NATO's Humanitarian Intervention in Kosovo

Just War Tradition, International Law and NATO’s Humanitarian Intervention in Kosovo

Toh Boon Kwan

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Author’s Note:

This opinion piece was first written as a term paper for Dr Kumar Ramakrishna‟s

M.Sc. (Strategic Studies) module on „The Evolution of Strategic Thought‟ during the

2003-2004 academic year at the Institute of Defence and Strategic Studies, Nanyang

Technological University. An abridged version of this paper, updated in September 2007,

won the 2nd

Prize in the Trench Gascoigne Prize Essay Competition 2007, organised by

the Royal United Services Institute for Defence and Security Studies. The full-length

version is presented here and offers a historical snapshot of arguments against the

granting of independence for Kosovo in late 2007.

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Just War Tradition, International Law and NATO’s Humanitarian

Intervention in Kosovo

Toh Boon Kwan

Abstract

The North Atlantic Treaty Organisation‟s (NATO) unilateral humanitarian intervention in

Kosovo in Spring 1999 revived a debate among international relations scholars regarding

the concept of sovereignty. Pluralists argue that state sovereignty is absolute and the

principle of non-intervention in the domestic affairs of states is sacrosanct. Humanitarian

intervention, which violates state sovereignty, is therefore seen as illegitimate and illegal

even if it may be perceived to be morally just. In contrast, solidarists argue that states are

able to reach common agreement on what constitutes a supreme humanitarian emergency.

The international community, therefore, has a responsibility to intervene to protect the

victimised population and uphold their human rights. Against the backdrop of the on-

going discourse between pluralists and solidarists, this discussion on NATO‟s unilateral

humanitarian intervention in Kosovo disputes the notion that NATO conducted a just war

in Kosovo. NATO‟s unilateral humanitarian intervention was morally dubious,

illegitimate and illegal. Kosovo constitutes a dangerous precedent that may be abused by

stronger states against weaker states and create international disorder. Instead of

conceiving humanitarian intervention as an emerging norm or constituting a new

customary law, states will continue to debate the legitimacy of intervention as they

jealously guard their sovereignty against external interference.

NATO’s Humanitarian Intervention in Kosovo

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Introduction

The North Atlantic Treaty Organisation‟s (NATO) unilateral humanitarian

intervention in Kosovo in Spring 1999 revived a debate among international relations

scholars regarding the concept of sovereignty. Pluralists argue that state sovereignty is

absolute and the principle of non-intervention in the domestic affairs of states is

sacrosanct. These two principles constitute a powerful norm that govern inter-state

relations and is reflected in international law. Since human rights are not universal, there

is no agreement on what constitutes a supreme humanitarian emergency that justifies a

state or collection of states to use military force against another state in order to influence

its domestic affairs for humanitarian ends.1 Humanitarian intervention, which violates

state sovereignty, is therefore seen as illegitimate and illegal even if it may be perceived

to be morally just.2 In contrast, solidarists argue that states are able to reach common

agreement on what constitutes a supreme humanitarian emergency. Sovereignty is re-

formulated as a responsibility to govern a stipulated territory according to a common

moral standard of respecting the human rights of the resident population. Thus, state

sovereignty may not be used as an excuse to engage in genocide, crimes against humanity

and commit gross human rights violations. A supreme humanitarian emergency

constitutes a legitimate exception to the respect for state sovereignty enshrined in

1 S. Paul Kapur, „The Operational Identity of Humanitarian Military Intervention‟, Security Studies, 12, 1,

Autumn 2002, p. 98. 2 Alex J. Bellamy, „Power, rules and argument: new approaches to humanitarian intervention‟, Australian

Journal of International Affairs, 57, 3, Nov. 2003, p. 500; Christopher Brewin, „Should NATO Bomb

Serbia?‟, in Michael Waller, Kyril Drezov and Bülent Gökay (ed.) Kosovo: The Politics of Delusion, Frank

Cass, London, 2001, p. 84.

Toh Boon Kwan

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international law. The international community, therefore, has a responsibility to

intervene to protect the victimised population and uphold their human rights.3

Aim

Against the backdrop of the on-going discourse between pluralists and solidarists,

this discussion on NATO‟s unilateral humanitarian intervention in Kosovo will briefly

examine the background to the Kosovo crisis and the conduct of the NATO military

campaign. It will next examine the arguments that NATO conducted a just war in

Kosovo, that its actions were in accordance with international law and Kosovo constitutes

an emerging norm or customary law that justifies the use of force to uphold human rights.

