Legitimacy of NATO bombing of Yugoslavia

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The Kosovo War
Prior to the NATO intervention

Kosovo Liberation Army insurgency
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NATO intervention
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The NATO bombing of Yugoslavia took place during the Kosovo War. Its legality and legitimacy was and is highly disputed.

Many critics, including intellectuals like Noam Chomsky, have condemned NATO's military campaign in Yugoslavia in general, and its bombing campaign in particular, which included the bombing of electricity and water supplies and television stations as well as military targets.

Supporters maintain that it brought to an end alleged Serbian repression of Kosovo's Albanian population. They argue that the bombing campaign hastened (or caused) the downfall of Slobodan Milošević's Yugoslav government, which they see as responsible for the international isolation of Yugoslavia, many war crimes and gross human rights violations.

NATO's argument for the bombing's legitimacy was as follows:

1. NATO perceived the conditions in Kosovo as posing a risk to regional stability.

NATO and the international community have a legitimate interest in developments in Kosovo, inter alia because of their impact on the stability of the whole region which is of concern to the Alliance. -- NATO Council Statement, March 5th 1998.

2. NATO was justified in acting to maintain regional stability under Articles 2 and 4 of the NATO charter.

3. The use of force by NATO would not be inconsistent with UN resolutions on the matter: Resolution 1160 and Resolution 1199.

Contents

[edit] Legal basis

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[edit] The UN Charter

The prohibition against the use of force in the UN Charter can be found in article 2(4):

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.

There are two specific exceptions against this prohibition provided for in the Charter.

The first is in Chapter VII, where the Security Council has been given power in order to fulfil its responsibility for the maintenance of international peace and security. Article 42 states (emphasis added):

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

The second specific exception is found in article 51, regarding the right to self-defence (emphasis added):

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 . . .

While NATO did not have the backing of the United Nations Security Council to use force in Yugoslavia, nor claims an armed attack occurred against another state, its advocates contend that its actions were consistent with the United Nations Charter. Additionally, as NATO is an international organization itself (and not a member state of the United Nations), NATO itself is not subject to limitations which would apply to members of the UN.[citation needed] The principal issue however remains whether the member states of NATO, the U.S. and the European powers, violated the UN Charter by attacking a fellow UN member state in the absence of an attack or a threat of imminent attack on them and in the absence of UN Security Council authorization.

The United Nations considers NATO to be a regional arrangement under UN Article 52, which states (emphasis added):

1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations.

However, the UN policy on military intervention by regional arrangements is contained in UN Article 53, which states (emphasis added):

1. The Security Council shall, where appropriate, utilize 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 authorization of the Security Council . . .

[edit] NATO's charter

It has been argued that NATO's actions were in violation of the charter of NATO itself. Proponents of this viewpoint argue that Article 5 of NATO's charter restricts NATO's use of force to situations where a NATO member has been attacked. Critics of this theory argue that the purpose of Article 5 is to require all NATO members to respond when any NATO member is attacked, not to restrict the circumstances under which NATO will choose to use force.

NATO itself justified the actions in Kosovo under its Article 4, which states:

The Parties will consult together whenever, in the opinion of any of them, the territorial integrity, political independence or security of any of the Parties is threatened.

Because the NATO actions in Kosovo were taken after consultation with all members, were approved by a NATO vote, and were undertaken by several NATO members, NATO contends that its actions were in accordance with its charter. However, opponents of NATO's involvement contend that the situation in Serbia and Yugoslavia posed no threat to any of the NATO members.

[edit] The Vienna Convention

It has also been argued that the treaties signed by Serbia are void because the signatories were forced to sign them. Article 52 of the U.N Convention on the Law of Treaties at Vienna (the Vienna Convention) states:

A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.

Since many treaties are signed while the use (or threat) of force is in effect, most scholars agree that Article 52 refers only to force that is in violation of the principles of international law embodied in the Charter of the United Nations. Therefore, the question of whether the treaties are void depends on the question of whether NATO's use of force was in violation of the principles of the United Nations.

[edit] Effectiveness of prior UN actions

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The UNPROFOR (UN Protective Force) in Bosnia and Croatia was completely ineffective. For example, the UNPROFOR was deployed into the city of Goražde to protect the Muslim citizens there from Serbian military action. However, UNPROFOR did not intervene in 1995 when the Bosnian Serbs set up their artillery around the city and began shelling it indiscriminately.

The UN also failed to prevent Bosnian Serb troops from capturing the safe areas set up in the city of Srebrenica, which resulted in the Srebrenica massacre. The UN Resolution 819 and 836 had designated Srebrenica a "safe area" to be protected using "all necessary means, including the use of force".

The UN also did little to stop the mass flight of almost the entire population of Krajina in the Croatian Operation Storm of 1995. Up to 200,000 Serbs fled from Krajina in just four days, and hundreds of old people who were too sick to flee were later found killed and their villages pillaged.

