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Jerome Zeifman, former Watergate committee counsel, has filed charges before the International Criminal Tribunal that threaten Bill Clinton with a war-crimes indictment

by James Lucier reported in INSIGHT MAGAZINE

       We have achieved a victory for a safer world, for our democratic values and for a stronger America.... Unnecessary conflict has been brought to a just and honorable conclusion," said President Clinton in his address from the Oval Office on June 10.
. . . . Victory? "The decision to attack Yugoslavia [was] counterproductive, and our destruction of civilian life [is] senseless and excessively brutal," wrote former President Jimmy Carter in a New York Times op-ed article on May 27.
. . . . "The proposed deployment to Kosovo does not deal with any threat to American security as traditionally conceived," former secretary of state Henry Kissinger wrote in the Washington Post on Feb. 22, a month before the bombing campaign was unleashed.
. . . . There is a pattern here, and it is creating concern on both left and right. "The armed forces of the United States have participated in nondefensive, aggressive military attacks on former Yugoslavia, which have not been necessary to defend the national security of the United States," writes Jerome Zeifman, former chief counsel for the House Watergate committee, in allegations seeking the indictment of Clinton and Secretary of Defense William Cohen for alleged war crimes and crimes against humanity. These formal legal documents have been submitted to the [U.N.-established] International Criminal Tribunal for the former Yugoslavia, or ICTY, at The Hague.
. . . . Obtained exclusively by Insight the proposed indictment has been transmitted to the ICTY on behalf of a new organization, the International Ethical Alliance, or IEA. Tom Warrick, deputy to the ambassador-at-large in the Office of War Crimes Issues of the Department of State, said after seeing a copy of the papers, "We think this is ridiculous. U.S. and NATO forces incorporated the laws of armed conflict in planning and carrying out their operations in Kosovo."
. . . . Zeifman, a lifelong Democrat whose meticulous preparation of the case against Richard Nixon forced the Republican president out of the White House, is serious. And it raises concerns that, in an age of internationalism and depreciated national sovereignty, the president of the United States as well as the defense secretary could be placed in the same defendant's box as Slobodan Milosevic, the indicted Yugoslavian war criminal.
. . . . Zeifman tells Insight the proposed indictment specifically incorporates all the charges of war crimes already pending against Milosevic and his henchmen and supplements them with the charges against Clinton and Cohen. Since the "aggressive military attacks" against Serbia and Kosovo were not necessary to defend the United States, the proposal argues, they fall under the category of "nondefensive aggressive wars" as defined and prohibited in the charter of the Nuremberg tribunal in 1945 and since included in the 1947 U.N. Charter and subsequent Geneva conventions on the treatment of civilians during wartime.
. . . . In particular, the proposed indictment cites "War Crimes: namely, violations of the laws or customs of war [including] murder, ill-treatment . . . of civilian population, ... wanton destruction of cities, towns or villages, or devastation not justified by military necessity. Crimes against Humanity: namely, murder ... and other inhumane acts committed against any civilian population, before or during the war."
. . . . Zeifman anticipates that Carter would be called as a witness -- as well as Walter Rockler, a former Nuremberg prosecutor for the United States -- and notes that Carter charged in May that the United States had launched 14,000 missiles and bombs, 4,000 of which were not precision-guided. These included cluster bombs "that have resulted in damage to hospitals, offices and residences of ambassadors, and the senseless and brutal killing of innocent civilians and conscripted troops."
. . . . Zeifman's case also takes another tack: He calls upon Justice Louise Arbour, a Canadian, to step down from the case, since she has a conflict of interest by coming from a NATO nation. Indeed, the salaries of the 14 justices on the court, including five from NATO members, are paid in part by NATO countries. The chief justice, Gabrielle Kirk McDonald, is from the United States. Zeifman tells Insight that you can't have even the appearance of impartiality if justices from NATO nations are allowed to handle the cases.
. . . . Whether Zeifman is off on a quixotic mission or has caught the essence of the moral dilemma posed by NATO's air war depends on one's view of international law. The classic reference, Restatement of the Law of the Foreign Relations of the United States, published by the American Law Society, says simply, "The international political system is loose and decentralized. Its principle component -- 'sovereign states' -- retain their essential autonomy. There is no 'world government' as the term 'government' is commonly understood. There is no central legislature with general lawmaking authority.... There is no executive institution to enforce law.... There is no international judiciary with general, comprehensive and compulsory jurisdiction."
