Kosovo: An Alternative View

by Brian · 2 January, 2001

Was the 1999 NATO action over Kosovo legal, successful or necessary?  No.

with a post-script of January 2001 and a comment dated June 2000 by the eminent barrister, Mark Littman QC, on the report of the House of Commons Select Committee on Foreign Affairs

Which won the war – the NATO bombing or the threat of a land invasion? – Neither!

Military historians of the Kosovo conflict, said a Guardian columnist on 14 July 1999, “will pore over whether the air war won it, or was it the threat of ground troops?” The question is bang on message, and reflects the conventional wisdom. But if the historians are any good, their answer should be “Neither“. Robin Cook confirmed on 13 July to the House of Commons Foreign Affairs Select Committee, according to another newspaper report on the same day, that Britain had not been able to “push for the use of ground troops when there was no consensus for it”: a land invasion against Serbian resistance was never on the cards, as was clear throughout. The air war was getting nowhere, as many had predicted from the beginning: there was no indication that it was forcing Milosevic to bow to NATO’s demands at Rambouillet, or prompting his overthrow; and the spreading destruction of the Yugoslav economy and mounting civilian casualties were threatening the unanimity of NATO governments’ support for the campaign and arousing increasing international disquiet. And now that we can assess the evidence on the ground in Kosovo, there are growing indications that the NATO bombing did much less damage to the Serbs’ military capacity than we all thought at the time.

Abandoning Rambouillet is what won it

So what did “win the war” – ie, what finally forced the Serbs to end the ethnic cleansing, withdraw their forces and agree to the peaceful installation of an international military and civilian presence in Kosovo? It was NATO’s belated recognition that the Russians held the keys both to overwhelming international pressure on Milosevic, and to UN Security Council backing for international intervention: and that to secure a Security Council mandate for intervention and Russian plus international pressure on the Serbs, the more bizarrely controversial (and patently unacceptable) demands in the Rambouillet proposals would have to be dropped or modified:

• the threat of a constitutional settlement based on the “will of the people” (ie a referendum) in three years’ time – unmistakable long-hand for Kosovo independence;
• freedom for NATO troops to roam with full immunity from legal process, taxes or duty anywhere in Serbia, not just in Kosovo;
• the extraordinary demand that the economic management of Kosovo be committed to the observance of free market doctrine (“The economy of Kosovo shall function in accordance with free market principles”);
• full co-operation with the War Crimes tribunal (ie Milosevic to be handed over for trial);
• above all, the exclusive roles of NATO in establishing and forming the military occupation force, and of the OSCE and the EU in establishing the interim civilian authority – confining the role of the UN and the Security Council to putting a retrospective rubber stamp on the whole operation.

No wonder these proposals at Rambouillet proved incapable of winning either Russian or Security Council support, or Serbian surrender.

What removed the final obstacle to international intervention on the ground was NATO’s abandonment of all these demands – demonstrating that they could and should have been abandoned three months earlier at Rambouillet, if NATO diplomacy had been more flexible, realistic and imaginative. These belated NATO concessions opened the way to Russian diplomacy and the effective pressures exerted by Viktor Chernomyrdin on Belgrade, unanimous support in the Security Council, reassurance to NATO and other governments which had been increasingly disturbed by the manifest illegality of the NATO bombing, and the consequent capitulation of the Serbs.

Those military historians may well conclude, even if it means going off message, that international intervention in Kosovo with UN authority was justified and necessary, but that the main effects of the Rambouillet demands and the NATO bombing campaign were to delay it by three crucial months of unnecessary death and destruction: and that there was never any credible threat of a land invasion.

Did the NATO bombing succeed?

The official line, naturally, is that the bombing succeeded because it brought about the end of ethnic cleansing by the Serbs in Kosovo, the withdrawal of Serbian forces and the introduction of an international military force under NATO leadership to permit and protect the return of the hundreds and thousands of Kosovo refugees. However, as shown above, it seems much likelier that it was not the NATO bombing that achieved these desirable results, but rather the radical changes in NATO’s original demands which permitted the resumed participation of the Russians, the resumption of Russian diplomacy with its powerful influence on Belgrade, the authority of the UN Security Council for the installation of an international military force and civilian administration in Kosovo, and the boost to NATO solidarity given by the return to international legality.

