CIAO: Kosovo and the Just War Tradition

CIAO DATE: 11/00

Kosovo and the Just War Tradition

Bjørn Møller _*

August, 2000

I. Introdcution

Not all ends can justify the resort to the use of military force, and not even the best ends can justify the use of all means.

Existing international norms pertaining to military matters fall into two approximate halves, corresponding to the two components of the traditional "just war" theory: the jus ad bellum and the jus in bello provisions. While there are several versions thereof, they all contain the principles listed in the table below ₁ . These ethical norms are legally enshrined in a number of documents, such as the UN Charter, various Security Council resolutions and rulings by the International Court of Justice ₂ .

Table 1: Just War Principles
Jus ad bellum principles	Jus in bello principles
1. Just cause/intention	1. Just authority
2. Just authority	2. Non-combatant immunity
3. Last resort	3. Proportionality
4. Proportionality	4. Prohibited targets
5. Probability of success	5. Prohibited weaponry

II. Political Goals And The Just War Tradition: Jus Ad Bellum

The above jus ad bellum principles are based on the premise that war is an evil which has to be limited, to the greatest possible extent--but also on the recognition that some wars may be justified. Very few people of today would disagree with these premises, even though they may disagree about the application of the criteria. Their value is thus not so much to provide answers to all questions, but to ensure that the right questions are asked about war.

The various criteria do, however, entail certain dilemmas and call for hard choices.

1. The just cause (or motivation) criterion is intended to limit the range of permissible motives for going to war, thereby at least forcing decision-makers to justify their actions in specific terms. Even though only very few wars are formally declared ₃ (requiring explicitness about the casus belli), decision-makers nevertheless have to justify their actions. What constitutes a "just cause" may be disputed, with views ranging from assertive ones about promoting world revolution, religious world views, self-determination, democracy or human rights ₄ to more defensive ones of restoring lost rights, or defending one's sovereignty and territorial integrity. The general trend (at least until recently) has in the direction of limiting the range of assertive just causes in favour of the strictly defensive ones, with self-defence standing out as the "bottom line".

2. The just authority criterion is intended to ensure that not everybody is entitled to wage war. While religious authorities were formerly regarded as such just authorities, since around 1648 the "Westphalian consensus" has been that only states and their sovereign rulers are entitled to wage war ₅ . To this has later been added the requirement that sovereigns should "represent" their citizens, as argued by Immanuel Kant is his 1795 treatise on Perpetual Peace ₆ . Not only is this intended to ensure at least a modicum of what we today call "accountability", and ensure that the executive is scrutinized by the legislature ₇ (thereby also strengthening jus in bello). It will presumably also ensure peace, according to the fashionable "democratic peace" theory ₈ . As argued below, moreover, we have progressed even further, beyond the Westphalian rules, to the point where today the only legitimate authority is today the United Nations Security Council.

3. The last resort (ultima ratio) criterion is obviously intended to prevent avoidable wars. It is only "when all else fails" that the use of military force can be legitimately resorted to. However, the term "last" may be more ambiguous than sometimes assumed: Does it refer to time, implying that one should first try all other options (but if so for how long) before resorting to war? Or is it a "logical last", entailing an obligation to prefer all other options to the resort to war, but without any requirement for a particular sequence or durattion of actions? Economic and other sanctions are usually regarded as options of the first resort, but their effect is usually, at best, long-term, raising the question for how long sanctions should be upheld before discarding them as inadequate. They also raise serious ethical concerns because of their humanitarian consequences ₉ . Hard though it may be to admit, in some cases, short wars may cause less human suffering than a protracted sanctions regime.

4. The proportionality criterion is simply intended as a safeguard against over-reaction. Not every "wrong" is serious enough to justify, e.g. the total annihilation of the wrong-doer. This becomes even more obvious if one distinguishes between rulers (who are usually the real culprits) and their often innocent subjects. For how long should, for instance, the Iraqi children suffer as punishment of their dictatorial ruler, Saddam Hussein, for something he did a decade ago ₁₀ ? There may be something to be said for "setting examples", which may require a certain over-reaction to some transgressions, as this may serve as a deterrent against other prospective transgressors. First of all, however, the entire logic may be flawed and without much empirical support ₁₁ . Secondly, the locic (if so it is) would seem to call for a consistency that has been conspicuously absent in the behaviour of the great powers (especially the United States) in recent years. Why is Iraq not permitted to invade Kuwait and seek to develop weapons of mass destruction, when Israel can develop a fully-fledged nuclear weapons potential and invade neighbouring states with impunity ₁₂ ?

