Kosovo, a Just War?
by Denise Mumford
It may seem an irony that an important tool for reflection about war should come from a religion whose founder was wedded to peace. Throughout the early centuries of Christianity, Christians were discouraged from participating in war1. However, Augustine, the founder of the just war tradition, was a realist, who understood that the people of the City of God, while alive, are also citizens of the earthly city, and recognised that war may be justified2 as a means of securing peace:
‘For it is the wrongdoing of the opposing party which compels the wise man to wage just wars; and this wrongdoing, even though it give rise to no war, would still be a matter of grief to man, because it is mans wrongdoing. Let everyone then who thinks with pain of all these great evils, so horrible, so ruthless, acknowledge that this is misery.3
The emphasis in this passage, as Ramsey4 rightly points out, is not only on universal ethical standards that are to be justified but a lively sense of mans common plight in wrong doing and of the judgement of God which overarches the justified war. The just war tradition was thus developed in a spirit of humility, to provide a means of reflection upon the evil of war, and when and whether war may be justified. It remains influential even in secular circles5.
The Select Committee on Foreign Affairs, commenting on the Kosovan War, wrote: Philosophers since Aquinas have wrestled with the issue of whether a war is a just war, and many of the issues raised by the Kosovo Campaign are germane to that debate.6 This essay will use the just war principles to consider the Kosovan campaign, the most recent war in which the UK has been involved. These seven principles7 will be defined in turn, and applied to Kosovo. The Jus ad Bellum has 5 requirements: just cause, legitimate authority, right intention, last resort and hope of justice. The jus in bello considers proportion of means to ends and non-combatant immunity. Finally, an attempt will be made to judge whether the Kosovan war could be described as just.
From the 14th century, when Serbian kings were defeated by the Turks at Kosovo Polje, it was part of Serbian culture to dream of fully reclaiming Kosovo and its Christian sites for the Serb people. By the 20th century, the Serbs had become a small minority of the population of Kosovo. Under Marshall Tito, Kosovo became a self-governing province of Serbia, but in 1989, Milosovic abolished Kosovan autonomy, and established direct rule. Kosovars8 were banned from jobs in local government and education, and there were serious human rights violations against ethnic Albanians.
The Kosovars initiated a non-violent political campaign in opposition to these measures, but following the Dayton Accords9, which failed to take account of Kosovan grievances, the Kosovan Liberation Army was formed. Attacks started on Serbian officials and were followed by reprisals on border villages by the Serb Military Police. In 2/98, 80 civilians were killed in one such reprisal; this event precipitated full armed struggle by the KLA.
A counter-attack by Milosovics forces in 7/98, drove 200,000 civilians from their homes into the mountains. The Security Council called for a cease-fire and international supervision of the territory. Diplomacy failed to stop the reprisals, and NATO, for the first time, threatened to bomb Yugoslav installations. Milosovic responded by allowing OSCE10 to send in a Verification Mission, whose purpose was to keep apart the Yugoslav army and the KLA.
Diplomatic efforts were continued, seeking a peaceful solution. Although the Verification Mission had some success, there were continued skirmishes between the Serbs and the KLA, in which civilians including Serbs – were killed. In January 1999, Serb Forces killed 45 civilians in Racak. International opinion was outraged and NATO re-authorised air strikes against Serbia. Under this threat and heavy diplomatic pressure, Milosovic agreed to attend talks in 2/99. The Rambouillet Conferences aim was to define the terms of an agreement which would provide for a cease-fire, a peace settlement and the deployment of an international peace keeping force within Kosovo to uphold that settlement.11 The KLA reluctantly agreed to the detailed peace plan but the Serbs refused what they regarded as an ultimatum. The talks ended in deadlock, and on 24/3/1999 NATO began air strikes on Serbia.
