Do you remember Kosovo?
by MARK LITTMAN Q.C.
22 November 2004
Comments on first impression of this pamphlet
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
Short, clear and immensely powerful pamphlet
Your pamphlet on Kosovo is devastating. I hope it is being well circulated. I cannot conceive of any rational answer to it.
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.
Do you remember Kosovo?
Five years ago NATO launched a war against Yugoslavia. It lasted 11 weeks, from 25th March to the 10th 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.
Was the War Justified?
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 prohibited1 except 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 found3. 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 others5, 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.
REPORT OF FOREIGN AFFAIRS COMMITTEE
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 questionable7.
INTERNATIONAL COMMISSION ON KOSOVO
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
SHOULD THERE BE A CHANGE IN THE LAW ?
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.
WAS THE WAR, EVEN THOUGH ILLEGAL, MORALLY JUSTIFIABLE ?
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……
POSITION OF U.K. GOVERNMENT — NO LEGITIMACY WITHOUT LEGALITY
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, 11th 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.
“MORAL“ or “LEGITIMATE ?“
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.
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 25th 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
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 27th April, 1999, which said:
“as to Operation Horseshoe, I have my doubts as to its capacity to prove anything”
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 9th of November, 1998 that:
…the humanitarian and security situation in Kosovo has improved significantly in the past few weeks.
Similarly, on the 27th 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 17th 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.
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. 
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.
(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.
CHANGE INTERNATIONAL LAW ?
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. 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.
4 Att-General before ICJ 11th May 1999 used identical words
9 See note 7, paragraph 138
10 Statement by the “Office of the High Representative for the Contact Group” dated 23rd February, 1999, letter dated 15th March 1999, from the Head of the Yugoslav Delegation to the Contact Group Rambouillet Draft which had been agreed by 15th March 1999, statement dated 23rd February, 1999 of the Chief Serb negotiator, and Resolution adopted by Serbian Assembly dated 23rd 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, 28th June 1999
 (Yugoslavia Country Report in Economist Intelligence Unit 3rd Quarter 1999)
 (Yugoslavia Country Report in Economist Intelligence Unit 3rd Quarter 1999)
 “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.