KOSOVO & YUGOSLAVIA: LAW IN CRISIS

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Humanitarian Hypocrisy

Professor Robert Hayden
Director, Center for Russian & East European Studies
University of Pittsburgh

In October 1998 NATO faced a dilemma:(1)  while its member states were threatening air attacks(2) against Yugoslavia in response to Yugoslav attacks on Kosovo Albanians, they also recognized that Kosovo is clearly within the sovereign territory of Yugoslavia. On March 24, 1999, NATO resolved this dilemma by committing the first unprovoked, opposed military aggression in Europe since Soviet troops invaded Hungary in 1956. The attacks were clearly contrary to international law and to the UN charter.(3) The aggression took the form of intensive bombing of the Yugoslav "infrastructure," the first such massive use of air attacks in Europe since World War II. As of May 23, after 60 days of bombing, NATO had mounted 7,000 air attacks on more than 500 targets, with munitions alone costing about $20 million per day. While Yugoslav military casualty figures in the first 60 days of the attacks were estimated at being "in the hundreds," NATO had in that time killed as many as 1500 civilians.(4) Further, in the third week of May NATO began to commit textbook war crimes, aimed at depriving the civilian population of Serbia of water and electrical power, and explicitly not aimed at military forces in Kosovo.(5)

Czech President Vaclav Havel has characterized NATO's war as one in which the alliance has "acted out of respect for human rights" and said that it is probably the first war that has been waged "in the name of principles and values." He also said that even though NATO acted with no authority from the UN Security Council, this violation of the UN Charter does not constitute an act of aggression or disrespect for international law, but "happened, on the contrary, out of respect for the law, for a law that ranks higher than the law which protects the sovereignty of states": human rights.(6) Yet the war supposedly in defense of human rights has produced war crimes by NATO, and a civilian casualty rate that is at least three time higher than the casualty rate of the "intolerable" violations of human rights that NATO was supposedly acting to correct. This article argues that this perversion of humanitarianism is the logical result of NATO's action, and that humanitarian catastrophes are likely to be inevitable when the excuse of "humanitarian intervention" is used to justify aggression.


The Asserted Justifications for the NATO Attacks

"To Prevent a Humanitarian Disaster"

When he announced the NATO air attacks, on March 24, President Clinton said that he was doing so because Serbian forces were "moving from village to village, shelling civilians and torching their houses."(7) Thus, NATO supposedly was attacking to "protect thousands of people in Kosovo from a mounting military offensive."(8)

It is clear, however, that the wide Serbian offensive against Kosovo Albanians began after NATO's attacks began. As the U.S. State Department itself admits, "In late March 1999, Serbian forces dramatically increased the scope and pace of their efforts, moving away from selective targeting of towns and regions suspected of KLA sympathies."(9) In other words, Yugoslav forces, until NATO attacks on them commenced, were fighting a guerrilla force, in much the same way that American forces had fought in Vietnam.(10)

If NATO had indeed begun its attacks to "prevent a greater catastrophe"(11) than what the State Department acknowledges to have been "selective targeting" of places suspected of KLA activities, it clearly failed: the attacks provoked the wider Serbian offensive against ethnic Albanians. This result was hardly unpredictable, and was in fact predicted by military and CIA analysts, but these predictions were ignored. In addition, I had heard from administration sources, five days before NATO attacked, that while Clinton was committed to bombing Yugoslavia there was literally no plan for what to do next, except to predict that Miloševi would surrender.

After the NATO attacks began and Serb forces began the massive expulsion of ethnic Albanians from Kosovo, the goal of the NATO action supposedly switched to returning the refugees. However, the few reporters from Western media who were on the ground in Kosovo in April and May reported that Albanians were by then leaving mainly because of the NATO bombing.(12) With each passing day, as NATO has increased the destruction of Kosovo, more Albanians have left, and there has been less for them to return to: while Serbs have burned Albanian houses, it is NATO that has destroyed the infrastructure of the place.

It is thus clear that NATO's actions have provoked a humanitarian disaster. The destruction of Serbia's infrastructure can only increase that disaster.

"We Exhausted Every Diplomatic Effort for a Settlement"

In a New York Times article on May 23,(13) President Clinton announced that NATO had "exhausted every diplomatic effort for a settlement." He had said in his March 24 speech that ""Serbian leaders ... refused even to discuss key elements of the peace agreement" that the US and other countries had presented to them in Rambouillet, France.

