NATO's Humanitarian Intervention in Kosovo by Boon Kwan Toh

Just War Tradition, International Law and NATOâ&#x20AC;&#x2122;s Humanitarian Intervention in Kosovo

Toh Boon Kwan

Author’s Note: This opinion piece was first written as a term paper for Dr Kumar Ramakrishna‟s M.Sc. (Strategic Studies) module on „The Evolution of Strategic Thought‟ during the 2003-2004 academic year at the Institute of Defence and Strategic Studies, Nanyang Technological University. An abridged version of this paper, updated in September 2007, won the 2nd Prize in the Trench Gascoigne Prize Essay Competition 2007, organised by the Royal United Services Institute for Defence and Security Studies. The full-length version is presented here and offers a historical snapshot of arguments against the granting of independence for Kosovo in late 2007.

Just War Tradition, International Law and NATO’s Humanitarian Intervention in Kosovo

Toh Boon Kwan

Abstract The North Atlantic Treaty Organisation‟s (NATO) unilateral humanitarian intervention in Kosovo in Spring 1999 revived a debate among international relations scholars regarding the concept of sovereignty. Pluralists argue that state sovereignty is absolute and the principle of non-intervention in the domestic affairs of states is sacrosanct. Humanitarian intervention, which violates state sovereignty, is therefore seen as illegitimate and illegal even if it may be perceived to be morally just. In contrast, solidarists argue that states are able to reach common agreement on what constitutes a supreme humanitarian emergency. The international community, therefore, has a responsibility to intervene to protect the victimised population and uphold their human rights. Against the backdrop of the ongoing discourse between pluralists and solidarists, this discussion on NATO‟s unilateral humanitarian intervention in Kosovo disputes the notion that NATO conducted a just war in Kosovo. NATO‟s unilateral humanitarian intervention was morally dubious, illegitimate and illegal. Kosovo constitutes a dangerous precedent that may be abused by stronger states against weaker states and create international disorder. Instead of conceiving humanitarian intervention as an emerging norm or constituting a new customary law, states will continue to debate the legitimacy of intervention as they jealously guard their sovereignty against external interference.

NATO’s Humanitarian Intervention in Kosovo

Introduction The North Atlantic Treaty Organisation‟s (NATO) unilateral humanitarian intervention in Kosovo in Spring 1999 revived a debate among international relations scholars regarding the concept of sovereignty. Pluralists argue that state sovereignty is absolute and the principle of non-intervention in the domestic affairs of states is sacrosanct. These two principles constitute a powerful norm that govern inter-state relations and is reflected in international law. Since human rights are not universal, there is no agreement on what constitutes a supreme humanitarian emergency that justifies a state or collection of states to use military force against another state in order to influence its domestic affairs for humanitarian ends.1 Humanitarian intervention, which violates state sovereignty, is therefore seen as illegitimate and illegal even if it may be perceived to be morally just.2 In contrast, solidarists argue that states are able to reach common agreement on what constitutes a supreme humanitarian emergency. Sovereignty is reformulated as a responsibility to govern a stipulated territory according to a common moral standard of respecting the human rights of the resident population. Thus, state sovereignty may not be used as an excuse to engage in genocide, crimes against humanity and commit gross human rights violations. A supreme humanitarian emergency constitutes a legitimate exception to the respect for state sovereignty enshrined in

S. Paul Kapur, „The Operational Identity of Humanitarian Military Intervention‟, Security Studies, 12, 1, Autumn 2002, p. 98. 2 Alex J. Bellamy, „Power, rules and argument: new approaches to humanitarian intervention‟, Australian Journal of International Affairs, 57, 3, Nov. 2003, p. 500; Christopher Brewin, „Should NATO Bomb Serbia?‟, in Michael Waller, Kyril Drezov and Bülent Gökay (ed.) Kosovo: The Politics of Delusion, Frank Cass, London, 2001, p. 84. 1

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international law. The international community, therefore, has a responsibility to intervene to protect the victimised population and uphold their human rights.3

