|
.....[a] In
the case of Kosovo, large-scale violence flared up in late 1997/early
1998. At that stage, the international community took steps to
involve itself quickly and strongly, at least compared with earlier
sad instances. In March 1998 the Security Council, acting under
Chapter VII but without expressly determining that the Kosovo
crisis amounted to a threat to the peace, adopted [UN] Resolution
1160 (1998), in which the Federal Republic of Yugoslavia and
the Kosovar Albanians were called upon to work towards a political
solution. In the same resolution, ... the Council imposed a mandatory
arms embargo vis-à-vis both parties.10
.It emphasized "that failure
to make constructive progress towards the peaceful resolution
of the situation in Kosovo will lead to the consideration of
additional measures".11
.....[b] In
the days that followed, the situation deteriorated rapidly: fighting
intensified and the Serbian security forces as well as the Yugoslav
Army used force in an excessive and indiscriminate manner, thus
causing numerous civilian casualties, the displacement of hundreds
of thousands of innocent persons from their homes, and a massive
flow of refugees into neighbouring and more distant countries.
In April of 1998, the Contact Group for the Former Yugoslavia
agreed, with the exception of the Russian Federation, to impose
new sanctions on the FRY. In June, the UN Secretary-General advised
NATO of the necessity for a Security Council mandate for any
military intervention in Kosovo. However, by that time it had
become apparent that the Russian Federation would not agree to
such a step.
.....[c]
In September 1998, the Security Council adopted Resolution 1199
(1998) which, also on the basis of Chapter VII, determined that
the deterioration of the situation in Kosovo constituted "a
threat to peace and security in the region".12 .The
Council demanded the cessation of hostilities, a ceasefire, as
well as immediate steps by both parties to improve the humanitarian
situation and enter into negotiations with international involvement.
The FRY was requested to implement a series of measures aimed
at achieving a peaceful solution to the crisis. In conclusion,
the Council "[d]ecide[d], should the concrete measures demanded
in this resolution and resolution 1160 (1998) not be taken, to
consider further action and additional measures to maintain or
restore peace and stability in the region".
.....[d]
During subsequent weeks, however, it became clear that Russia
would veto any Council resolution containing a mandate or an
authorization to employ threats or the use of force against the
FRY. On the other hand, it was equally clear that the just-quoted
reference to eventual further Council action in Resolution 1199
(1998) was not sufficient in itself to provide a legal basis
for the threat or use of armed force by UN Member States or international
organizations. Thus, the Security Council was in no position
to take the "logical" further step of following up
on Resolution 1199 (called a "springboard resolution"
by the then German Foreign Minister Kinkel) and finally authorizing
enforcement action if the situation did not improve.
.....[e]
At this point NATO took over, as it were. Its members gave the
organization the go-ahead for military action if the FRY did
not comply with the Council resolutions, and the Alliance prepared
for air strikes against the FRY. The principal legal basis for
such action was to be the concept of "humanitarian intervention",
linked as closely as possible under the circumstances to the
UN Charter in order to further gain legitimacy. The NATO position
was summarized in the following terms by [NATO] Secretary-General
Solana on 9 October 1998:
.....[h]
This announcement appears to have made a certain impression on
the FRY. In any case, intensive diplomatic efforts, particularly
on the part of US Special Envoy Richard Holbrooke, during the
following days led to a ceasefire and the conclusion of two agreements:
a first agreement of 16 October 1998 between the FRY and the
OSCE, providing for the latter to establish a verification mission
in Kosovo, and including an undertaking by the FRY to comply
with Resolutions 1160 and 1199; and a second agreement between
the FRY and NATO, signed on 15 October 1998, providing for the
establishment of an air verification mission over Kosovo in order
to complement the OSCE mission. According to the first-mentioned
agreement,
[i]n the event of an emergency situation in Kosovo which in
the judgment of the [OSCE] Mission Director threatens the safety
of members of the Verification Mission, the FRY shall permit
and cooperate in the evacuation of Verification Mission members
[by a NATO Extraction Force].14
.....[i]
Holbrooke further reached an accord with the FRY, according to
which negotiations on a framework for a political settlement
were to be completed by 2 November 1998.
