Now that the United States has successfully waged a war without running afoul of the temporary war crimes tribunal in The Hague, it should stop trying to obstruct creation of a permanent war crimes court. That, at least, is the view of many human rights organizations.
But U.S. leaders might well draw a different conclusion, because it's not far-fetched to imagine that a permanent court could have sought to indict Gen. Wesley Clark and, for that matter, President Clinton -- to the applause of some of these same human rights advocates.
The idea of a permanent court flows from the appealing vision of a world governed by international law. But Kosovo showed that sometimes only force can stop evil. NATO's action may well have violated international law; it was also the right thing to do. It's not clear a permanent court could accommodate that complex reality.
Two war crimes tribunals are functioning today, both created by the United Nations in response to specific and egregious crimes, in Rwanda and the former Yugoslavia. Both are making valuable contributions to the principle that people who commit crimes against humanity should be punished.
Now a majority of nations plans to establish a permanent war crimes court. This tribunal would not be part of the United Nations. It would have a permanent bureaucracy of prosecutors and investigators, deciding for itself what to investigate. It would not have the political anchor in the Security Council of the two existing tribunals; its bureaucrats might not have the focus or sense of mission that has attracted high-quality prosecutors to The Hague.
As for oversight, the treaty says that "any dispute concerning the judicial functions of the Court shall be settled by the decision of the Court." And it could go after Americans, whether or not the United States joins up.
The Clinton administration says it supports such a court in principle, but wants more protection for U.S. armed forces overseas, and other changes in the governing treaty. Human Rights Watch has belittled the administration's concerns -- and now cites Kosovo as proof that the United States needn't worry about vulnerability to a war crimes court.
But during NATO's bombing campaign, Human Rights Watch found many possible violations of international law. In a May 13 letter to NATO, it urged "disciplinary or criminal investigations" into each possible "grave breach" of law and insisted that "appropriate disciplinary or prosecutorial measures" be taken.
It was a violation, Human Rights Watch suggested, to attack Serbia's television and radio transmission facilities, and it was a violation not to provide "clear advance warning" of that attack. Bombing factories owned by political associates of Slobodan Milosevic; destroying power plants inside Serbia; dropping cluster bombs -- all these, the organization suggested, may have violated provisions of the Geneva Convention.
The attack on the Chinese Embassy in Belgrade, though unintentional, was a violation, too, if it resulted from "a failure to take due care." And Human Rights Watch wasn't the only group raising such alarms. The Lawyers Committee for Human Rights warned NATO that attacks against "civilian objects" would constitute war crimes. Physicians for Human Rights argued that NATO's rules of engagement, which called for pilots to fly high out of range of Serbian missiles, endangered civilians and were thus "clearly prohibited under international humanitarian law." Amnesty International noted on May 18 that it had "written repeatedly to NATO to express concern" that bombings in which civilians were killed "may have been unlawful attacks."
These organizations, which reserved most of their criticism for Serbia's atrocities, were far more measured than some. The Chinese government, the Russian Duma, the American Association of Jurists all had no doubt that NATO was committing war crimes.
Under international law, they may have been right. The treaty establishing a permanent court includes aggression as a war crime, and NATO unquestionably attacked a sovereign nation without explicit authorization from the United Nations. In its tactics, too, it may well have crossed the fuzzy line of humanitarian law.
It's likely, though, that if NATO had waited for U.N. authorization, it would be waiting still -- and Slobodan Milosevic would have successfully and permanently evicted most Kosovar Albanians from their homes. It's possible that if NATO planes had flown at lower altitudes, as demanded by human rights advocates, their bombs would have killed fewer civilians; it's also possible that a steady loss of planes and pilots would have so eroded political support among NATO publics and politicians that Milosevic would have prevailed. Milosevic might have surrendered even if the lights in Belgrade hadn't been turned off, but he might have fought much longer, massacring many more Kosovars in the meantime.
These are judgment calls. The human rights groups have every right to question them; that's their job. But it's worth pointing out that few if any wars have been fought with such altruistic motives and such care to avoid civilian casualties. If human rights advocates considered NATO potentially criminal even in this case, it's hard to see how they can simultaneously argue that a permanent war crimes tribunal should give NATO no cause to fret.
International law does matter. No one wants Russia now to claim the right to invade Latvia, say, to "protect" ethnic Russians there, citing Kosovo as precedent. For that matter, no one wants NATO or the United States blithely intervening hither and yon.
But those who welcomed U.S. action to protect Kosovo, who urged such action, who understood that only U.S. leadership could save the Kosovars -- such people also should understand that to be a leader is to be a target.
The writer is a member of the editorial page staff.