Aim Against the backdrop of the on-going discourse between pluralists and solidarists, this discussion on NATO‟s unilateral humanitarian intervention in Kosovo will briefly examine the background to the Kosovo crisis and the conduct of the NATO military campaign. It will next examine the arguments that NATO conducted a just war in Kosovo, that its actions were in accordance with international law and Kosovo constitutes an emerging norm or customary law that justifies the use of force to uphold human rights. This paper disputes the above arguments and will argue that NATO‟s unilateral humanitarian intervention was morally dubious, illegitimate and illegal. Kosovo constitutes a dangerous precedent that may be abused by stronger states against weaker states and create international disorder. Instead of conceiving humanitarian intervention as an emerging norm or constituting a new customary law, states will continue to debate the legitimacy of intervention as they jealously guard their sovereignty against external interference.

The Origins of the Kosovo Conflict Kosovo is a Serbian province in the Federal Republic of Yugoslavia. It lies in the south of Yugoslavia, bordering Albania. Despite its status as a Serbian province, Serbs

Bellamy, „Power, rules and argument‟, pp. 500-501; Vesselin Popovski, „The concept of humanitarian intervention‟, in Peter Siani-Davies (ed.) International Intervention in the Balkans since 1995, Routledge, London, 2003, p. 46; Patrick Thornberry, “„Come, friendly bombs …‟: International Law in Kosovo”, in Waller, Drezov and Gökay (ed.) Kosovo: The Politics of Delusion, p. 54. 3

NATO’s Humanitarian Intervention in Kosovo

form a minority with ethnic Albanians forming an overwhelming majority. Kosovo features prominently in Serbian historical memory and is considered as the cradle of Serb civilisation. It is also the site of the greatest humiliation suffered by Serbian arms, the military defeat at the hands of Ottoman Turks in the Battle of Kosovo Polje in 1389, which led to more than six centuries of subjugation by the Ottoman Turks.4 Under the strong-arm rule of communist dictator Josip Tito, Kosovo enjoyed autonomy and Kosovar Albanians were able to develop their own identity which led to Serbian nationalist dissatisfaction. With the end of the Cold War, ethnic nationalisms rose to the fore and the Federal Republic of Yugoslavia disintegrated with secessions by Slovenia, Croatia and Bosnia-Herzegovina. Serbia, under the leadership of the archnationalist Slobodan Milosevic sought to create a Greater Serbia and fought a series of brutal campaigns marked by gross human rights violations in the Balkans throughout the 1990s. Kosovo‟s autonomy was revoked in 1989 and its population repressed as Serb nationalism sought to re-impose its authority over the Kosovar Albanians. Initial passive resistance by the Kosovar Albanians soon gave way to armed resistance led by the Kosovo Liberation Army (KLA). Violence quickly escalated with atrocities committed by both the KLA as well as Serbian authorities and Serbian-sponsored militias. Amidst widespread fighting, thousands of Kosovar Albanians were evicted from their homes and made refugees by brutal Serbian counter-insurgency campaigns against the KLA. NATO imposed a short-lived ceasefire between the warring parties in October 1998 and tried to

Kumar Ramakrishna, “„Humanitarian Intervention in Kosovo‟ as Justified, Executed and Mediated by NATO: Strategic Lessons for Singapore”, IDSS Working Paper Series No. 6, Institute of Defence and Strategic Studies, Singapore, 2000, pp. 5-6; Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, Oxford University Press, Oxford, 2001, p. 207. 4

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impose a peace agreement on Serbia at Rambouillet in March 1999. Serbian refusal to accept the Rambouillet Accords led to NATO military action.5

The NATO Air Campaign On 24 March 1999, NATO commenced seventy-eight days of aerial bombing of Kosovo to coerce the Serbs to accept the Rambouillet Accords to end the conflict in Kosovo. NATO chose air-strikes as there were significant opposition among some member states against a ground war which may incur high casualties. NATO air-strikes initially focused on Serbian ground forces in Kosovo and degrading Serbian anti-aircraft defences. But unexpected Serbian resilience led to NATO‟s decision to expand the air campaign to economic infrastructural targets in Serbia and intensify the bombing to increase its pressure on Milosevic. The Serbian capital, Belgrade, was bombed. Serbian land communications, oil refineries, power plants, electricity grid, mass communication facilities, government buildings, and homes of political leaders were systematically targeted and destroyed. Finally, on 9 June 1999, Milosevic capitulated.6

