ICJ takes up case against NATO

The Times of India
13 May 1999

ICJ takes up case against NATO

By Siddharth Varadarajan

The Times of India News Service

THE HAGUE: Arguing that NATO's use of force against Yugoslavia is illegal
and potentially genocidal, Prof Ian Brownlie --Britain's leading authority
on international law -- urged the International Court of Justice (ICJ) to
order an immediate halt to the bombing campaign.

Brownlie is one of several reputed western jurists representing Yugoslavia
in a case at the ICJ against the US, Britain and eight other NATO countries
involved in `Operation Allied Force'. Yugoslavia's plaint is of immense
symbolic if not practical significance, for an adverse ruling against all
or even one of the 10 NATO states would be a lethal blow to the credibility
of the military alliance. The fact that Belgium and Holland had earlier
signed treaties with Yugoslavia agreeing to take their disputes to the ICJ
means these two countries are especially vulnerable to an adverse judgment.

According to ICJ staff, the court, which is temporarily headed by its
vice-president, Justice Weeramantry of Sri Lanka, could give an interim
ruling as early as next week. Of course, there is no telling what the court
will decide. Its 15 judges come from the US, Britain, France, Germany,
Netherlands, Hungary, Japan, Venezuela, Brazil, Algeria, Sierra Leone,
Madagascar, Sri Lanka, China and Russia. Six of these countries are members
of NATO and five are actually belligerents. Since judges tend not to vote
against ``their'' governments, Yugoslavia would be lucky to get any relief.

However, few observers here are willing to predict a judgment that NATO
would find very palatable either. In its submission, Yugoslavia contends
that NATO's use of force violates the UN Charter and the Vienna Convention
on the Law of Treaties. It also says the bombing of civilian areas and the
use of munitions like depleted uranium and cluster bombs violate the Geneva
Conventions. Finally, arguing that NATO's bombing has the stated objective
of putting pressure on the civilian population, Belgrade has invoked the
Genocide Convention, which grants the ICJ compulsory jurisdiction over the
crime of genocide.

In a dramatic flourish, Prof Brownlie pointed to NATO representatives in
the courtroom and asked: ``How many of the gentlemen sitting on the other
side of the room have ever been bombed?'' He said the phrase `military
operation' does not convey the horror of 600 bombing missions carried out
every day. He attacked Canada, France and Spain for claiming in court that
they were not legally liable for actions undertaken collectively by NATO.
``Coercion of a whole nation must involve responsibility for genocide,'' he
said.

Replying to Yugoslavia's petition, the 10 NATO countries argued against the
court taking up Yugoslavia's petition. The US lawyer called the accusation
of genocide against NATO ``cynicism of Orwellian proportions.''
Significantly, none of the 10 made any attempt to justify the use of force
with reference to UN resolutions or treaty law. Instead, they claimed NATO
had acted to prevent a humanitarian catastrophe. The US, however,
concentrated on technicalities, insisting that the ICJ had no jurisdiction
in the matter and that Washington would not allow itself to be judged by
the court on the charge of genocide. One State Department lawyer repeated
the phrase ``The US has not consented to the jurisdiction of the court in
this case'' more than 15 times in a presentation which lasted as many minutes.

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