Legitimacy of NATO bombing of Yugoslavia

The legitimacy of the NATO bombing of the Federal Republic of Yugoslavia has been subject to question by many bodies and individuals from the time of the action continuing to this day. The key basis governing the legality of any act of war is international law. In this particular case, a course of action is also bound by other foundations such as the NATO charter and the UN charter, both of which were drafted in accordance with preexisting international regulation. As such, the issue has been shady at times with proponents of both viewpoints citing particular legislation that substantiate their claims on whether the war was or was not legal.

Supporters of the campaign have argued that the action brought to an end the repression of Kosovo's Albanian population, and that the bombing campaign hastened (or caused) the downfall of Slobodan Milošević's government, which they saw as responsible for the international isolation of Yugoslavia, many war crimes and gross human rights violations. Others have deemed the legitimacy of the action as controversial.^[1][2] Noam Chomsky condemned NATO's military campaign in Yugoslavia, particularly its aerial bombing which included the bombing of electricity and water supplies and television stations as well as military targets.^[3][4]

Legal basis

NATO's argument for the bombing's legitimacy

• NATO described the conditions in Kosovo as posing a risk to regional stability. As such, NATO and certain governments asserted they had a legitimate interest in developments in Kosovo, due to their impact on the stability of the whole region which is of concern to the Alliance.^[5]
• That NATO was justified in acting to maintain regional stability under Articles 2 and 4 of the NATO charter.
• That the use of force by NATO would not be inconsistent with UN resolutions 1160 and 1199 on the matter.^[6][7]

The UN Charter

The prohibition against the use of force in the UN Charter can be found in article 2(4) with 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 fulfill its responsibility for the maintenance of international peace and security. Article 42 states that 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.^[8]

The second specific exception is found in article 51, regarding the right to self-defence. The article states that 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.^[8]

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, claiming that the UN Charter prohibits unprovoked attacks only by individual states but condones unprovoked attacks by military coalitions of several states, such as NATO. The principal issue 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 allows them to deal 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 in UN Article 53 states the Security Council can, where appropriate, utilize such regional arrangements or agencies for enforcement action under its authority. However, no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.

NATO's charter

NATO had justified the actions in Kosovo under Article 4 of its charter, which allows involved parties to consult together whenever 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. Some however argue that Article 5 of NATO's charter restricts NATO's use of force to situations where a NATO member has been attacked. It has been argued however that NATO's actions were in violation of the charter of NATO itself.^[9] 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.

Opponents of NATO's involvement also argued that the situation in Serbia and Yugoslavia posed no threat to any of the NATO members.

The Vienna Convention

Interpretation Article 52 of the Vienna Convention on the Law of Treaties in the signing of the Rambouillet Agreement by Serbia may conclude that the agreement is void due to the threat or use of force.^[10] Since many treaties are signed while the use (or threat) of force is in effect, most scholars^[who?] 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.

Effectiveness of prior UN actions

The United Nations Protection Force (UNPROFOR) in Bosnia and Croatia was completely ineffective.^[11] 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 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.^[12][13] 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.^[14]

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 stability 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 (i.e., locals) however 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 Socialist Party of Serbia 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.

Alternative explanations of the motivation behind the bombing campaign

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 intervention cited the timing of the same, coming as it did on the heels of the Monica Lewinsky scandal as an indication that the conflict was merely a "little victorious war" intended for political gain rather than for any humanitarian purpose. Some support for this hypothesis may be found in the fact that coverage of the bombing directly replaced coverage of the Monica Lewinsky scandal in American news cycles.^[15] Still others point out that before the bombing, rather than being an unusually bloody conflict, the war between the KLA and the Yugoslav security forces had in fact been one of the cleanest civil wars in modern history,^[15] the number of dead being 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.^{[citation needed]} The number of refugees exceeded 800,000 during the war, mostly ethnic Albanian but also 100,000 ethnic Serbs from Kosovo.^{[citation needed]} After the war, Albanian refugees returned, but more than 250,000 Serbian refugees have never returned to Kosovo.^{[citation needed]} These opponents of NATO war claim that war was avoidable, had the real wish of US and NATO been to solve the Kosovo problem.

