Do You Remember Kosovo? – Mark Littman QC






Second  impression 22nd November 2004 

Comments on first impression: 


Lord Carrington (UK Foreign  Secretary 1979-1982, Secretary General of NATO 1984-1988, Chairman European  Conference on Yugoslavia 1990-1992): 

 “I am so  glad you published this booklet and I hope it gets a very wide distribution” 


Tony Benn :

 “Short,  clear and immensely powerful pamphlet “


Sir Sidney  Kentridge QC :

“Your pamphlet on Kosovo is devastating.   I hope it is being well circulated.   I cannot conceive of any rational answer to it” 


Sir Simon Jenkins :

 “Spot on!” 





In  November 1999, the Centre for Policy Studies, London ,  published my pamphlet, Kosovo:  Law and Diplomacy .

The  present pamphlet is produced as an epilogue to bring matters up to date in the  light of material that has become available in the last five years.   

  Mark Littman Q.C. 

12  Gray’s Inn Square 

London WC1R 5JP 





Five years  ago NATO launched a war against Yugoslavia.  It lasted 11 weeks, from 25 th March to the 10 th June 1999.  Since the population of the member  states of NATO was 600 million and that of Yugoslavia only 10 million the result  of the war was not in doubt.  It concluded with an occupation of Kosovo  by an  international force with NATO at its core. 



 Yugoslavia and all the members of NATO were members of the UN.  They were thus parties to  the Charter which, as a treaty subscribed to by virtually every state in the  world, has the force of international law.  By the terms of the Charter the  exercise of force by one member state against another is prohibited 1except in two cases; where a state is attacked, in which case it may defend  itself ; or where authorised by the Security Council .2   No member of NATO had been attacked by Yugoslavia and there had been no Security  Council resolution authorising the attack.  So, on the face of it the attack was  unlawful. 

 Some,  however, contended that a legal basis for the war could be found 3.   It was not suggested that it could be found in the terms of the Charter.  What  was argued was that it could be found in a principle of customary law taking  effect alongside the Charter.  This suggestion was quoted the day hostilities  began by George Robertson , UK Defence Secretary in the following terms: 

 We are in no doubt that NATO  is acting within international law.  Our legal justification rests upon the  accepted principle that force may be used in extreme circumstances to avert a  humanitarian disaster. 4

 The existence of such an accepted  principle and the application of such a principle (if it existed at all) to the present  case, were strongly contested by others 5,  so that at that time the matter remained in contention.  However, since then  there have reports from two public enquiries which have placed the illegality of  the NATO attack beyond serious doubt. 6   It cannot now be seriously doubted that the NATO attack on Yugoslavia was in breach of international law. 




The first enquiry was  conducted by the Foreign Affairs Committee of the House of Commons .  This  committee consisted of 12 MPs of whom 7 were Labour.  It dealt with the legality  of the war in a section entitled Was  military intervention legal ?    This was drafted after receiving evidence from several experts on public  international law.  None of these experts suggested that any authority for war  was to be found in the terms of the Charter.  So the Committee held : 

 Our  conclusion is that Operation Allied Force was contrary to the specific terms of  what might be termed the basic law of the international community- the UN  Charter 

 One witness did argue that  the war was justified by a new customary right of humanitarian intervention   that  had been developed by state practice in the 10 previous years.  The  Committee held, however , that no such right had developed.  The Committee  concluded: 

 that,  at the very least, the doctrine of humanitarian intervention has a tenuous basis  in current international customary law, and that this renders the NATO action  legally questionable 7.




 The second enquiry was  conducted by the Independent International Commission on Kosovo .  This Commission  was established upon the initiative of the King of Sweden under the chairmanship  of the South African Judge Goldstein.  On the question of the legality of the  NATO war it reported: 

 the  NATO campaign was illegal….. 8



 Both reports went on to  discuss whether the law should be changed so as to admit a doctrine of humanitarian  interference in the future, such a change to be brought about either by an amendment to the  Charter or by future state practice.  This question is addressed later in this  paper but it does not affect the question with which this paper is primarily  concerned, namely whether this war was justified under existing law. 




 Although both reports found  the NATO action to be illegal, they both expressed the view that it was morally  justified or legitimate   Can this view be supported in the light of the material that has emerged in the  past five years ?  It is submitted that it cannot. 