.....[j]
On 24 October 1998, the UN Security Council returned to the scene
again, reacting to the conclusion of the Holbrooke agreements
with the adoption of Resolution 1203 (1998). Acting under Chapter
VII, the Council formally endorsed and supported the two agreements
concluded on 15 and 16 October concerning the verification of
compliance by the FRY and all others concerned in Kosovo with
the requirements of its Resolution 1199, and demanded full and
prompt implementation of these agreements by the FRY. It affirmed
that the unresolved situation in Kosovo constitutes a continuing
threat to peace and security in the region.
.....[k]
After some time, during which there was an improvement in the
humanitarian and security situation in Kosovo, violence increased
again, culminating in the events in Racak in mid-January 1999.
In response, NATO threats of air strikes were resumed.
.....[l]
On 28 January 1999, UN Secretary-General Kofi Annan, he himself
a former special UN envoy to NATO, met with the North Atlantic
Council. His statement to the Council includes the following
passages:
|
We must build on the remarkable cooperation between the UN
and SFOR in Bosnia to further refine the combination of force
and diplomacy that is the key to peace in the Balkans, as everywhere.
The success of the NATO-led mission operation under a United
Nations mandate is surely a model for future endeavours....
Let me conclude by congratulating you on the upcoming 50th
anniversary of the alliance, and wish you all success in your
deliberations on devising a new strategic concept for the next
century. How you define your role, and where and how you decide
to pursue it, is of vital interest to the United Nations, given
the long tradition of cooperation and coordination between NATO
and the UN in matters of war and peace. I look forward to hearing
your views on this matter.15 |
.....[m]
At a press conference in Brussels, the UN Secretary-General,
when asked about the preconditions of military intervention in
the FRY/Kosovo, is reported to have said that "normally
a UN Security Council Resolution is required".16
.....[n] On
the same day, NATO Secretary-General Solana made a statement
to the press on behalf of the North Atlantic Council, in which
he affirmed that NATO fully backed a new initiative of the Contact
Group and was ready to employ its military capabilities if necessary.
He then added: "You have seen from the visit of the United
Nations Secretary-General to NATO earlier today that the United
Nations shares our determination and objectives."17 .On
the evening of the same day, following decisions of the Contact
Group taken on 29 January 1999 aimed at reaching a political
settlement between the parties to the Kosovo conflict and establishing
a framework and timetable for that purpose, the President of
the Security Council made a statement according to which the
Council welcomed and supported the decision of the Contact Group
and demanded that the parties should accept their responsibilities
and comply fully with these decisions as well as the relevant
Council resolutions. Further, the Security Council reiterated
its full support for international efforts, including those of
the Contact Group and the OSCE Verification Mission, to reduce
tensions in Kosovo and facilitate a political settlement.18
.....[o] The
next day, [NATO] Secretary-General Solana repeated the threat
of air strikes, if the "requirements of the international
community" and all relevant Security Council resolutions
were not observed. In this context he welcomed the just-mentioned
Presidential Statement.19
.On 1 February 1999, the FRY representative
requested an emergency meeting of the Security Council "following
the NATO threats to the sovereignty of [his] country". According
to the FRY, "[t]he decision by NATO, as a regional agency,
to have its Secretary-General authorize air strikes against targets
on FRY territory ... represents an open and clear threat of aggression
against the FRY as a sovereign and independent Member State [sic]
of the United Nations.20
.The FRY letter then drew attention
to the requirement of UN authorization of enforcement action
to be undertaken by a regional organization.
.....[p]
As of March 1999, the international community is expecting the
parties to the Kosovo conflict to return to the negotiating table(s)
and hammer out the details of a "Rambouillet Agreement".
