Graeme Hamilton and Stewart Bell
National Post
FREDERICTON - Justice Louise Arbour said yesterday the international tribunal she heads could deal with allegations that NATO caused "disproportionate" civilian casualties during bombing missions over Yugoslavia.
In Fredericton to receive an honorary degree from the University of New Brunswick, the United Nations' chief war-crimes prosecutor said: "We have been seized by many complaints, ranging from pure political polemic, such as urging us to charge the entire NATO leadership with genocide to much more detailed allegations that the principle of proportionality has been violated. That is, when NATO made decisions on military targets, that disproportionate civilian casualties were, or should have been, anticipated," she told reporters.
Her remarks, which echo a recent comment by Mary Robinson, the UN's high commissioner for human rights, raise the possibility that allied officials could find themselves under scrutiny for air attacks that have killed civilians.
This might include the bombings of the Serbian state television building, which killed at least 10 people, the Chinese embassy, a refugee convoy, a bridge carrying a civilian train, and a hospital in Belgrade yesterday.
Judge Arbour refused to say whether the tribunal has launched formal investigations of any NATO actions. She didn't identify the source of the complaints. "We have received information from all kinds of sources. We have certainly analyzed what thelegal position is," she said.
Judge Arbour said the laws of war make it clear that it is illegal to target civilian populations in an attack. But the simple fact civilians have been killed by NATO bombs does not mean crimes have been committed.
"Proportionality comes into play when a target that has a small military significance would be known to have a disproportionate collateral civilian casualty effect," she said.
Because jurisprudence in the field is limited, the decision whether to prosecute is "a judgment call" informed by the opinions of legal scholars, she added.
She said it would be "wildly premature" for her to speculate on whether accusations that NATO has violated the Geneva Conventions will ever be substantiated. But she said there is no question her organization has the authority to investigate NATO. "I think it's a milestone in international justice, that we have jurisdiction over NATO," she said.
But a political scientist at the University of British Columbia said a war crimes prosecution against NATO is highly unlikely, and Judge Arbour may simply be trying to portray herself as a neutral prosecutor.
"There is virtually no chance whatsoever there would be a serious attempt by the tribunal to explore NATO transgressions. I just can't see it. I can't see it politically and I really don't see it practically," Professor Allen Sens said.
"In the cases where Yugoslavia's made complaints that NATO has perpetrated crimes against humanity or acts of outrage, most of those can be attributed to error and certainly not to intent, and that's where NATO's response is quite strong."
The concept or proportionality, which dates back to the 13th and 14th centuries, maintains that to fight a war in a just manner, the military response to an event such as the treatment of Albanian Kosovars must be on a scale comparable to the aggression it is attacking, said Prof. Sens.
"You can make a very strong case that the [NATO] response has been discriminate and proportional."
Judge Arbour predicted that Serb forces will face war-crimes charges for "very serious offences" in Kosovo. She described the stories of Serb atrocities as "pretty horrendous" and said it is possible charges will be brought even before her investigators gain access to the region. But she added that she wants her people to be among the first in when Kosovo is re-opened to outsiders.
The UN established the International Criminal Tribunal for the Former Yugoslavia to investigate accusations of war crimes committed since 1991. Judge Arbour, on leave from the Ontario Court of Appeal, is in the third year of her four-year term as chief prosecutor at the tribunal
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