This paper disputes the above arguments and will argue that NATO‟s unilateral

humanitarian intervention was morally dubious, illegitimate and illegal. Kosovo

constitutes a dangerous precedent that may be abused by stronger states against weaker

states and create international disorder. Instead of conceiving humanitarian intervention

as an emerging norm or constituting a new customary law, states will continue to debate

the legitimacy of intervention as they jealously guard their sovereignty against external

interference.

The Origins of the Kosovo Conflict

Kosovo is a Serbian province in the Federal Republic of Yugoslavia. It lies in the

south of Yugoslavia, bordering Albania. Despite its status as a Serbian province, Serbs

3 Bellamy, „Power, rules and argument‟, pp. 500-501; Vesselin Popovski, „The concept of humanitarian

intervention‟, in Peter Siani-Davies (ed.) International Intervention in the Balkans since 1995, Routledge,

London, 2003, p. 46; Patrick Thornberry, “„Come, friendly bombs …‟: International Law in Kosovo”, in

Waller, Drezov and Gökay (ed.) Kosovo: The Politics of Delusion, p. 54.


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form a minority with ethnic Albanians forming an overwhelming majority. Kosovo

features prominently in Serbian historical memory and is considered as the cradle of Serb

civilisation. It is also the site of the greatest humiliation suffered by Serbian arms, the

military defeat at the hands of Ottoman Turks in the Battle of Kosovo Polje in 1389,

which led to more than six centuries of subjugation by the Ottoman Turks.4

Under the strong-arm rule of communist dictator Josip Tito, Kosovo enjoyed

autonomy and Kosovar Albanians were able to develop their own identity which led to

Serbian nationalist dissatisfaction. With the end of the Cold War, ethnic nationalisms rose

to the fore and the Federal Republic of Yugoslavia disintegrated with secessions by

Slovenia, Croatia and Bosnia-Herzegovina. Serbia, under the leadership of the arch-

nationalist Slobodan Milosevic sought to create a Greater Serbia and fought a series of

brutal campaigns marked by gross human rights violations in the Balkans throughout the

1990s. Kosovo‟s autonomy was revoked in 1989 and its population repressed as Serb

nationalism sought to re-impose its authority over the Kosovar Albanians. Initial passive

resistance by the Kosovar Albanians soon gave way to armed resistance led by the

Kosovo Liberation Army (KLA). Violence quickly escalated with atrocities committed

by both the KLA as well as Serbian authorities and Serbian-sponsored militias. Amidst

widespread fighting, thousands of Kosovar Albanians were evicted from their homes and

made refugees by brutal Serbian counter-insurgency campaigns against the KLA. NATO

imposed a short-lived ceasefire between the warring parties in October 1998 and tried to

4 Kumar Ramakrishna, “„Humanitarian Intervention in Kosovo‟ as Justified, Executed and Mediated by

NATO: Strategic Lessons for Singapore”, IDSS Working Paper Series No. 6, Institute of Defence and

Strategic Studies, Singapore, 2000, pp. 5-6; Simon Chesterman, Just War or Just Peace? Humanitarian

Intervention and International Law, Oxford University Press, Oxford, 2001, p. 207.

Toh Boon Kwan

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impose a peace agreement on Serbia at Rambouillet in March 1999. Serbian refusal to

accept the Rambouillet Accords led to NATO military action.5

The NATO Air Campaign

On 24 March 1999, NATO commenced seventy-eight days of aerial bombing of

Kosovo to coerce the Serbs to accept the Rambouillet Accords to end the conflict in

Kosovo. NATO chose air-strikes as there were significant opposition among some

member states against a ground war which may incur high casualties. NATO air-strikes

initially focused on Serbian ground forces in Kosovo and degrading Serbian anti-aircraft

defences. But unexpected Serbian resilience led to NATO‟s decision to expand the air

campaign to economic infrastructural targets in Serbia and intensify the bombing to

increase its pressure on Milosevic. The Serbian capital, Belgrade, was bombed. Serbian

land communications, oil refineries, power plants, electricity grid, mass communication

facilities, government buildings, and homes of political leaders were systematically

targeted and destroyed. Finally, on 9 June 1999, Milosevic capitulated.6

NATO’s War Aims

At the commencement of the aerial bombing campaign against Serbia, NATO

articulated the following war aims:

