Hague Tribunal indictment clarifies new NATO strategy

May 30, 1999|By William Pfaff

PARIS -- The Hague Tribunal's indictment of Slobodan Milosevic for war crimes, an unprecedented assertion of the jurisdiction of international law, has brought a fundamental change to the NATO intervention in Yugoslavia.

The indictment clarifies its purpose, lends to it a legal authority that had been lacking and rules out a compromise with the Serbian president that some have been willing, if not eager, to consider.

Until now, NATO's intervention has been interpreted by its critics, as well as by the Yugoslavs themselves, as arbitrary and illegal, a case of American unilateralism in which Washington drew its allies into an assault upon a sovereign country.

The Tribunal, created by the United Nations to investigate and prosecute war crimes in the former Yugoslavia, has now provided NATO with a mandate for Milosevic's arrest for exactly those crimes which motivated the NATO intervention.

This is part of a major development in international law during recent years, to formulate terms by which the international community may intrude on national sovereignties to redress genocidal or atrocious crimes committed by governments against their own populations.

Motivated by what happened in Cambodia under the Khmer Rouge, and more recently in Rwanda, as well as by the savageries already committed in Croatia and Bosnia-Herzegovina, this effort poses controversial issues of political theory, and of established international law and custom.

The modern world has worked by means of sovereign nations, a system that, however inadequate, has proved a better guardian of human rights than a U.N. Security Council subject to the veto of major violators of human rights.

However, a U.N.-established (but independent) court, with a defined mandate, offers a prospect of constructive extension of international law in ways consistent with the past development of law. This is what is happening.

Negotiations

The decision to indict a serving president of a sovereign state and issue a warrant for his arrest does not rule out negotiations with Milosevic. In war, it is necessary to negotiate with the person in possession of power.

The Hague Tribunal's indictment, however, changes the nature of those negotiations. Milosevic is no longer an acceptable party to a future Yugoslav or Balkan solution. He is an indicted war criminal who will be arrested if he leaves his country and, perhaps, if he stays. He has the possibility of accepting NATO's terms and of negotiating the terms of his surrender to the court.

The change in NATO's situation that the Tribunal's indictment brings is unwelcome to some, since it rules out certain compromises with the Yugoslav leader that have been explored in indirect exchanges or have been proposed by Russia and other intermediaries.

The poll-driven Clinton administration may be uncomfortable with what has happened, since in recent weeks it has seemed in search of an opportunity for settlement.

But NATO itself has never officially offered compromise of its declared principles, which include Serb withdrawal from Kosovo; return of all refugees; a serious, well-armed international military presence to protect them; and subsequent autonomy for Kosovo within Serbian sovereignty.

The military options for obtaining that result have been reconsidered. The recent decision to make a large increase in the number of NATO troops on Kosovo's borders is part of a new approach.

The presence of major combat forces provides commanders with a flexibility they have not until now enjoyed. How those forces would be used depends on the development of the air war during the next month (leaving three months before winter approaches).

Assumptions

The optimistic scenario rests on not-implausible assumptions, although they remain assumptions.

It foresees Serbian forces in Kosovo increasingly isolated, "degraded" and demoralized, not only by the attacks, which will intensify with the arrival of good weather, but by what is being done to the industrial and social infrastructure of the country itself.

In this respect, depriving Serbia of electricity, and disrupting its water supplies, communications and civilian transport, are part of the program.

Much has been made, unwisely in my view, of NATO's being in conflict only with Serbia's leaders. Serbia's leaders have been elected by the Serbian people.

Those elections were decidedly imperfect, but few suggest that the overall results failed to express the will of the Serbian electorate.

Serbian voters have kept Slobodan Milosevic in power during the past decade. It is not clear why they should be spared a taste of the suffering he has inflicted on their neighbors.

NATO believes that an "entry" into Kosovo can be made on terms that, while not combat-free (or casualty-free), do not amount to full-scale war.

This would be described as peace-establishing, or peace-enforcing, and current thinking is that even NATO members now opposed to a ground intervention would be willing to go along with this.

Serbian forces would be pushed out of Kosovo and, with Russian participation, an international protectorate established. Then the time would come for negotiations with Serbia's government assuming that this is not a government of indicted war criminals.

This is the optimistic scenario. The pessimistic scenario is major ground war. The worst scenario of all, a settlement giving Milosevic victory, appears eliminated by the Hague Tribunal.

William Pfaff is a syndicated columnist.

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