International acceptance of NATO actions

UN Secretary General Kofi Annan was critical of the intervention, and of the indecision by the United Nations.^[16] 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.^[17][18] 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.

The Council of State, the Supreme Court of Greece, found NATO guilty of war crimes for its 1999 bombing.^[19]

See also

• Strategic Bombardment in the Kosovo War

References

1. ^ Coleman, Katharina Pichler (2007). International Organisations and Peace Enforcement: The Politics of International Legitimacy. Cambridge University Press. ISBN 9780521870191. 
2. ^ Erlanger, Steven (2000-06-08). "Rights Group Says NATO Bombing in Yugoslavia Violated Law". The New York Times. http://query.nytimes.com/gst/fullpage.html?res=9A06E1D9123FF93BA35755C0A9669C8B63. Retrieved 2008-11-13. 
3. ^ Chomsky, Noam (1999). The New Military Humanism: Lessons from Kosovo. Pluto Press. ISBN 9780745316338. 
4. ^ Loeb, Vernon (1999-04-24). "Bit Players Become 'Frontline' States". The Washington Post. http://www.washingtonpost.com/wp-srv/local/natosummit/balkans24.htm. Retrieved 2008-11-13. 
5. ^ Pugh, Michael Charles; Waheguru Pal Singh Sidhu (2003). The United Nations & Regional Security: Europe and Beyond. Lynne Rienner Publishers. ISBN 1588262324. 
6. ^ "Resolution 1160 (1998)". United Nations. 1998-03-31. http://www.un.org/peace/kosovo/98sc1160.htm. Retrieved 2008-11-13. 
7. ^ "Resolution 1199 (1998)". United Nations. 1998-09-23. http://www.un.org/peace/kosovo/98sc1199.htm. Retrieved 2008-11-13. 
8. ^ ^{a b} Kaplan, William; Donald Malcolm McRae, Maxwell Cohen (1993). Law, Policy and International Justice: Essays in Honour of Maxwell Cohen. McGill-Queen's Press. ISBN 9780773511149. 
9. ^ Boggs, Carl (2001). The End of Politics: Corporate Power and the Decline of the Public Sphere. Guilford Press. pp. 322. ISBN 9781572305045. 
10. ^ Thomas, George (1999-05-15). "NATO and international law". On Line Opinion. http://www.onlineopinion.com.au/view.asp?article=1647&page=0. Retrieved 2008-11-13. 
11. ^ Smith, Rupert. The Utility of Force, (New York: Vintage Books, 2005), 353.
12. ^ "Resolution 819 (1993)". United Nations. 1993-04-16. http://www.nato.int/ifor/un/u930416a.htm. Retrieved 2008-11-13. 
13. ^ "Resolution 836 (1993)". United Nations. 1993-06-04. http://www.nato.int/ifor/un/u930604a.htm. Retrieved 2008-11-13. 
14. ^ "The Prosecutor Of The Tribunal Against Radovan Karadzic". United Nations. 2000-04-28. http://www.un.org/icty/indictment/english/kar-ai000428e.htm. Retrieved 2008-11-13. ^{[dead link]}
15. ^ ^{a b} [1], From Watergate to Monicagate: ten controversies in modern journalism and media By Herbert N. Foerstel, pg 131-135.
16. ^ Fischer, Horst; Avril McDonald (2000). Yearbook of International Humanitarian Law: 2000. Cambridge University Press. pp. 27. 
17. ^ Williams, Ian (1999-04-19). "Balkan Crisis Report - The UN's Surprising Support". Institute for War & Peace Reporting. http://iwpr.net/?p=bcr&s=f&o=252181&apc_state=henibcr1999. Retrieved 2008-11-13. 
18. ^ Denitch, Bogdan; Ian Williams (1999-04-08). "The Case Against Inaction". The Nation. http://www.thenation.com/doc/19990426/denitch. Retrieved 2008-11-13. ^{[dead link]}
19. ^ Greek Judges Convict NATO of War Crimes

External links

• PDF of Center for Policy Studies (UK) analysis of legality
• International Court of Justice, 1999 decisions on Yugoslavia vs the NATO states.
• Re-examining Kosovo: The Role of Authority in Legitimating Armed Humanitarian Intervention