1) To compel the Milosevic regime to cease its policy of ethnic cleansing;

5 Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, pp. 5-6; G. Gerard Ong, „Credibility over

Courage: NATO‟s Mis-Intervention in Kosovo‟, The Journal of Strategic Studies, 26, 1, Mar. 2003, p. 73;

Barry R. Posen, „The War for Kosovo: Serbia‟s Political-Military Strategy‟, International Security, 24, 4,

Spring 2000, pp. 43-44; Chesterman, Just War or Just Peace, pp. 207-210. 6 Posen, „The War for Kosovo‟, pp. 58-62, 72-73; Daniel L. Byman and Mathew C. Waxman, „Kosovo and

the Great Air Power Debate‟, International Security, 24, 4, Spring 2000, pp. 5, 15-18, 22-23.


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2) To compel a Serbian military withdrawal from Kosovo to facilitate a

return of Kosovar Albanian refugees;

3) To compel Belgrade to accept the Rambouillet Accords; and

4) To maintain NATO‟s credibility.7

The Ethics and Legality of NATO’s Intervention

Was NATO‟s intervention ethical and legal? First, this paper will use just war

tradition to determine the morality of NATO‟s actions. Second, international law will be

used to judge the legality of NATO‟s intervention.

Just War Tradition

The just war tradition originated in writings by Christian theologians and later

developed by secular international jurists. The tradition also influenced international

laws. Just war tradition has two major thematic branches: Jus ad bellum and jus in bello.

Jus ad bellum

Jus ad bellum deals with the justification for the use of force. There is seven

criteria:

1) Just Cause

Just cause refers to the protection and preservation of value. Force may be used

for self-defence, retake what‟s wrongly taken or to punish evil.

2) Right Authority

7 Byman and Waxman, „Kosovo and the Great Air Power Debate‟, p. 16; Ong, „Credibility over Courage‟,

p. 74; Peter J. Anderson, „Air Strike: NATO astride Kosovo‟, in Anthony Weymouth and Stanley Henig

(ed.) The Kosovo Crisis: The last American war in Europe? Pearson Education, London, 2001, p. 201.

Toh Boon Kwan

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Only states have the authority to use force for self-defence or to act against a

breach to international peace and stability.

3) Right Intent

The intent behind the resort to force must be in accord with the just cause, and not

territorial aggrandisement, intimidation or coercion. There should be no ulterior

motives.

4) Proportionality of Ends

The overall good achieved by the use of force must be greater than the harm

inflicted.

5) Last Resort

Resort to force must follow a determination that no other means except the use of

force will achieve the justified ends sought.

6) Reasonable Hope of Success

This refers to prudential calculation of the likelihood that the means used will

bring the justified ends sought. If there‟s no hope of success, force should not be

used even if the cause is just.

7) The Aim of Peace

The resort to force should establish international stability and security.8

8 James Turner Johnson, Morality and Contemporary Warfare, Yale University Press, New Haven, 1999,

pp. 22-36; Idem, Can Modern War be Just? Yale University Press, New Haven, 1984, pp. 18-26; Michael

Howard, „Constraints on Warfare‟, in Michael Howard, George J. Andreopoulos and Mark R. Shulman

(ed.) The Laws of War: Constraints on Warfare in the Western World, Yale University Press, New Haven,

1994, pp. 2-3; Robert C. Stacey, „The Age of Chivalry‟, in Howard, Andreopoulos and Shulman (ed.) The

Laws of War, p. 30; Richard Norman, Ethics, Killing and War, Cambridge University Press, Cambridge,

1995, pp. 117-118.


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Jus in bello

Jus in bello addresses restraints or limits on how force may be used. It has two

conditions:

1) Proportionality of Means

Means causing gratuitous or otherwise unnecessary harm are to be avoided.

2) Non-combatant protection and immunity

Force must be used discriminately to avoid direct, intentional harm to non-

combatants.9

International Law

International law requires states to respect state sovereignty and non-intervention

in the domestic affairs of states. This is reflected in the United Nations (UN) Charter that

prohibits the use of force to settle inter-state disputes. Article 2(4) stipulates that:

All Members shall refrain in their international relations from the threat or

use of force against the territorial integrity or political independence of any

state, or in any other manner inconsistent with the Purposes of the United

Nations.

