KOSOVO: “ILLEGAL BUT MORAL? “
by Mark Littman QC, June 2000
The House of Commons Select Committee on Foreign Affairs has reported that the NATO air war on Yugoslavia was illegal but “moral”.
That the NATO action was unlawful is doubtless correct. It deserves, however, the following comments:
(1) It directly controverts statements made by Ministers to justify the intervention.
“Any military action by British forces would have to be lawful under international law.”
Tony Lloyd, Minister of State, Foreign Office, 3 February 1999
“It is clear we have legal authority for action to prevent humanitarian catastrophe.”
Robin Cook, Foreign Secretary, 1 February 1999
“We are in no doubt that NATO is acting within international law”
George Robertson, Defence Secretary, 25 March 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, 11 May 1999
(2) It raises the question whether HMG even believed at the time that the action was lawful ?
The full facts are not yet known but there are reports that lawyers advised that the bombing was illegal.
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.’ ”
The opinion of the committee that the bombing was nevertheless “moral” is much more dubious.
It is difficult to see how such a deliberate defiance of the central provisions of the UN Charter governing the use of force could ever be morally justifiable. These are the provisions prohibiting the use of force in the settlement of international disputes, without the authority of the Security Council, otherwise than in self-defence. These provisions create solemn obligations to which all members of the U.N. are committed by their own consent. Can there be a moral right or duty to act as if such obligations are of no significance? The contrary opinion of the Foreign Affairs Committee suggests a serious failure to appreciate the importance to mankind of the Charter and the United Nations. For the main purpose of the Charter, as set out in its preamble, was “to save succeeding generations from the scourge or war, which twice in our lifetime has brought untold sorrow to mankind.” It is not clear that there can ever be moral justification for frustrating such a purpose.
Even assuming, however, that the theoretical possibility of such a justification exists, it can hardly be doubted that the right to invoke it depends upon clear and convincing proof of the justificatory facts. This burden of proof must be even greater where the degree of force employed is as great as it was in this case. For the NATO intervention involved an attack by 18 states, with a combined population of about 600 million, upon a single state, with a population of only 10 million. It involved the dropping, by day and by night, of 24,000 bombs and missiles upon populated areas. It resulted in the death or maiming of thousands of men, women and children. It inflicted catastrophic economic damage from which Yugoslavia will take years to recover. So one has to ask oneself whether such clear and convincing proof has been shown to exist. There are several reasons to doubt it.
Reasons for doubting the moral justification for the NATO intervention
(a) NATO force was used exclusively against the Serbs whereas it is quite clear from contemporaneous official reports that the ethnic Albanians were at least as much to blame for the prevailing hostilities as the Serbs. Thus the Report from the Secretary General of the United Nations dated 17 March 1999 covering the period 1 January to 17 March 1999 (7 days before the start of the air attacks) showed that the resumption and continuation of hostilities in this period was initiated by the KLA and not by the Serbs. Thus the Report accepted the statement of the OSCE that “the current security environment in Kosovo is characterized 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.” These “persistent attacks and provocations” included ambushes and killings of Serb soldiers police and other officials. Furthermore, the displacements of the Serbs in this period was just as great in relation to their population as that of the ethnic Albanians. It included in their case many thousands of displacements of Serbs from Kosovo. This was not the case in respect of the ethnic Albanians who, despite displacements from their villages, were not actually driven from Kosovo until after the bombing started.
(b) In fact, NATO`s decision to attack the Serbs and the Serbs alone was not based so much on the contention that it was the Serbs and the Serbs alone who were currently responsible for the prevailing violence. It was based on the fact that the Serbs had refused to sign the draft Rambouillet agreement, whereas the KLA had agreed to do so. But the Serbs were perfectly justified in refusing the sign this draft because it contained a number of provisions that were totally insupportable and which had eventually to be dropped.
The provision that the military and civilian presence in Kosovo was to be exclusively NATO in composition and authority.
The provision that NATO forces would be entitled to access to the whole of Yugoslavia for an unlimited time and under conditions of complete immunity from cost and civil and criminal liability.
The provision that there would be “an international meeting … to determine a mechanism for a final settlement for Kosovo, on the basis of the will of the people…” (clearly implying a referendum) in three years’ time upon conditions that would in practice secure the secession of Kosovo from Yugoslavia.
A commitment to “cooperate fully” with the International Criminal Tribunal for the former Yugoslavia, with its implication the Milosevic would be handed over for trial.
(c) The NATO action was expressed to be for the protection of the Kosovo Albanians, but NATO knew full well that its air attacks were bound to lead to serious reprisals against the Kosovo Albanians.
Kenneth Bacon, Pentagon spokesman:
“In the Pentagon, in this building, we were not surprised at what Milosevic has done.”
Reported in The Guardian, 6 April 1999
George J. Tenet Director CIA warned that the Serbs might respond with a campaign of ethnic cleansing.
Reported in the Washington Post, 7 April 1999
General Wesley Clark
“We knew there were going to be some horrendous atrocities… We knew it might lead to the expulsion of Kosovars from certain regions of Kosovo.”
BBC 28 April 1999
In any event, the probabilities of violent retribution and revenge against the Kosovar Albanians for the NATO bombing were obviously high since the Serbs were not in a position to take such action against NATO or the KLA and it was highly probable that they would take it against the Kosovo Albanians who were welcoming the NATO action.
In fact the NATO attacks coincided with an enormous increase in the displacement of ethnic Albanians from their villages, and for the first time from the province of Kosovo itself, and a dramatic increase in the volume of casualties. It is these facts that led Lord Carrington, former Secretary-General of NATO, to assert that it was the bombing that caused the ethnic cleansing. It is difficult to see how moral virtue can be claimed for action which actually made the position of the Albanians, whom NATO say they were trying to protect, worse rather than better.
NATO has implicitly recognised the force of this criticism by asserting that the ethnic cleansing would have taken place even if there had been no NATO bombing. However, the evidence cited in support of this assertion does not stand up to examination.
Thus Lord Robertson in his recent book “Kosovo: An Account of the Crisis” said:
“My German colleague Rudolph Scharping revealed on 9 April 1999 details of a covert Serbian plan, code-named Operation Horseshoe, to expel Kosovo Albanians from their homeland.”
However, in March 2000 Heinz Loquai, a retired brigadier-general now serving with the OSCE, concluded after a study of this “plan” that it was:
“fabricated in Germany from run-of-the-mill Bulgarian intelligence reports” and that “it gave no support for the theory that the Serbs planned to evict the Albanians from Kosovo.”
As an alternative, it is sometimes suggested that the displacements of Albanians from their villages which took place prior to the start of the bombing would have led, even without the bombing, to the infinitely worse situation that took place after the bombing started. This speculation ignores, however, the fact that the displacements that took place prior to 24 March 1999 were quite different in cause, scale and duration from those that took place after that date. They were different in cause because they were a reaction to the KLA guerilla attacks whereas the ethnic cleansing after that date were a violent and retributive response to the NATO bombing. They were different in scale by a multiple of 4 or 5. They were different in duration in that they were temporary, as was shown by the return of almost the whole of the displaced villagers to their home in the quiet period at the end of 1998. Thus they furnish no basis for an inference that the ethnic cleansing that took place after the start of the bombing would have taken place in any event even if there had been no bombing.
The evidential basis for the above is to be found in my pamphlet “Kosovo:War and Diplomacy” published in November 1999 by the Centre for Policy Studies, 57 Tufton Street, London, SW1P 3QL, tel: 020 7222 4488. One must conclude that the NATO intervention lacked not only legal but also moral validity.
MARK LITTMAN Q.C.