5. The "probability of success" criterion is often forgotten and difficult to apply. The history of war is replete with examples of lost wars, i.e. wars which in retrospect did not comply with this criterion ₁₃ , but it makes little sense to demand certainty of success as a just war criterion. A more meaningful application might be to rule out forms of war that have always (or nearly always) failed such as the use of "stand-alone air power" ₁₄ ; and to use the criterion as an adjunct to the others: To the extent that the party initiating the war does not make a determined effort to achieve success, the probability that it achieves it is small. This invalidates both its claims to have a cause that was just enough to warrant going to war in the first place, and the claim that the war was one of last resort.

Quite a lot has been achieved legally with regard to the applicatio of these jus ad bellum criteria to international law, as the world has seen a gradual outlawry of war. In continuity with the 1928 Kellogg-Briand Pact ₁₅ , the UN Charter thus proscribes wars of aggressions in the following unequivocal terms:

(2.3) All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
(2.4) 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.

Whereas aggressive war is thus proscribed, national defence remains legitimate, both for individual states and for alliances, but only in as far as it is acknowledged ex post facto as genuine self-defence by the Security Council:

(51) 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.

The general rule of today is thus that war is prohibited, and that the only authority entitled to make exceptions to this rule is the UN Security Council ₁₆ . This is a tremendous civilizational improvement over the situation a century or so ago, when war was generally regarded as a perfectly legitimate means to political ends.

III. Military Means to Political Ends: Jus in bello

Even in the case of wars that meet all the jus ad bellum criteria, the other set of criteria remains in force. Even the most just war must thus be fought in a just manner, i.e. in accordance with the jus in bello criteria.

1. The just authority criterion is mainly intended to ensure that all parties engaged in war are accountable. There should be no "free agents" in war like the mercenaries whom Macciavelli described as "disunited, thirsty for power, undisciplined and disloyal; they are brave among their friends and cowards before the enemy; they have no fear of God, they do not keep faith with their fellow men" ₁₇ . The hierarchical structure of modern armed forces, along with the principle of political supremacy, ensures that responsibility for whatever crimes of war may be committed does not dissipate, but can always be placed somewhere in the hierarchy--at least in "real wars" between sovereign states. The ad hoc establishment of international war crimes (and genocide) tribunals also helps establish the precedent that soldiers are answerable to higher authorities than their governments ₁₈ .

2. The principle of non-combatant immunity is arguably the most central of all jus in bello criteria. The underlying philosophy is that wars are fought by states and their representatives, in casu soldiers as long as they remain so ₁₉ . As soon as they surrender they are entitled to treatment as prisoner's of war, which is an approximation to the principle of non-combatant immunity. It is never permissible to wage war against civilians--as such, e.g. by bombing residential areas.

3. The proportionality criterion is intended as an companion of the former criterion, acknowledging that it is not always possible to distinguish between combatants and civilians (if only because the former might hide amongst the latter). Some collateral damage is thus permissible, and the criterion simply entails that there should be some proportionality between the military objectives aimed for and the collateral damage inadvertantly produced. While there is no generally accepted formula for this proportionality, the criterion at least forces military planners to ask the question whether their military objectives are important enough to warrant what the civilian suffering they are causing. It may also serve to discourage seeking "intentional collateral damage", as happened during the Second World War, where at least some air power advocates believed in the strategic advantage of bombing civilian targets, hence deliberately chose military targets close to residential areas ₂₀ .

4. A list of prohibited targets may be derived deductively from criteria 2 and 3, as there are some targets which are, by their very nature, civilian. Present lists include such facilities as places of worship and hospitals, but there are also more open-ended provisions for declaring cities "open", thereby ensuring that they cannot be (legally) targeted.

5. The list of prohibited weaponry might be derived in the same fashion from criteria 2 and 3. The list has grown considerably since the banning of the crossbow (against Christians, but not infidels) by the 1139 Second Lateran Council ₂₁ , albeit maybe not fast enough to keep pace with the development of new weapons. The main criteria have been that weapons are illegitimate if they cause "uncessesary suffering", or if they are so indiscriminate in their effects that the principle of civilian immunity cannot be met. Recent additions to the list have been anti-personnel landmines, biological and chemical weapons ₂₂ , just as the use (but not possession) of nuclear weapons has been declared illegal by the International Court of Justice ₂₃ .