The notion of a just cause seems a contradiction in terms. War is so unjust and so destructive that it is no longer regarded as a satisfactory way of settling disputes or righting injustices. However, there are clearly recognised exceptions a just cause would be that of self-defence from attack.12 Self-defence may be extended from an individual state to an alliance. Coates13 takes the view that all just wars are in some sense defensive, upholding rights which have been violated. Thus, an offensive war to protect the innocent may be regarded as just. A new right in law to humanitarian intervention is developing in customary International Law, especially since the end of the Cold War. Prof. Greenwood (LSE), for example, argues that: states rights do not take priority over human rights; but that armed intervention is only justifiable when there is the existence or threat of the most serious humanitarian emergency involving large scale loss of life.14
The just cause for intervention in Kosovo was undoubtedly humanitarian concern for the Albanian population.15 Were the human rights violations serious enough to be a just cause of war? At the time the action was undertaken the worst of the ethnic cleansing was still to come, and some critics have claimed that the bombing precipitated the attacks. It is probable that the action by Serb forces was speeded up and brutalised because of the war. However, the NATO allies had had the experience of ethnic cleansing in Bosnia, orchestrated and aided by Milosovic: they were terrified of another Srebrenica. Moreover, they had received intelligence information through Germany of Operation Horseshoe. Milosovic was positioning his troops for a decisive semi-circular sweep through Kosovo to achieve a solution to his Kosovon problem, by driving the ethnic Albanians into neighbouring countries which happened in late March.16 There was further evidence of pre-planning, which led the Select Committee to conclude that the campaign of expulsions was premeditated.17 UNHCR estimates that between 23/3 and 9/6, 826,979 refugees fled Kosovo this was a major humanitarian disaster, a properly just cause.
This principle indicates that only properly constituted authorities may wage war. The Christian Church has a long tradition of supporting the ruler18, or in modern times, the government of a state both in peace and war. However, if power is misappropriated or abused by the ruler, the right to resistance (on the part of citizens) or intervention (by other states) becomes more acceptable. That is clearest when there is a humanitarian motive and when the force has an international mandate, such as a Security Council resolution in support.19
Kosovo fails on all counts of legitimate authority. Legally it is a province of Serbia, not an independent state. The Russian government strongly supported Belgrades insistence that Kosovo was an internal matter for Serbia. NATO did not seek sanction from the Security Council for its action against Serbia, because the allies believed that Russia would veto any resolution. NATO was not acting for any of the reasons legitimised by international law: not in self- defence, nor with Security Council authorisation, nor at the request of Serbia, the legal government of Kosovo. Indeed, it is generally accepted that NATO was acting in contravention of the UN Charter.
Moreover, the North Atlantic Treaty gives no authority for action on humanitarian grounds. Article 5 of the Treaty provides for the use of force only in collective self-defence.20 Finally, none of the legislatures that went to war gave explicit sanction for the action. In the case of Britain, this is quite odd. Tony Blair had sought the approval of Parliament for UK/US air strikes against Iraq in Feb.1998 and received a huge majority. It is believed that he would have received similar support in March 1999 against Kosovo, but he did not ask for it.
There is, however, an alternative argument about legitimate authority that there is a disjunction between international law and morality. Whether NATOs action had legal authority is a different question from whether NATOs action was right. The action might be seen as having legitimacy, if not strict legality under international law.21 A comment by Prof. Simma is worth quoting in full:
Humanitarian interventions involving the use of armed force and undertaken without the mandate or the authorisation of the Security council will, as a matter of principle, remain in breach of international law. But such a general statement cannot be the last word. Rather, in any instance of humanitarian intervention, a careful assessment will have to be made of how heavily such illegality weighs against all the circumstances of a particular concrete case, and of the efforts, if any, undertaken by the parties involved to get as close to the law as possible.
It is clear that NATO members with difficulty, it is true – were acting in concert. Also, NATO was not acting against the UN: the Security Council rejected (by 12 votes to 3) a draft resolution proposed by Russia on 26/3/99, which would have condemned NATO military action in Kosovo. On balance, NATOs action was legitimate in my view on moral grounds, but greater efforts should have been made to obtain UN backing.
This criterion is about the aims of a war and whether those aims seem likely to offer a proportionate response to the injury threatened or received. Put simply – is the just cause worth a war? The aims must be to restore peace with justice, not to devastate the other nation in a spirit of revenge.
The original diplomatic objectives in Kosovo identified by the Select Committee from government statements and those by international organisations are as follows:
- Improving the humanitarian situation in Kosovo;
- Promoting greater autonomy for Kosovars, while maintaining the internationally recognised borders of Yugoslavia;
- Maintaining regional stability by avoiding large refugee flows into neighbouring states
- Ending the fighting and Introducing an international force to monitor the territory until a peaceful solution could be negotiated.22
Whether these tough but worthy aims could have been achieved by diplomacy alone or required military intervention is to be discussed in the next section. Suffice to say that by the time the Rambouillet talks were undertaken, the allies had determined upon more radical demands, which were disproportionate and therefore unjust.