The moral justification for  the war is expressed in the two reports as follows: 


Select  Committee  on Foreign Affairs 

 The Select Committee  reported that: 

 NATO’s  military action, if of dubious legality in the current state of international  law, was justifiable on moral grounds. 9

 It came to this conclusion  on the ground that: 

 a  humanitarian emergency existed before NATO intervened and that a humanitarian  catastrophe would have occurred….. if intervention had not taken place.


Independent International Commission on Kosovo 


The Commission reported : 

that  the NATO campaign was illegal yet legitimate.


The reason for the  conclusion that it was legitimate is not explicitly stated but its general drift can be discerned in such passages  as: 

…the  overall protection of people against gross abuse …. 

 …an  impending and unfolding humanitarian catastrophe…… 





The view of these two  bodies that the war, although unlawful, was nevertheless legitimate does not have any relevance in considering the position of the United Kingdom since HMG has always  accepted that without legality there could be no legitimacy.  Thus: 

 …any  military action by British forces would have to be lawful under international  law. 

Tony Lloyd, Minister of  State, Foreign Office, 3rd February 1999 

I say  very firmly that the United Kingdom has acted  and will continue to act in conformity with international law 

John Morris, Attorney  General, at the International Court of Justice , 11 th May1999 

Since, however, the  question of morality may affect the minds of some people, even if not the  British Government, it will now be addressed. 




 Readers of the two reports  mentioned above and the Robertson statement a year after the end of the war will  gain a picture of unprovoked violence by the Serbs against the persons and  property of the Kosova Albanians spread over a prolonged period of some years  and resulting in the Albanians being violently driven not only from their  villages but even from the whole province of Kosovo.  The argument proceeds that  the NATO war was justified as being the only practical means of preventing or  reversing such 


In considering these  matters it is essential to bear in mind that the critical question is whether  NATO was justified in starting the war.  Once the war was started dreadful  things were done on both sides, as was seen on television in the shots of the  death and destruction caused by NATO and of the tragic flight of the Albanian  civilians into Albania and  Macedonia.  That is the nature of war and these things would not have happened  if NATO had never started the war.  That is why war should be avoided if at all  possible. 


On the material now  available, five years later, it can be demonstrated that there was no  justification for the NATO attack.  A review undertaken now after 5 years shows  the NATO war was unnecessary, ill-founded, disproportionate, and contrary to the  public interest. 



 (1) Unnecessary 

 It is now plain that, even  if the criticisms of the Serbs were well-founded, the NATO campaign was  unnecessary, since the Yugoslav government had, before the bombing started,  accepted that there should be substantial  autonomy for Kosovo, [including] mechanisms for free and fair elections to  democratic institutions, for the governance of Kosovo, for the protection of  human rights, and the rights of national communities, and for the establishment  of a fair judicial system. It had also agreed to accept an  international civilian and military presence in Kosovo for the implementation of the agreement. 10 

It is therefore plain that  the war was unnecessary. 

Before the NATO attack,  NATO insisted as a condition of the settlement that Yugoslavia should also  submit to military clauses that provided for NATO occupation not only of Kosovo  but of the whole of Yugoslavia, with unlimited right to locate military forces  there for an indefinite period, at the expense of Yugoslavia, and under  conditions of total immunity from liability for civil or criminal wrongs.  NATO  threatened that if Yugoslavia did not immediately submit to these demands force would be used to  compel it to do so.  Yugoslavia did not submit, so on 25 th March NATO  attacked Yugoslavia. 


In June 1999 Dr. Kissinger  said of these military clauses: 

The Rambouillet text , which called on Serbia to admit  NATO troops throughout Yugoslavia, was a provocation, an excuse to start  bombing.  Rambouillet is not a document that an angelic Serb could have  accepted.  It was a terrible diplomatic document that should never have been  presented in that form. 11 



(2) Ill-founded 


From George Robertson’s  statement it appears that HMG attached much importance to a document entitled Operation Horseshoe .12    The importance attached to this document is shown by the statement in  Robertson’s document, page 6, that: 


there  was evidence that the government of the Federal Republic of  Yugoslavia was planning to escalate its campaign of repression.  The  international community could see a humanitarian disaster looming.  Reluctantly,  NATO decided to use force.


And the reference at page  11,which identifies this so-called evidence :


In  early April, details were revealed of a covert Serb plan (Operation Horseshoe)  to forcibly expel Kosovar Albanians from Kosovo that had been drawn up months  beforehand. 