NATO’s War Aims At the commencement of the aerial bombing campaign against Serbia, NATO articulated the following war aims: 1)

To compel the Milosevic regime to cease its policy of ethnic cleansing;

Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, pp. 5-6; G. Gerard Ong, „Credibility over Courage: NATO‟s Mis-Intervention in Kosovo‟, The Journal of Strategic Studies, 26, 1, Mar. 2003, p. 73; Barry R. Posen, „The War for Kosovo: Serbia‟s Political-Military Strategy‟, International Security, 24, 4, Spring 2000, pp. 43-44; Chesterman, Just War or Just Peace, pp. 207-210. 6 Posen, „The War for Kosovo‟, pp. 58-62, 72-73; Daniel L. Byman and Mathew C. Waxman, „Kosovo and the Great Air Power Debate‟, International Security, 24, 4, Spring 2000, pp. 5, 15-18, 22-23. 5

NATO’s Humanitarian Intervention in Kosovo

To compel a Serbian military withdrawal from Kosovo to facilitate a

return of Kosovar Albanian refugees; 3)

To compel Belgrade to accept the Rambouillet Accords; and

To maintain NATO‟s credibility.7

The Ethics and Legality of NATO’s Intervention Was NATO‟s intervention ethical and legal? First, this paper will use just war tradition to determine the morality of NATO‟s actions. Second, international law will be used to judge the legality of NATO‟s intervention.

Just War Tradition The just war tradition originated in writings by Christian theologians and later developed by secular international jurists. The tradition also influenced international laws. Just war tradition has two major thematic branches: Jus ad bellum and jus in bello.

Jus ad bellum Jus ad bellum deals with the justification for the use of force. There is seven criteria: 1)

Just Cause

Just cause refers to the protection and preservation of value. Force may be used for self-defence, retake what‟s wrongly taken or to punish evil. 2)

Right Authority

Byman and Waxman, „Kosovo and the Great Air Power Debate‟, p. 16; Ong, „Credibility over Courage‟, p. 74; Peter J. Anderson, „Air Strike: NATO astride Kosovo‟, in Anthony Weymouth and Stanley Henig (ed.) The Kosovo Crisis: The last American war in Europe? Pearson Education, London, 2001, p. 201. 7

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Only states have the authority to use force for self-defence or to act against a breach to international peace and stability. 3)

Right Intent

The intent behind the resort to force must be in accord with the just cause, and not territorial aggrandisement, intimidation or coercion. There should be no ulterior motives. 4)

Proportionality of Ends

The overall good achieved by the use of force must be greater than the harm inflicted. 5)

Last Resort

Resort to force must follow a determination that no other means except the use of force will achieve the justified ends sought. 6)

Reasonable Hope of Success

This refers to prudential calculation of the likelihood that the means used will bring the justified ends sought. If there‟s no hope of success, force should not be used even if the cause is just. 7)

The Aim of Peace

The resort to force should establish international stability and security.8

James Turner Johnson, Morality and Contemporary Warfare, Yale University Press, New Haven, 1999, pp. 22-36; Idem, Can Modern War be Just? Yale University Press, New Haven, 1984, pp. 18-26; Michael Howard, „Constraints on Warfare‟, in Michael Howard, George J. Andreopoulos and Mark R. Shulman (ed.) The Laws of War: Constraints on Warfare in the Western World, Yale University Press, New Haven, 1994, pp. 2-3; Robert C. Stacey, „The Age of Chivalry‟, in Howard, Andreopoulos and Shulman (ed.) The Laws of War, p. 30; Richard Norman, Ethics, Killing and War, Cambridge University Press, Cambridge, 1995, pp. 117-118. 8

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Jus in bello Jus in bello addresses restraints or limits on how force may be used. It has two conditions: 1)

Proportionality of Means

Means causing gratuitous or otherwise unnecessary harm are to be avoided. 2)

Non-combatant protection and immunity

Force must be used discriminately to avoid direct, intentional harm to noncombatants.9

International Law International law requires states to respect state sovereignty and non-intervention in the domestic affairs of states. This is reflected in the United Nations (UN) Charter that prohibits the use of force to settle inter-state disputes. Article 2(4) stipulates that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

An exception is permitted for self-defence. Article 51 of the UN Charter stipulates that:

Johnson, Morality and Contemporary Warfare, pp. 29, 36-38; Idem, Can Modern War be Just? pp. 18, 26-29; Norman, Ethics, Killing and War, pp. 118-119. 9

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Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.