It is certainly hypocritical for those who propose a "take it or leave it" deal to complain that the other side refused to negotiate, especially when the supposedly obstinate party actually offered a counterproposal.(14) The Rambouillet documents, however, could not be acceptable to any state. The political and constitutional sections followed the logic laid out in my December 1998 article in this journal, and would have rendered Yugoslav and Serbian sovereignty in Kosovo fictive. The military implementation annex (Appendix B) was even more interesting. Under its provisions, NATO would have had "free and unrestricted access throughout the FRY" (para. 8); NATO personnel would be immune from all Yugoslav and Serbian legal processes and from "arrest, investigation or detention" (paras. 6, 7), but would be able to "detain" individuals and turn them over to unspecified "appropriate authorities" (para. 21). While it has been suggested by some NATO sources that this military implementation plan was patterned after that included in the Dayton agreement, the assertion is false: the agreement between NATO and the FRY in Annex 1A of the Dayton agreement only granted NATO "free transit ... through the territory of the FRY" and did not authorize NATO to "detain" anyone. Rambouillet, therefore, required that the Yugoslavs renounce sovereignty over a large part of their territory and submit to occupation of the entire country by NATO, which they were hardly likely to accept.


The Legality of the NATO Attacks

There is literally no question but that NATO's attack on Yugoslavia violates the United Nations charter: the NATO attacks were never authorized by the Security Council and could not by any stretch of the imagination be considered to have been in self-defense.(15) Interestingly, some commentators who acknowledge this uncomfortable fact then argue that an exception to international law should perhaps be created for what Antonio Cassese calls "humanitarian countermeasures," when, according to Bruno Simma, "imperative political and moral considerations may appear to leave no choice but to act outside the law," or, as Vaclav Havel put it, to find a "higher law" to justify what international law defines, clearly, as aggression. This acknowledgement of NATO illegality even by those supporting NATO's actions is noteworthy.


A War Against Civilians

Every time NATO bombs a hospital, bus, market, town center, apartment building or refugee convoy, NATO spokesmen assert that NATO "never targets civilians" but that, while NATO's bombs are the most accurate in history, "collateral damage" is inevitable. However, NATO's attacks have been aimed against civilian targets since literally the first night of the bombing, when a tractor factory in the Belgrade suburb of Rakovica was destroyed by cruise missiles.(16) Since then NATO targets have included roads, railroad tracks and bridges hundreds of miles from Kosovo, power plants, factories of many kinds, food processing and sugar processing plants, water pumping stations, cigarette factories, central heating plants for civilian apartment blocks, television studios, post offices, non-military government administrative buildings, ski resorts, government official residences, oil refineries, civilian airports, gas stations, and chemical plants. NATO's strategy is not to attack Yugoslavia's army directly, but rather to destroy Yugoslavia itself, in order to weaken the army. With this strategy it is military losses that are "collateral damage," because most of the attacks are aimed at civilian targets.(17)

Evidence that the attacks have targeted mainly civilians can be seen in casualty figures. As mentioned above, after 60 days of bombing and more than 7,000 attacks, Serb military losses were "in the hundreds," while civilian casualties were as high as 1500 killed and 6000 wounded. NATO claims that less than one percent of its bombs miss their targets, so if Serb civilian casualties outnumber military losses, the reason must be that NATO is targeting civilians more than it is the military.

This strategy is hardly secret. The Wall Street Journal reported on April 27 that NATO had decided to attack "political, rather than just military, targets in Serbia." On April 25, the Washington Times reported that NATO planned to hit "power generation plants and water systems, taking the war directly to civilians." NATO generals told the Philadelphia Inquirer on May 21 that "Just focussing on fielded forces is not enough ... . The people have to get to the point that their lights are turned off, their bridges are blocked so they can't get to work." Note that the purpose of destroying these bridges is not military; but this was clear when NATO destroyed the bridges in Novi Sad, 500 km. from Kosovo, installations which clearly did not make the "effective contribution to military action" in Kosovo that would have rendered them legitimate targets under Article 52 of Protocol I additional to the 1949 Geneva Conventions.