As things currently stand, the Security Council will be requested,
in this agreement, to issue a mandate for a NATO-led multinational
peace mission (KFOR), involving armed forces of both members
and non-members of NATO, to secure the implementation of the
"Rambouillet Agreement", by military means if necessary.
However, in view of the fact that the future agreement would
embody the consent of the FRY to the deployment of a multinational
peace force on its territory, NATO and its member states appear
to regard a UN Security Council mandate/authorization as politically
desirable, but not indispensable, should the veto of a permanent
member stand in the way. This at least was the viewpoint taken
by the German Government in the parliamentary debate in late
February 1999, which led to the Bundestag's approval of German
participation in the military implementation of the future "Rambouillet
Agreement" as well as in NATO operations within the framework
of the Extraction Force.21
A similar view had been expressed earlier on with regard to the
effect of the Holbrooke Agreements on the legality of the presence
of the OSCE Verification Mission in Kosovo and on that of the
eventual evacuation of OSCE Verification Mission members by the
NATO Extraction Force.22
.....[q]
In contrast, it is said that the current position of the Russian
Federation is to call for a Security Council mandate based on
Chapter VI in addition to an agreement with the territorial sovereign.
If this condition were met, it appears that Russia would also
be willing to participate in a NATO-led multinational peace mission
in Kosovo.
.....[r]
Thus stands the chain of events relevant in the present context.
In the following, these facts will be assessed in relation
to the law set out in Section 1 [not reprinted here] above.
.....[s]
First, contrary to the standpoint taken in the FRY's request
of 1 February for an emergency Council meeting, NATO is not a
regional organization in the sense of Chapter VIII of the UN
Charter. [Click here for UN
Charter.] On the part of NATO, this was expressly clarified
years ago in a letter addressed by the organization's former
Secretary-General Willy Claes to the UN Secretary-General. Consequently,
the requirement enshrined in Article 53 para.1 of the Charter
(cf. para. 5 above) for an--express or implicit, prior or ex-post-facto--
authorization of enforcement action under regional arrangements
or by regional agencies is not formally applicable in the case
of NATO. NATO constitutes an international organization on the
basis of Article 51 of the Charter; the only "enforcement
action" envisaged in this Article is collective self-defence.
If NATO now widens the scope of its activities beyond "Article
5 missions" [sic: Art. 51],23
it leaves the area of relative freedom of action granted by Article
51 of the UN Charter and becomes fully subjected to the legal
limits established by the "higher" (cf. Article 103)
Charter law intended to contain or prohibit any other, i.e. offensive,
kind of coercion or enforcement by military means. Thus, we are
back to the basic principle of "no threat or use of armed
force except in self-defense or if called for, respectively authorized,
by the Security Council". In our case, the requirement of
such authorization would result (not from Chapter VIII [Regional
Arrangements] but) from Chapter VII [SC Action] of the Charter.
However, as to the modalities of Security Council authorization,
the clarifications developed on Article 53 para. 1 will certainly
be applicable by way of analogy. The argument could even be made
that legal limitations to be applied in cases of interaction
between the UN and regional organizations foreseen by the Charter
would have even greater weight vis-à-vis an organization
like NATO which is now venturing into the field of "enforcement
action against third states ***. In concrete terms, NATO could
be authorized by the Security Council to threaten or use armed
force against the FRY not only expressly and prior to such action
but also implicitly ex post though not tacitly.
