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Human Rights and International Law

Postscript: The Kosovo crisis
David P. Forsythe
from Human Rights and Comparative Foreign Policy: Foundations of Peace, David P. Forsythe, ed.
United Nations University


As this book was being completed during the spring and summer of 1999, the Kosovo crisis erupted in the Balkans. It is highly relevant to the subject of human rights and foreign policy in comparative perspective. We did not want to delay the book project by rewriting various chapters, but we did want to make the book as timely as we possibly could. Hence the decision was taken to add this postscript, even though at the time of writing the full outcomes are not entirely clear.

It is still true in general, as Jack Donnelly noted in his concluding chapter, that although most states now talk a great deal about human rights in foreign policy, they are still reluctant to incur heavy costs in blood or treasure to protect rights beyond their borders. Relatively painless diplomacy for rights is one thing, but military intervention or disruption of important trade is another. As I noted in chapter 2, after the Cold War there was a clear pattern showing reluctance by the United States to take costly action abroad for internationally recognized human rights: in the armed conflicts in former Yugoslavia 1992-1995; regarding the arrest of those indicted for international crimes in that area from 1993; in Somalia from the autumn of 1993; in Rwanda in 1994; in what became Democratic Congo during 1995; and so on. Although other states like Britain and France were willing to take some casualties through participation in United Nations military operations in places such as Bosnia, they too showed little eagerness to intervene to stop atrocities in places such as Rwanda and Democratic Congo, not to mention Algeria and Sri Lanka. As Peter R. Baehr showed in chapter 3, even states like the Netherlands that pride themselves on commitment to internationally recognized human rights were not anxious to take casualties in defending supposed safe areas like Srebrenica in the Bosnian war. Japan had been willing to exercise diplomatic leadership for a liberal democratic peace with human rights in Cambodia. But it eschewed forceful action to dislodge the Khmer Rouge from its sanctuary, and it was well known that the Japanese were averse to taking any casualties for the sake of human rights in Cambodia.

The Kosovo crisis deviates to some degree from this pattern. The crisis shows, among other things, the difficulty of precisely predicting the future based on history. It takes only one major case to alter or refine an evident historical pattern. The general problem has regularly reappeared in social science analysis. Reference to another sequence is instructive.

A persuasive case can be made that Nikita Khrushchev was acting on rather clear history when he tried to place attack missiles in Cuba in 1962. John Kennedy had not been forceful in interaction with the Soviet First Secretary during their debates at the world fair, the US President had not reacted strongly when the Berlin Wall went up, and Kennedy had not been decisive and determined when he called off plans for the United States to provide air cover for the otherwise doomed Bay of Pigs invasion of Cuba. If the West could place missiles in Turkey aimed at the Soviet Union, why could not the East have missiles in Cuba aimed at the United States?

From this view, it was rational for Khrushchev to think that Kennedy would not react strongly to the introduction of missiles in Cuba that, although they could strike parts of the United States mainland, did not change the strategic balance between the two superpowers in any meaningful way. Soviet submarines could already strike much of the United States with their missiles. Soviet missiles in Cuba were more a political than military issue. Yet Kennedy did react strongly to Soviet initiatives in 1962 regarding Cuba, to the point of threatening strategic nuclear war over the missiles and letting the Soviet leadership choose whether to back down or fight. So a historical pattern may yield to new calculations. Kennedy had indeed appeared weak up until October 1962, but he toughened considerably — wisely or not — during the Cuban missile crisis.

The Kosovo crisis represents that rare situation in international relations in which a group of important states altered the immediate past pattern and decided to risk at least some significant things for matters that were primarily and significantly related to human rights — although more traditional geo-political considerations were not totally absent. The actions of the Western liberal states, through the North Atlantic Treaty Organization (NATO), constituted as principled a major use of force that one can identify in the post-Cold War period, and relatively more principled than some past uses of force that were accompanied by claims to humanitarian intervention. I refer to uses of force by India in Pakistan/Bangladesh (1971), by Vietnam in Cambodia (1979), by the United States in Grenada (1982), etc. Ironically, however, the NATO use of force in 1999 remained controversial in many quarters, and not just in Federal Yugoslavia.

I see no reason to doubt NATO's many statements that the trigger for systematic air strikes in Federal Yugoslavia was widespread persecution and repression of ethnic Albanians in the previously autonomous region of Kosovo, combined with the refusal of the government of Slobodan Milosevic to negotiate a peaceful settlement of the ethnic conflict acceptable to the international community. Just as Milosevic had brought about the breakup of Communist Yugoslavia through his assertions of Serbian power at the expense of other ethnic groups, and just as he had actively supported ethnic cleansing and other gross violations of human rights in Bosnia during 1992-1995, so he had organized systematic persecution and repression of the ethnic Albanians in Kosovo. As a result, more and more ethnic Albanians in Kosovo had become radicalized and had joined the armed opposition — the Kosovo Liberation Army. Organized and systematic Serbian repression had been primarily responsible for a low-level guerrilla and civil war in Kosovo, in which violations of the laws of war such as the killing of civilians and captured combatants were carried out by both sides.