That NATO planned from the start to hit civilian targets was made clear to me a few days before the attacks began by an employee of a U.S. intelligence organization who said that the CIA had been charged with preparing lists of Yugoslav economic assets and that, "basically, everything in the country is a target unless it's taken off the list." This was nothing new: as Michael Walzer notes, in the Gulf War in 1990, "the coalition decided (or the U. S. commanders decided) that the economic infrastructure of Iraqi society -- all of it -- was a legitimate military target," and that while similar strategic targeting had been common in World War II, what was new was the attempt to deprive the Iraqi population of clean water. However, Walzer notes drily, perhaps that "wasn't technically feasible in the 1940s."(18)

But it is technically feasible in the 1990s. On May 23, "fifteen NATO bombs hit water pumps ... in the northwestern town of Sremska Mitrovica for the second night in a row."(19) Attacks on May 24 "slashed water reserves by damaging pumps and cutting electricity to the few pumps that were still operative."(20) Only 30 percent of Belgrade's 2 million people had running water, and the city was down to 10 percent of its water reserves.(21) That these attacks were not aimed at military operations in Kosovo is clear from the remarks attributed by the Washington Post to a Pentagon official, who stated that the attacks had been limited to Serbia proper but that "NATO commanders are understood to be planning to extend the attacks to Kosovo."(22) A more clear example of NATO's targeting civilians in Serbia rather than soldiers in Kosovo would be hard to find.


NATO War Crimes

Depriving a civilian population of water is a textbook example of a violation of international humanitarian law, specifically of Article 54 of Protocol I of the 1949 Geneva Conventions. As Aryeh Neier has noted, the U.N. War Crimes Commission that investigated the Bosnian war concluded that attacking the civilian population was prima facie a war crime, and recommended that the commander of the Bosnian Serbs be indicted for attacking the civilian population.(23) There would seem to be no doubt that NATO commanders and, presumably, at least some NATO political leaders are guilty of war crimes on this count alone.

But this count is not alone. The level of damage done to clearly non-military infrastructural targets in Serbia would seem to render NATO military commanders and at least some NATO political leaders liable to the same charge that was made against Ratko Mladi and Radovan Karadi by the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), "extensive destruction of property:" that they

individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the extensive, wanton and unlawful destruction of ... property, not justified by military necessity or knew or had reason to know that subordinates were about to destroy or permit others to destroy ... property or had done so and failed to take necessary and reasonable measures to prevent this destruction or to punish the perpetrators thereof."(24)

It is also likely that General Clark and NATO political leaders are liable for the charge of murder that was made against Yugoslav President Miloševi on May 27, 1999, for, at the least, the bombing of the studios of Radio Television Serbia (RTS) on April 22, 1999. There is no question but that the RTS studios were civilian targets: NATO spokesman Jamie Shea had stated as much in an April 12 1999 letter to the general secretary of the International Federation of Journalists, noting that "television and radio towers are only struck if they are integrated into military facilities."(25) No one has suggested that RTS studios played any military role. Indeed, NATO spokesman David Willoughby had stated at NATO's news briefing on April 8 1999 that RTS would not be bombed if it broadcast Western news broadcasts for six hours per day, which indicates clearly that there was no concern that the studios were integrated into the military. Bombing RTS was an intentional effort to widen the war to civilian targets,(26) which resulted in the deaths of at least sixteen civilians.

The culpability of NATO military and political leaders in the ICTY would seem particularly clear since the Prosecutor of the Tribunal had in fact warned NATO that it, too, is bound by the Geneva Conventions,(27) while Human Rights Watch had sent a letter to NATO's secretary general expressing concern about specific violations by NATO of international humanitarian law.(28) NATO, however, seems unlikely to be overly concerned. When questioned on May 16 about the possibility of NATO liability for war crimes before the ICTY, NATO spokesman Jamie Shea said that "NATO is the friend of the Tribunal ... NATO countries are those that have provided the finances to set up the Tribunal, we are among the majority financiers." He repeated the same message on May 17: NATO Countries "have established these tribunals... fund these tribunals and ... support on a daily basis their activities." No, he did not anticipate indictments against NATO leaders or military personnel.(29)

The independence and impartiality of the ICTY was in any event utterly compromised by the indictment on May 27 of Yugoslav President Miloševi and four of his political associates. While there is little question that Miloševi is guilty of war crimes, "justice" that is not impartial cannot be seen as just. The failure of the Prosecutor to indict NATO or its clients would seem to confirm Jamie Shea's message that he who pays the prosecutor determines who is charged. It is particularly noteworthy that while the Prosecutor has been reported unable to indict Croatian generals for the 1995 ethnic cleansing of the Krajina because the U.S. government has refused to provide requested information,(30) she made well publicized visits to American and British officials to gather information with which to indict Miloševi. When a Prosecutor who is a citizen of one NATO country seeks assistance from the governments of other NATO countries in order to indict the President of the country that NATO is attacking, not even the pretence of prosecutorial independence remains.