.....[t]
Since, as was shown above, an express authorization of the threat
or use of force against the FRY never materialized, the follow-up
question would be whether the sequence of Security Council reactions
to NATO activities and their results described earlier could
be seen as an implicit authorization granted ex post. In favour
of a positive reply, one could point to the remarkable degree
of "satisfaction", as it were, expressed by the Council
in its Resolution 1203 (1998) as well as in the Presidential
Statement of 29 January 1999 with the Holbrooke agreements and
the subsequent successes of the Contact Group - results causally
linked to the NATO threat of imminent air strikes. These signs
of political approval could, at any stage, have been prevented
by the opposition of any permanent member of the Council. But
the Russian Federation chose to remain silent. On the other hand,
however, Russia had made it clear in the fall of 1998 that it
was not ready to follow up on Resolutions 1160 and 1199 by agreeing
to the ultimate step of unleashing armed force against the FRY.
This position appears not to have changed since then. In light
of this, the view that the positive reception by the Council
of the results of NATO threats of force could be read as an authorization
of such force granted implicitly and ex post is untenable. But
would this not mean that the [UN] Security Council has welcomed
and endorsed developments brought about in violation of the UN
Charter? The question of such illegality vel non will have to
be looked at, but independently of a final legal judgment. The
fact is that the Security Council, as a political organ entrusted
with the maintenance or restoration of peace and security rather
than as an enforcer of international law, will in many instances
have to accept or build upon facts or situations based on, or
involving, illegalities.
.....[u]
In consideration of the foregoing, it may be concluded that the
NATO threats of air strikes against the FRY, not having been
authorized by the Security Council, are not in conformity with
the UN Charter. In this regard, it makes little difference that
the threat had not been carried out until now because Article
2(4) prohibits such threats in precisely the same way as it does
the actual use of armed force.
.....[v]
Let us now look at the interaction between the UN and NATO from
the other, i.e. the NATO, side. Such a complementary perspective
might place the legal deficiency just diagnosed in a mitigating
context, so to speak.
.....[w]
Indeed, one is immediately struck by the degree to which the
efforts of NATO and its member states follow the "logic"
of, and have been expressly linked to, the treatment of the Kosovo
crisis by the Security Council. In an address delivered in Bonn
on 4 February 1999, US Deputy Secretary of State Strobe Talbott
referred to an "unprecedented and promising degree of synergy"
in the sense that the UN and NATO, among other institutions,
had "pooled their energies and strengths on behalf of an
urgent common cause"; as to the specific contribution of
the UN, he saw this in the fact that "the UN has lent its
political and moral authority to the Kosovo effort".24 .Note
the silence as to UN legal authority.
.....[x]
Aside from the absence of a formal authorization discussed above,
a reading of the relevant Council resolutions together with the
respective pronouncements of NATO (members) might lead an observer
to conclude that the two sides acted in concert. The most remarkable
illustration of this is the way in which SC Resolution 1203 (1998)
welcomed and endorsed the agreements between NATO/OSCE and the
FRY brought about (or at least, helped along) by the unauthorized
NATO threats.
.....[y]
If we analyze the reasoning behind the announcement of NATO that
armed force would be used if the FRY did not desist from further
massive violations of human rights (cf., above all, Secretary-General
Solana's letter of 9 October 1998),25
we see that it follows two lines: first, it evokes elements of
the doctrine of "humanitarian intervention" without
calling it by name; but secondly, and much more pronouncedly,
it refers to, and bases itself on, the UN Charter and Security
Council as well as other UN action concerning Kosovo wherever
and in whatever way possible. Above all, it draws attention to
SC Resolutions 1160 and 1199 and the fact of FRY's non-performance
of the obligations deriving from them under the Charter. Further,
the letter leaves no doubt that it is the United Nations which
represents the international community in its concern for the
Kosovo crisis and formulates the respective community interests.
Thus, NATO tries to convince the outside world that it is acting
"alone" only to the least degree possible, while in
essence it is implementing the policy formulated by the international
community/United Nations; it is filling the gaps of the Charter,
as it were, in a way that is consistent, in substance, with the
purposes of the UN. And, as already mentioned, then follows SC
Resolution 1203 endorsing and building upon NATO action. Similarly,
the Presidential Statement of 29 January 1999 welcomes and supports
the achievements of the Contact Group following renewed NATO
threats after the massacre at Racak - in the words of US Deputy
Secretary of State Strobe Talbott, thus lending "its political
and moral authority to the Kosovo effort".