This principle states that the move to war is only justified when all other means have been exhausted. There must be a genuine commitment to peacemaking, made in a spirit of compromise and reconciliation. This principle can be taken too far: delay may be counter-productive. (For example, prior to the Second World War, the policy of appeasement may have encouraged German aggression.) However, Articles 33 to 42 of the UN Charter suggest measures to be tried before resorting to war, including economic measures. Various sanctions were enforced against Serbia throughout 1988 without success.
Diplomacy is the core of this issue, in particular the Rambouillet talks of Feb. 1999, attended reluctantly by the members of the Yugoslav Government, Rugova (the Kosovar political leader) and the KLA. The terms proposed by the allies were difficult enough for the Kosovars to accept23, but probably impossible for Milosovic. Barder believes that the war could and should have been avoided by dropping or softening the more controversial and unacceptable demands24. He lists these as follows:
- The threat of a constitutional settlement based on the will of the people (a referendum) in 3 years time unmistakable long-hand for Kosovo independence, and unacceptable to Serbia.
- Freedom for Nato forces to move with full immunity anywhere in Serbia, not just in Kosovo, (Military annex.)
- The demand that the economic management of Kosovo be committed to the observance of free market doctrine.
- Full co-operation with the War Crimes Tribunal (which later that year indicted Milosovic for war crimes.)
- The exclusive role of NATO in forming the military occupation force.
- No wonder, says Barder that these proposals proved incapable of winning either Russian or Security Council support or Serbian surrender. He points out that the elements to which the Russians objected were not essential to NATOs overall objectives, especially the Military Annex, and that Russian support was essential in securing Security Council backing, and in the longer term Milosovics surrender. Barder believes that the terms finally agreed on 6/5/99, the Petersberg principles (brokered partly by Russia) which were much simpler and closer to the diplomatic objectives quoted earlier, could have avoided war.
Some NATO members believed that Milosoveic never intended to sign at Rambouillet whatever the terms. No-one believed Milosovic any more but – We had to go through a process.25 The allies were determined to obtain agreement from the KLA, which they achieved with difficulty. Once the KLA signed, Milosovic could be blamed for the failure of the talks, and force was justified. These observations suggest a level of cynicism on both sides about the diplomatic process, and a determination on war.26 It would have been more in line with just war thinking to approach the diplomatic effort with more moderate aims, and with a greater willingness to work alongside Russia and the UN.
Hope of Justice (good prospect of success.)
This principle states that it is not right to go to war against overwhelming odds. There must be a reasonable hope of achieving the agreed aims of the war. In modern warfare, however, the states with military superiority are keen to minimise casualties particularly on their own side. Thus, as Ignatieff points out: Technological omnipotence is vested in the hands of risk-adverse political cultures.27
In Kosovo, the NATO allies had much superior force of arms, including the most up-to-date weaponry and aircraft, compared with Serbia. It was militarily not an equal contest. However, the allies were tied by political considerations. Since this was not a defensive war, public opinion in NATO countries, (and particularly the US, which bore the brunt of the action,) would not have accepted heavy loss of life by allied forces, and were against a land war. Moreover, in order to save lives, allied pilots were instructed to fly above 5000 m., which made accuracy of targeting more difficult.
In spite of this, the political leaders expected that a few days bombing would suffice for Milosovic to be defeated. This was a serious misjudgement. The war lasted much longer than expected 78 days. The military commanders had been less confident. For example, General Hugh Sheldon, Chair of the US Joint Chiefs of Staff, said on 15/3/99: Air strikes alone cannot stop Serb forces from executing Kosovars,28 and so it proved. Although NATO quickly achieved air supremacy, the ethnic cleansing continued unabated, and the Yugoslav forces survived largely intact. The threat of a land war was needed before Milosovic could be brought to surrender. The war lasted longer and was more destructive because NATO political leaders were divided about military strategy. It might not have been won at all without the changed diplomatic demands.
Ius in Bello: Proportion of Means to Ends and Non-Combatant Immunity.
The principle of proportionality suggests that the harm caused by war should not exceed the good it aims to accomplish. Huge destructive forces should not be deployed against lesser opponents. The view of human loss should also be bipartisan. The classic example of failure to regard this principle is the Battle of the Somme, where casualties of more than a million (420,000 of them British) hardly achieved any change in the status quo.