With a few exceptions, all of the above criteria only apply to war in the traditional and legal sense, i.e. primarily to wars between states and, to a limited extent, "wars of national liberation" which are recognized as such. There remains a glaring gab with regard to what seems to be the predominant form of violent conflict of the future, namely intra-state wars ₂₄ . These are usually characterized by the predominance of non-state actors, by a blurring of distinctions between regular soldiers, paramilitaries, guerillas and civilians; and, alas, by a deliberate targeting of civilians for which it is often difficult to hold anybody accountable because of the unclear lines of authority and command. For all their importance, I have nevertheless chosen to disregard these "new wars" completely ₂₅ .

IV. Case Study: Kosovo and the Just War Criteria

Having thus elaborated upon existing just war criteria, I shall conclude this paper by a brief and tentative application of them to the most recent war in Europe, namely NATO's war against the Federal Republic of Yugoslavia (FRY) from 24 March to 10 June 1999 ₂₆ .

While there is little doubt that NATO regarded its own cause as just, it stubbornly refused to label what it was doing as a war, preferring neologisms such as "humanitarian action by military means". To all practical intents and purposes, however, a 78 days' "campaign" including 37,225 "sorties" (according to U.S. Secretary of Defence Cohen) was very much a war--certainly for those on the receiving end of the air strikes and those civilians who fell victims to the FRY's ethnic cleansing campaign.

1.A. The Jus ad bellum criteria

1. As far as the first jus ad bellum criterion was concerned, both sides apparently believed to have a just cause. NATO because its motives were pure and unselfish, namely to salvage the civilian Kosovars from a brutal onslaught by the forces of the FRY. They could further refer to a number of UN Security Council resolutions labelling as "wrong" what NATO was seeking to "right". While there may have been other motives at work behind the scenes, there is little doubt that the humanitarian motives were decisive.

Perhaps more surprisingly, the FRY's cause was also "right", at least in the legal sense, as it was a clear case of self-defence against what was (again legally speaking) an act of aggression, according to the definion of the UN General Assembly in Resolution no. 3314 (1974) as the "use of armed force by a State against the sovereignty, territorial integrity or political independence of another State" ₂₇ . Where the FRY erred was not in defending itself, but in the way they did so, i.e. according to jus in bello criteria (vide infra).

2. With regard to proper authority, there is little doubt that the FRY complied with this criterion. In fact the rejection of Rambouillet draft accord was endorsed by the Yugoslav parliament, and the war was fought on behalf of UN member state under the authority of a universally recognized (however intensely disliked) government.

NATO's case is much more dubious in this respect. As mentioned above, the only political authority with the powers to legitimately mandate the use of force is the UN Security Coluncil, which provided no such a mandate, not even implicitly. It did not help that the war was launched by an alliance of democratic states (and for a good cause), as collective aggression (viz. the above definition) is just as unlawful as one undertaken by a single state.

3. The question whether the war was one of last resort only arises as far as NATO was concerned, as the party initiating hostilities. There were already sanctions in place against the FRY, and a ceasefire had been signed in October 1998 which was being monitored by the OSCE. Even though it had been violated by both the FRY and the KLA (Kosovo Liberation Army), the intensity of violence had abated considerably.

The main question is, however, whether the negotiations in Rambouillet ever stood any chance of producing an accord without the use of force--and, if so, how long it might have taken, and what would have happened in the course of more protracted negitiations. We shall probably never know this for sure, but NATO (personified by Richard Holbrooke) went out of its way to explain that the military implementation parts of the draft were not negotiable, once the signature of the Kosovar delegations had been secured. Had NATO been prepared to negotiate this (extremely radical and intrusive) military regime with the government in Belgrade, they just might have found a mutually acceptable solution, e.g. along the lines of the UN Security Council resolution (1244) which ended the war ₂₈ . Because it was never attempted, we shall never know whether it would have worked.

4. The proportionality criterion is only applicable to NATO and hard to apply, also because of the "CNN effect" ₂₉ . There is little doubt that the government of Milisovic was in the wrong, as a rather blatant violator of human rights, especially those of the Kosovars. On the other hand, the same could be said about many other governments around the world, who get away with even worse violations with impunity. The intense media coverage of Kosovo, and especially of the Racak massacre in January 1999, may have "forced" NATO to act out of proportion to what it (or others) might have done in even worse situations. Just compare the situation of the Kosovar civilians with the much worse plight of the Rwandese a couple of years before, when both NATO (with the partial exception of France) and the United States stood idly by.