An exception is permitted for self-defence. Article 51 of the UN Charter stipulates that:

9 Johnson, Morality and Contemporary Warfare, pp. 29, 36-38; Idem, Can Modern War be Just? pp. 18,

26-29; Norman, Ethics, Killing and War, pp. 118-119.

Toh Boon Kwan

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Nothing in the present Charter shall impair the inherent right of individual

or collective self-defence if an armed attack occurs against a Member of the

United Nations, until the Security Council has taken measures necessary to

maintain international peace and security.

Chapter VII, Article 39 authorises the UN Security Council to use force but only upon a

finding of a „threat to the peace, breach of the peace, or act of aggression‟. Once a finding

has been made, the Security Council may use military force under Article 42 „to maintain

or restore international peace and security‟. If a regional agency resorts to force to

undertake an enforcement action, prior approval of the Security Council should be sought

first as provided for under Article 53:

The Security Council shall, where appropriate, utilise such regional

arrangements or agencies for enforcement action under its authority. But no

enforcement action shall be taken under regional arrangements or by

regional agencies without the authorisation of the Security Council…10

Was NATO’s Intervention Just?

Just Cause

British Prime Minister Tony Blair spoke for NATO when he invoked just war

tradition to justify NATO‟s resort to force against Serbia:

10 Chesterman, Just War or Just Peace, pp. 114-115; Michael J. Glennon, Limits of Law, Prerogatives of

Power: Interventionism after Kosovo, Palgrave, New York, 2001, pp. 17-19.


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We are taking this action for one very simple reason; to damage the Serb

forces sufficiently to prevent Milosevic from continuing to perpetuate his

vile oppression against innocent Kosovar Albanian civilians.11

Blair portrayed the options available to NATO as either to do something or do nothing.12

On ethical grounds, NATO decided to act rather than „simply stand by when a rogue state

brutally abuses the basic rights of those it governs‟.13

Such a stance accords with views

articulated by proponents of humanitarian intervention. Michael Walzer endorses

humanitarian intervention when it is a response to acts „that shock the moral conscience

of mankind‟.14

Right Authority

Despite the lack of authorisation by the UN Security Council, supporters of

NATO‟s actions argued that NATO was a more representative collective body in that it

had more members compared to the UN Security Council. NATO‟s nineteen members

could individually veto any NATO action, unlike members of the UN Security Council,

where only the five permanent members have veto rights. NATO‟s members share a

common democratic tradition with strong civic societies that make humanitarian

interventions based on ulterior motives extremely difficult to achieve. In view of the

11 Text of Prime Minister Blair‟s statement on Kosovo bombing published in the New York Times, 24 Mar.

1999. Cited in Chesterman, Just War or Just Peace, p. 211. 12 Ibid., pp. 211, 220. 13 Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 11. 14 Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 3rd Edition,

Basic Books, New York, 2000, p. 107.

Toh Boon Kwan

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collective consensus reached among all NATO members on the need to resort to force, it

may be argued that NATO had the right authority to intervene in Kosovo.15

Right Intent

Dismissing claims that NATO intervened out of self-interest, Blair took the moral

high ground and claimed that the war was fought „over the values of civilisation‟, in

defence of human rights.16

NATO proclaimed that its intervention was not meant to

dismember Yugoslavia as Kosovo will not be granted independence or merged with

Albania. With the cessation of hostilities, NATO facilitated the entry of UN agencies into

the province to provide humanitarian relief and engage in post-war reconstruction.17

Proportionality of Ends

Despite an expanded and intensive aerial bombing campaign, supporters claim

that NATO‟s actions achieved more good than harm inflicted. NATO‟s intervention

finally stopped the Serbian ethnic cleansing of Kosovar Albanians. It also restored

stability to the volatile South-east European region. NATO‟s actions act as a credible

deterrent against any future attempt at genocide and gross human rights violations in the

region.18

15 Leon Malazogu, „When Doves Support War and Hawks Oppose It: An Analysis of Humanitarian

Intervention in Kosova‟, in Florian Bieber and Židas Daskalovski (ed.) Understanding the War in Kosovo,

Frank Cass, London, 2003, pp. 132-133. 16 David Chandler, From Kosovo to Kabul: Human Rights and International Intervention, Pluto Press,

London, 2002, p. 15. 17 Anderson, „Air Strike‟, pp. 198-199; Malazogu, „When Doves Support War and Hawks Oppose It‟, p.