.....[z]
Considering this interaction, or "synergy", between
the United Nations and NATO, one can agree with the view of the
then German Foreign Minister Kinkel, according to whom NATO,
in the state of humanitarian necessity in which the international
community found itself in the Kosovo case, acted in conformity
with the "sense and logic" of the resolutions that
the Security Council had managed to pass. The NATO threat of
force continued and backed the thrust of SC Resolutions 1160
and 1199 and can with all due caution thus be regarded as legitimately,
if not legally, following the direction of these UN decisions.
.....[aa]
However, despite all this "synergy", closeness and
interrelatedness of NATO and UN engagements in the Kosovo crisis,
there is no denying the fact that a requirement of Charter law
has been breached.
.....[bb]
This deficiency did play a central role in the deliberations
of the Parliament of the Federal Republic of Germany ( Bundestag)
in mid-October 1998 in relation to German participation in NATO
air strikes. In these debates, the international legal issues
involved were discussed at great length and in considerable depth.
The respect for UN Charter law demonstrated throughout the debates
was remarkable. Such deference became particularly apparent in
the critical discussion of the absence of a Security Council
authorization. The German Federal Government, while recognizing
this legal flaw, argued that the situation in Kosovo was so desperate
as to justify the NATO threat, even without UN authorization,
in a state of humanitarian necessity leaving no choice of other
means. In this regard, differently from the NATO Secretary-General,
the Government called a spade a spade and spoke of the NATO threat
as an instance of "humanitarian intervention". The
Bundestag finally gave its approval to German participation in
the NATO action. But it was stressed by all voices in favour
of such participation, in particular by the Federal Government,
that German agreement with the legal position taken by the Alliance
in the specific instance of Kosovo was not to be regarded as
a "green light" for similar NATO interventions in general.
To quote Foreign Minister Kinkel before the Bundestag:
The decision of NATO [on air strikes against the FRY] must
not become a precedent. As far as the Security Council monopoly
on force [Gewaltmonopol] is concerned, we must avoid getting
on a slippery slope.26
.....[cc]
This statement will also be relevant for Section 3 of this article.
Whether the denial of precedential value expressed in it, which
runs like a red thread [italics added] through the German
parliamentary debate, will have the desired effect cannot of
course be decided by Germany alone. But what is of great importance
is the emphasis on the part of both the German Federal Government
and the Bundestag on the singularity of the Kosovo case from
which no conclusion on a general rule or policy is to be drawn.
.............................................................................***
.....[dd]
By way of conclusion to this section: whether we regard the NATO
threat employed in the Kosovo crisis as an ersatz Chapter VII
measure, "humanitarian intervention", or as a threat
of collective countermeasures involving armed force, any attempt
at legal justification will ultimately remain unsatisfactory.
Hence, we would be well advised to adhere to the view emphasized
and affirmed so strongly in the German debate, and regard the
Kosovo crisis as a singular case in which NATO decided to act
without Security Council authorization out of overwhelming humanitarian
necessity, but from which no general conclusion ought to be drawn.
What is involved here is not legalistic hair-splitting versus
the pursuit of humanitarian imperatives. Rather, the decisive
point is that we should not change the rules simply to follow
our humanitarian impulses; we should not set new standards only
to do the right thing in a single case. The legal issues presented
by the Kosovo crisis are particularly impressive proof that hard
cases make bad law. |
|
NOTES & QUESTIONS:
1. The key provisions of the
NATO
Charter (1949) provide as follows (italics added):
|
Art. 1 |
The Parties
undertake, as set forth in the Charter of the United Nations,
to settle any international dispute in which they may
be involved by peaceful means in such a manner that international
peace and security and justice are not endangered.... |
|
Art. 5 |
The Parties agree that an armed attack against one or more
of them in Europe or North America shall be considered an attack
against them all and consequently they agree that, if such
an armed attack occurs, each of them, in exercise of the
right of individual or collective self-defence recognized
by Article 51 of the Charter of the United Nations, will assist
the Party or Parties so attacked by taking forthwith, individually
and in concert with the other Parties, such action as it deems
necessary, including the use of armed force, to restore and maintain
the security of the North Atlantic area.