In any case, the success or failure of the NATO bombing campaign has to be judged by its proclaimed objectives as defined at the start of the bombing on 24 March: “To prevent more human suffering and more repression and violence against the civilian population of Kosovo” – the Secretary-General of NATO; “to curb the Serbs’ capability to repress the Kosovo Albanian population-and thus avert a humanitarian catastrophe” – UK Ministry of Defence; “It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe…The force now proposed is directed exclusively to averting a humanitarian catastrophe…” – Sir Jeremy Greenstock, UK Permanent Representative to the UN, Security Council, 24 March. These definitions were repeated in similar language throughout the first weeks of the bombing-until it began to become embarrassingly obvious that the bombing had completely failed to avert the humanitarian disaster. Rather the reverse: the international OSCE monitors in Kosovo, whose presence had imposed some limited constraints on Serbian repression by providing objective testimony to the world of what was happening, were obliged by the start of the NATO bombing to leave the country. No-one denies that the worst excesses of ethnic cleansing, including massacres, torture, evictions and the destruction of homes and property, occurred after the start of the bombing. The great majority of the refugees who were forced to leave Kosovo for the neighbouring countries fled after the start of the bombing.

It is now clear that the NATO bombing, far from “averting a humanitarian catastrophe”, actually accelerated and intensified it.

Any measurement of the bombing’s alleged “success” must also take into account the many mistakes in targeting which caused numerous civilian deaths, the destruction of buildings and institutions of no military significance, and the damage to the Embassy of China.

Further consequences of the bombing included the greatly expanded definition of allegedly legitimate “military” targets for attack, including the television station and important parts of Serbia’s economic infrastructure (power stations, oil refineries, roads and bridges, etc.), entailing a massive onslaught on ordinary Serbs’ standard of living and inflicting suffering and hardship on numerous innocent people. There is still no reliable estimate of the cost to the international community of repairing this huge damage, but it will plainly be enormous: and it is bound to take a decade or more for the Serbian and Kosovo economy to be restored to anything like its previous level.

The bombing certainly inflicted casualties and damage on the Serbian military and police forces and hampered their mobility. But there is no evidence that this damage was so great as to limit their ability to continue the ethnic cleansing and other repression. On the contrary, these continued to intensify virtually up to the point where Milosevic finally yielded to the pressures from Moscow, the Security Council and international opinion generally – after NATO had dropped the more extreme of its demands in exchange for Russian and UN participation in the common effort.

Against this background, to insist that the bombing – now commonly described as “the war” – was a success requires a talent for intellectual gymnastics which is beyond most of us.

Was the NATO bombing campaign legal?

Perhaps the most explicit assertion that the NATO bombing was permitted under international law was in the statement of 24 March in the Security Council by the UK Permanent Representative, Sir Jeremy Greenstock, partially quoted earlier. Sir Jeremy would certainly have been using a text carefully prepared by the Foreign Office’s legal advisers and approved by British Ministers. He said:

>>The action being taken is legal. It is justified as an exceptional measure to prevent an overwhelming humanitarian catastrophe.

Under present circumstances in Kosovo there is convincing evidence that such a catastrophe is imminent. Renewed acts of repression by the authorities of the Federal Republic of Yugoslavia would cause further loss of civilian life and would lead to displacement of the civilian population on a large scale and in hostile conditions.

Every means short of force has been tried to avert this situation. In these circumstances, and as an exceptional measure on grounds of overwhelming humanitarian necessity, military intervention is legally justifiable. The force now proposed is directed exclusively to averting a humanitarian catastrophe, and is the minimum judged necessary for that purpose. <<

This however is an assertion of political and humanitarian justification rather than of legality under any identifiable provision of international law.