133. 18 Anderson, „Air Strike‟, p. 199; Matthew Wyman, „Kosovo: Why Intervention was Right‟, in Waller,

Drezov and Gökay (ed.) Kosovo: The Politics of Delusion, pp. 105-106; Malazogu, „When Doves Support

War and Hawks Oppose It‟, pp. 127-131, 134.


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Last Resort

NATO Secretary-General Javier Solana noted that force was used as a last resort

following the failure of diplomatic initiatives due to Serbian intransigence.19

The Serbs

were granted ample opportunity to cease their repression against the Kosovar Albanians

but had refused to do so, even under the threat of force.20

Reasonable Hope of Success

Given the vast disparity between the military capabilities of Serbia and NATO,

there was no doubt that NATO would prevail in a contest of wills.21

Though NATO

underestimated Milosevic‟s resolve to resist and the aerial bombing campaign dragged on

for more than two months, NATO was eventually able to impose its will on Milosevic

and force him to capitulate.22

The Aim of Peace

NATO articulated in its war aims the object of restoring peace and stability to

Kosovo. With the cessation of hostilities, NATO has been able to assist in the post-war

reconstruction of the embattled province and facilitate a return to normalcy.

Proportionality of Means

Given the moral dilemma of either doing something or doing nothing, NATO‟s

bombing campaign was a justified means to stop the Serb killings of innocent Kosovar

19 Chesterman, Just War or Just Peace, p. 211. 20 Malazogu, „When Doves Support War and Hawks Oppose It‟, p. 134. 21 Ibid., p. 134; Posen, „The War for Kosovo‟, pp. 49-50. 22 Posen, „The War for Kosovo‟, pp. 59-60.

Toh Boon Kwan

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Albanians. Even though NATO bombs killed some Kosovar Albanians accidentally, it

was a small price to pay in view of the net effect of successfully forcing the Serbs to

accept a peace settlement, thereby ceasing ethnic cleansing for good.23

Non-combatant protection and immunity

NATO‟s bombing campaign targeted military targets and subsequently dual-use

military-related infrastructure. Civilian casualties were kept to a minimum principally

due to two reasons. First, widespread use of precision-guided munitions allowed pin-

point surgical strikes that minimised collateral damage. Second, public opinion in NATO

member countries was sensitive to the inflicting of civilian casualties by NATO

bombings. Political leaders also resisted military pressures for escalatory air-strikes that

may cause more civilian casualties. Hence, military planners carefully picked targets that

minimised bloodshed, to maintain support on the home front for NATO military

operations over Yugoslavia. The accidental bombings of the Chinese embassy in

Belgrade and Kosovar Albanian refugee convoys led to a curtailment of NATO air

operations. Stricter clearance procedures on target selection, identification and approval

were instituted to minimise the negative fallout from the incidents.24

On the whole,

NATO took pains to discriminate between military and civilian targets and to minimise

civilian casualties.

23 Malazogu, „When Doves Support War and Hawks Oppose It‟, p. 134; Chandler, From Kosovo to Kabul,

pp. 74-75. 24 Byman and Waxman, „Kosovo and the Great Air Power Debate‟, pp. 25, 33-34; Posen, „The War for

Kosovo‟, pp. 51, 70; Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 16.


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Why NATO’s Intervention is Morally Dubious

In spite of NATO‟s claims that it fought a just war in Kosovo, its case is weak on

several counts.

First, NATO‟s claim that it fought for the just cause of ending Serb repression of

Kosovar Albanians is undermined by the views held in some quarters that NATO was

pursuing an un-stated agenda of punishing Milosevic. Milosevic was a marked man for

revealing NATO‟s impotence in failing to stop Serb ethnic cleansing of the Croats and

Bosnian Muslims during the conflicts over Croatia and Bosnia-Herzegovina. American

Secretary of State Madeline Albright‟s need for a foreign policy success to cap her career

and personal experiences as a victim of Nazism predisposed her to use the Munich and

Hitler analogies to justify strong action against Milosevic. It is not surprising then that the

toughly worded Rambouillet Accords was designed to fail and frustrate any attempt at

diplomatic compromise. Milosevic‟s rejection of the Rambouillet Accords would provide

a pretext for NATO military action against Yugoslavia.25

Furthermore, as Kosovo is part

of Yugoslavia, Serbian military suppression took place within its borders and did not lead

to transgressions of any territorial integrity of NATO member countries. Thus, NATO

could not claim that it was acting in self-defence in bombing Yugoslavia. In fact, NATO

may be justly accused of committing aggression.26

Second, NATO clearly lacked the authority to unilaterally intervene in Kosovo.