5. Neither side seems to have complied with the criterion that what they were doing should have a reasonable probability of success--but NATO even less so than the FRY.

What the FRY should have realized was, of course, that they were up against an alliance with no less than two thirds of the world's military expenditures ₃₀ , and one which had mortgaged its "credibility" on victory. Eventual defeat was therefore inevitable, and by postponing it with its ruthless war against the civilian population of Kosovo the FRY sacrificed whatever goodwill it might have had left before the war.

Despite its crushing economic and material superiority, NATO's prospects of victory were far from certain, because of the chosen strategy. As argued above, air power has never won a war alone, as victory requires the use of ground forces. In case this "timeless verity of war" had been forgotten, NATO (and especially the United States) should have been reminded of it by the complete failure of the US-British "Operation Desert Fox" a mere three months before, when they sought to bring the recalcitrant Iraq of Saddam Hussein "to heel" but accomplished the exact opposite: a complete and irreversible expulsion of UNSCOM (United Nations Special Commission) ₃₁ .

Rather than viewing the war as a "strategic game" of moves and counter-moves, NATO was obviously taken by complete surprise when the FRY army kept their air defence assets "on the move", hid their tanks in front of kindergardens, and generally took the civilian population hostage. The only "accomplishment" was thus to keep NATO's own losses at zero in conformity with the requirements of "post-heroic warfare" ₃₂ . To use this as a success criterion, however, invalidates the other just war criteria, as a cause cannot be just for which a state is not prepared to risk the life of a single soldier-especially not in a situation where hundreds of thousands of those Kosovar civilians on behalf of whom the war was fought were being evicted and thousands of them killed, who might have been saved by NATO troops on the ground.

1.B. The jus in bello criteria

Neither side fares much better with regard to the jus in bello criteria.

1. The just authority criterion was probably only seemingly respected by either side. While little has been officially revealed about NATO's decision-making during the war, quite a lot has leaked about serious disagreements concerning, e.g., targeting policy ₃₃ . In actual fact, it seems that the United States disregarded the views of its allies and had its own targeting policy. By implication NATO as an organization was not truly accountable, as US forces are always mainly responsible to their national Commander-in-Chief, i.e. the US President. Even more seriously, NATO's (and especially the American) refusal to put its own forces on the ground meant that the Alliance effectively relied on the KLA as its only ground forces. This also seriously violated the just authority criteron as these were forces beyond NATO's control and thus unaccountable. In fact, until quite recently they had been referred to as "terrorists" by the Americans ₃₄ .

As far as the FRY side was concerned, it appears as if the government in Belgrade to some extent deliberately sought to absolve itself of responsibility by using "free agents" such as the paramilitary "Tigers" of Arkan. They were the ones to carry out most of the atrocities, even though the regular armed forces were far from innocent. Much to its credit, the international war crime tribunal refused to absolve Milosevic and consorts on such formal grounds, but issued an indictment of the main culprit in Belgrade ₃₅ .

2. The non-combatant immunity criterion was, needless to say, blatantly violated by the Yugoslav forces, who effectively used the civilian population (and especially the Kosovar-Albanian segment thereof) as hostages. Their "war" (if so it was) was thus conducted almost exclusively against civilians, as an intended "indirect approach" ₃₆ to fighting NATO. As a military strategy it was very effective, but no less morally indefensible for that. On the other hand, although it was described as such, it was far from unique, but quite reminiscent of, for instance, the French counter-guerilla strategy in Algeria or that of the United States in Vietnam ₃₇ .

Even though its spokesmen went out of their way to proclaim that NATO was not waging a war against the Yugoslav population, the western alliance also blatantly violated the "non-combatant immunity". Among selected targets (as opposed to those accidentally hit) ₃₈ were, for instance, the power supply, bridges, oil refinaries, TV stations, cigarette factories, etc., which are clearly not military targets. Virtually everything could, of course, be construed as "dual use" (some soldiers smoke cigarettes and watch TV, for instance), but doing so completely defies the purpose of the civilian immunity rule.

Moreover, the pattern of NATO bombing raids ₃₉ clearly reflected the aforementioned post-heroic attitude to war. This is illustrated in Table 2, showing how ethics can almost be measured in meters. The (alleged) "wonder weapons" such as the Apache combat helicopters were withheld from combat, and ground-attack aircraft such as the A-10 were only used late and infrequently, even though the former could have saved civilians and the latter have attrited the Serbian armoured forces---and in both cases at fairly low risk because of NATO's unchallenged air superiority.