Chapter VII, Article 39 authorises the UN Security Council to use force but only upon a finding of a „threat to the peace, breach of the peace, or act of aggression‟. Once a finding has been made, the Security Council may use military force under Article 42 „to maintain or restore international peace and security‟. If a regional agency resorts to force to undertake an enforcement action, prior approval of the Security Council should be sought first as provided for under Article 53:

The Security Council shall, where appropriate, utilise such regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorisation of the Security Council…10

Was NATO’s Intervention Just? Just Cause British Prime Minister Tony Blair spoke for NATO when he invoked just war tradition to justify NATO‟s resort to force against Serbia:

Chesterman, Just War or Just Peace, pp. 114-115; Michael J. Glennon, Limits of Law, Prerogatives of Power: Interventionism after Kosovo, Palgrave, New York, 2001, pp. 17-19. 10

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We are taking this action for one very simple reason; to damage the Serb forces sufficiently to prevent Milosevic from continuing to perpetuate his vile oppression against innocent Kosovar Albanian civilians.11

Blair portrayed the options available to NATO as either to do something or do nothing.12 On ethical grounds, NATO decided to act rather than „simply stand by when a rogue state brutally abuses the basic rights of those it governs‟.13 Such a stance accords with views articulated by proponents of humanitarian intervention. Michael Walzer endorses humanitarian intervention when it is a response to acts „that shock the moral conscience of mankind‟.14

Right Authority Despite the lack of authorisation by the UN Security Council, supporters of NATO‟s actions argued that NATO was a more representative collective body in that it had more members compared to the UN Security Council. NATO‟s nineteen members could individually veto any NATO action, unlike members of the UN Security Council, where only the five permanent members have veto rights. NATO‟s members share a common democratic tradition with strong civic societies that make humanitarian interventions based on ulterior motives extremely difficult to achieve. In view of the

Text of Prime Minister Blair‟s statement on Kosovo bombing published in the New York Times, 24 Mar. 1999. Cited in Chesterman, Just War or Just Peace, p. 211. 12 Ibid., pp. 211, 220. 13 Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 11. 14 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd Edition, Basic Books, New York, 2000, p. 107. 11

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collective consensus reached among all NATO members on the need to resort to force, it may be argued that NATO had the right authority to intervene in Kosovo.15

Right Intent Dismissing claims that NATO intervened out of self-interest, Blair took the moral high ground and claimed that the war was fought „over the values of civilisation‟, in defence of human rights.16 NATO proclaimed that its intervention was not meant to dismember Yugoslavia as Kosovo will not be granted independence or merged with Albania. With the cessation of hostilities, NATO facilitated the entry of UN agencies into the province to provide humanitarian relief and engage in post-war reconstruction.17

Proportionality of Ends Despite an expanded and intensive aerial bombing campaign, supporters claim that NATO‟s actions achieved more good than harm inflicted. NATO‟s intervention finally stopped the Serbian ethnic cleansing of Kosovar Albanians. It also restored stability to the volatile South-east European region. NATO‟s actions act as a credible deterrent against any future attempt at genocide and gross human rights violations in the region.18

Leon Malazogu, „When Doves Support War and Hawks Oppose It: An Analysis of Humanitarian Intervention in Kosova‟, in Florian Bieber and Židas Daskalovski (ed.) Understanding the War in Kosovo, Frank Cass, London, 2003, pp. 132-133. 16 David Chandler, From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press, London, 2002, p. 15. 17 Anderson, „Air Strike‟, pp. 198-199; Malazogu, „When Doves Support War and Hawks Oppose It‟, p. 133. 18 Anderson, „Air Strike‟, p. 199; Matthew Wyman, „Kosovo: Why Intervention was Right‟, in Waller, Drezov and Gökay (ed.) Kosovo: The Politics of Delusion, pp. 105-106; Malazogu, „When Doves Support War and Hawks Oppose It‟, pp. 127-131, 134. 15

