Embrace the Tribunal

When Carla del Ponte, the U.N.’s chief war crimes prosecutor for the former Yugoslavia, announced that she was investigating NATO’s air war over Kosovo, she was met with howls of outrage from these shores. Critics, ranging from the Clinton administration to the Pentagon to conservative pundits, blazed with indignation. Such scrutiny, they claimed, distracted attention from the real villains--Slobodan Milosevic and his cronies--wasted the tribunal’s time and perverted justice.

They were wrong on all counts. The tribunal’s decision to weigh the legality of NATO’s March 1999 bombing was very much in the United States’ interests.

The flap began on Dec. 28, when Del Ponte announced that she was investigating complaints filed by a Canadian law professor and Russian legislators into the conduct of NATO’s pilots who, last year, dumped tons of munitions on Yugoslavia. Belgrade now claims that more than 2,000 civilians died in the air attacks. Of specific concern is NATO’s use of cluster bombs and its decision to take out the Serb power grid.

No sooner had Del Ponte spoken than American officials fired back. The White House complained that “NATO undertook extraordinary efforts to minimize collateral damage” and huffed that “any inquiry into the conduct of its pilots would be completely unjustified.” Military officials joined in, and two days later Del Ponte began backpedaling furiously. The investigation, she explained, had been an informal one, commissioned in August by her predecessor. There would be no formal follow-up. Nor would charges ensue.

On Wednesday, a humbled Del Ponte will visit NATO headquarters in Brussels to face her critics and try to salvage her relationship with the alliance. Some may see this turnaround as a victory for the U.S. But Washington was wrong to feel threatened by the inquiry, and it has done the country a disservice by forcing the U.N. to back down.

First, an inquiry into NATO’s conduct--even a preliminary, informal one like this--would bulwark the tribunal’s reputation for impartiality. This would benefit everyone. Created by the Security Council in 1993 to punish atrocities in the former Yugoslavia, the tribunal must avoid looking like a mere tool of the victor’s justice, imposed by the strong (NATO) upon the weak (the Serbs). By showing that no one, not even its creators, is above the law, the tribunal enhances the rule of law internationally, making future abuses a little less likely and easier to prosecute.

This is an argument unlikely to appeal to those who view the world solely in terms of how to strengthen U.S. power and prestige.

No matter. There is another, equally potent justification for the U.N. inquiry that such realists should find more attractive. The idea, which is as pragmatic and strategic as they come, is this: Playing by the rules, submitting to the jurisdiction of international courts, enhances American soft power: our ability to get what we want through attraction rather than coercion. Soft power is the pull of our ideas. The U.S., whose democratic values and popular culture are emulated throughout the world, exercises vast soft power. It is not guaranteed, however.

Besides, NATO pilots had little to fear from the U.N. tribunal. Their cause was a noble one, endorsed by Secretary-General Kofi Annan himself. If U.S. bombers were half as scrupulous as their commanders now insist they were, any inquest would have exonerated them.

Even had U.S. fliers inflicted excessive damage on the Serbs, criminal charges would have been unlikely. As Ruth Wedgwood, a Yale professor of international law, points out, the rules on proportionality--when civilian casualties or collateral damage can be justified--are vague and almost never enforced. This is in contrast to the concrete genocide and Geneva Convention provisions being applied against Yugoslav war criminals.

Finally, Washington should have remembered a critical, if cynical, point: Del Ponte needs NATO and the U.S. NATO troops act as U.N. policemen in Kosovo and Bosnia, allowing the court’s investigators to do their work.

Without American support, Del Ponte would be powerless. The prosecutor knows this--witness her trip to mend fences with NATO bosses--and would never alienate her indispensable ally by bringing charges against it. Thus the inquiry’s findings were predictable. The U.S. had nothing to lose by cooperating.

U.S. fear of Del Ponte’s inquest, then, may have stemmed from another source altogether: Washington’s aversion to the new International Criminal Court. Give in now, some argued, and we’ll never be able to stop a future tribunal from sitting in judgment on Americans. But this reasoning was likewise flawed. The ICC is a treaty body. Only a U.S. signature and Senate approval can bind Americans to it, and neither are forthcoming.

The merits of the ICC are the subject for another discussion. In the meantime, the U.S. should let the U.N.’s prosecutor get back to work. It is, after all, work the U.S. endorsed when it helped create the U.N. tribunal. Prosecuting war criminals is in everyone’s interest--Americans included.