. . . . Robert McGeehan, a transplanted New Yorker who is a fellow at the Institute of U.S. Studies of the University of London and an internationally recognized legal expert, tells Insight: "I regretted the rather casual way that the law of the U.N. Charter was thrown into the bin. Since 1945 it has regulated the use of force in international relations, but NATO has decided to attack a sovereign state -- which was not threatening its neighbors -- without a Security Council resolution, on the grounds of humanitarian necessity."
. . . . John Bolton, former U.S. assistant secretary of state for international organizations, says, "It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest to do so -- because, over the long term, the goal of those who think that international law really means anything are those who want to constrict the United States. We ought to be concerned about this so-called right of humanitarian intervention -- a right of intervention that is just a gleam in one beholder's eye but looks like flat-out aggression to somebody else. What we did was bomb innocent civilian Serbs into the ground in order that the Albanians can come back and ethnically cleanse the Serbs' relatives out of what's left of Kosovo."  (italics.ed)
. . . . The idea that NATO's war really was directed against civilians was a common theme of those expressing concern about the potential indictment of U.S. leaders. Andrew Bacevich, a professor of international relations at Boston University, says, "One of the interesting things about this war is that we won by visiting rather substantial destruction upon civilian society. But NATO has not offered the number of civilians they killed. What's driving it, it seems to me, is the perception of commercial imperatives. This whole argument that the president and [National Security Adviser Samuel L.] Berger make is that the level of prosperity that we currently enjoy depends on continuous expansion of trade and the opportunities to invest, and that therefore we've got to have this open and orderly world."
. . . . George Friedman, chairman of the strategic forecasting firm Stratfor.com in Austin, Texas, says: "I find international law something that international legal scholars make up on the fly. The Serbs brought a case against the United States [in the ICTY], but it was summarily dismissed. It's a case of justice belongs to the victor. If there were such a thing as equal justice, it would follow that charges against NATO leaders would also be heard. But of course that's not what international law is all about."
. . . . McGeehan, a strong advocate of international law, nevertheless comes to a similar conclusion: "The issue of war crimes is something that could be argued, but it's not going to be argued because it is mostly the victors who try the vanquished. NATO is not really going to be put in the dock for anything. I've been lecturing about this for 20 years, and I take a dim view of war crimes unless all the criminals are examined, not just the ones who lost the war."
. . . . Robert George, a professor of government at Princeton University and a former clerk at the U.S. Supreme Court, says, "If the goal is to wage war on a civilian population in order to demoralize that population so that they will put pressure on their political leaders or topple their regimes, that is just plain wrong. That is ruled out by traditional moral principles, which give a moral immunity to noncombatants. If you are being serious about these matters, if you are really trying to act in a morally upright way, you have to realize that even if it would be militarily effective to gain victory by terrorizing the civilian population, that is morally wrong. That is waging war on civilians."
. . . . George also takes issue with the morality of the strategic concept of bombing from above 15,000 feet to prevent NATO casualties. "The foreseeable unintended side effect was the death of a lot of innocent people because of the lack of ability to bomb precisely the targets in view. But here we have a question of fairness. Was it fair to impose on both Serb and Kosovar civilians the burden of the deaths of large numbers of civilians to ensure that there would be no deaths of NATO troops? If the venture was required as an act of justice to our fellow beings, then what was required was the willingness to bear the risks and not to shift the risks disproportionately upon the civilian population."
. . . . McGeehan also criticized the bombing strategy: "They were waging the war from above 15,000 feet, from which distance you cannot tell a tractor from a tank. NATO is going to have to answer questions about whether it violated international law in its irresponsible targeting procedures."
. . . . Yet others would sweep these arguments aside. Robert Harris, a longtime adviser to Lady Thatcher, tells Insight: "My own view is that these questions, whether or not this is justified under international law, are essentially frivolous. The reason for defeating Serbia is that it was an international menace. It was the right thing to do. International law is essentially at any time what the states say it is."
. . . . Unless, of course, a new world system has set aside national sovereignty in favor of the authority of international courts.
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The IEA Proposed Indictment Makes Its Case . . . .
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. . . . Excerpts from the Proposed IEA Indictment of President Clinton and Defense Secretary Cohen for War Crimes filed with the International Criminal Tribunal for the former Yugoslavia at The Hague.
. . . . The full text is available on the IEA Website at www.iethical.org.
. . . . 1. The herein indictment supplements, supports, and incorporates by reference the facts and legal principles asserted in the May 23, 1999, indictment of Milosevic et al....
. . . . 4. Defendant CLINTON is President of the United States and pursuant to its Constitution and War Powers Resolution of 1973 (50 US Code 1541) has limited powers to act as Commander-in-Chief of its armed forces. Defendant COHEN is Secretary of Defense of the United States.