Table 2: The Ethics of Flight Patterns	Flying altitue
Oportunities for / Risks of:	6,000m (e.g. bomber)	600m (e.g. A-10)	60m (helicopter)
Military hits	Low	Medium/High	High
Collatral civilian deaths	High	Medium/High	Low
Own casualties	Very low	Medium	High

What NATO could have done was to use ground troops, albeit not for that full-scale invasion of the FRY which became the focus of the debate, and which would indeed have been quite demanding. It would have made much more sense to deploy ground troops (with full air and helicopter support) along the northern "border" of Kosovo. To get the forces to the border would have been a demanding operation, requiring a combination of parachuted troops and equipment with a cross-country assault (e.g. via Albania and/or Macedonia), but it could surely have been accomplished--albeit not necessarily without casualties. Having reached the border, the NATO troops would have had to be seal it as hermetically as possible, which could surely have been done by means of artillery and direct-fire weapons. It would have made sense to deliberately leave open a few "escape routes" for retreating FRY troops, but the remaining FRY troops and paramilitary forces inside Kosova would have had to be "mopped-up", primarily by means of helicopters, A-10 aircraft, tanks, APCs and dismounted infantry. In conformity with the jus in bello principles and the laws of war, no attempt should have been made to annihilate these forces, but they should have been given the choice between surrendering their weapons and be immediately released or retreating with their weapons.

3. The proportionality criterion seems to have been violated by NATO with its air strikes, producing massive collateral damage, even though they were directed against "military targets" such as those mentioned above. What matters is not (as sometimes alleged by NATO spokesmen) the ratio of accidents to the total number of sorties, but that between the "good" that is achieved and the "bad" collateral damages. The bottom line is that NATO did not salvage a single refugee (i.e. achieved no good) by its war whilst causing very massive intentional as well as collateral damage, inter alia because of the above "post-heroic" flight patterns. In fact the number of refugees rose steeply immediately after the bombings commenced as set out in Table 3, which is based on the estimates of the UNHCR.

Needless to say, the proportionality criterion was also blatantly violated by the Yugoslav forces, who were the ones to directly cause the refugee flows.

Table 3: Refugees from Kosovo ₄₀	23 March	4 April	23 April	14 May
in Albania	18,500	170,000	362,000	431,500
in Macadonia	16,600	115,000	133,000	233,300
in Bosnia	10,000	0	32,600	18,500
in Montegegro	25,000	32,000	66,500	64,300
Other	0	0	17,929	44,525
Total	69,500	317,000	612,029	792,125

4. While there is no question about the FRY's violation of the prohibited targets criterion, there remains some uncertainty about NATO. Some bombs did, of course, fall on prohibited targets such as a refugee column and a maternity ward in a hospitals, and several or the "surgically precise" air strikes hit the wrong countries (e.g. Bulgaria and Albania) just as several embassies were hit, including those of neutral Switzerland and Sweden. While the latter constituted both a breach of the rules of diplomatic immunity and neutrality, there is little doubt that the hits were minor and almost certainly accidental. The same cannot be said for the massive attack against the Chinese embassy in Belgrade, which may well have been deliberate despite the stubborn US denial.

5. Apparently no actually prohibited weaponry was used during the war by either side. However, some of NATO's preferred weapons might rightly belong to the list of non-discriminating weapons, especially when dropped from high altitudes. This goes for cluster bombs such as the British "BL 755" or the U.S. "CBU87B", which are essentially area-impact munitions; graphite bombs which have not only destroyed military, but also civilian power grids; and the depleted uranium shells used by the A-10 aircraft, which cause long-lasting radioactive contamination. ₄₁

V. Conclusion

We have thus seen that both sides in the Kosovo war were in clear breach of the just war criteria, as summarized in Table 4.

This is, of course, merely the present author's assessment, which does not count for much. What would have been desirable was an authoritative ruling by the highest international legal authority, i.e. the International Court of Justice. The FRY filed a lawsuit against NATO during the war ₄₂ , referring to both jus ad bellum and jus in bello principles, including the Genocide Convention. Unfortunately, however, the United States denied the ICJ its permission to have its case tried with a rather baroque reference to the reservations it had attached to its (belated) ratification of the Genocide Concention. While this may have saved the USA and NATO legally, it did little to enhance their moral position.