The Parties agree that ... armed attack and all measures taken
as a result thereof shall immediately be reported to the Security
Council. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain
international peace and security. |
|
Art. 7 |
This Treaty does not affect ... the rights and obligations under
the Charter of the Parties which are members of the United Nations,
or the primary responsibility of the Security Council
for the maintenance of international peace and security. |
.....One preliminary question is
the degree to which the right of self defense is available, given
that Yugoslavia did not attack any NATO member or take action
outside of its own territorial area. See Section 10.2 of the
textbook regarding the post-1949 parameters of the right of self-defense.
.....A Judge of the International
Criminal Tribunal for the former Yugoslavia responds to Prof.
Simma's above analysis in Antonio Cassese, Ex iniuria ius
oritur: Are We Moving towards International Legitimation of Forcible
Humanitarian Countermeasures in the World Community?, 10 EUROPEAN J. INT'L LAW (1999). The thrust
of the judge's reaction is that NATO's action, while illegal
under International Law, may nevertheless be evidence of an emerging
doctrine--which authorizes the use of forcible countermeasures
to limit a state's ability to commit large-scale atrocities on
its own territory, when the Security Council is incapable of
responding adequately to the crisis. A response to the Simma/Cassese
critique of the Kosovo action has been posted on the EJIL
website by Dr. Kai Ambos, Max Planck Institute for International
and Foreign Criminal Law, Freiburg in Breisgau, Germany.
.....For commentary by seven prominent
members of the American Society of International Law, see Editorial
Comments: Nato's Kosovo Intervention, 93 Amer. J. Int'l
L. 824 (2000).
2. In 1955, Moscow responded
to West Germany's joining NATO by creating the Warsaw Pact, a
military alliance consisting of Albania, Bulgaria, Czechoslovakia,
East Germany, Hungary, Poland, and Romania. In 1989, the Warsaw
Pact dissolved. In 1994, NATO planes shot down Serbian jets during
the Bosnian conflict--its first military action ever. Within
a month of the March, 1999 date when three former Warsaw Pact
nations joined NATO--Hungary, Poland, and the Czech Republic--NATO
launched its first military attack in Yugoslavia. Russia stationed
naval forces in the Adriatic. This was also the first time that
NATO forces were used without UN approval (although such
approval has not always materialized before the operation). Because
the UN Security Council had been effectively bypassed, Russia
felt more isolated as a result of this first major post-Cold
War confrontation in Europe. The concern of the NATO members
was not just humanitarian: were nothing done, this geographical
cauldron of hatred could spill over into Albania, Macedonia,
and elsewhere--possibly pitting NATO members Turkey and Greece
against one another in a larger confrontation involving renewed
religious wars.
3. The East-West division of
Europe was essentially erased with the 1989 fall of the Berlin
Wall, followed by the 1991 demise of the Soviet Union (and related
Cold War). A new division immediately appeared: between Central
Europe and the Balkans. NATO's three new Central European members
are at the forefront of progress toward stable, democratic rule--with
sizable middle classes existing before WWII and the ensuing communist
rule. Balkan States were burdened by centuries of Turkish absolutism
before the post-WWII communist takeover--with no middle class.
The admission of Poland, Hungary, and the Czech Republic have
arguably formalized this division: now, it appears, between a
Roman Catholic and Protestant West and an Orthodox Christina
and Muslim East. Many of the inhabitants can be expected to feel
sympathy for the Islamic refugees spawned by the ethnic Albanian
exodus from Kosovo.
