Legitimacy of NATO bombing of Yugoslavia
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The NATO bombing of Yugoslavia took place during the Kosovo War. Its legitimacy was and is highly disputed, although it was not as controversial as the later Iraq war.
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Introduction
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 Serbian repression of Kosovo's Albanian population. They argue that the bombing campaign hastened (or caused) the downfall of Slobodan Milosevic'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, including Resolution 1160 (http://www.un.org/peace/kosovo/98sc1160.htm) and Resolution 1199 (http://www.un.org/peace/kosovo/98sc1199.htm).
Legal basis
The UN Charter
While NATO did not have the explicit backing of the United Nations to use force in Yugoslavia, NATO advocates contend that its actions were consistent with the United Nations Charter. Additionally, as NATO is a supranational 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. Whether the actions of the member states of NATO would be subject to UN influence is a topic that the remainder of this article will address.
The United Nations considers NATO to be a regional arrangement under UN Article 52 (http://www.un.org/Overview/Charter/chapter8.html), 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.
The UN policy on military intervention by regional arrangements is contained in UN Article 53 (http://www.un.org/Overview/Charter/chapter8.html), 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, with the exception of measures against any enemy state . . .
NATO's charter
It has been argued that NATO's actions were in violation the charter (http://www.nato.int/docu/basictxt/treaty.htm) 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.
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.
Effectiveness of Prior UN Actions
The UNPROFOR (UN Protective Force) in Bosnia and Croatia was completely inneffective. For example, the UNPROFOR was deployed into the city of Gorazde 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 area set up in the city of Srebrenica, which resulted in the Srebrenica massacre. The UN Resolution 819 (http://www.nato.int/ifor/un/u930416a.htm) and 836 (http://www.nato.int/ifor/un/u930604a.htm) 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 Karadzic (see the UN war crimes indictment (http://www.un.org/icty/indictment/english/kar-ai000428e.htm) against Karadzic 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.
Critics point out that the result was replacing Albanian refugees with Serbian ones, and that Kosovo is far from a stable region, with insurgencies into Serbia proper and FRY Macedonia, crime and violence continuing for years after the bombing.
NATO's supporters also point out that the bombing campaign was largely responsible for the removal of Slobodan Milosevic's regime, and his subsequent war crimes trial. None of these things would have happened, NATO's supporters assert, without the bombing campaign over Serbia.
However, many Serbs point out that the West has failed to support Serbian people who demonstrated daily for 3 months in winter 1996-1997, and that Milosevic lost support long before the bombing. They also point out that in fact popularity of Milosevic increased because of the bombing and that the West had prolonged his rule, which could have ended in 1997.
Alternate explanations of the motivation behind the bombing campaign
Some opponents of the NATO war claim that real reasons for bombing have nothing to do with the proclaimed protection of Albanian civilians. They point out that before the bombing, number of dead was less than 2000, which included around 500 Serbian civilans and police and 1500 Albanian civilians and KLA members in more than one year of conflict. Total number of displaced people was 100,000 before the bombing. This has escalated to a total of 10,000 dead - estimated 6-7,000 Albanians and 3-4,000 Serbians killed in the war. The number of refugees topped 800,000 during the war, mostly Albanian but also 100,000 Serbian Kosovars who fled the bombing. After the war, Albanian refudgees returned, but more than 250,000 Serbian refugees fled KLA terror, and have never returned to Kosovo - more than 3,200 Serbs were killed after the arrival of the KFOR force.
These opponents of NATO war claim that war was avoidable, had the real wish of US and NATO been to solve the Kosovo problem. According to them, US and NATO had however another goal - to expand their presence to Serbia, as a part of larger strategy of expansion to Eastern Europe, to which Milosevic was opposed. When this was not accepted, the other, equally important goal, was to demonstrate power and use of force as an example against anyone who opposes US dictate, and thus set a precendent for the emerging New World Order in which only remaining superpower asserts its interests aggresively and without regards to the previously known rules.
The war option they allege, was pushed aggresively by US Secretary of State Madeleine Albright and by NATO military leaders including SACEUR General Wesley Clark. Opponents of the war contend that the diplomatic option was not pursued sincerely, and that the conditions of de facto occupation of Yugoslavia by NATO were so calculated as to be unacceptable by any sovereign state.
International Acceptance of NATO Actions
UN Secretary General Kofi Annan has been critical of the intervention, and of the indecision by the United Nations that made the intervention necessary:
- ...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 refuges that conflict would bring to Italy, and due to the large number of financial investements 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.
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 jurisidiction over NATO.
External links
- PDF of Center for Policy Studies (UK) analysis of legality (http://www.cps.org.uk/pdf/pub/91.pdf)
- International Court of Justice - initial response to Yugoslav suit (http://www.icj-cij.org/icjwww/ipresscom/iPress1999/ipresscom9933_iyus_19990602.htm)