war crimes
NATO’s illegal war
By David Jacobs
(This was published in THE TORONTO STAR, Thursday, April 29, 1999, OPINION, p. A23)
The NATO military actions against Yugoslavia violate international law. This presages ill for the rule of law on a planetary scale as we enter the next millenium. This attack also involves many NATO member nations in breaches of their domestic laws. Canada is acting in breach of the National Defence Act, which incorporates international law in the form of the Charter of the United Nations and the United States is in breach of its Constitution. Those who wish to justify NATO’s actions tend to either ignore the law or argue one or both of the following points: first, that the breach of law is a mere "technical" breach; and second, that a new law of "humanitarian intervention" is being developed by NATO. Neither argument can stand up even to superficial scrutiny.
The key advance in law in this century is the outlawing of war and the prohibition against the use of force for the adjustment or settlement of "international disputes or situations which might lead to a breach of peace" in the words of the U.N. Charter. Articles 3 and 4 of the U.N.
Charter make this explicit:
Article 3. All Members shall settle their disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
Article 4. All Member shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Such prohibitions are not absolute. There are exceptions made in the case of self-defence, and, importantly, in the case of unanimous agreement of all the members of the U.N. Security Council. The Security Council may sanction the use of force after determining that measures not including the use of armed force are inadequate to deal with the situation. The U.N. Charter specifically states that even decisions of the U.N. cannot be enforced by regional agencies without the authorization of the Security Council. NATO is a "regional agency."
The Canadian position, and indeed the NATO position, seems to be that since Russia and China appeared likely to exercise their lawful powers of veto, a Security Council mandate for the commencement of the war would not be sought. This is a position contrary to law and morality. We have solemnly signed a formal international treaty, the U.N. Charter, under which we promised not to commence war without unanimous approval of the Security Council. Do we now say that if we cannot get such approval, and we really, really want to go to war, we can ignore our obligations and break our word? Can anyone trust our signature on an international agreement?
The NATO Treaty itself outlaws NATO’s actions. In Article 1 the members of NATO pledge "to refrain in their international relations from the threat or use of force in any manner inconsistent with the purpose of the United Nations." The NATO treaty further obliges its signatories "as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered." The Treaty acknowledges "the primary responsibility of the Security Council for the maintenance of international peace and security."
Furthermore, the requirement of Security Council approval for the use of armed force is critically important, and not a mere bureaucratic or technical obstacle to war. It arises as a result of the will of the international community to prevent the recurrence of the conditions that sparked two world wars in this century. In the wake of World War II, the world determined that big, powerful nations could not make war on other nations on whatever pretext, except in self defence, and that any pretext advanced would be evaluated by the world community through the U.N., to test if such pretext was valid.
On most occasions, when nations commence war against each other, "humanitarian" reasons are claimed. This is far from new. Recall Hitler’s claim to be attacking Czechoslovakia to end the ethnic tensions and violence and restore the rights of Sudeten Germans. Recall the claims of the European powers to be carrying the "white man’s burden" into the colonies in the course of their "civilising missions."
No nation goes to war without claiming that it is right, and its victim wrong, or even terribly wrong. The problem arises as to what body exists to evaluate such unilateral claims as to the "wrongness" of the victim nation. The second problem arises as to what action flows from any determination as to such "wrongness." The U.N. Security Council was and is suppose to perform these two functions of evaluation and action. These internationally agreed-on processes have not occurred and we are simply told by NATO nations that terrible things are happening in Yugoslavia and that NATO had determined the action to take as a consequence. Is the world to merely accept such claims and grant to NATO the absolute right to be judge, jury and executioner in its own cause?
NATO is usurping and undermining the role of the U.N., which was formed precisely to end the scouge of war. The future of the U.N. has been put in doubt. NATO is not deserving of the support of those who believe in the rule of law. The claim that the current law is insufficient to meet NATO’s demands, so that NATO may act in violation of such laws with impunity, is to sanction the rule of the lynch mob, the rule of the vigilante. This is no precedent for the beginning of the next millenium.
DAVID JACOBS of Shell Jacobs Lawyers, is a member of the Ad Hoc Committee To Stop Canada’s Participation In The War On Yugoslavia.
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Commission of Inquiry
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