What was primarily at issue in Kosovo in 1999 was the nature of Europe. Was it to be rights protective under the banner of liberal democracy, or was it to encompass a chauvinistic and brutal leader like Milosevic? What was primary to NATO were humane values, not protection of strategic resources or alliance partners. Serbian persecution of ethnic Albanians was all the more uncomfortable for NATO because it had passively watched the gross violations of human rights in Bosnia during 1992-1994 carried out primarily by Serbian parties. In Bosnia, Europe was once again the scene of ethnic cleansing and concentration camps. NATO had not reacted quickly or decisively in Bosnia and the situation had become worse. When the United States and NATO became more active and forceful in 1995, the Dayton peace agreement resulted. Milosevic had proved flexible in the face of NATO air strikes, and after Dayton the situation clearly improved in relative terms, even if falling far short of the consolidation of a stable democratic peace. NATO tried to apply these lessons to Kosovo in 1999. It was at least a shift from previous policy, although not a total break with it.

True, commitment to human rights within Europe was not the only issue involved in the Kosovo crisis. President Clinton spoke about the stability of neighbouring states like Albania and Macedonia. There was a fear that continuing Yugoslav repression would drive many of the ethnic Albanians of Kosovo into those neighbouring states — or even into the Yugoslav province of Montenegro — in such numbers that they would prove destabilizing. Indeed, this was the short-term result of NATO's air strikes, as Yugoslavia actually intensified its repression of the Albanians. But, in the long term, NATO was able to coerce Milosevic into allowing a more autonomous Kosovo, and allowing most Albanians who wanted to do so to return to their towns of habitual residence.

Then there was the issue of NATO itself. Recently enlarged, what was the point of NATO if not to guarantee liberal democracy within Europe? Given the weakness of the Russian Federation and its dependence on Western assistance and investment, NATO was certainly not needed for its original purpose of protection against traditional inter-state attack from the East. If NATO could not act "out of area" in such places as the Balkans in the name of human rights and democracy, there would be increasing calls for its dissolution. Doing away with NATO might be good or bad, but as long as it existed it needed a practical mission.

Moreover there was also the concern that Greece might be drawn into the general conflict in ways that proved disruptive to a NATO alliance that included Turkey. Greece had an ethnic Albanian minority, had already engaged in conflict with Macedonia on various issues, and had seen fit to cooperate with the Serbs on still other issues. Surprisingly enough, the Greek government held relatively firm during the weeks of NATO's bombing, despite its public opinion that was decidedly pro-Serbia. But continued instability in the Balkans was definitely not in the interest of NATO, which already was dealing with Greek—Turk friction on its southern flank.

Once engaged, if NATO did not follow through expeditiously and prevail, its future power would be questioned. Likewise, if the United States led NATO into action in the Balkans but did not prevail, United States leadership in Europe would be suspect.

So there were a number of essentially political questions at issue in NATO's involvement in the Kosovo crisis. Yet the main reason given for the air attacks was genuine: the desire to protect ethnic Albanians from persecution by an illiberal Milosevic regime. If ever there were an essentially humanitarian intervention, at least in motivation and intent, this was it. Other claims to strictly humanitarian intervention had not measured up to that standard. India had partitioned arch-rival Pakistan in 1971; Vietnam had set up the friendly Hun Sen puppet government in Cambodia in 1979; the United States had ousted the leftist government of Maurice Bishop in Grenada in 1982; and so on. Particularly in the last case, arguments about humanitarian intervention — namely the rescue of American medical students — were essentially a smoke screen for geo-political and ideological strategy.

Serbian repression and intransigence explain the remarkable NATO unity, based on Western public opinion, in support of the 1999 intervention. All 19 NATO members stuck with the air attacks, despite various controversies, throughout the bombings. True, some states seemed less committed than others. Italy expressed a desire for an early end to the violence. Germany floated a peace plan during the second week of attacks. Greek support was clearly suspect. And so on. But despite debate about various aspects of NATO's approach to Kosovo, the West showed exceptional unity. This was because the West held much of the high moral ground in the face of clear and major violations of human rights by the Milosevic regime — against the background of similar violations encouraged by Milosevic in Bosnia. Eventually trainloads of ethnic Albanians dumped by Serbia on the borders of neighbouring states conjured up memories of other European trains — carrying Jews to the concentration camps of Hitler's Third Reich.

To say that NATO had primarily a largely disinterested or altruistic or humanitarian motivation to its action in Kosovo is not to say that the air strikes were uncontroversial. Legally speaking, NATO did not make a strong argument for justification. The UN Security Council had not explicitly authorized the use of force. The West, fearing Chinese and/or Russian vetoes, did not want to put the question of using force to a vote. If a resolution authorizing force had been presented and vetoed, although the onus for blocking action would have been on Beijing and/or Moscow, it would have proved more difficult to go ahead with the bombing. Federal Yugoslavia had not militarily crossed an international frontier at the time the air strikes commenced. Thus it was difficult to argue that NATO was acting in self-defence or in response to a threat to the peace or breach of the peace.