A French Government statement offered an alternative legal justification:

BASE JURIDIQUE DE L’ACTION ENTREPRISE PAR L’OTAN
(Paris, 25 mars 1999)

L’action de l’OTAN trouve sa légitimité dans l’autorité du Conseil de sécurité. Les résolutions du Conseil concernant la situation au Kosovo (résolution 1199 du 23 septembre 1998 et 1203 du 24 octobre1998) ont été prises en vertu du chapitre VII de la Charte des Nations unies, lequel traite des actions coercitives en cas de rupture de la paix.

Ces résolutions ont établi que la détérioration de la situation au Kosovo constituait une menace à la paix et à la sécurité dans la région.

Par la résolution 1199, le Conseil de sécurité exigeait des autorités de Belgrade :

* qu’il soit mis fin aux hostilités et que soit maintenu un cessez-le-feu au Kosovo,
* que soient prises des mesures pour éviter le danger de catastrophes humanitaires,
* qu’elles mettent fin à toutes les actions des forces de sécurité touchant la population civile,
* qu’elles ordonnent le retrait des unités de sécurité utilisées pour la répression des civils,
* qu’elles progressent rapidement dans le cadre du dialogue avec la Communauté albanaise, vers une solution politique aux problèmes du Kossovo.

La résolution 1203 a entériné les accords conclus entre la Yougoslavie d’une part, et l’OSCE et l’OTAN d’autre part, et exige qu’ils soient respectés. Ces accords comportaient des engagements et obligations précises de la part du gouvernement yougoslave.

Aucune de ces obligations n’a été respectée par Belgrade. Tous les efforts ont été mis en oeuvre pour appeler le gouvernement yougoslave à respecter ses obligations sur le te terrain et à accepter les accords de Rambouillet. Ces efforts ont été épuisés.

Dès lors le recours à la force est devenu inévitable. Il répond à la violation par Belgrade de ses obligations internationales, telles qu’elles résultent des résolutions du Conseil de sécurité des Nations unies prises sur la base du Chapitre VII de la Charte.<<

According to this (more sophisticated, certainly somewhat more plausible) version, the NATO resort to force was justified by the failure of the Serbs to comply with the demands of the UN Security Council under resolutions which, having been passed under Chapter VII of the UN Charter with a determination of a threat to international peace and security, were legally binding on all states. But the Security Council neither requested nor authorised NATO, or anyone else, to use force in order to secure compliance with its resolutions. Nor had the Council been invited to authorise NATO to take such action. It was obvious that any such proposal would have been vetoed by Russia and probably also by China, neither of which supported crucial elements in the NATO demands at Rambouillet – elements which NATO abandoned in June in order to secure Russian and UN support. NATO took the law into its own hands without any vestige of authority or excuse for doing so.

Nothing in the UN Charter or other provisions of international law allows member states or their governments to take military action to enforce the Council’s resolutions unless the Council has given explicit authority for them to do so. This is made painfully clear by the terms of Article 53 of the Charter:

Article 53 of the United Nations Charter

1. The Security Council shall, where appropriate, utilize 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 authorization of the Security Council, with the exception of measures against any enemy state, as defined in paragraph 2 of this Article, provided for pursuant to Article 107 or in regional arrangements directed against renewal of aggressive policy on the part of any such state, until such time as the Organization may, on request of the Governments concerned, be charged with the responsibility for preventing further aggression by such a state.

2. The term enemy state as used in paragraph 1 of this Article applies to any state which during the Second World War has been an enemy of any signatory of the present Charter. [My emphasis]

Moreover, it is a basic principle of international law that UN Charter rights and obligations override those under any other treaties or agreements:

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.<<

Other Charter obligations binding on NATO and all other governments include the requirement to “refrain in their international relations from the threat or use of force” (Art. 2.4). The right to use force in self-defence, guaranteed by the Charter, is of course not applicable here-nor has NATO ever sought to invoke it in this context.

