Issue 41: NATO and the International Criminal Tribunal for the former Yugoslavia

Opinion abounds on whether the International Criminal Tribunal for the former Yugoslavia (ICTY) should investigate NATO’s conduct in the air war against Serbia.

Analysis: The best that can be said for a possible ICTY examination of NATO’s actions, is that it might confirm the impartiality and credibility of the tribunal.

NATO has nothing to fear from a fair, independent inquiry. The risk is that moral relativism and anti-Western attitudes could influence the examination. Such an outcome would detract from the serious pursuit of genuine war criminals in the former Yugoslavia.

Should an investigation take place, two issues require consideration:

1. What was the nature of NATO’s operations in Serbia?

2. What was NATO’s motivation?

NATO action was a multi-lateral undertaking by a collection of democratic states, as opposed to actions by a repressive dictator. NATO air strikes were carefully planned to avoid civilian casualties. Milosovic was targeting civilians.

NATO forces were not engaged in a war designed to gain material, territorial or other benefits. Rather, they were attempting to limit the brutal conduct which had brought them into action.

Bearing these factors in mind, the ICTY must decide if an investigation of NATO would advance or impede the original purpose of the tribunal: the prosecution of “persons responsible for serious violations of international humanitarian law.”

If the ICTY chooses to investigate NATO’s actions, it must draw the distinction between those who try to save civilian populations, and those who try to destroy them.

The ICTY must also avoid strenuously the trap of moral relativists. Comparing NATO’s humanitarian campaign, that resulted in some civilian casualties, with the calculated devastation of a minority population, is unacceptable.

A balanced court room, truly driven to upholding humanitarian principles, may be led to investigate NATO action, but such a court would quickly dismiss the inquiry.

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