NATO did not argue explicitly, clearly, and forcefully for the concept of humanitarian intervention: the right of outside parties to use coercion to try to protect the rights of those persecuted or repressed within a state. Such a concept was not part of the UN Charter, was disliked by much of the global South, which feared Great Power intrusion into their "domestic" affairs, and might be misused against Western interests in the future. The claim to humanitarian intervention was a fairly radical claim, and NATO lawyers seemed to prefer the more cautious — but mostly unconvincing — claim that previous UN Security Council resolutions had implied authorization for the use of force in Kosovo. Four states of the West had taken this same line in 1991 when forcefully intervening in northern Iraq to protect Iraqi Kurds.

So in 1999 NATO allocated to itself the right to enforce protection of human rights in Kosovo, which made rather large parts of the world nervous. But the counter-option was even more unattractive: to stand aside, as in Bosnia, and observe ethnic cleansing and something on the verge of genocide transpire in the midst of Europe.

Thus Federal Yugoslavia, supported by states such as Russia and China, argued that NATO was engaged in aggression. The argument went as follows: Yugoslavia was acting within its own territory; thus the concept of state sovereignty prevailed; a state had the right to suppress an armed uprising; outside states had no right to compel Belgrade to take any particular course of action regarding the ethnic Albanians. According to the UN Charter, international peace should prevail, especially when the core issue relates to outsiders' conceptions of "justice." Peace was to prevail over a contested version of justice. Under the UN Charter, the only just war is a defensive war.

There were other complications for NATO. We have already noted that for a time its air strikes produced exactly what it said it wanted to prevent: increased repression of the ethnic Albanians, and increased pressures on neighbouring areas from hundreds of thousands of forced migrants. Furthermore, the air strikes clearly killed and wounded a number of innocent civilians, while appearing to some to be disproportionate to the original human rights violations. On the first point, international law had never been clear on the amount of "collateral damage" to civilians that was permitted while engaging in attacks on permissible military targets. On the second point, regarding proportionality, it was difficult to say with precision whether sustained bombing of the military capability of Yugoslavia, including much of its industrial and communications infrastructure, was legitimate. Some of this bombing produced considerable environmental damage — as when NATO bombed a chemical plant near Belgrade. Some observers, and not just in Yugoslavia, believed NATO's course of action, whatever its intentions, was worse — doing more harm — than the original situation. The cure was supposed to be better than the disease. There was, after all, such a thing as the hell of good intentions.

It is relevant to note that the main reason NATO engaged in air strikes — supposedly to deter Milosevic from further actions against the ethnic Albanians — was precisely the assumption that Western public opinion would not tolerate body bags coming home from a military operation that did not involve the core or vital national interests of the NATO states. This lesson was learned not just in Vietnam but also in Lebanon in the early 1980s and Somalia in the early 1990s — and in Bosnia as well. Western public opinion, and related legislative opinion, while backing NATO's controversial course of action during the bombing, did not demand a costly ground war. In this sense there was considerable continuity between the West's response in Kosovo and previous dilemmas in Rwanda and Bosnia.

After two weeks of military action, including the capture by Yugoslavia of three American military personnel, public opinion hardened — at least in the United States. A similar trend had occurred in particularly France when Serb parties had held Western personnel hostage in Bosnia and used them as human shields. Thus for a time there was increased talk in the West of committing ground forces in Kosovo, and the Clinton administration moved toward a call-up of the military reserves. But Milosevic's decision to accept NATO's terms for halting the bombing settled the military issues.

Kosovo was not Rwanda, or Algeria, or Chechnya. In Kosovo, NATO took the decision to engage in forceful intervention largely for human rights reasons. This, after all, was Europe, and NATO had been profoundly embarrassed by its lack of action in the very nasty Bosnian war. The most recent and local lesson of history seemed to be that Milosevic would yield to force, and that use of force was the only way to stop another huge tragedy. But Kosovo was far more important to Milosevic than Bosnia had been, and events in Kosovo had far greater impact on his personal power than events in neighbouring areas in the past. So he stood firm during the early weeks of NATO attacks, was prepared to engage in truly massive and open and gross violations of human rights, and thus exposed evident weaknesses of NATO military strategy. Yet in the end NATO prevailed, with the help of Russian mediation.

At least in Europe, in 1999 the member states of NATO were indeed prepared to undertake significant, costly action to try to protect the rights of others. NATO put its prestige on the line and spent a considerable sum of money, even if it adopted high-altitude bombing to minimize Western casualties. The realists continued to object, arguing that real national interests lay in improved relations with China and Russia and in more attention to terrorism, especially when linked to weapons of mass destruction. Kosovo, even with gross violations of human rights, was far down their list of priorities. For NATO, however, what was at stake in Kosovo was not just the rights of ethnic Albanians but the moral and political composition of Europe. And in that the Western states came to believe they had a vital national interest. NATO's grand strategy was liberal — to create a rights-protective Europe — even if its military strategy and tactics were decidedly realist — to prevail by force of arms.