nato's humanitarian intervention in kosovo
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Just War Tradition, International Law and NATO’s Humanitarian Intervention in Kosovo
Toh Boon Kwan
1
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.
2
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
4
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.
NATO’s Humanitarian Intervention in Kosovo
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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.
NATO’s Humanitarian Intervention in Kosovo
7
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
8
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.
NATO’s Humanitarian Intervention in Kosovo
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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.
NATO’s Humanitarian Intervention in Kosovo
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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.
NATO’s Humanitarian Intervention in Kosovo
13
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.
NATO’s Humanitarian Intervention in Kosovo
15
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
16
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;
NATO’s Humanitarian Intervention in Kosovo
17
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
18
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.
NATO’s Humanitarian Intervention in Kosovo
19
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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20
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.
NATO’s Humanitarian Intervention in Kosovo
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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22
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.
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