NATO was unable to get an UN Security Council mandate to intervene in Kosovo

25 Anderson, „Air Strike‟, pp. 189-190; Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 13;

Richard Falk, “„Humanitarian Wars‟, Realist Geopolitics and Genocidal Practices: „Saving the Kosovars‟”,

in Ken Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, Frank Cass, London, 2001, pp.

329-330; Chesterman, Just War or Just Peace, pp. 223-224. 26 Anderson, „Air Strike‟, p. 197; Ken Booth, „Ten Flaws of Just Wars‟, in Booth (ed.) The Kosovo

Tragedy: The Human Rights Dimensions, pp. 316-317.

Toh Boon Kwan

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because of both Russian and Chinese objections.27

As the traditional patron of Serbia,

Russia had been giving strong moral and diplomatic support to Milosevic in his stand-off

with NATO.28

The Chinese rigidly upheld the concept of sovereignty and non-

interference in the domestic affairs of states because of its concern over any precedent to

endorse humanitarian intervention in Kosovo. China was sensitive to the close parallel

between Kosovo and Taiwan. In any future conflict over Taiwan, the pretext of

humanitarian intervention could be used to internationalise, what is in Chinese views, a

domestic conflict. Therefore, China was hesitant in endorsing any NATO action to curtail

the right of a sovereign state to exercise its authority within its own borders. Since NATO

was unable to secure UN Security Council authorisation, it flagrantly violated Article 53

and acted unilaterally in Kosovo.29

Third, NATO claims on upholding the human rights of the Kosovar Albanians

lacked credibility. It was a pretext since NATO‟s motive was to maintain „its credibility

as Europe‟s dominant multilateral security mechanism because its continued existence

depended on it‟.30

Milosevic‟s pattern of calling NATO‟s bluff called into question

NATO credibility.31

Once NATO‟s hard-line Rambouillet Accords failed to coerce

Milosevic to cease his ethnic cleansing policies, the pacifist NATO members had to band

together with the hawkish members to maintain collective solidarity and the credibility of

the organisation. Former Secretary of State Henry Kissinger opined that once NATO‟s

27 Ong, „Credibility over Courage‟, p. 83. 28 Anderson, „Air Strike‟, p. 198; Posen, „The War for Kosovo‟, pp. 50-52, 66-67, 71-72, 75-80, 82. 29 Bates Gill and James Reilly, „Sovereignty, Intervention and Peacekeeping: The View from Beijing‟,

Survival, 42, 3, Autumn 2000, pp. 47-48; Amitav Acharya, „A Concert of Asia?‟, Survival, 41, 3, Autumn

1999, p. 90. 30 Ong, „Credibility over Courage‟, p. 76. 31 Anderson, „Air Strike‟, p. 190;


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bluff was called, air strikes had to commence since „victory is the only exit strategy‟.32

This calls into question the view that NATO intervened with the right intentions in

Kosovo.

Fourth, NATO‟s aerial bombing caused more suffering to the Kosovar Albanians

rather than ameliorating their distress. Kosovar Albanian refugee outflows actually

increased following NATO‟s bombing campaign. It also provided a pretext for Serbian

military and para-military forces to intensify their repression of the Kosovar Albanians.

Serb anger at NATO bombing manifested itself on violence perpetrated against hapless

Kosovar Albanians. It remains disputable whether NATO‟s unilateral humanitarian

intervention resulted in more good achieved than harm caused.33

Fifth, force was used because diplomacy was not given a chance to succeed.

NATO‟s terms offered in the Rambouillet Accords would severely compromise

Yugoslavian sovereignty. Under the Accords, nearly thirty thousand NATO troops would

have been introduced into Yugoslavia with freedom of access and movement throughout

the country and granted immunity from Yugoslavian law.34

In effect, it constituted a

foreign occupation of Yugoslavia.35

No self-respecting national leader could accept these

humiliating terms. Thus, the notion that force was used as a last resort is a myth.36

Sixth, despite the overwhelming military superiority that NATO enjoyed over

Yugoslavia, Serbian resilience caught NATO by surprise and heightened tensions

between pacifist and hawkish members of NATO. The expansion and intensification of

the aerial bombing campaign was bought at the cost of serious misgivings and unease