Humanitarian Hypocrisy

The "humanitarian intervention" in Kosovo has produced flagrant violations of international law and the UN Charter by NATO countries, turned what had been a brutal repression of a brutal armed uprising into a humanitarian catastrophe, and produced the first massive bombings of a European country since World War II, bombings which have been targeted mainly at civilian targets and many of which are prima facie war crimes committed by NATO, the supposedly humanitarian interveners. At the same time, NATO's transformation of itself from a defensive alliance into the first proud aggressor in Europe(31) since the Soviet Union's invasions of Hungary and Czechoslovakia has threatened to restart a cold war, this time between "the West" and pretty much the rest of the world. As I write, former Russian Prime Minister Chernomyrdin, acting as Russia's intermediary in the diplomacy surrounding the Kosovo crisis, found it necessary to directly contradict President Clinton's published views on relations with Russia and to predict a new cold war in which Russia would be backed by other great powers, such as China and India.(32)

The humanitarian catastrophe caused by actions like those of NATO in Yugoslavia seems inevitable, for several reasons. First, at the level of international law, every nation has the right to defend itself against aggression. At the level of practical politics, a nation that is attacked will try to resist the attacker. Winning the war thus requires defeating not only the army, but the nation: the civilian population. Thus the decision to attack a sovereign state is, logically, a decision to attack the civilian population of that state, not just the military. NATO's targeting of the civilian infrastructure of Serbia (and earlier, of Iraq), is thus logical, and the constant repetition that "NATO never targets civilians" is hypocritical, presumably meant to obscure the uncomfortable fact that humanitarian intervention requires the committing of war crimes.

Of course, one may argue that the civilian population is a legitimate target because the nation as a body is guilty. Indeed, Clinton's eager executioners in the New York Times(33) and The New Republic(34) have made such arguments, saying that, in Daniel Goldhagen's words, the Serbian nation "clearly consists of individuals with damaged faculties of moral judgment and has sunk into a moral abyss from which it is unlikely to emerge ... unaided."(35) This assertion ignores the inconvenient fact that Serbia's President Miloševi was never elected in a free and fair election; that there were massive anti-Miloševi demonstrations in 1991, 1992, 1993, 1994 and 1996-97, while Richard Holbrooke continued to negotiate with Miloševi while telling the oppostion not to boycot rigged elections; or that many of the main targets of NATO bombing (the cities of Belgrade, Novi Sad, Kragujevac, aak and Niš) were centers of the democratic opposition to Miloševi, which had sought help from the West with no success through March 24 1999 although now, apparently, NATO's bombs will raise them from their moral abyss. Of course, when one advocates killing civilians it is surely comforting to suppose that they are not innocent.

The moral sleight-of-hand involved in humanitarian intervention is revealed by Havel, who finds the values of human rights to be powerful because people are willing to die for them.(36) He thus seems to echo Gandhi, who is reputed to have said that while there were many causes that he would willingly die for, there are none that he would kill for. NATO, however, is not willing to die for human rights, but rather to kill for them, which is, after all, what humanitarian intervention is all about -- and what Havel applauds.

Finally, the most dangerous hypocrisy may be the rejection of international law for the arrogance of asserting that one respects higher laws. Presumably, those who disagree are simply less enlightened, or less moral. In regard to Kosovo, NATO asserted that it could not ask for Security Council approval because the Russians and the Chinese would not have given it -- thus implicitly saying that NATO is superior in morality to the Russians and the Chinese. And yet, imagine what would have happened had NATO ignored the seductions of its superb morality, and gone to the Security Council. Perhaps the Russians or the Chinese would have vetoed NATO's moral crusade, in which case, the Serbs would probably still be engaged in their selective targeting of towns and regions suspected of KLA sympathies. And hundreds of thousands of Kosovo Albanians who are now refugees would still be in their homes. And thousands of now-dead Kosovo Albanians would still be alive. And thousands of Serb civilians would not be dead or wounded. And the stability of the Balkans would be much less threatened. And NATO relations with Russia would not be degraded, or those with China. What a humanitarian catastrophe all of that would have been.

NOTES

1. EECR vol. 7 no. 4 (Fall 1998), pp. 45-50.

2. NATO officials, western diplomats and journalists prefer to use the term "air strikes" instead of "attack," but this euphemism should be avoided: NATO is mounting aggressive military attacks. Further, while western journalists say that NATO has "pounded," "pummelled" and "hit" targets, these pugilistic terms obscure NATO's real actions, which blow up targets with large quantities of high explosives, some of which contain depleted uranium.

3. See Bruno Simma, "NATO, the UN and the Use of Force: Legal Aspects." European Journal of International Law, April 1999 (World Wide web edition).

4. Figures on war activities, costs and losses from "The War So Far," The Times (London), World Wide Web edition, 23 May 1999.