4. The expressed US perspective
on this war was that this humanitarian intervention was necessary
to avoid ethnic cleansing and further Serb atrocities committed
against the Kosovar Albanians. See U.S. Department of
State report Erasing
History: Ethnic Cleansing in Kosovo (May, 1999). The
Russian and Yugoslav perspective was that the US was engaging
in a geopolitical expansion of NATO, threateningly eastward toward
Russia. Unlike prior wars in Europe, this was an attack on a
European nation regarding its treatment of its own citizens within
its own borders. NATO was thus violating the territorial sovereignty
of a nation, in circumstances where the UN Security Council would
never have authorized such force-- because of the presumed Russian
and Chinese vetoes. The Yugoslavian President's perspective (Slobodan
Milosevic, who was later placed on trial for war crimes in The
Hague, was that "genocidal" US forces had been the
unwitting ally of Usama bin Laden in Kosovo. He demanded that
fomrer President Bill Clinton and other Western leaders attend
his trial to testify. Echoing the language of his own indictment,
Milosevic said that the West itself had committed "genocide
and crimes against humanity. ... "I'm asking what kind of
tribunal this is, if you refuse to try people for these crimes
by the leaders and armies of NATO countries. Reuters, Milosevic:
U.S. Was Ally of Al Qaeda in Kosovo (Feb. 15, 2002). For
story, click here.
5. If one were to watch Russian
television on C-SPAN (simultaneous English translation), one
might witness a very different perspective about the legality
of the NATO offensive against Yugoslavia. The following Chinese
newspaper excerpt presents a perspective not available in the
western press:
NATO'S AIR STRIKES FAIL TO REACH GOALS
China Daily (newspaper), April 12, 1999
by an associate professor, Institute of Strategy Studies
(Chinese) University of National Defence
NATO countries' air strikes against Yugoslavia failed to achieve
their objectives, while people of the Balkan country are far
from yielding to Nato's threat.
........................................................................
***
This time, however, the Western countries failed to realize the
victory they expected after about a dozen air strikes. And they
had the added shock of seeing the "pride" of the United
States Air Force, the F-117 Stealth Fighter, downed by Yugoslavia.
Russian military authorities estimated that only 15 per cent
to 20 per cent of Nato's targets in Yugoslavia were destroyed.
..........................................................................***
Social stability is the prerequisite for Yugoslavia to carry
out its anti-raid project. The readiness of ordinary people and
their enthusiasm in fighting against Nato bombings have impressed
the world.
..........................................................................***
Besides, the public is gaining a better understanding of the
true situation in Yugoslavia as civilian casualties and damage
to civilian facilities caused by the Nato bombing grow. Peace-loving
people around the world have soundly condemned crimes of the
Western countries' air strikes.
Their failure has shown that what Nato cannot achieve at the
negotiating table can not be achieved by using military force.
* Casebook author's note: Published Chinese polls state
that seventy percent of the Chinese people opposed the NATO air
raids. Their primarily concern is that this action could set
a precedent for attacking a sovereign State without UN approval--which
can be withheld via a Chinese veto in the Security Council. |
6. Providing military
assistance to "third parties" is always a risky venture.
Arming the Kosovo Liberation Army would be a covert violation
of the normative prohibition on meddling with internal affairs
of another nation--or altering the balance of power in a way
which can come back to harm the US. In the 1980s, the US provided
covert assistance to indigenous Contra rebels in Nicaragua and
the Mujahadeen in Afghanistan. US military aid to Iraq, during
the Iran-Iraq War of 1980-1988, may have helped solidify Saddam
Hussein's ability to affect the Middle East balance of power.
Only a NATO victory would stabilize the European continent.