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Last Resort NATO Secretary-General Javier Solana noted that force was used as a last resort following the failure of diplomatic initiatives due to Serbian intransigence.19 The Serbs were granted ample opportunity to cease their repression against the Kosovar Albanians but had refused to do so, even under the threat of force.20

Reasonable Hope of Success Given the vast disparity between the military capabilities of Serbia and NATO, there was no doubt that NATO would prevail in a contest of wills.21 Though NATO underestimated Milosevic‟s resolve to resist and the aerial bombing campaign dragged on for more than two months, NATO was eventually able to impose its will on Milosevic and force him to capitulate.22

The Aim of Peace NATO articulated in its war aims the object of restoring peace and stability to Kosovo. With the cessation of hostilities, NATO has been able to assist in the post-war reconstruction of the embattled province and facilitate a return to normalcy.

Proportionality of Means Given the moral dilemma of either doing something or doing nothing, NATO‟s bombing campaign was a justified means to stop the Serb killings of innocent Kosovar

Chesterman, Just War or Just Peace, p. 211. Malazogu, „When Doves Support War and Hawks Oppose It‟, p. 134. 21 Ibid., p. 134; Posen, „The War for Kosovo‟, pp. 49-50. 22 Posen, „The War for Kosovo‟, pp. 59-60. 20

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Albanians. Even though NATO bombs killed some Kosovar Albanians accidentally, it was a small price to pay in view of the net effect of successfully forcing the Serbs to accept a peace settlement, thereby ceasing ethnic cleansing for good.23

Non-combatant protection and immunity NATO‟s bombing campaign targeted military targets and subsequently dual-use military-related infrastructure. Civilian casualties were kept to a minimum principally due to two reasons. First, widespread use of precision-guided munitions allowed pinpoint surgical strikes that minimised collateral damage. Second, public opinion in NATO member countries was sensitive to the inflicting of civilian casualties by NATO bombings. Political leaders also resisted military pressures for escalatory air-strikes that may cause more civilian casualties. Hence, military planners carefully picked targets that minimised bloodshed, to maintain support on the home front for NATO military operations over Yugoslavia. The accidental bombings of the Chinese embassy in Belgrade and Kosovar Albanian refugee convoys led to a curtailment of NATO air operations. Stricter clearance procedures on target selection, identification and approval were instituted to minimise the negative fallout from the incidents.24 On the whole, NATO took pains to discriminate between military and civilian targets and to minimise civilian casualties.

Malazogu, „When Doves Support War and Hawks Oppose It‟, p. 134; Chandler, From Kosovo to Kabul, pp. 74-75. 24 Byman and Waxman, „Kosovo and the Great Air Power Debate‟, pp. 25, 33-34; Posen, „The War for Kosovo‟, pp. 51, 70; Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 16. 23

NATO’s Humanitarian Intervention in Kosovo

Why NATO’s Intervention is Morally Dubious In spite of NATO‟s claims that it fought a just war in Kosovo, its case is weak on several counts. First, NATO‟s claim that it fought for the just cause of ending Serb repression of Kosovar Albanians is undermined by the views held in some quarters that NATO was pursuing an un-stated agenda of punishing Milosevic. Milosevic was a marked man for revealing NATO‟s impotence in failing to stop Serb ethnic cleansing of the Croats and Bosnian Muslims during the conflicts over Croatia and Bosnia-Herzegovina. American Secretary of State Madeline Albright‟s need for a foreign policy success to cap her career and personal experiences as a victim of Nazism predisposed her to use the Munich and Hitler analogies to justify strong action against Milosevic. It is not surprising then that the toughly worded Rambouillet Accords was designed to fail and frustrate any attempt at diplomatic compromise. Milosevic‟s rejection of the Rambouillet Accords would provide a pretext for NATO military action against Yugoslavia.25 Furthermore, as Kosovo is part of Yugoslavia, Serbian military suppression took place within its borders and did not lead to transgressions of any territorial integrity of NATO member countries. Thus, NATO could not claim that it was acting in self-defence in bombing Yugoslavia. In fact, NATO may be justly accused of committing aggression.26 Second, NATO clearly lacked the authority to unilaterally intervene in Kosovo. NATO was unable to get an UN Security Council mandate to intervene in Kosovo