5. See, e.g., "NATO Warplanes Jolt Yugoslav Power Grid," Washington Post, 25 May 1999: "The strikes have thus far been limited to electrical facilities in Serbia proper ... but NATO commanders are understood to be planning to extend the attacks to Kosovo."

6. V. Havel, "Kosovo and the End of the Nation-State," The New York Review, June 10, 1999, p. 6.

7. Clinton speech of 24 March 1999, as published in New York Times, 25 March 1999; hereafter Clinton, March speech.

8. Id.

9. U.S. Department of State, Erasing History: Ethnic Cleansing in Kosovo (May 1999 [issued before May 12, 1999]), at 6; emphasis added.

10. See discussion of the rules of engagement for American forces in Vietnam in M. Walzer, Just and Unjust Wars (2d ed., 1992).

11. President Clinton, first statement on NATO attacks, March 24, 1999, New York Times, March 25, 1999.

12. See, e.g., "Dispatch From Kosovo: Serbs Steer Many Refugees Toward Home," Los Angeles Times (World Wide Web Edition), April 21, 1999; "Fleeing Kosovars Dread Dangers of NATO Above, Serbs Below," New York Times 4 May 1991, p. 1; "Kosovo's Ravaged Capital Staggers Back to Life," New York Times 5 May 1999, p. 1; "World: Europe: The Refugees Who Remained," BBC Online Network, May 18, 1999.

13. "A Just and Necessary War," New York Times, May 23 1999.

14. Available at http:\\jurist.law.pitt.edu/kosovo.htm#Rambouillet, as are the other Rambouillet documents.

15. Simma, op. cit., A. Cassese"Ex iniuria ius oritur : Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the world community?" European Journal of International Law, April 1999 (World Wide web edition).

16. I was informed of this destruction and its timing from highly reliable sources, who reported that the explosions blew the shutters off a house that I have lived in in Rakovica.

17. See New York Times, April 30, 1999, p. 1 for some examples. A list of infrastructure damage between March 24 and April 19 compiled by the European Movement in Serbia, a non-governmental group that was pro-Western before the war, was posted by MSNBC.COM on April 26. Pictures of many destroyed buildings may be found on www.beograd.com, among other sources.

18. Walzer, Just and Unjust Wars, p. xx.

19. Washington Post on line: 24 May 1999.

20. Washington Post, May 25, 1999, p. A1.

21. New York Times, May 25, 1999, p. A1.

22. Washington Post, May 25 1999, p. A1..

23. A. Neier, War Crimes, pp. 168-169.

24. Indictment of Radovan Karadzic and Ratko Mladic, ICTY, July 1995.

25. Shea letter available at www.ifj.org/hrights/natoreply.html.

26. Wall Street Journal, April 27 1999.

27. CBCNews Online, May 5, 1999.

28. Human Rights Watch Letter to NATO Secretary General Javier Solana, May 13, 1999; available at www.hrw.org.

29. Shea comments at NATO press conference, 16 May 1999, www.nato.int/kosovo/press/p990516b.htm; May 17 comments:

www.nato.int/kosovo/press/p990517b.htm

30. New York Times, 21 March 1999.

31. NATO's new strategic concept, released during the organization's fiftieth anniversary ceremonies in April 1999, would permit it to operate outside of the territories of its members and in the absence of authorization by the UN Security Council -- in other words, to commit aggression, as it has in Yugoslavia. See The Alliance's Strategic Concept, www.nato.int/docu/pr/1999/p99-065e.html. At least one NATO leader has explicitly renounced the principle of non-interference: see speech by Tony Blair, April 22, 1999, at www.chicagotribune.com.

32. "Comment: Bombs Rule Out Talk of Peace," Washington Post, May 27, 1999, p. A13.

33. E.g., Anthony Lewis: killing civilians "is a price that has to be paid when a nation falls in behind a criminal leader" (New York Times, May 29, 1999, page A27). Earlier the Times' columnist Thomas Friedman had called for bombing Yugoslav water supplies, a textbook war crime, and for causing the kind of wanton destruction for which Karadi and Mladi had been indicted.

34. E.g. D. Goldhagen, "A New Serbia," The New Republic, May 17 1999, asserting that Yugoslavia should be invaded and occupied, ignoring completely the likelihood that such an action would result in the deaths of tens if not hundreds of thousands of Serbs but noting that the costs to NATO would be "substantial:" Allied soldiers would die; the war and the occupation would be expensive in dollar terms."

35. Id.

36. Havel, op cit., page 6.


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