.....One could argue that Western
imperialism--manifested without the imprimatur of a UN Security
Council authorizing resolution--can save the Balkans from the
same chaos which has plunged this area of the world into war
upon war for many centuries. On the other hand, NATO's involvement
in Kosovo defies normative expectations for two primary reasons:
(1) the FRY did not reach across its borders to conduct its anti-ethnic
Albanian campaign; and (2) NATO did not obtain UN approval--either
before or after the start of its humanitarian intervention. One
could argue that this campaign is a form of self-help which is
necessary to do what is just: a collective self-defense/humanitarian
intervention against Yugoslavia, which failed to achieve UN backing.
On the other hand, one could characterize the NATO military campaign
as merely reprisals and countermeasures which are designed to
force Yugoslavia to comply with its obligations arising under
International Law. Put another way, a "just war," as
those waged in Europe in medieval times.
7. The Russian/Finish-brokered
peace
plan of June, 1999 suggested a 50,000 NATO peacekeeping force,
to be established under the auspices of the UN. This new plan--contrasted
to the earlier unsuccessful Rambouillet peace plan--demands a
quick and verifiable withdrawal of Serbian troops and police
from Kosovo, 50,000 troops vs. 28,000 commanded by NATO, greatly
limits the number of Serb military forces able to return in the
future, and guarantees "substantial autonomy" as opposed
to a three-year period after which there would have been a referendum
on autonomy. The ensuing UN
Resolution (10 June 99) adopted the G-8 (see textbook Section
3.5 on the G-8) plan which brought NATO and Russian forces to
police the Kosovo agreement. For details regarding the UN-plan
for rebuilding Kosovo, click
here.
8. On December 15, 1999, the UN brokered a power-sharing
pact for governing Kosovo. The UN Special Representative in Pristina
(Kosovo's provincial capital) remains in charge. A four-member
Administrative Council will propose policy and legislation for
this province within FRY. Kosovo Albanian leaders (three seats
of the four) agreed to this arrangement, although Serbian leaders
rejected the seat reserved for them. One objective is to break
up political rivalries which have hampered the UN administration
in place since NATO-led military forces assumed control.
.....In Resolution 1244, the UN
Security Council exercised its Chapter VII powers by authorizing
creation of KFOR and UNMIK (the United Nations Interim Administration
Mission in Kosovo)--to operate in Kosovo on behalf of the international
community with the purposes of securing and administering the
territory. KFOR, led by and primarily composed of NATO forces,
is tasked with: "[d]eterring renewed hostilities, maintaining
and where necessary enforcing a ceasefire, and ensuring the withdrawal
... of Federal and Republic ... forces...; [d]emilitarizing the
Kosovo Liberation Army (KLA) and other armed Kosovo Albanian
groups...; [e]stablishing a secure environment...; [e]nsuring
public safety and order until the international civil presence
can take responsibility for this task; [s]upporting, as appropriate,
and coordinating closely with the work of the international civil
presence...." UNMIK, which is composed of four "pillars"
led by the UN, UNHCR, OSCE, and the EU, is mandated to "provide
an interim administration for Kosovo under which the people of
Kosovo can enjoy substantial autonomy within the Federal Republic
of Yugoslavia," and is specifically responsible for "[p]rotecting
and promoting human rights." KFOR and UNMIK were thus mandated
to exercise all public authority in Kosovo.
.....The Independent International
Commission on Kosovo (24 Oct 00) issued its report (10/24/00)
"The Kosovo Report." It can by read by clicking here. Regarding Kosovo's seeking
independence from Serbia, click here.
9. Yugoslavia's new leader, who won a contested election
over former President Slobidan Milosevic, accepted responsibility
guilt for the FRY's role in the Kosovar Albanian "genocide"
(as opposed to ethnic cleansing). Milosevic has been indicted
by the ICTY, and is standing trial there for his role in this
tragedy.
10. For an analysis of the NATO's "Kosovo model
of constructive ambiguity," see I. Daalder (Brookings
Institution), NATO, the UN, and the Use of Force (March
1999), at <http://www.unausa.org/issues/sc/daalder.htm>. |