32 Chesterman, Just War or Just Peace, p. 224. 33 Ong, „Credibility over Courage‟, p. 86; Posen, „The War for Kosovo‟, pp. 52-53, 65; Booth, „Ten Flaws

of Just Wars‟, pp. 318-319. 34 Ramakrishna, “„Humanitarian Intervention in Kosovo‟”, p. 13; Ong, „Credibility over Courage‟, p. 82. 35 Michael Ignatieff, Virtual War: Kosovo and Beyond, Chatto & Windus, London, 2000, pp. 35-36. 36 Anderson, „Air Strike‟, p. 189; Falk, “„Saving the Kosovars‟”, pp. 329-330.

Toh Boon Kwan

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among Germany, Italy and Greece which did not support the war as enthusiastically as

other member countries. Serbian capitulation was timely as NATO alliance unity was

fraying at the seams. The notion that there was a high chance of success for NATO‟s

unilateral humanitarian intervention cannot go unchallenged.37

Seventh, despite NATO‟s success in bombing Yugoslavia into submission,

NATO faces an uphill task in rehabilitating the devastated province and constructing a

durable peace in the region. Embittered Serbs distrust NATO reconstruction efforts and

remain concerned that they may no longer have a role to play in governing a historical

land with the restoration of Kosovar Albanian institutions. Reverse ethnic cleansing has

sent most of the Kosovar Serbs packing to Serbia. The KLA oppose NATO‟s aim of

maintaining Yugoslavian territorial integrity and aspire to either an independent Kosovo

or merger with neighbouring Albania. Renewed violence directed at Serbs and UN

officials in March 2004 indicated that peace in Kosovo remained extremely fragile and

boded ill for the future.38

Balancing Kosovar demand for independence and preserving

Serbia‟s territorial integrity remains an intractable problem.39

Not only was NATO‟s right to go to war illegitimate, its conduct of war also

undermined its assertion of fighting a just war.

First, NATO‟s choice of an air war did not reflect concerns for the safety of

enemy civilians. To minimise the possibility of NATO casualties, NATO decided to

confine its air sorties above fifteen thousand feet to stay out of range of Serbian anti-

aircraft defences. By fighting at such high altitudes from its targets, identification of

37 See Posen, „The War for Kosovo‟, pp. 66-69; Charles Krauthammer, „The Short, Unhappy Life of

Humanitarian War‟, The National Interest, Fall 1999, p. 7. 38 Falk, “„Saving the Kosovars‟”, pp. 331-332; „Kosovo: Field of sorrows‟, The Economist, 27 Mar. 2004. 39 Adam Garfinkle, „Is Another War Brewing in Kosovo? A conversation with Marc Grossman‟, The

American Interest, Jul./Aug. 2007, pp. 64-70.


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targets was difficult and led to fratricidal incidents when friendly Kosovar Albanians

were killed. The protracted nature of the air war meant that more harm was inflicted on

innocent civilians as the conflict remained inconclusive. And airpower was relatively

ineffective in protecting Kosovar Albanians from Serb ground forces.40

Second, by targeting civilian infrastructure such as oil refineries, electricity grid

and TV stations, NATO was not practising discrimination and caused collateral damage

to civilian facilities and killing innocent Serbian civilians.41

NATO‟s action to kill but not be killed highlighted the inherent contradiction in

humanitarian war. To ensure public support for the resort to force, NATO had to ensure

that the war remained bloodless, without real risk and real casualties. Thus, humanitarian

war requires means that are inherently inadequate to its ends. Warfare has now been

reduced to a spectator sport, making it politically acceptable for casualty-adverse

societies to use force and thereby avoiding public protest over its use.42

Was NATO’s Intervention Legal?

NATO defended its unilateral humanitarian intervention by claiming that

intervention was in accord with earlier UN Security Council Resolutions 1160, 1199 and

1203. Since the UN Security Council Resolutions called on Yugoslavia to undertake

measures to end the suffering in Kosovo, NATO had the authority to act to protect the

Kosovar Albanians when Yugoslavia ignored the Resolutions.43

Solidarists argue that the

40 Chesterman, Just War or Just Peace, pp. 222-223; Krauthammer, „Humanitarian War‟, pp. 6-7; Hilaire

McCoubrey, „International Humanitarian Law and the Kosovo Crisis‟, in Booth (ed.) The Kosovo Tragedy:

The Human Rights Dimensions, pp. 203-204. 41 McCoubrey, „International Humanitarian Law‟, p. 193. 42 Krauthammer, „Humanitarian War‟, p. 7; Colin McInnes, „Spectator Sport Warfare‟, Contemporary

Security Policy, 20, 3, Dec. 1999, pp. 154-155; Ignatieff, Virtual War, pp. 2-3. 43 Glennon, Limits of Law, pp. 25-28; Thornberry, „International Law in Kosovo‟, pp. 45-48.

