Op-Ed: A Defining Moment

A Defining Moment

By R. Bruce Hitchner and Paul R. Williams, The Baltimore Sun, March 23, 2004

FOUR YEARS AGO, the United Nations was charged with the responsibility of establishing a protectorate over Kosovo in order to facilitate “a political process” to determine the future of the Balkan province. The United Nations has failed in its mission, as the outbreak of ethnic violence across Kosovo and Serbia revealed.

Although the United States took the lead in the 1999 NATO intervention to protect Kosovar Albanians from the Serbian army, Washington has become distracted by the war on terrorism and handed over management of the conflict to the United Nations and the European Union. The U.S. disengagement risks squandering the immense political goodwill in Kosovo and missing an opportunity to bring about a lasting resolution of the conflict.

Ethnic violence and mistrust in Kosovo have festered because the United Nations has engaged in a series of halfway measures that are ostensibly intended to move toward final status negotiations but are little more than delaying tactics. That’s because neither the United Nations nor the EU wants to come to grips with the issue of Kosovo’s final status.

The most obvious example of these tactics is the so-called Standards Before Status policy, which requires the Kosovars to meet near-absolute standards on the rule of law, democratization and human rights. The provisional government of Kosovo cannot be expected to meet these lofty standards for many years. Indeed, it’s doubtful that most EU member states could meet all the requirements laid out in the document.

No less dubious is the so-called Kosovo-Serb dialogue. While these talks provide the pretense that progress is being made toward eventual negotiations on final status, they have achieved little to date, focusing on trivial issues such as harmonizing phone codes and license plates.

The United Nations and the EU have purposely delayed Kosovo’s final status because of a misplaced fear that independence for the province – the only viable option short of renewed conflict – would be vetoed by Russia and China in the U.N. Security Council and would threaten stability in Serbia and Bosnia. As the hostilities last week demonstrate, the imagined fears are being outpaced by realities.

To restore peace to Serbia and Kosovo, the United States must reassert its leadership in the region. The primary objective of a renewed U.S. initiative must be to halt the failed U.N. and EU approach of passive denial, which simply delays the resolution of crucial issues and fosters increasing animosity and tension among the Kosovars and Serbs.

The first step is to appoint a senior U.S. representative with the political credibility to command the respect of the Serbs and Kosovars. Then the United States should insist on a discontinuation of the meaningless Kosovo-Serb dialogue and replace it with a U.S.-led effort to determine the final status of Kosovo by summer.

The objective of the talks should be to provide for the emergence of an independent Kosovo by fall.

The United States should also encourage the EU to recognize an independent Montenegro. Only when Kosovo and Montenegro are separated from Serbia will Serbia be able to focus on the corruption and political stagnation at the core of the instability in the Balkans.

Once Kosovo is independent, the United States and the EU will be able to more effectively engage with Kosovar institutions to ensure protection of human and minority rights and the promotion of regional stability. So long as Kosovo is U.N.-run, the primary political actors cannot be held accountable and can have little control over destabilizing forces.

It is important that the Kosovo Protection Corps, an indigenous police force, be given greater responsibility to protect Kosovar civilians since it is the only security force that retains credibility among them.

Finally, the guiding principle for the United States should be to prevent the partition of Kosovo, which Serbian political leaders now publicly state is the primary objective, and which is tacitly welcomed by some Kosovars. Washington must also make clear that the independence of Kosovo should not be offset for Serbia by the partition of Bosnia.

Securing the independence of Kosovo and Montenegro is a long-overdue step in the political transformation of the Balkans. The longer this crucial step is delayed, the more volatile the region will become. We are at a defining moment in the history of the Balkans.

R. Bruce Hitchner is chairman of the Dayton Peace Accords Project at Tufts University. Paul R. Williams is the Rebecca Grazier Professor of Law and International Relations at American University.

