The Clinton Administration has been searching for a legal basis for its war in Yugoslavia. In a recent column in the Wall Street Journal, former assistant secretary of state John Bolton seemed to find one. This was significant because Bolton is a conservative who served in the Bush Administration and is now senior vice president of the American Enterprise Institute. The editors of the editorial page of the Journal, who are gung-ho for the war in Yugoslavia, would not have run Bolton?s column if they didn?t think it supported the legal case for continuing and expanding the war.
On the matter of the U.N. Charter, Bolton noted that parts of it rule out the use of force by member states. But he claimed to find a loophole – Article 51, which recognizes the right of self-defense for all members. Bolton acknowledged that while Article 51 applies specifically to a member facing armed attack, he said this right is actually “far broader” and that most Americans would interpret this provision to mean that the U.S. can use military force in our own “national interest.”
We ran that claim by Jeff Tuomala, former Regent University Law professor who spent eight years on active duty in the Marine Corps specializing in the law of war. He said Bolton fails to make a critical distinction between the offensive and defensive use of force. The Charter rules out the offensive use of force. Article 51 refers to a nation under attack and its use of defensive force.
“There is no attack by Serbia on any one of the NATO states,” including the United States, Tuomala points out. Referring to the “national interest” standard advanced by Bolton, Tuomala said, “It may be in the national interest for Toyota to make lousier cars. But that doesn?t give [us] a right to attack them.” He said the “national interest standard” amounts to “total lawlessness.” He said that if there were an attack on the United States or its citizens, the U.S. would be justified in responding, but only after Congress issues a declaration of war.
But can the NATO treaty justify the attack? While acknowledging that the treaty itself is defensive in character and refers to NATO responding to an attack on one of its members, Bolton maintains that the treaty “contains no legal barriers” to the offensive use of force. But Tuomala says NATO?s offensive use of force still violates the U.N. Charter because Yugoslavia hasn?t attacked any other country.
Tuomala raises another point – the claim by the administration that the captured American soldiers should be treated as prisoners of war under international law. If this is war, he says, “Where is the authorization [of war] from Congress?” He finds it ironic that the administration has violated international law in so many respects but in this case is insisting on it being followed. He also finds it ironic that the administration claimed at one point that the Americans ought to be immediately released. Tuomala commented, “You?re bombing a country and then they can?t even defend themselves by capturing a few of your soldiers? This is crazy.”