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UN Charter does not preclude humanitarian intervention in view of Charter provisions for

the protection of human rights, namely the preamble to the UN Charter and Articles 1(3),

55 and 56. They also cite customary international law to support their case. Dismissing

the view that humanitarian intervention violates the ban on resort to force under Article

2(4), solidarists note that

since a humanitarian intervention seeks neither a territorial change nor a

challenge to the political independence of the state involved and is not only

not inconsistent with the purposes of the United Nations but is rather in

conformity with the most fundamental peremptory norms of the Charter, it

is a distortion to argue that it is precluded by Article 2(4).44

Granted the permissive environment articulated by the solidarists, NATO held the view

that it had the authority to unilaterally intervene in Kosovo without an UN Security

Council mandate and argued that its action to uphold human rights was legal.45

Why NATO’s Unilateral Humanitarian Intervention is Illegal

In bypassing the UN Security Council and intervening unilaterally in Kosovo,

NATO had flagrantly violated Article 53 which expressly states the requirement for a

44 Glennon, Limits of Law, p. 22; Nicholas J. Wheeler, „Reflections on the Legality and Legitimacy of

NATO‟s Intervention in Kosovo‟, in Booth (ed.) The Kosovo Tragedy: The Human Rights Dimensions, pp.

147-148. 45 Wheeler, „Reflections‟, p. 154.


21

regional agency to seek authorisation from the UN Security Council before resorting to

the use of force.46

Solidarists claim that a right for humanitarian intervention exists in the UN

Charter or in customary law. However, states prior to Kosovo that have carried out

humanitarian interventions rarely invoked the justification, thereby weakening the case

for a legal right of unilateral humanitarian intervention. Furthermore, emphasis on state

sovereignty and non-interference in the domestic affairs of states in both the Covenant of

the League of Nations and the UN Charter precluded the right of unilateral humanitarian

intervention, which would have contradicted the two principles above. Any attempt to

allow a right of unilateral humanitarian intervention will result in abuse and lead to

instability. Strong states will use the right to undermine the sovereignty of weaker states

on moral grounds of upholding human rights. In such an international system, the

prohibition against the use of force will be undermined, leading to more violence and

instability. For the sake of preserving order in the international system, justice has to be

relegated to second place.47

Conclusion

Despite claims by NATO that it went to war for a just cause and conducted the

war over Kosovo in a just manner, this paper has convincingly shown that NATO‟s

claims were false. The ulterior motives of punishing Milosevic for his transgressions of

NATO ultimatums and maintaining NATO credibility in the face of Milosevic‟s

continued intransigence led NATO to use force. Even supporters of NATO‟s

46 Glennon, Limits of Law, p. 22. 47 Wheeler, „Reflections‟, pp. 147-151; Bellamy, „Power, rules and argument‟, pp. 502-504; See also

Chesterman‟s Just War or Just Peace which argues convincingly for the pluralist position.

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humanitarian war like Michael Ignatieff conceded that NATO‟s choice of conducting an

aerial bombardment from high altitude and targeting strategies was morally

problematic.48

NATO‟s unilateral humanitarian intervention constitutes a bad precedent

that undermines the prohibition against the use of force in international law. Concern

over the potential abuse of any right of unilateral humanitarian intervention has led to

resistance among states, principally developing states in Asia, Africa and the former

Soviet Union, to calls from developed countries for the development of a criteria for

humanitarian intervention and its exemption from the prohibition against the resort to

force in international law.49

Article 2(4) of the UN Charter is relatively new and it took

more than fifty years for its general acceptance by states. In view of the fragility of

international peace, order has to take precedence over justice. To preserve international

stability, the pluralist argument of respecting state sovereignty and maintaining non-

interference in the domestic affairs of states should prevail.

48 Ignatieff, Virtual War, p. 62. 49 Glennon, Limits of Law, p. 207.