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Op-Ed: Yes, Military Commissions Are Appropriate

Yes, Military Commissions Are Appropriate

By Abraham D. Sofaer and Paul R. Williams, Knight Ridder, April 23, 2003

Secretary of State Donald Rumsfeld’s announcement of guidelines for military trials in our war against terrorism took many observers by surprise. “Watered down” is how one television network labeled its segment on military commissions (known by some as tribunals). Apparently, critics had been successful in establishing the idea that the commissions were intended to railroad anyone caught up in the terror campaign against the United States. In fact, the guidelines establish a fair process that properly protects defendants’ rights and U.S. security interests.

Nonetheless, critics continue to insist that prisoners be tried in U.S. domestic courts.

It is our belief, however, that debate should re-focus on the bedrock question of whether there currently exists any adequate mechanism for prosecuting prisoners who end up in U.S. custody during this terror war. From our perspective, no such mechanism exists. Military commissions can and must fill this role.

It is necessary, first off, to recognize that Al Qaeda terrorists are not ordinary criminals. President Bush has rightly called the September 11 attacks “acts of war,” and in that context prosecution is properly regarded as part of a national security effort, not an aspect of ordinary criminal law enforcement. We must also take account of the size of this challenge. The Al Qaeda and Taliban forces number up to 50,000 men, which could potentially mean hundreds of prisoners ultimately being brought to justice. The president has made it clear that he has no intention of trying every prisoner. But it seems likely that this conflict will be of long duration, and there could be a need for many trials before it ends.

The domestic judicial system was never intended nor designed to perform judicial roles related to a terror war. Instead, it was designed primarily to protect civil liberties of citizens while prosecuting those responsible for crimes. It is altogether incapable of serving the role of capturing, deterring, and punishing what amounts to a terrorist army, as history has made painfully clear.

The domestic judicial system proved itself completely incapable of punishing or deterring those responsible for terror crimes including the 1993 bombing of the World Trade Center, the 1998 bombings of U.S. embassies in Africa, and the 2000 attack on the U.S.S. Cole. At best, that system is able to prosecute only a handful of low-level culprits or ideological supporters. The system is otherwise impotent and added to our vulnerability in the September attacks.

Deterrence is not the only security issue. Insisting on the application of American constitutional due process standards to terror perpetrators would inappropriately limit the U.S. in the exercise of its national security powers. In some cases, valuable evidence might have to be excluded for various reasons, including the protection of highly sensitive sources. That would sometimes make convictions impossible in a domestic court, although warranted by the facts.

We have already seen the horrifying result of insisting on those traditional standards. In 1996, Sudan offered to detain and transfer Osama bin Laden to the United States. Yet, according to The Washington Post, then-National Security Advisor Sandy Berger declined the offer on grounds that it would not be possible to try and convict him in an American criminal court. Indeed, when Berger turned down Sudan’s offer to turn over bin Laden, he tried to persuade Saudi Arabia to take him and, after a streamlined trial, have him hanged. His strategy failed, and bin Laden went to Afghanistan and built his terrorist empire.

Critics of military commissions complain that defendants’ rights will be reduced, yet that is patently untrue. As Secretary Rumsfeld and the Pentagon have now made clear, commission standards are fully consistent with international standards. They will provide for appellate review, the presumption of innocence, the requirement of proof beyond a reasonable doubt to establish guilt, the admission of some hearsay evidence, the limited use of cameras in the courtroom, the requirement of a two-thirds majority for convictions – and a unanimous decision for a sentence of death. Defendants will be supplied with counsel, and may indeed hire outside counsel.

Some critics suggest we turn over suspects to an international criminal court. No such court is yet in existence, but preliminary signs of how such a court might operate are not promising. The Spanish prosecutor Baltasar Garzon, for instance, is rumored as a potential prosecutor for this court. Garzon can hardly be called an impartial jurist: He responded to the U.S. announcement that it would militarily pursue Al-Qaeda in Afghanistan by condemning the action as illegal and unjust, adding that “it should not be forgotten that there will come a time when justice is demanded of those responsible for these mistakes and the loss of a historic opportunity to make the world more just.”

The call for military commissions must be considered against this backdrop. From our perspective, the U.S. government is entirely correct in deciding not to continue the criminal-law response to terror, which contributed to our vulnerability on September 11. It is also well advised not to submit to bodies such as the ICC, which would further limit the U.S., and our allies, from effectively defending the U.S. against its enemies and protecting freedom and civil order from terrorist onslaught.