Table 4: NATO'S War Against the FRY and the Just War Criteria
Jus ad bellum		Jus in bello
1. Just cause/intention:		1. Just authority
NATO: YES?	FRY: YES	NATO: YES(?)	FRY: NO(?)
2. Just authority		2. Non-combatant immunity
NATO: NO	FRY: YES	NATO: NO	FRY: NO
3. Last resort		3. Proportionality
NATO: NO	FRY: n.a.	NATO: NO	FRY: NO
4. Proportionality		4. Prohibited targets
NATO: ?	FRY: n.a.	NATO: ?	FRY: NO
5. Probability of success		5. Prohibited weaponry
NATO: NO	FRY: NO	NATO: NO(?)	FRY: NO(?)

Endnotes

*: The author holds an MA in History and a Ph.D. in International Relations, both from the University of Copenhagen. Since 1985, he has been (senior) research fellow, subsequently programme director and board member at the Copenhagen Peace Research Institute (COPRI, formerly Centre for Peace and Conflict Research), where he is also editor of the international research newsletter NOD and Conversion. He has served as Secretary General of the International Peace Research Association (IPRA) since 1998, and as External Lecturer at the Institute of Political Studies, University of Copenhagen since 1992. In addition to being the author of numerous articles and editor of six anthologies, he is the author of three books: Resolving the Security Dilemma in Europe. The German Debate on Non-Offensive Defence (1991); Common Security and Nonoffensive Defense. A Neo-realist Perspective (1992); and Dictionary of Alternative Defense (1995). Back.

Note 1: For a comparison of three different versions see Hallett, Brien: "Just War Criteria", in Kurtz, Lester (ed.): Encyclopedia of Violence, Peace and Conflict (San Diego: Academic Press, 1999), vol. 2, pp. 283-293. On the ethical foundations of just war theory see, e.g., Walzer, Michael: Just and Unjust Wars. A Moral Argument with Historical Illustrations(New York: Harper Torchbooks, 1977); Johnson, James Turner: Just War Tradition and the Restraint of War. A Moral and Political Inquiry (Princeton: Princeton University Press, 1981); idem: The Quest for Peace. Three Moral Traditions in Western Cultural History (Princeton: Princeton University Press, 1987); idem: Morality and Contemporary Warfare (New Haven: Yale University Press, 1999); Elshtain, Jean Bethke (ed.): Just War Theory (Oxford: Blackwell, 1992); Nardin, Terry (ed.): The Ethics of War and Peace. Religious and Secular Perspectives (Princeton, NJ: Princeton University Press, 1996); Smock, David R. (ed.): Religious Perspectives on War. Christian, Muslim, and Jewish Attitudes Toward Force After the Gulf War (Washington, D.C.: United States Institute of Peace, 1992). Back.

Note 2: Best, Geoffrey: Humanity in Warfare. The Modern History of the International Law of Armed Conflicts (London: Methuen, 1980); De Lupis, Ingrid Detter: The Law of War (Cambridge: Cambridge University Press, 1987); Green, L.C.: The Contemporary Law of Armed Conflict (Manchester: Manchester University Press, 1993); Howard, Michael, George J. Andreopolous & Mark R. Schulman (eds.): The Laws of War. Constraints on Warfare in the Western World (New Haven: Yale University Press, 1994); McCoubrey, H. & N.D. White: International Law and Armed Conflict (Aldershot: Dartmouth, 1992); Dinstein, Yoram: War, Aggression and Self-Defence. Second Edition (Cambridge: Grotius Publications, Cambridge University Press, 1994); Murphy, John F.: "Force and Arms", in Oscar Schachter & Christopher C. Joyner (eds.): United Nations Legal Order, Vols. 1-2 (American Society for International Law and Cambridge: Grotius Publications/Cambridge University Press, 1995), vol. 1, pp. 247-318; Shaw, Malcolm N.: International Law. Third Edition (Cambridge: Grotius Publications/Cambridge University Press, 1991), pp. 681-740. Back.

Note 3: Hallett, Brien: The Lost Art of Declaring War (Urbana: University of Illinois Press, 1998). Back.