. . . . 5. On March 24, 1999, defendant CLINTON ordered the military forces of the United States to participate in an aggressive military attack on former Yugoslavia and with the aid and abetment of defendant COHEN continued the attacks for more than 60 days, in violation of: (i) Article 2 of the United States Constitution, giving Congress the sole power to declare war....
. . . . 6. At all times relevant to this indictment, the Armed Forces of the United States have participated in nondefensive aggressive military attacks on former Yugoslavia, which have not been necessary to defend the national security of the United States and have also been violations inter alia of (i) Article 18 of the Geneva Convention on the Protection of Civilian Persons in Time of War, which provides, "Civilian hospitals organized to give care to the wounded and sick, the infirm and maternity cases, may in no circumstances be the object of attack, but shall at all times be respected and protected by the Parties to the conflict"; and (ii) Protocol II (8 June 1977) to the Geneva Convention of 12 August 1949, Article 14, which provides "It is therefore prohibited to attack, destroy, remove or render useless ... objects indispensable to the survival for the civilian population, such as foodstuffs ... drinking water installations ... [and] works or installations containing dangerous forces ... even where these objects are military objectives...."
. . . . 7. Nondefensive aggressive wars as defined and proscribed in the Charter of the International Military Tribunal, Nuremberg, August 8, 1945, are:
. . . . "War Crimes: namely, violations of the laws or customs of war. Such violations include, but not be limited to, murder, ill-treatment ... of civilian population, ... wanton destruction of cities, towns or villages, or devastation not justified by military necessity. Crimes against Humanity: namely, murder ... and other inhumane acts committed against any civilian population, before or during the war...."
. . . . 10. As stated in paragraph 88 of the May 23, 1999, indictment of Slobodan Milosevic et al by the Court herein (the International Criminal Tribunal for former Yugoslavia):
. . . . A superior is responsible for the acts of his subordinate(s) if he knew or had reason to know that his subordinate(s) was/were about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."
. . . . 12. The facts alleged in counts 1 and 2 below are based on verbatim quotations from a May 27, 1999, New York Times article written by former U.S. President Jimmy Carter, charging,
. . . . "... The decision to attack Yugoslavia [as] counterproductive, and our destruction of civilian life [as] senseless and excessively brutal." ...
. . . . 13. On information and belief, a number of unnamed officials of the United States and other governments have acted in concert with or aided and abetted defendants CLINTON and COHEN in the acts charged herein and therefor also warrant indictments by this Tribunal.
. . . . ...
. . . . 16. There is substantial credible evidence to require the disqualification of Justice Arbour from this tribunal, including but not limited to: (i) the engaging in selective prosecution by intentionally failing to act on any facts or principles of law which she knows or has reason to know would incriminate defendants CLINTON and COHEN, and other as yet unindicted officials of NATO and NATO countries; (ii) conflicts of interest, or the appearance thereof, in receiving compensation from funds contributed to the Tribunal in whole or in part by NATO countries; and (iii) biases in favor of NATO countries.
. . . . 17. Five of the fourteen justices of this court, including Chief Justice Gabrielle Kirk McDonald represent NATO countries (United States, United Kingdom, Britain, France, Italy and Portugal) have conflicts or appearances of conflicts of interest and should either recuse themselves or be disqualified from this case.
. . . . CHARGES
. . . . 1. The Armed Forces of the United States, acting under orders of defendants CLINTON and COHEN have executed a nondefensive aggressive military campaign against former Yugoslavia.
. . . . 2. Defendants CLINTON and COHEN and others have committed or aided and abetted actions which they knew, or had reason to know, would result in the following:
. . . . COUNT 1
. . . . The killing, injuring, terrorizing and destruction of the homes of thousands of Serbian and other civilians in former Yugoslavia, including, but not limited to such acts described by former President Carter as
. . . . 1. 25,000 sorties and 14,000 missiles and bombs, 4,000 of which were not precision-guided, as of May 1999,
. . . . 2. The use of antipersonnel cluster bombs that have resulted in damage to hospitals, offices and residences of ambassadors, and the senseless and brutal killing of innocent civilians and conscripted troops; and
. . . . 3. The use of specific types of cluster bombs that are designed to kill and maim humans and are condemned almost universally by other nations, as are land mines.
. . . . COUNT 2
. . . . The provocation of the government of former Yugoslavia to continue to increase the murder, terrorization and deportation of Albania civilians in Kosovo, and such acts as are charged in the May 24, 1999, indictment of Slobodan Milosevic et al., that are described by Bishop Artemios of Kosovo as resulting in the destruction of democracy in Yugoslavia...
. . . . Respectfully submitted by Jerome M. Zeifman, Esq., June 8, 1999.

copyright 1999 INSIGHT magazine