The principle of non-combatant immunity is a moral prohibition against taking civilian lives. The principle has become more questionable in modern warfare. The traditional lines of battle no longer exist. The whole citizen body is now involved in war, with few exceptions from women working in munition factories to civilians working in power stations. Where civilians are clearly killed by mistake, the principle is not breached. Even so, civilian casualties are a scandal in modern warfare, with increasing monitoring by a world-wide media.
It was a feature of the Kosovan war that the use of precision bombing made it possible to strike not only military targets but also their support networks. Many of the key targets, such as power stations, were clearly of dual use, providing power to the military but also to hospitals and homes. The destruction was enormous29 and civilians were greatly affected. However, the allies took enormous pains to protect human life that of their own pilots and of civilians too.30 Military lawyers were involved in vetting all the targets, asking: was the objective military; were the means selected proportional to the objective, and what were the risks of damage to civilians.31 New technology made it possible to target not just individual buildings but parts of buildings. There were of course terrible mistakes, such as the bombing of refugee convoys and the civilian train, mainly because pilots were bombing from a great height. These were certainly not intended but were a part of the horror that is war.
The campaign eventually succeeded in defeating Milosovic, but in so doing it rendered Serbia the poorest country in Europe, by destroying its industrial base. This was not part of the acknowledged aims, but is typical of what happens in war, when the attack becomes disproportionate. Moreover, the action did not prevent the ethnic cleansing which was the major reason for starting the war. This could only have been achieved by a land campaign, but NATO was unwilling to commit to this at the start of the war.
It is time to judge whether the Kosovan campaign can, according to the principles outlined, be regarded as a just war. The American Bishops, in their critique of just war principles,32 conclude that the criteria must be taken as a whole:
The just war tradition is not a weapon to be used to justify a political conclusion or a set of moral criteria that automatically yields a simple answer, but a way of moral reasoning to discern the ethical limits of action.
It seems fair to say that the war had a just cause. The ethnic cleansing of the Kosovo Albanian population before and during the war created a humanitarian disaster. The allies had had the experience of the Bosnian massacres, and had clear intelligence of a plan to drive the Kosovars into Albania and Macedonia. The reality was worse than their fears. The original intention of the campaign was also just. The general diplomatic aims were to protect the Kosovars, to stabilise the region, and to work towards a long-term political settlement.
On the negative side, there was a determination by NATO to act alone in a police role, unacceptable under international law. NATOs authority was not legitimate. Moreover, the diplomatic process at Rambouillet, which might have prevented war, was undertaken on both sides in a cynical spirit neither believing that agreement was possible. The original diplomatic aims, (outlined under Right Intention,) were abandoned at Rambouillet for terms which were far too stringent and incapable of winning either Russian or Security Council support. Perhaps the greatest failure of the allies was not settling at Rambouillet for terms closer to the final peace terms. As Barder writes:
The belated NATO concessions opened the way to Russian diplomacy and the effective pressures exerted by Chernomyrdin on Belgrade, unanimous support in the Security Council and the subsequent capitulation of the Serbs. He adds: The main effects of the Rambouillet demands and the NATO bombing campaign were to delay [agreement] by three crucial months of unnecessary death and destruction.33
If Barders view is accepted, and I find it convincing, the war cannot be regarded as justified, because there is evidence to believe that it might have been prevented.34 It is unfortunate that NATOs good intentions were mishandled both diplomatically and militarily, and that the aim to rescue a people from humanitarian catastrophe ended in an unjust and misguided war.
Finally, just war thinking has a major limitation in not analysing the outcomes of war. In Kosovo, the outcome has been dismal, and adds to a sense of the injustice perpetrated. On the one hand the refugees have been able to return home (although many died in the ethnic cleansing), but to a country whose housing and infrastructure is largely destroyed. There is no political settlement in prospect for Kosovo. The KLA are commencing another guerrilla campaign. Serbs from Kosovo have left in droves, and the UN has been compelled to assume virtually unprecedented responsibility for the governance of the province. The one hope on the horizon is that, with the fall of Milosovic, (a possible outcome of the war, but not its stated or just intention) the new government of Serbia may be willing to negotiate a future for Kosovo, which is more just and realistic.