 

Abraham D. Sofaer is a senior fellow at the Hoover Institution and professor of law at Stanford University. Paul R. Williams is assistant professor of law and international relations at American University. This essay is adopted from the current issue of Policy Review.

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Op-Ed: America Caves in Kosovo

America Caves in Kosovo

By James R. Hooper, The Christian Science Monitor, September 17, 1998

The Clinton administration’s inaction in the face of Serbia’s war in Kosovo has effectively repealed the security legacy of the Truman Doctrine in the Balkans. When all eyes turn to Belgrade, rather than Washington, to wait the next move in a conflict that jeopardizes regional stability, it is a sign that something profound has changed in Europe. The stabilizing role that the United States established in the Balkans in 1947, when Truman issued his doctrine, has come to an end as Serbia rewrites the rules of the new Balkan order.

The war in Kosovo, following hard on the heels of the wars in Bosnia and Croatia, confirms that this administration, like the one before it, lacks the will to fight in the Balkans. Limited pinprick bombing, yes; the US may yet use minimalist air power in Kosovo to avert the looming humanitarian catastrophe. 

Nor does the US government show any evidence of the political will to prevent another avoidable war in the Balkans. Kosovo was the most anticipated conflict in recent memory, foreseen by any number of officials, observers, and experts. Yet the Clinton administration allowed its most effective conflict prevention tool – the 1992 “Christmas warning” threatening Belgrade with prompt and severe military retaliation if Serbia cracked down in Kosovo – to lapse into disuse as the Bosnian conflict receded into post-Dayton diplomatic politicking.

The calamity that the US now uneasily watches in Kosovo is unfolding precisely because the US hugs the sidelines. We see and hear familiar sights and sounds: of sobbing refugees – nearly 20 percent of Kosovo’s inhabitants have been displaced by the fighting; of crackling fires destroying unharvested crops and homes – over 20,000 so far; and of tough NATO rhetoric about lessons learned in Bosnia not to be repeated in Kosovo. The collapse of Kosovo into war and destruction is the visible effect of the collapse of any semblance of coherent US policy in the Balkans.
WE might reasonably ask, what will come next? How will the Greeks, Turks, Bulgarians, Macedonians, and others act in anticipation of low-risk American leadership and policies? Indeed, how will Serbia act itself?

Serbian strongman Slobodan Milosevic skillfully and persistently labored to create a security vacuum that he can fill with his ultranationalist agenda, eliciting like behavior from America’s friends and allies in the region. This will poison the discourse in Macedonia, exacerbating latent ethnic tensions there. NATO will talk, but Milosevic will act, destabilizing the Balkans indefinitely and leaving others to pick up the pieces.

What will the US do? Unwilling to take up Belgrade’s military challenge, Washington seeks an accommodation with Milosevic in Kosovo that legitimizes his political aims and battlefield gains under the guise of a negotiating process, perhaps sealed – at best – by a brief bombing campaign against Serbia to project NATO’s “firm resolve” to avert a humanitarian disaster and stabilize the region. Will the Kosovar Albanians cooperate? With the Kosovo Liberation Army (KLA) decisively defeated on the battlefield, the ethnic Albanians have little choice but to accept what they can get from Milosevic, even as the KLA underscores its intention of regrouping in neighboring sanctuaries to prepare for a long guerrilla war.

Is short-term stability so dear and peace so sweet as to be purchased at a price of de facto partnership with Milosevic? It seems so. That is the price the US pays for divesting itself of the burden of carrying the roughest security problems in the post-cold-war Europe. Milosevic will, of course, shortchange the West, bringing even more instability to the region and upping the ante on Washington and NATO in the next crisis.

What should the US do? Everything in its power to expand and build up Serbia’s democratic forces until they are strong enough to govern in Belgrade. A democratic Serbia will bring more genuine stability to the Balkans than any number of carrots used in vain attempts to induce good behavior from Milosevic. With committed leadership by Washington, the support of America’s allies, and the tools and knowledge acquired from successful democratization efforts throughout Eastern Europe in the 1980s and in Portugal in the 1970s, the task would be less difficult than many might think. Did Solidarity’s task in Poland look any easier in 1980?