Anderson, „Air Strike‟, pp. 189-190; Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 13; Richard Falk, “„Humanitarian Wars‟, Realist Geopolitics and Genocidal Practices: „Saving the Kosovars‟”, in Ken Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, Frank Cass, London, 2001, pp. 329-330; Chesterman, Just War or Just Peace, pp. 223-224. 26 Anderson, „Air Strike‟, p. 197; Ken Booth, „Ten Flaws of Just Wars‟, in Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, pp. 316-317. 25

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because of both Russian and Chinese objections.27 As the traditional patron of Serbia, Russia had been giving strong moral and diplomatic support to Milosevic in his stand-off with NATO.28 The Chinese rigidly upheld the concept of sovereignty and noninterference in the domestic affairs of states because of its concern over any precedent to endorse humanitarian intervention in Kosovo. China was sensitive to the close parallel between Kosovo and Taiwan. In any future conflict over Taiwan, the pretext of humanitarian intervention could be used to internationalise, what is in Chinese views, a domestic conflict. Therefore, China was hesitant in endorsing any NATO action to curtail the right of a sovereign state to exercise its authority within its own borders. Since NATO was unable to secure UN Security Council authorisation, it flagrantly violated Article 53 and acted unilaterally in Kosovo.29 Third, NATO claims on upholding the human rights of the Kosovar Albanians lacked credibility. It was a pretext since NATO‟s motive was to maintain „its credibility as Europe‟s dominant multilateral security mechanism because its continued existence depended on it‟.30 Milosevic‟s pattern of calling NATO‟s bluff called into question NATO credibility.31 Once NATO‟s hard-line Rambouillet Accords failed to coerce Milosevic to cease his ethnic cleansing policies, the pacifist NATO members had to band together with the hawkish members to maintain collective solidarity and the credibility of the organisation. Former Secretary of State Henry Kissinger opined that once NATO‟s

Ong, „Credibility over Courage‟, p. 83. Anderson, „Air Strike‟, p. 198; Posen, „The War for Kosovo‟, pp. 50-52, 66-67, 71-72, 75-80, 82. 29 Bates Gill and James Reilly, „Sovereignty, Intervention and Peacekeeping: The View from Beijing‟, Survival, 42, 3, Autumn 2000, pp. 47-48; Amitav Acharya, „A Concert of Asia?‟, Survival, 41, 3, Autumn 1999, p. 90. 30 Ong, „Credibility over Courage‟, p. 76. 31 Anderson, „Air Strike‟, p. 190; 27 28

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bluff was called, air strikes had to commence since „victory is the only exit strategy‟.32 This calls into question the view that NATO intervened with the right intentions in Kosovo. Fourth, NATO‟s aerial bombing caused more suffering to the Kosovar Albanians rather than ameliorating their distress. Kosovar Albanian refugee outflows actually increased following NATO‟s bombing campaign. It also provided a pretext for Serbian military and para-military forces to intensify their repression of the Kosovar Albanians. Serb anger at NATO bombing manifested itself on violence perpetrated against hapless Kosovar Albanians. It remains disputable whether NATO‟s unilateral humanitarian intervention resulted in more good achieved than harm caused.33 Fifth, force was used because diplomacy was not given a chance to succeed. NATO‟s terms offered in the Rambouillet Accords would severely compromise Yugoslavian sovereignty. Under the Accords, nearly thirty thousand NATO troops would have been introduced into Yugoslavia with freedom of access and movement throughout the country and granted immunity from Yugoslavian law.34 In effect, it constituted a foreign occupation of Yugoslavia.35 No self-respecting national leader could accept these humiliating terms. Thus, the notion that force was used as a last resort is a myth.36 Sixth, despite the overwhelming military superiority that NATO enjoyed over Yugoslavia, Serbian resilience caught NATO by surprise and heightened tensions between pacifist and hawkish members of NATO. The expansion and intensification of the aerial bombing campaign was bought at the cost of serious misgivings and unease 32