Not only was the NATO bombing in clear breach of international law under the UN Charter: it was even in breach of NATO’s own founding charter, the North Atlantic Treaty of 4 April 1949:

The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments…

Article 1

The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations…

Article 7

This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security. [My emphasis]

No wonder that the eventual UN Security Council Resolution 1244 of 10 June 1999, authorising at last the international intervention in Kosovo (but certainly not legitimising the NATO bombing which indeed it terminated) contained in its very first preambular paragraph a painful reminder:

Bearing in mind the purposes and principles of the Charter of the United Nations, and the primary responsibility of the Security Council for the maintenance of international peace and security, …

Conclusions

The defenders of the NATO bombing habitually retort to their critics that in the face of the Serbian atrocities in Kosovo and the prospect of an even greater human disaster about to take place, it would have been an insult to our common humanity to stand idly by and let it happen. But those of us who reject the NATO case have never-most of us-proposed inaction or indifference in the face of the crisis. We assert that international intervention could and should have been initiated in and with the authority of the UN Security Council. We reject the NATO assertion that this was impossible on the grounds of the Council’s “paralysis” by the certainty of a Russian veto: that proposition is demolished by the evidence of SC Resolution 1244. It should have been obvious to NATO negotiators at Rambouillet in March that –

1. certain elements in the NATO demands were never going to be acceptable to the Russians, still less to the Serbs;
2. the elements to which the Russians objected were (in most cases) of doubtful propriety, and certainly not essential to NATO’s overall objectives;
3. continued Russian support and participation were essential for securing UN authority for what was proposed and for bringing effective pressure to bear on the Serbs;
4. refusing to accommodate Russian difficulties with elements of the NATO demands would deprive NATO of UN authority, justification in international law, Russian influence on Belgrade, and any realistic prospect of achieving NATO aims by bombing Yugoslavia.

Only in June, three destructive months later, when it became impossible for NATO to continue any longer to ignore these realities, did NATO finally consent to modify its demands and thus open the door to a successful, and legal, international intervention. There is nothing in the record to suggest that this option was not available in March. More flexibility in March to keep the Russians and the UN on board would almost certainly have forced the Serbs to comply with the basic requirements-ending their repression, withdrawing their forces, allowing the installation of an international force and the return of the refugees.

The NATO bombing was carried out with the best and most honourable of intentions. It served no political, diplomatic or strategic selfish interest of any of the NATO countries which took part in it. But it was illegal. It inflicted many deaths and terrible destruction. Worst of all, it was unnecessary.

Postscript (January 2001 and March 2000):

Here are some quotations from documents written between October 1999 and October 2000 by, or citing, authors who are all in a position to know what they are talking about. They provide cogent evidence for the propositions that:

• The British government’s legal advisers told the Blair government that military action against Serbia without UN Security Council authority would be illegal: but their legal advice seems to have been overruled, countermanded or ignored on political, rather than on legal, grounds;
• At least one member of the British government at the time of the Rambouillet negotiations believed that the Serbs could never have accepted – and were never intended to accept – NATO’s demands, and that elements in NATO were “spoiling for a fight”.
• The “war” – ie, NATO’s attack on Serbia – was unnecessary and should never have had to be fought.

James Rubin, press spokesman for US Secretary of State Madeleine Albright at the time of Rambouillet and the NATO attack on Serbia, Financial Times, 29 Sep 2000:

All our Nato allies were still reluctant. Initially, they insisted that the use of force only be considered if the UN security council would endorse it. That was a huge impediment, because the Russians, as permanent members, could veto any such decision. Even our staunchest ally, the British, became a big problem. In early June 1998, the administration was furious when the British, without consulting us, floated a plan to seek UN approval. Sergei Lavrov, Russia’s ambassador to the UN, had warned us that Moscow would veto any attempt to endorse the use of military force against Serbia. We had told the British this over and over. What were they thinking? There was a series of strained telephone calls between Albright and Cook, in which he cited problems “with our lawyers” over using force in the absence of UN endorsement. “Get new lawyers,” she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required.

