by Mary W Maxwell, current candidate for the US Senate
Here is a delightfully creative case that argues the wrongness of bombarding civilians with depleted uranium. A private group, The Serbian Royal Academy of Scientists and Artists, says it is planning to sue the member states of NATO for damage done in Kosovo and other parts of the former Yugoslavia.
To name just one of the complaints, they say many children have developed cancer since NATO’s bombs were dropped there.
I do not know of any precedents for this — I don’t really think there is a way for a private group to sue a nation, as such. There are three well-known cases of a victim of international violence trying to get relief from domestic courts — the Filartiga suit in the US regarding a victim of torture in Paraguay; a Texas suit against the Vatican regarding pedophile priests; and the Spanish suit against Augusto Pinochet for harm done in Chile. I will discuss those below.
The more common way to think of one nation getting redress from another, even if only of behalf of a few of its citizens, is to look at the history of the ICJ – the International Court of Justice at The Hague, Netherlands.
Notably, the ICJ only gives access to states (i.e., nations, members of the United Nations). Ma and Pa cannot bring a case against a nation by using the ICJ, no matter how worthy their cause.
Suing a Nation Directly
The question is whether Ma and Pa can bring a civil action against a nation directly to the offending nation. In the US and Australia, such an approach would be dismissed on grounds of sovereign immunity.
Granted, there are times when a lawsuit against a nation can be filed “with leave of the Court.” That is, a nation can waive its immunity if it so chooses. An example of this would be a lawsuit by a domestic citizen. If an American slips on a banana peel in the US Social Security Office, and wants to take civil action for damages, he can usually get permission. The case will then proceed as an ordinary tort suit.
Note that we’re talking about suits against nations. The Serbian Royal Academy of Scientists and Artists is contemplating suing nations that belong to NATO – it isn’t proposing to sue NATO. That would be a very interesting thing to do, though!
The ICC Is Not Available
The Serbian group says nothing about bringing the leaders of the offending nations before the ICC – the International Criminal Court. Technically that would not be possible, as the 1998 Treaty of Rome that gave rise to the ICC, which came into force in 2002, specifically excluded past injuries. The Serbians complaints are about NATO wars in 1995, 1999, and 2001.
Let me also say “forget the ICJ.” Not just because it admits only states to its courtroom, but because it tends to reflect the relationships of power in the world. A couple of Scandinavian countries did get the Court to rule on a dispute about their respective coastal rights – no power issue there. But consider the Nicaraguan case against the US.
That state brought the US to the ICJ over the harm caused by the US in mining the harbour of Managua, the capital of Nicaragua, in 1986. There was no war going on at the time. The ICJ ordered the US to pay damages. At that point, US President Reagan simply withdrew his nation’s membership in the ICJ.
What Is NATO?
It is my best guess that NATO is the military of the World Government. Of course the very existence of a World Government is denied by national leaders. As for the official answer to “What is NATO?” one could look it up in an encyclopedia and find that it means North Atlantic Treaty Organization. As such, it is bound to do what its treaty-signers said it would do. That can be found in the text of the NATO treaty, also known as the Washington Treaty (1949).
The year 1949 was the beginning of the Cold War – which I take to have been a phoney war — between the Communist bloc and “the West.” We Americans at that time believed it was sensible for the Western democracies to have an alliance against the Soviet bloc. After all they had “the Warsaw Pact.”
The Content of the Proposed Serbian Lawsuit
The following summary is taken from a June 17, 2017 article in SleuthJournal.com. These are the words of Serbian lawyer Srdjan Aleksic, speaking for the group that wants to sue NATO members:
“We believe that this is within the competence of national courts. These states violated the principles set forth in the seventh chapter of the UN Charter, which prohibits aggression against any state.”
“In addition, NATO has violated chapters 5 and 6 of its own charter, since NATO is a defensive alliance, and not an offensive one.”
“This is about a violation of international law, in particular conventions, which prohibit aggression and the use of force against sovereign states…. US-led NATO warplanes dropped from 10 to 15 tons of depleted uranium on the territory of the former Yugoslavia.
“The increase in the number of cancer patients has caused serious concerns. Malignant tumors are found annually in 33,000 Serbian citizens…. Every day this terrible disease is diagnosed at least in one child in our country. Compared with 1999, the number of cancer patients has increased by five times, primarily in the south of Serbia, as well as Kosovo and Metohija.
“The lawsuit also intends addressing the use of illegal cluster bombs, along with enormous environmental damage caused. The US-led war begun on March 24, 1999 lasted 78 days, ending on June 10, causing enormous human suffering, along with widespread damage to vital infrastructure, the economy, residential neighbors and other non-military related sites.”