Note 4: On revolution and war see Conge, Patrick J.: From Revolution to War. State Relations in a World of Change (Ann Arbor: University of Michigan Press, 1996); Walt, Stephen M.: Revolution and War (Ithaca: Cornell University Press, 1996); Dassel, Kurt: "Revolution and War: A Critique", Security Studies, vol. 6, no. 2 (Winter 1996/97), pp. 152-173; Goldstone, Jack A.: "Revolution, War, and Security", ibid. (Winter 1996/97), pp. 127-151; Walt, Stephen M.: "Rethinking Revolution and War: A Reply to Goldstone and Dassel", ibid., pp. 174-196; Katz, Mark N.: Revolutions and Revolutionary Waves (New York: St. Martin's Press, 1997); Halliday, Fred: Revolution and World Politics. The Rise and Fall of the Sixth Great Power (Houndsmills, Basingstoke: Macmillan, 1999). On religious motives for war see Partner, Peter: God of Battles. Holy Wars of Christianity and Islam (Princeton, NJ: Princeton University Press, 1997); Huband, Mark: Warriors of the Prophet. The Strucggle for Islam (Boulder: Westview Press, 1999); Hoveyda, Fereydoun: The Broken Crescent. The "Threat" of Militant Islamic Fundamentalism (Westport, Ct.: Praeger Press, 1998); Gieling, Saskia: Religion and War in Revolutionary Iran (London: I.B. Tauris, 1999). On the promotion of democracy and human rights see Peceny, Mark: Democracy at the Point of Bayonets (University Park: Pennsylvania State University Press, 1999). On self-determination and human rights see, e.g. Sellers, Mortimer (ed.): The New World Order. Sovereignty, Human Rights and the Self-Determination of Peoples (Oxford: Berg, 1996); Dorman, Andrew M. & Thomas G. Otte (eds.): Military Intervention. From Gunboat Diplomacy to Humanitarian Intervention (Aldershot: Datmouth, 1995); Moore, Jonathan (ed.): Hard Choices. Moral Dilemmas in Humanitarian Intervention (Lanham: Rowman & Littlefield, 1998); Phillips, Robert L. & Duane L. Cady: Humanitarian Intervention. Just War Versus Pacifism (Lanham, Maryland: Rowman & Littlefield, 1996); Roberts, Adam: "Humanitarian War: Military Intervention and Human Rights", International Affairs, vol. 69, no. 3 (July 1993), pp. 429-450; MacMillan, John: On Liberal Peace. Democracy, War and the International Order (London: I.B. Tauris, 1998). Cassese, Antonio: Self-Determination of Peoples. A Legal Reappraisal (Cambridge: Cambridge University Press, 1995). Back.

Note 5: An excellent defensorate of these rules is Bull, Hedley: The Anarchical Society. A Study of Order in World Politics. Second Edition (Houndmills, Basingstoke: Macmillan, 1995). For qualificatios see Lyons, Gene M. & Michael Mastanduno (eds.): Beyond Westphalia? National Sovereignty and International Intervention (Baltimore: John Hopkins University Press, 1995); Krasner, Stephen D.: Sovereignty. Organized Hypocrisy (Princeton: Princeton University Press, 1999). Back.

Note 6: Kant, Immanuel: Zum ewigen Frieden. Ein philosophischer Entwurf (1795/1796, Stuttgart: Philipp Reclam Jun., 1963); Piepmeier, Rainer: "Immanuel Kant (1724-1804). Friede als Ziel der Geschichte", in Christiane Rajewsky & Dieter Riesenberger (eds.): Wider den Krieg. Große Pazifisten von Immanuel Kant bis Heinrich Böll (München: Verlag C.H. Beck, 1987), pp. 17-25; Ostsee-Akademie (eds.): Kant und der Frieden in Europa. Ansätze zur geistigen Grund-legung künftiger Ost-West-Beziehungen, (Baden-Baden: Nomos Verlag, 1992); Bohman, James & Matthias Lutz-Bachmann (eds.): Perpetual Peace. Essays on Kant's Cosmopolitan Ideal (Cambridge, MA: MIT Press, 1997); Franke, Mark F.N.: "Immanuel Kant and the (Im)Possibility of International Relations Theory", Alternatives, vol. 20, no. 3 (July-September 1995), pp. 279-322. Back.

Note 7: On the US regulation see Sheffer, Martin S.: The Judicial Development of Presidential War Powers (Westport, Ct.: Praeger Press, 1999). Back.

