’s warnings will carry weight. The United States and its NATO allies recognize that under the U.N. Charter, they are legally bound to cooperate with the tribunal. For the first time in its history, the United States finds itself engaged in an armed conflict in which an international court may correctly insist that it may try U.S. officials and servicemen.

Not that the tribunal would likely issue indictments to make its point. Long before any indictments would come a public pronouncement that in itself would split the alliance.

The result is good for international law, but bad in terms of President Clinton’s options. Because bombings must satisfy a military necessity, bombing as a form of pressure is illegal--and that increases pressure on NATO to either free Kosovo using ground troops or to accept a Russian compromise.

International law does not allow a war directed against a people. NATO is constrained by the international legal order it has pushed to establish, especially in a war fought for humanitarian principles.