Such an approach requires disentangling Washington from its embrace of Milosevic, whom it still treats as a Balkan peacemaker rather than the paramount regional destabilizer. First, that means launching an effective air campaign to drive Serbian forces from Kosovo, and placing Kosovo under a self-governing international protectorate. If the Kosovars nurtured their own democratic institutions and behaved responsibly in their treatment of minorities and neighboring states, they could seek independence. If democrats attained power in Belgrade during the period of the protectorate, the Serbs could explore constructive relationships with Kosovo that might conceivably find some degree of reciprocation.

Milosevic has made force the coin of the realm in the Balkans. the time has come for Washington to shed its defeatism and begin letting Milosevic pick up the pieces from our initiatives for a change.

* James R. Hooper is director of the Balkan Action Council in Washington. He was a US foreign service officer, 1971 to 1997.

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Op-Ed: How the Lockerbie Trial Paid Off For U.S. Security Interests

How the Lockerbie Trial Paid Off For U.S. Security Interests

By Michael P. Scharf, Boston Globe, February 10, 2001

The mixed verdict and limited findings in the Lockerbie Case have left the public questioning whether the trial succeeded in achieving justice and truth. But as the State Department’s counsel to the Counter-Terrorism Bureau during the Pan-Am 103 investigation and Attorney-Adviser for UN Affairs when sanctions were imposed on Libya, I suggest that an equally important measure for judging the success of the Lockerbie Trial is the extent to which it contributed to peace and security.

The Lockerbie trial must be viewed in the context of the 30-year-long, low-intensity conflict between Libya and the United States.

When Colonel Moammar Khadafy came to power in 1969, Libya nationalized US corporate-owned oil wells and refineries and began to support anti-Western terrorist organizations.
In the early 1980s, the Reagan administration conducted naval and air exercises off the coast of Libya, provoking the first of several minor military confrontations.

Then, when terrorists detonated a bomb in the LaBelle Disco in Germany, killing several American servicemen, the Reagan administration claimed that Libya was behind the bombing and launched a surprise airstrike on Khadafy’s residence in Tripoli, which injured his son and killed his infant daughter.

The verdict in the Lockerbie case confirms the US government’s charge that the bombing of Pan Am 103 in 1988 was undertaken by Libyan agents in retaliation for the 1986 US airstrike on Tripoli.
When evidence of Libyan involvement first came to light in 1991, officials throughout the US government debated the best way to respond. It was generally agreed that use of force would only lead to international condemnation as well as further Libyan attacks against US citizens.

Instead, a decision was made to employ the mechanism of criminal prosecution.

But achieving justice was never the main objective. Indeed, the fact that the United States issued a public, rather than a sealed, indictment indicates that US authorities never expected that the accused would ever actually be brought to trial.

Instead, US officials saw the indictment itself as a diplomatic tool that would help them persuade members of the Security Council to impose sanctions on Libya, thereby furthering their goal of isolating a rogue regime. The so-called money bomb ended up costing Libya more than $18 billion in lost revenue during the 1990s.

Choking under the effects of sanctions, Khadafy ultimately agreed to surrender the two Libyan defendants to a Scottish court sitting in the Netherlands because his advisers told him that the case would likely result in acquittal, and even if there were a conviction, there would be no evidence linking the defendants actions to Khadafy himself.

At this point, with international support for expanding or even continuing the sanctions quickly fading and American companies clamoring to regain access to Libyan oil fields, the Clinton administration viewed a Scottish trial in the Netherlands as a convenient way to put the Lockerbie incident behind it.

Despite its inadequacies, the judicial response has apparently succeeded in severing the cycle of violence between the United States and Libya. Libya has made a show of terminating its support for terrorist groups, and its actions
are now more closely scrutinized by the international community.

Libya will soon pay billions of dollars to the families of the victims to settle the pending lawsuits. And the renewed flow of Libyan oil to the West may help stave off worldwide inflation and recession.

From the standpoint of US security interests, the Lockerbie trial was an unmitigated success.

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