Kosovo: illegal, but moral? By Mark Littman QC

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.

These included: 

  • 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 atrocitiesWe 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,
and in an article by Brian Barder on the Web at http://www.barder.com/brian/kosovo.htm .

One must conclude that the NATO intervention lacked not only legal but also
moral validity.

See also:

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