Indeed, the UN had even failed to protect hundreds of its own personnel from being taken hostage in May 1995 by Serbian forces under the command of Radovan Karadžić (see the UN war crimes indictment against Karadžić for more information).

Critics of the bombing campaign point out that former UN missions, such as that in Cyprus, were effective and argue that effectivenes of Balkans' missions were hindered by the US and NATO, in order to (falsely) present that there is a need for their unilateral actions; as examples, the aforementioned UN personnel was taken hostage in order to stop NATO bombing of Serbian troops, and Srebrenica was captured because its "safe area" was enabling the Bosnian Muslim forces to use it as a base for raiding surrounding Serbian villages.

With the UN actions being seen as ineffective, and further UN resolutions likely to be vetoed by Russia, who considered Yugoslavia to be within its sphere of influence, and with the expanding action threatening regional stability (for example, the flood of Albanian refugees presented a very real threat to the stability of the fledgling Republic of Macedonia), NATO decided to intervene.

Supporters of NATO's action over Kosovo, assert that the campaign was largely successful in achieving its aims of getting the Albanian refugees back home, and restoring a degree of political stabillity to the region. They also point out that the bombing campaign was largely responsible for the removal of Slobodan Milošević's regime, and his subsequent war crimes trial. They feel that none of these things would have happened without the bombing campaign over Serbia.

More familiar people however (ie. locals) realise that the result was replacing Albanian refugees with Serb refugees; and that Kosovo is far from a stable region, with insurgencies spreading into Serbia proper (Preševo Valley conflict) and the Republic of Macedonia (2001 Macedonia conflict) with crime and violence continuing for years after the bombing.

Serbs who were opposed to Milošević and his SPS did point out, however, that the West failed to support Serbian people who demonstrated daily for three months the winter of 1996-1997, and that Milošević had been losing support long before the bombing (in fact demonstrations against Miloševićes regime had been going on since 1991). Some even pointed out that the popularity of Milošević increased during the bombing.

[edit] Alternative explanations of the motivation behind the bombing campaign

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China and Russia vetoed the resolution on the UN Security Council, both of which are permanent members of the Security Council and even one veto from a permanent member is enough to quash a resolution. US President Bill Clinton then spearheaded the use of force by NATO against the Milosevic government.

Some opponents of the NATO war claim that real reasons for bombing have nothing to do with the proclaimed protection of Albanian civilians. Others point out that before the bombing, the number of dead was less than 2000, which included around 500 Serbian civilians and police and 1500 Albanian civilians and KLA members in more than one year of conflict. The total number of displaced people was 100,000 before the bombing. This has escalated to a total of 10,000 dead - an estimated 6-7,000 Albanians and 3-4,000 Serbians killed in the war. The number of refugees exceeded 800,000 during the war, mostly ethnic Albanian but also 100,000 ethnic Serbs from Kosovo. After the war, Albanian refugees returned, but more than 250,000 Serbian refugees have never returned to Kosovo.

These opponents of NATO war claim that war was avoidable, had the real wish of US and NATO been to solve the Kosovo problem.

[edit] International acceptance of NATO actions

UN Secretary General Kofi Annan has been critical of the intervention, and of the indecision by the United Nations:

...on the one side, the question of the legitimacy of action taken by a regional organization without a U.N. mandate; on the other, the universally recognized imperative of effectively halting gross and systematic violations of human rights with grave humanitarian consequences. The inability of the international community in the case of Kosovo to reconcile these two equally compelling interests was a tragedy.

Italy, itself a NATO member, was reluctant to agree to the NATO operations due to the tens of thousands of refugees that conflict would bring to Italy, and due to the large number of financial investments Italy holds in Kosovo. Greece was opposed, but had to agree to it under pressure of other members. The war has caused wide anti-US sentiment in the Greek population, who are historical friends of the Serbs. Other NATO members were reluctant too, and especially uncomfortable were new members, Poland, Hungary and Czech Republic. Other countries which condemned the bombing were Russia, China, Iraq, Syria, Libya and Algeria. Iran also condemned the bombing by calling the campaign 'illegal'.

However, a Resolution proposed by Russia condemning the bombing was defeated in the Security Council 12-3, with only Russia, China, and Namibia voting in favor while Argentina, Bahrain, Brazil, Gabon, Gambia, Malaysia, and Slovenia, along with NATO members the US, Britain, France, Canada, and Netherlands voted against it.[1][2]

In 1999, a Canadian law professor, Michael Mandel, filed a formal complaint of NATO war crimes with the International Criminal Tribunal for the Former Yugoslavia charging 67 NATO leaders with war crimes. These complaints were dismissed by the tribunal who claimed they had no jurisdiction over NATO.

[edit] References

  1. ^ http://iwpr.net/?p=bcr&s=f&o=252181&apc_state=henibcr1999 "The UN's Surprising Support"
  2. ^ http://www.thenation.com/doc/19990426/denitch. The Case Against Inaction by Bogdan Denitch & Ian Williams

[edit] External links

submitted by Yugoslavia and dismisses the cases or remains seised.