If there had been any  substance in this allegation, it would certainly have been used in the  prosecution of Milosevic on the charge of conspiracy.  Its absence was explained  by Louise Arbour in Der Spiegel 27 th April, 1999, which said: 


as  to Operation Horseshoe, I have my doubts as to its capacity to prove anything


(3.)  Disproportionate 


The evidence for the prosecution at the  Milosevic trial shows that in the ten years prior to 1998, Kosovo was peaceful   (The transcript for  the trial of Milosevic at the I.C.T.Y.: evidence of Lord Ashdown pp.2397-2398 ). 


In that year KLA, well  armed with supplies of rifles, machine- guns and grenades from criminal elements  in Albania, mounted an  insurgency from bases in local villages, using techniques of ambush.  It  attacked police and police stations and similar targets.  This aggression was  met by Yugoslav forces using artillery and tanks.  The security forces in some  cases set fire to houses or villages believed to be harbouring insurgents. 


This state of affairs  prevailed for a few weeks until October 1998 when the United States sent Richard Holbrooke as its  senior envoy to Belgrade to negotiate a cease-fire which was to include a  substantial withdrawal from Kosovo of Serbian troops and police.  An agreement  was reached with the Yugoslav Government (” the Holbrook Agreement “) to that  effect.  Yugoslavia carried out this agreement by reducing its forces in Kosovo,  very quickly, to the agreed level. 


As a result, Christopher  Hill, the United States’ special envoy for Kosovo, reported on the 9 th of November, 1998 that: 


… the  humanitarian and security situation in Kosovo has improved significantly in the  past few weeks. 


Similarly, on the 27 th November, 1998, Robin Cook reported to the House of Commons that: 


…most  refugees had returned to their settlements with only some hundred living in the  open. 


Shortly afterwards the KLA  resumed its attacks and the security forces responded causing casualties and  displacements on both sides. 


On 17 th March 1999 the Secretary  General of the UN reported to the UN: 


According to OSCE, the current security environment in Kosovo is characterised  by the disproportionate use of force, including mortar and tank fire by the  Yugoslav authorities in response to persistent attacks and provocations by the  Kosovo  Albanian paramilitaries. 


Regular reports from the Kosovo Verification Mission for the two-month period from 22 January and 22 March 1999, passed on by NATO to  the UN, show that in this period the total fatalities were 27 for the Serbs and  30 for the Kosovo Albanians. 13    Another estimate puts the total Albanian fatalities over five months from 16  October 1998 to 20 March 1999) at 46; an average of 2 a week. 14


By contrast, in 11 weeks of  the NATO war from 25 March  1999 to 10 June 1999 NATO killed 1500 civilians and wounded 8000.  This is an  average of 136 deaths a week and 30 times as many deaths as the total prior to  the war. [15] 


These deaths occurred when  NATO dropped 23, 614 bombs inside Yugoslavia, mostly on cities.  These included  355 cluster-bomb attacks each of which delivered 7,728 bomblets.  After the end  of the campaign, on 16 August 1999 The Times estimated that there were  still 14000 bomblets lying unexploded on the ground, a particular danger to  children since they looked like toys. [16] 


The G17 Group of  Independent Yugoslav Economists estimated the cost of the economic damage at $30  billion.  The Economist Intelligence Unit made its own calculation which put the  total economic costs of damage inflicted by the war at $59.8 billion.  The  International Institute for Strategic Studies has estimated that the total cost  of NATO’s decision to go to war, including economic damage in Serbia and Kosovo,  the military cost to NATO, and the peace keeping support for three years, at a  total of $97 billion.  By comparison the total cost of the UK health service for the year 1997-8 was  £43.6 billion, or $68.8 billion US dollars. 


Nor did the NATO bombing  improve the lives of people in Kosovo.  On the contrary, the considerable  sufferings of the Kosovo Albanians during the war must also be attributed to  NATO for as was said by Lord Carrington (UK Foreign Secretary 1979-82, Secretary  General of NATO 1984-88, Chairman of European Conference on Yugoslavia 1990-92): 


I think  what NATO did by bombing Serbia actually  precipitated the exodus of the Kosovo Albanians into Macedonia and Montenegro.   I think the bombing did cause the ethnic cleansing… NATO’s action in Kosovo  was mistaken… what we did made things much worse. 


The damage done to Yugoslavia by the NATO war is  therefore, wholly disproportionate and excessive when compared to that done by  the Serbs in Kosovo. 