While I am truly glad that the Serbian group has looked at the damage and said “There must be a solution,” I think there is no solution, legally, within “international law.” As I said, private persons can’t get into the ICJ. And nations will claim sovereign immunity to prevent suits against their dear selves.
Also there is no enforcement of the laws of war. In the words of the Serbian complaint:
“These states violated the principles set forth in the seventh chapter of the UN Charter, which prohibits aggression against any state.”
In my opinion there is no point in declaring war a crime, as there is no authority to enforce it – no persons of international “authority.”
Powerful states harm the weaker states, and that’s that.
It’s not comparable to a domestic society which can enjoy The Rule of Law. The various members of the society can be forced to obey the law. A judge can send miscreants to jail, or in some states, to death.
Filartiga, the Vatican Pedophile Suit, and Pinochet’s Case
Earlier, I mentioned attempts by a citizen of one nation taking another nation to court. In Filartiga v Pena-Irala, there was a rare invocation of the 1789 Alien Tort Claims Act. That statute, passed by the very first Congress, gave federal court jurisdiction to claims “for a civil action for a tort only, committed in violation of the law of nations.”
Filartiga had seen his son tortured by Pena. In 1976 when Pena entered the US, he was summoned as a defendant in a civil action by Filartiga. The judge determined that Pena should pay damages. (Pena left the country without paying, but the case was won.) In 2013, however, the US Supreme Court ruled, in Kiebel v Dutch Petroleum, that the Alien Tort law has no extraterritoriality if the wrongdoing took place abroad. So the Serbians will not be able to use this method.
Next there was an attempt by Texas victims of pedophile priests to claim that the Vatican is the perpetrator of pedophilia. The Holy See has the official status of a state. I believe the US State Department intervened diplomatically by discouraging the Texan court from proceeding. Note: today an attorney in Louisiana, Mr McMurray, is seeking to form a class action suit against the Vatican.
As for Pinochet, he was in London in 1998. A Spanish court asked the UK to extradite him. The House of Lords ruled that this former president of Chile was extraditable. However, after a year of waiting, the British Home Secretary allowed Pinochet to go back to Chile, based on old age or something like that.
My presentation of these cases is only rough, and is incomplete (see, for example, Arce v Garcia) but I mean to show that governments are quick off the mark in keeping citizens from succeeding against a nation. As someone once said “Caballleros stick together.”
Is There Any Possibility of “Justice” for the Serbians?
So is the Serbian effort bound to fail? Let’s hear again from Serbian lawyer Srdjan Aleksic:
“Claims about humanitarian intervention were fabricated….The former Yugoslavia no longer exists. An estimated $100 billion in damage was inflicted, environmental contamination extensive. Large numbers were killed, injured or displaced. Two million people lost their livelihoods — many their homes and communities, most their futures.
“Serbia’s sovereign Kosovo territory was lost. It’s now US/NATO occupied territory, home to Camp Bondsteel, one of America’s largest military bases.”
I think the road is open for use of America’s or Britain’s domestic law against war crimes. In 1991, the UK Parliament passed The War Crimes Act, and in 1996 Congress passed the War Crimes Act. The latter lists as criminal “grave breaches of the Geneva Conventions.”
The Act is about crime not civil liability. Hence, the only way to get into court with regard to a war crime is, apparently, by indicting the suspected criminal(s). This would be easy to do. But who could do it?
The aggrieved party is usually the one who files a criminal complaint. But the aggrieved party does not order a prosecution. Actually, a lawyer can run a private prosecution, but it’s rarely done. (I’ve been unable to find, at any price, a lawyer in Oz who would prosecute privately over geo-engineering.)
Most often, prosecution comes about by government, such as a district attorney for any state, or a US Attorney if there is federal crime.
Another possible method, and one that I think we should revive, is the Grand Jury. I mean a citizen grand jury, not one that is invited in by the government to act as a rubber-stamp.
No part of government is likely to prosecute American war criminals – even though Congress, in 1991, said “Do It!” Therefore, if that law is to be implemented, it may have to be done by citizen grand juries. Allow me to remind that the norm for grand juries in the 19th century was for them to be citizen based. We started to deviate in the 20th century.
In sum, a Serbian group says it will try to take court action against the member states of NATO for harm done in the territory of the former Yugoslavia, including the bombing with depleted uranium.
They will meet many blockages, but in the UK and the US there is the possibility of someone filing a criminal complaint against domestic war criminals, or indicting them via a grand jury.
This should of course be done. We Americans don’t want war criminals walking free in our midst. That is why Congress passed the law in 1996. And depleted uranium is surely injuring American soldiers, as well as the enemy. (Question: were the folks of Kosovo our “enemy”?)
I wish The Serbian Royal Academy of Scientists and Artists well.
–Mary W Maxwell, PhD, LLB, joins Bill Windsor of “Lawless America” in advocating the revival of citizen grand juries.