Chesterman, Just War or Just Peace, p. 224. Ong, „Credibility over Courage‟, p. 86; Posen, „The War for Kosovo‟, pp. 52-53, 65; Booth, „Ten Flaws of Just Wars‟, pp. 318-319. 34 Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 13; Ong, „Credibility over Courage‟, p. 82. 35 Michael Ignatieff, Virtual War: Kosovo and Beyond, Chatto & Windus, London, 2000, pp. 35-36. 36 Anderson, „Air Strike‟, p. 189; Falk, “„Saving the Kosovars‟”, pp. 329-330. 33

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among Germany, Italy and Greece which did not support the war as enthusiastically as other member countries. Serbian capitulation was timely as NATO alliance unity was fraying at the seams. The notion that there was a high chance of success for NATO‟s unilateral humanitarian intervention cannot go unchallenged.37 Seventh, despite NATO‟s success in bombing Yugoslavia into submission, NATO faces an uphill task in rehabilitating the devastated province and constructing a durable peace in the region. Embittered Serbs distrust NATO reconstruction efforts and remain concerned that they may no longer have a role to play in governing a historical land with the restoration of Kosovar Albanian institutions. Reverse ethnic cleansing has sent most of the Kosovar Serbs packing to Serbia. The KLA oppose NATO‟s aim of maintaining Yugoslavian territorial integrity and aspire to either an independent Kosovo or merger with neighbouring Albania. Renewed violence directed at Serbs and UN officials in March 2004 indicated that peace in Kosovo remained extremely fragile and boded ill for the future.38 Balancing Kosovar demand for independence and preserving Serbia‟s territorial integrity remains an intractable problem.39 Not only was NATO‟s right to go to war illegitimate, its conduct of war also undermined its assertion of fighting a just war. First, NATO‟s choice of an air war did not reflect concerns for the safety of enemy civilians. To minimise the possibility of NATO casualties, NATO decided to confine its air sorties above fifteen thousand feet to stay out of range of Serbian antiaircraft defences. By fighting at such high altitudes from its targets, identification of See Posen, „The War for Kosovo‟, pp. 66-69; Charles Krauthammer, „The Short, Unhappy Life of Humanitarian War‟, The National Interest, Fall 1999, p. 7. 38 Falk, “„Saving the Kosovars‟”, pp. 331-332; „Kosovo: Field of sorrows‟, The Economist, 27 Mar. 2004. 39 Adam Garfinkle, „Is Another War Brewing in Kosovo? A conversation with Marc Grossman‟, The American Interest, Jul./Aug. 2007, pp. 64-70. 37

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targets was difficult and led to fratricidal incidents when friendly Kosovar Albanians were killed. The protracted nature of the air war meant that more harm was inflicted on innocent civilians as the conflict remained inconclusive. And airpower was relatively ineffective in protecting Kosovar Albanians from Serb ground forces.40 Second, by targeting civilian infrastructure such as oil refineries, electricity grid and TV stations, NATO was not practising discrimination and caused collateral damage to civilian facilities and killing innocent Serbian civilians.41 NATO‟s action to kill but not be killed highlighted the inherent contradiction in humanitarian war. To ensure public support for the resort to force, NATO had to ensure that the war remained bloodless, without real risk and real casualties. Thus, humanitarian war requires means that are inherently inadequate to its ends. Warfare has now been reduced to a spectator sport, making it politically acceptable for casualty-adverse societies to use force and thereby avoiding public protest over its use.42

Was NATO’s Intervention Legal? NATO defended its unilateral humanitarian intervention by claiming that intervention was in accord with earlier UN Security Council Resolutions 1160, 1199 and 1203. Since the UN Security Council Resolutions called on Yugoslavia to undertake measures to end the suffering in Kosovo, NATO had the authority to act to protect the Kosovar Albanians when Yugoslavia ignored the Resolutions.43 Solidarists argue that the Chesterman, Just War or Just Peace, pp. 222-223; Krauthammer, „Humanitarian War‟, pp. 6-7; Hilaire McCoubrey, „International Humanitarian Law and the Kosovo Crisis‟, in Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, pp. 203-204. 41 McCoubrey, „International Humanitarian Law‟, p. 193. 42 Krauthammer, „Humanitarian War‟, p. 7; Colin McInnes, „Spectator Sport Warfare‟, Contemporary Security Policy, 20, 3, Dec. 1999, pp. 154-155; Ignatieff, Virtual War, pp. 2-3. 43 Glennon, Limits of Law, pp. 25-28; Thornberry, „International Law in Kosovo‟, pp. 45-48. 40

