- The Washington Times - Friday, January 7, 2000

At first, December promised to be a good month for the International Criminal Tribunal for the former Yugoslavia at The Hague. British troops arrested a long-sought Bosnian Serb general accused of atrocities during the siege of Sarajevo. Goran Jelisic, a brutal Bosnian Serb detention-camp shift commander convicted of 31 counts of crimes against humanity, was sentenced to 40 years in prison, the harshest penalty meted out so far for war crimes in the former Yugoslavia.
But then, Carla Del Ponte, the new chief prosecutor for the tribunal, said that, while weighing compilations of the dark deeds of Serbian death squads and Kosovo Liberation Army thugs, she was also considering an internal report exploring whether NATO commanders and pilots had committed war crimes during the allied air campaign over Serbia. In an interview published on Dec. 26 in the British newspaper, The Observer, she indicated that should she conclude that NATO had broken the Geneva Conventions, she would indict those responsible. "If I am not willing to do that, I am not in the right place; I must give up the mission," Mrs. Del Ponte said, launching a global hot potato.
After all, wasn't NATO supposed to be the good guy? Didn't the American-led NATO alliance swoop across the skies over Serbia on a humanitarian mission? And don't NATO troops still troll the Balkan terrain to bring suspected war criminals to justice before Mrs. Del Ponte's tribunal?
All true. Nevertheless, Mrs. Del Ponte and her spokesman, Paul Risley, hung tough, at least for several days, confirming that the 52-year-old Swiss prosecutor was indeed reviewing NATO conduct. "It is very important for this tribunal to assert its authority over any and all parties to the armed conflict within the former Yugoslavia," Mr. Risley told the New York Times Dec. 29. At this point, the White House weighed in, calling any such inquiry into the conduct of NATO personnel "completely unjustified." Mrs. Del Ponte backtracked, issuing a statement Dec. 30 explicitly denying that NATO is under investigation. In the past six months, her statement continued, members of the Russian Duma and several "international legal experts" had asked her office to investigate NATO actions, providing information her staff had passed along for review. The bottom line: No big deal.
But it is a big deal. While there may be virtually no chance that charges will be brought against American and allied pilots, an alarming precedent has been set: American troops have been subjected to the scrutiny of an international body, their conduct reviewed by a legal authority outside the American justice system. While this undoubtedly thrills such Clintonites as Deputy Secretary of State Strobe Talbot, who breathlessly awaits a time when all states will recognize "a single, global authority," such a plight is precisely what the Pentagon and conservatives in Congress had hoped to prevent by opposing the creation of a permanent international criminal tribunal. As a result of last spring's NATO campaign against Slobodan Milosevic, however, the international tribunal created in 1993 to prosecute atrocities committed by Balkan natives in the former Yugoslavia has expanded its purview to include American and allied troop actions. And neither the White House, nor the Pentagon, nor the State Department has protested this perilous erosion of sovereignty.
This quiet capitulation to The Hague tribunal's authority over American actions in the war for Kosovo may not have cost anything up front. That is, no Americans are likely to be charged this time around. But it has undoubtedly made it more difficult for the United States to contest the jurisdiction of such international arenas in the future, and we can't know now what the price of that will be.

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