Lord Carrington 


(4) Contrary to Public Interest 


Perhaps the most serious  damage caused by the NATO attack will turn out to have resulted from its  illegality.  For such an important group of members of the UN (including three  of the Permanent Members of the Security Council) to have flouted the Charter  without even making an attempt to obtain the approval of the Security Council is  clearly against the public interest.  So also is their subsequent refusal to  submit the question of legality to the decision of the International Court of  Justice.  The combination of these two actions may well have destroyed the  United Nations in its central function, the preservation of peace. 





In addressing the question  of legality one has necessarily been concerned with the state of the law at the  material time, i.e. 5 years ago.  Some have proposed that there should be change  in the law for the future so as create a new justification for the use of force  for humanitarian purposes.  It is suggested that such a change might be brought  about either by encouragement given to a process of evolution or by an amendment  to the Charter. 


One must begin by observing  that such use of force is already lawful under the Charter if the Security  Council, operating the present voting system, resolves that such force is  necessary in the interests of international security.  What the apologists for  the Kosovo intervention have to advocate and do advocate is that such a right of  forceful intervention should arise even in the absence of affirmative vote by  the Security Council. 


This points to the fact  that it is highly improbable that any such amendment to the Charter would ever  be made, for it would involve the permanent members surrendering their right of  veto. 


Furthermore, as the  International Commission points out in its Report, any such amendment would  pre-suppose consensus on a complex code of principles laying down the  circumstances in which such a right of intervention would arise.  The prospect  of any such consensus seems highly remote. 


In addition one must  anticipate strong opposition even to the principle of any such change in the  law.  The grounds of such opposition are indicated by the statement of the British Foreign Office Policy Document 148 (1986) and in International  Law in Theory and Practice (1991) Prof. Oscar Schachter where, amongst other  objections, the danger of abuse is emphasised.  It has also been pointed out  that the legitimising of any such right of humanitarian interference would be  opposed by the smaller nations for the simple reason that any such right is only  likely to be exercised against smaller nations by the more powerful nations. 




What has emerged over the  past five years confirms that the NATO war against Yugoslavia lacked both legal and moral  legitimacy.  It set a bad example which has been followed already in Iraq with  catastrophic consequences., both human and material. [17]    The two wars in defiance of the Charter of the United Nations have set back  humanity’s attempt to abolish war by at least a century. 


©Mark  Littman                        

22 nd November 2004 



1UN Charter Art 2 (3)(4) and 53 

2Halsbury Laws of England 4th 1996 Vol.49(1) para                  501 

3E.g. Mark Weller, Centre for International Studies                  “Counsel”Aug 1999 

4Att-General before ICJ 11th May 1999 used identical words 

5″Kosovo: Law & Diplomacy” Mark Littman, Centre for Policy Studies, Nov                  1999, Appendix 1 

6Report of Foreign Affairs Select Committee dated 23 May 2000 and Report                  of International Committee on Kosovo dated October 2000 

7Foreign Affairs Committee (4 th Report) Kosovo , Vol. 1, HC                  28-1, 23 May 2000 

8 Report of Independent International Commission on Kosovo , pg. 16 

 See note 7, paragraph 138 

10 Statement by the “Office of the High Representative for the Contact                  Group” dated 23 rd February, 1999, letter dated 15 th March 1999, from the Head of the Yugoslav Delegation to the Contact Group Rambouillet Draft which had been agreed by 15 th March  1999, statement dated 23 rd February, 1999 of the Chief Serb  negotiator, and Resolution adopted by Serbian Assembly dated 23 rd March, 1999 offering to negotiate the composition of a monitoring force,  and the Rambouillet Draft Agreement articles one and two . See also “Kosovo: Law & Diplomacy” (supra, chapter two) 

11 Daily Telegraph, 28 th June 1999 

12  “Kosovo One Year On” George Robertson, 2000 

13  Letter dated 23 rd March 1999 from Secretary General of NATO                  to Secretary General of UN 

14  Report of OSCE verification mission, December 1998 to June 1999 

[15]  (Yugoslavia Country Report in Economist Intelligence Unit 3 rd Quarter 1999) 

[16] (Yugoslavia Country Report in Economist Intelligence Unit 3 rd Quarter 1999) 

[17] “Lancet” has recently estimated the Iraqi civilian fatalities at 100,000                  (mostly women and children).  The US fatalities have  exceeded  1300 and the UK fatalities have exceeded 100.  No record  appears to have been kept of the Iraqi military casualties.