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.
Conclusion
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.
OK, here’s the downlow from 18 USC 2441 on War Crimes:
(a)Offense.— Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.
(b)Circumstances.— The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States
(c)… “war crime” means any conduct… defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party [etc] ….
(1)Prohibited conduct…
The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering… upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(C)Performing biological experiments.— The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments ….
(D)Murder.— The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities…
(F)Intentionally causing serious bodily injury.— The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
(G)Rape.— The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim
… as to conduct occurring after the date of the enactment of the Military Commissions Act of 2006, the term “serious and non-transitory mental harm (which need not be prolonged)” shall replace the term “prolonged mental harm” where it appears….
I wish this group well. However it seems that all international treaties are deliberately designed, not to be workable. Most of the likely countries to be the ones committing the crimes, US, UK, Russia, and China have made sure that there are loop-holes in the law before they sign said treaty.
I have just received news via tomatobubble.com that the US has shot down a Syrian fighter jet in Syrian air space. They are not even claiming the incident to be a mistake. Russia has now warned US that it’s planes over Syria will suffer the same fate.
Thank you, Mal. And you may also see that an American man, age 22, died from imprisonment in N Korea. Has a whiff of babies-put-out-of-incubators-by Saddam. I mean the timing could be very convenient.
Um, people die from the way they are treated in US prisons too. And in China. Everywhere. Does it lead to a TV spot?
Mal, re the warning from Russia that you mention, I “warn” all not to fall in love with Putin thanks to his witty interviews. If I read my Orwell correctly, all nations are in on the war planning. Even if they seem on opposite sides they are all on the side of the Top Dog. And I, for one, do not know who the Top Dog is.
However, I do have a message for the Top Dog, as follows.
Dear Top Dog, must you continue to make a jerk of yourself? Doesn’t your body remind you now and again that your head is off with the fairies? Honest, I’d give you amnesty if you would even show a bit of recognition that slaughtering people is not the best thing a man can do. There are other pursuits.
Wrestling. Pushpin. Inventing something that relieves pain.
Top Dog, I know you’re worried about what we might do to you. Let’s negotiate.
Mal, what I’m trying to say is that you are right to be worried.
Now lets’ all think of what we can do other than “wait for it.”
There is a defence.
‘I am embarresed.
[Ref: john Winston Howard and pollie mates. On being suckered (?) In believing the iraq lies on wmds (?) and joining the coalition of the killing with his msm mates]
Now we have the embarrasing ‘sucked in’ Turnbull, Bishop and banker mates.
Anyone read reports that the reason Hilary said, laughing, ‘We came, we saw he is dead’. Referring to Ghadifi… see on u-tube.
Anyone read reports of Hilary’s e-mails admitting that the purpose for killing Ghadaffi was because he wanted a gold based currency in North Africa.
That was upsetting to Tunbull’s banker mates at Goldman sucks, et al. endangering the private Federal Reserve bankers who put up their ponzi scam in 1913.
Now Quatar, wants to trade other than with petro dollars.
Go get em Turnbull, how dare they? Get our boys killed for your banker mates as Howard has.
So too Syria and Iran.
Geez, how about a law suit against Johnie Winston and co with the msm as principals in the second degree?
I can imagine a million plus plaintiffs, increasing daily.
Ned, the New York Times just printed this:
“LONDON — Barclays, its former chief executive and three other former senior managers were criminally charged on Tuesday over agreements the bank struck with Qatar as it sought to avoid a government bailout during the 2008 global financial crisis.
“The accusations by the Serious Fraud Office are the first criminal charges to have been brought in Britain against a bank and its former executives as a result of actions taken as the financial crisis worsened.”
Ned, I have been hearing that people are dying in Qatar but I do not have much info to pass on. I have heard that the media are suppressing it. As only they can.
Found this at “Bloomberg Politics”:
“In the wake of Trump’s trip to the Middle East, four U.S. Arab allies took steps to isolate Qatar over its ties to Iran and support of Islamist groups. Saudi Arabia, the United Arabic Emirates, Bahrain and Egypt cut diplomatic ties to the nation Monday. In a series of tweets the same day, Trump congratulated the Saudis for their actions.”
I still don’t get it.
Nedski, I am now responding to your remark about Libya. I went to the website of Prof Louis Fisher who always has something say about the subject matter on which I am basing my senate campaign, namely “no Congress permissionie, no warrie.”
“In March 2011, President Obama announced he had received ‘authorization’ from the U.N. Security Council to use military force against Libya, a nation that had not posed any threat to the United States. For such offensive action he needed authorization from Congress. Later he reported that the operations were being shifted largely to NATO countries, but NATO is not a substitute for Congress either. [Obama claimed] that the bombing and goal of regime change in Libya did not constitute either ‘war’ or ‘hostilities.’ [I mean how shameless can you get?]
“Following World War II, Presidents and their aides have gone to great lengths to explain to Congress and the public that what they are doing with military commitments is not what they are doing. Presidents Truman, Johnson, and Clinton all gave misleading and deceptive explanations for their actions in Korea, Vietnam, and Iraq. …
“…. Not until June 28 did the Senate hold hearings on the war in Libya, and its position … has been to endorse the administration with only the expectation of being consulted. [Mein Gott!] Members of Congress take an oath of office to support and defend the Constitution, not the President.”
Thank you, Lou Fisher.