by William Pfaff
The irresistible impulse to aggrandize power, which has been evident in American foreign policy since (at least) the fall of the East-West bipolar system in 1991, was demonstrated last week by the NSA revelations of Edward Snowden. Now there is a new manifestation of apparent illicit power assertion revealed by a devastating front-page report in the International Herald Tribune on June 15.
Marlise Simons of The New York Times revealed that the Danish member of the U.N. war crimes tribunal has made a "blistering" protest against pressures exercised by the United States to bring about acquittals of several top Croat and Serb commanders accused of responsibility for war crimes atrocities during the Yugoslav succession wars of 1991-'95. These acquittals were justified by the court with a verdict that the accused had not specifically ordered or approved war crimes committed by subordinates. Among those acquitted were two Croat wartime generals, the Serbian army chief of staff, and the chief and deputy chief of the Serbian secret police.
This was a departure from the principle established in previous war crimes trials that commanders were implicated in their subordinates' crimes as they had all been part of "joint criminal enterprises." It also seemed an abandonment of the principle asserted -- with the specific support, even insistence, of American authorities at the time -- at the Nuremburg trials of Nazi leaders after World War II, declaring the personal responsibility of Nazi political and military officials for the crimes committed by Germany.
A Danish judge at the Hague Tribunal, Frederik Harhoff has raised grave questions about the present credibility of the court. His letter, made public by the Berlingske newspaper, says that in the two cited cases, "tenacious pressure" was applied on his fellow judges to obtain acquittals by the president of the court, Theodor Meron, 83, an American legal scholar and judge, who says that he is merely applying the court's precedents, which a number of other judges contest.
They and outside international lawyers and human rights groups contend that the acquittals rewrote the standards of earlier decisions in a way that they suggest weaken the court's previous insistence on the responsibility of officers in atrocity cases occurring within their areas of command. This is said by critics to open the possibility that, in the future, the Nuremberg Tribunal's stern insistence on command responsibility for the conduct of troops will not prevail in the Hague court's future decisions (and one could add, undermine the corresponding assertion of individual soldiers' responsibility to challenge unjust orders, as subsequently written into American and other armies' rules of military conduct).
Ms. Simons quotes other unnamed judges at The Hague as saying they will not support Judge Meron's expected re-election as tribunal president this autumn because of their discomfort at "unacceptable" pressures they have felt from him concerning these recent acquittals, and in favor of preparing a permanent closure of the tribunal, as the U.S. government appears to want. A 2005 WikiLeaks document often cited by Judge Meron's critics, ostensibly originating in the U.S. Embassy at The Hague, is said to describe Judge Meron as "the Tribunal's pre-eminent supporter" of the U.S. official outlook.
What is the significance of all this? In the opinion of this writer, it reflects the long-standing American (and Israeli) concern that their officers or government figures might one day find themselves before the court on charges of breaking international law or as bearing responsibility for war crimes.
U.S. forces during the Vietnam War committed attacks that witnesses and correspondents considered clearly illegal, including the notorious Phoenix Program of selected assassinations, which I myself witnessed in operation, and attacks on civilians, as in the My Lai Massacre and other cases, and the effect on civilians of the widespread use of Agent Orange. Torture and imprisonment without trial have been frequent during the so called war against terror. The American army's blitzkrieg-like "Shock and Awe" assaults on Baghdad and Fallujah during the Iraq War had as their purpose terrorization of populations; and its use of fragmentation and depleted uranium munitions, which by now has been well established by independent inquiries, have had devastating permanent effects on civilian victims.
The Israeli army and air force have also used fragmentation munitions in Lebanon and concede having used white phosphorous in civilian neighborhoods during attacks on Gaza. In 2009, the former head of the international law department of Israel's military establishment, Daniel Reisner, said, "International law progresses through violations. We invented the targeted assassination thesis and we had to push it. At first there were protrusions that made it hard to insert easily into the legal molds. Eight years later, it is in the center of the bounds of legitimacy."
George Bisharat of the University of California Hastings College of the Law, who quoted Reisner's words in the International Herald Tribune on January 31, 2013, criticized this Israeli practice of "creating facts," citing as unjustifiable the Israeli claim that its army's clashes with Palestinian protestors are "armed conflict" justifying weapons of war, rather than the limited police measures international law authorizes in dealing with protesting residents of illegally occupied Palestinian territory. Bisharat also took issue with Israel's definition of people who have not left a designated military strike area, after warning, as "voluntary human shields," its attacks on civilian employees of the Hamas administration in Gaza as "terrorist infrastructure," and its employment of banned munitions, hitherto considered war crimes. All this has remained without effective international condemnation since Israel began creating its "facts on the ground" with implicit American endorsement.
This would seem the explanation of current efforts to neutralize or close down the Hague Tribunal, unpalatable as this explanation may be to those of us who are citizens of the United States or Israel.
It constitutes another example of that craving for power and what might be called totalitarian national security (at others' expense) that characterizes the NSA program (apparently with some cooperation from Britain's GCHQ) for mass interception and exploitation of the content of international communications, including the communications of allied democratic societies. Most democracies are seen as threatening, no doubt, because they are the states that possess the legal and moral standing to challenge these American efforts to destroy the established norms of international conduct, as proclaimed by the Nuremberg Tribunal -- which amounts to an effort to abolish one of the principal moral achievements of the Second World War.
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