The importance of analysing any war, before, during and after the event is crucial, give the terrible destruction which is inevitable and the way in which just intentions are perverted during the course of a campaign. NATO started with humanitarian intentions and ended by killing many Serbian and Kosovan civilians without suffering a single casualty on the allied side. They destroyed the infrastructure of a nation without suffering a single bomb on NATO territory. They did not prevent the ethnic cleansing which was their primary goal. The ancient Christian just war tradition provides a sound process for reflection, which may provide lessons for the future. Perhaps the most striking of these is the importance of establishing humanitarian action more firmly within international law; another is the need for NATO to reflect upon how an alliance of 19 autonomous states can make sound and unified decisions in war; a third is the moral dilemmas raised by the use of modern weapons.
- Atkinson and Field: Dictionary of Christian Ethics and Pastoral Theology. Intervarsity Press 1995.
- B. Hoose (Ed): Christian Ethics. Cassell 1998.
- Cyril Rodd: New Occasions Teach New Duties. T & T Clark 1995.
- AJ Coates: The Ethics of War. Manchester University Press 1997.
- Jean Bethke Elshtain: Just war theory. Blackwell 1992.
- James Turner Johnson: Just War theory and the Restraint of War. Princeton University Press 1981.
- Noel Malcolm: Kosovo, a Short History. Macmillan 1998.
- Michael Ignatieff: Virtual War, Kosovo and Beyond. Vintage 2001.
- Hugh Beach: Interventions and Just Wars: the Case of Kosovo. Studies in Christian Ethics. Vol. 13 No. 2. 2000. T & T Clark.
- Brian Barder: Kosovo 1999: an Alternative View. (http://www.barder.com/brian/Kosovo.htm)
- John Rentoul: Tony Blair, Prime Minister. Ch. 32. Little, Brown and Co 2001.
- The Rambouillet Agreement: (http://www.kosovo.mod.uk/rambouillet_text.htm)
- The United Nations Charter: (http://www.un.org)
- House of Commons Foreign Affairs Select Committee Report on Kosovo (http://www.publications.parliament.uk/pa/cm199900/cmselect/cmdfaff/28/2806.htm)
2The wars Augustine regarded as just were holy wars, commanded by God. The only examples of these were to be found in the Old Testament. The term justified war therefore reflects Augustines thought more accurately.
5 There are, of course, other approaches to war which are not explored in this essay, including Realism, which regards the application of morality to war as a dangerous limitation; and Pacifism, which broadly regards war as beyond the reach of morality.
9 1995, Dayton was the US organised conference which brought the war in Bosnia to an end. The agreement recognised Serbia and Montenegro as the new Yugoslavia, with no special recognition for the status of Kosovo, which was formally a province of Serbia, and therefore Serbias internal affair.
12 See Article 51 of the United Nations Charter. See also Augustine: We usually describe a just war as one that avenges wrongs, that is, when a nation or state has to be punished either by refusing to make amends for outrages done by its subjects, or to restore what it has seized injuriously, Quaest. In Heptatteuch.
16 (8), pp.48 and 122. Louise Arbour, Chief Prosecutor at the International Criminal Tribunal for the Former Yugoslavia, indicted Miosovic for war crimes in Kosovo on May 27,1999. Operation Horseshoe is part of her evidence against him. However, there is a view that the idea of a plan was exaggerated, see (14) 93.
18 Three things are required for any war to be just. The first is the authority of the sovereign on whose command war is waged. Since the care of the commonweal is committed to those in authority they are the ones to watch over the affairs of the city, kingdom or province in their jurisdiction. Thomas Aquinas: Summa Theologiae, 2a2ae, 40.1.
19 The United Nations Charter states in Chapter VII that the Security Council may determine, in the case of a breach of the peace or act of aggression, that force should be employed to maintain or restore international peace and security.
23 The key issue for the KLA was the promise of a referendum to decide the final status of Kosovo within 3 years, on which the KLA received a private undertaking from Madelaine Albright, US Secretary of State. (14) 60.
26 Lord Gilbert, Defence Minister of State, in evidence to the Select committee: I think certain people were spoiling for a fight in NATO at the time. I think the terms put to Milosovic at Ramboiillet were absolutely intolerable: how could he possibly accept them? It was quite deliberate. Quoted in (10), p. 8
34 Even if Milosovic had not accepted more moderate terms at Rambouillet, but Russia and the Security Council had been persuaded to come on side earlier, the war would have had legitimate authority and would probably have ended sooner.