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UN Charter does not preclude humanitarian intervention in view of Charter provisions for the protection of human rights, namely the preamble to the UN Charter and Articles 1(3), 55 and 56. They also cite customary international law to support their case. Dismissing the view that humanitarian intervention violates the ban on resort to force under Article 2(4), solidarists note that

since a humanitarian intervention seeks neither a territorial change nor a challenge to the political independence of the state involved and is not only not inconsistent with the purposes of the United Nations but is rather in conformity with the most fundamental peremptory norms of the Charter, it is a distortion to argue that it is precluded by Article 2(4).44

Granted the permissive environment articulated by the solidarists, NATO held the view that it had the authority to unilaterally intervene in Kosovo without an UN Security Council mandate and argued that its action to uphold human rights was legal.45

Why NATO’s Unilateral Humanitarian Intervention is Illegal In bypassing the UN Security Council and intervening unilaterally in Kosovo, NATO had flagrantly violated Article 53 which expressly states the requirement for a

Glennon, Limits of Law, p. 22; Nicholas J. Wheeler, „Reflections on the Legality and Legitimacy of NATO‟s Intervention in Kosovo‟, in Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, pp. 147-148. 45 Wheeler, „Reflections‟, p. 154. 44

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regional agency to seek authorisation from the UN Security Council before resorting to the use of force.46 Solidarists claim that a right for humanitarian intervention exists in the UN Charter or in customary law. However, states prior to Kosovo that have carried out humanitarian interventions rarely invoked the justification, thereby weakening the case for a legal right of unilateral humanitarian intervention. Furthermore, emphasis on state sovereignty and non-interference in the domestic affairs of states in both the Covenant of the League of Nations and the UN Charter precluded the right of unilateral humanitarian intervention, which would have contradicted the two principles above. Any attempt to allow a right of unilateral humanitarian intervention will result in abuse and lead to instability. Strong states will use the right to undermine the sovereignty of weaker states on moral grounds of upholding human rights. In such an international system, the prohibition against the use of force will be undermined, leading to more violence and instability. For the sake of preserving order in the international system, justice has to be relegated to second place.47

Conclusion Despite claims by NATO that it went to war for a just cause and conducted the war over Kosovo in a just manner, this paper has convincingly shown that NATO‟s claims were false. The ulterior motives of punishing Milosevic for his transgressions of NATO ultimatums and maintaining NATO credibility in the face of Milosevic‟s continued intransigence led NATO to use force. Even supporters of NATO‟s 46

Glennon, Limits of Law, p. 22. Wheeler, „Reflections‟, pp. 147-151; Bellamy, „Power, rules and argument‟, pp. 502-504; See also Chesterman‟s Just War or Just Peace which argues convincingly for the pluralist position. 47

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humanitarian war like Michael Ignatieff conceded that NATOâ&#x20AC;&#x;s choice of conducting an aerial bombardment from high altitude and targeting strategies was morally problematic.48 NATOâ&#x20AC;&#x;s unilateral humanitarian intervention constitutes a bad precedent that undermines the prohibition against the use of force in international law. Concern over the potential abuse of any right of unilateral humanitarian intervention has led to resistance among states, principally developing states in Asia, Africa and the former Soviet Union, to calls from developed countries for the development of a criteria for humanitarian intervention and its exemption from the prohibition against the resort to force in international law.49 Article 2(4) of the UN Charter is relatively new and it took more than fifty years for its general acceptance by states. In view of the fragility of international peace, order has to take precedence over justice. To preserve international stability, the pluralist argument of respecting state sovereignty and maintaining noninterference in the domestic affairs of states should prevail.

48 49

Ignatieff, Virtual War, p. 62. Glennon, Limits of Law, p. 207. 22