Sunday Express, 3 October 1999:

“John Morris (Attorney General) was present at all ‘War Cabinet’ meetings in Downing Street to give advice on international law and is said to have frequently irritated Mr. Blair. One minister said: ‘He was awkward about the bombing. He kept coming up with excuses why we should not do it.’ “

Guardian, 21 July 2000:

‘During the war, Lord Gilbert was defence minister of state formally responsible for intelligence. In evidence to the defence select committee published yesterday he claimed that allied forces forced Slobodan Milosevic into a war.

‘”I think certain people were spoiling for a fight in Nato at that time. I think the terms put to Milosevic at Rambouillet were absolutely intolerable: how could he possibly accept them? It was quite deliberate.” ‘

Extract from House of Commons Select Committee Report on Kosovo, 23 October 2000

[http://www.parliament.the-stationery-office.co.uk/pa/cm199900/cmselect/cmdfence/347/34722.htm ] :

“280 Alliance unity was, undoubtedly, a key factor in persuading Milosevic of the hopelessness of his situation, especially when confronted by the reality that Russia was not coming to his aid. But, paradoxically, this takes us back to where we began. The war should never have needed to have been fought.”

---

The two-hour programme on BBC2 on 12 March 2000 about the NATO attack on Serbia landed some heavy punches. Unaccountably, though, it failed to draw together the evidence scattered through the programme in order explicitly to draw the lethal but necessary conclusion: i.e., that the concessions eventually made to the Russians and to the Serbs, in order to get Milosevic’s acceptance and international endorsement of the establishment of international control over Kosovo, could and should have been offered at Rambouillet, but were not: and that if those concessions had been offered and accepted then, the bombing would not have been necessary, the worst of the ethnic cleansing and the killing and destruction would never have taken place, the Yugoslav economy would not have been ruined and countless lives would have been saved.

However, the programme did bring out very clearly the duplicity and incompetence of the attempts by NATO leaders to define and explain the objectives of the attack on Serbia: the deliberate failure to consult the lesser NATO governments over each new escalation: and the utter lack of consistency between, on the one hand, the considered assessments of the military of what could and couldn’t be achieved by bombing and what would be involved in an invasion by ground troops against Serbian opposition: and on the other hand, the pronouncements, proclaimed objectives and continuing decisions of the civilian leaders. It’s hard to resist the conclusion that the persistent ignoring of military advice over three months of violence and killing constituted recklessness bordering on the criminal. The fact that the motives of the civilian leaders were mainly humanitarian and honourable must be counted as an extenuating factor, but not a justification.

It was also clearer than ever from the programme that what eventually forced Milosevic to accept the modified terms for his withdrawal from Kosovo and the introduction of international control was not the bombing, which seems to have achieved none of its many and changing declared objectives, but the modification of NATO’s demands which won over the Russians, including the Russian security apparatus on whose support Milosevic had been relying. The role of the mysterious Swedish financier finally sent secretly by Moscow to Belgrade to tell Milosevic that the game was up was new to me, and interesting. Apparently by the time Ahtisaari arrived in Belgrade with the alliance’s (including Moscow’s) final offer, the deal had effectively been done.

So London’s and Washington’s official account of what was done and why it had to be done continues to unravel at increasing speed. It seems unlikely that those responsible for the dreadful mess will ever be held to account. The more important thing, it seems to me, is that NATO’s attack on Serbia should not enter the received wisdom as having been (a) necessary, (b) in accordance with international law, or (c) successful. Otherwise there may be a temptation to make the same appalling mistakes again.

See also

• The comment dated June 2000 by the eminent barrister, Mark Littman QC, on the report of the House of Commons Select Committee on Foreign Affairs: concluding that the NATO intervention lacked not only legal but also moral validity.
• A paper by Denise Mumford, “Kosovo: A Just War?”, June 2001, written from a Christian viewpoint by a mature student of theology and ethics.
• Do you remember Kosovo?, by Mark Littman, 22 November 2004