Note 8: Russett, Bruce: Grasping the Democratic Peace. Principles for a Post-Cold War World (Princeton, NJ: Princeton University Press, 1993); Elman, Miriam Fendius: Paths to Peace. Is Democracy the Answer? (Cambridge, MA: MIT Press, 1997); MacMillan, John: On Liberal Peace. Democracy, War and the International Order (London: I.B. Tauris, 1998); Brown, Michael E., Sean Lynn-Jones & Steven E. Miller (eds.): Debating the Democratic Peace (Cambridge, MA: The MIT Press, 1996); Gowa, Joanne: Ballots and Bullets. The Elusive Democratic Peace (Princeton, NJ: Princeton University Press, 1999); Gaubatz, Kurt Taylor: Elections and War. The Electoral Incentive in the Democratic Politics of War and Peace (Stanford: Stanford University Press, 1999); Ray, James Lee: Democracy and International Conflict. An Evaluation of the Democratic Peace Proposition (Columbia: University of South Carolina Press, 1995); Weart, Spencer R.: Never at War: Why Democracies Will Not Fight One Other (New Haven: Yale University Press, 1998). Back.

Note 9: On sanctions in general see Hufbauer, Gary Clyde, Jeffrey J. Schott & Kimberly Ann Elliott: Economic Sanctions Reconsidered. History and Current Policy, 2nd edition, vols. 1-2 (Washington, D.C.: Institute for International Economics, 1990); Cortright, David (ed.): The Price of Peace. Incentives and International Conflict Prevention (Lanham, Maryland: Rowman & Littlefield, 1997); idem & George A. Lopez (eds.): Economic Sanctions. Panacea or Peacebuilding in a Post-Cold War World? (Boulder: Westview Press, 1995); Simons, Geoff: Imposing Economic Sanctions. Legal Remedy or Genocidal Tool? (London: Pluto Press, 1999); Preeg, Ernest H.: Feeling Good or Doing Good with Sanctions. Unilateral Economic Sanctions and the U.S. National Interes (Washington, D.C.: CSIS Press, 1999); Mansfield, Edward D.: "International Institutions and Economic Sanctions", World Politics, vol. 47, no. 4 (July 1995), pp. 575-605; Boudreau, Donald G.: "Economic Sanctions and Military Force in the Twenty-First Century", European Security, vol. 6, no. 2 (Summer 1997), pp. 28-46; Pape, Robert A.: "Why Economic Sanctions Do Not Work", International Security, vol. 22, no. 2 (Fall 1997), pp. 90-136; idem: "Why Economic Sanctions Still Do Not Work", ibid., vol. 23, no. 1 (Summer 1998), pp. 66-77; Elliott, Kimberly Ann: "The Sanctions Glass: Half Full or Completely Empty", ibid., pp. 50-65; Kirshner, Jonathan: "The Microfoundations of Economic Sanctions", Security Studies, vol. 6, no. 3 (Spring 1997), pp. 32-64; Lavin, Franklin L.: "Asphyxiation or Oxygen? The Sanctions Dilemma", Foreign Policy, vol 104 (Fall 1996), pp. 139-153; Rogers, Elizabeth S.: "Using Economic Sanctions to Control Regional Conflicts", Security Studies, vol. 5, no. 4 (Summer 1996), pp. 43-72; Weiss, Thomas G.: "Sanctions as a Foreign Policy Tool: Weighing Humanitarian Impulses", Journal of Peace Research, vol. 36, no. 5 (September 1999), pp. 499-510. On one of the few instances of successful sanctions see Thomas, Scott: "The Diplomacy of Liberation: The ANC in Defence of Sanctions", in Greg Mills (ed.): From Pariah to Participant. South Africa's Evolving Foreign Relations, 1990-1994 (Johannesburg: The South African Institute of International Affairs, 1994), pp. 169-192. Back.

Note 10: See e.g. on Iraq: "Situation Analysis of Children and Women in Iraq", UNICEF Report, 30 April 1998, extracts available at http://leb.net/iac/UNICEF1998.html; Graham-Brown, Sarah: Sanctioning Saddam. The Politics of Intervention in Iraq (London: I.B. Tauris, 1999). Back.

Note 11: Mercer, Jonathan: Reputation and International Politics (Ithaca: Cornell University Press, 1996); Copeland, Dale C.: "Do Reputations Matter?", Security Studies, vol. 7, no. 1 (Autumn 1997), pp. 33-71; Huth, Paul K.: "Reputations and Deterrence: A Theoretical and Empirical Assessment", ibid., pp. 72-99; Mercer, Jonathan: "Reputation and Rational Deterrence Theory", Security Studies, vol. 7, no. 1 (Autumn 1997), pp. 100-113. Back.

Note 12: On Iraq's invasion of Kuwait see Rahman, H.: The Making of the Gulf War. Origin's of Kuwait's Long-standing Territorial Dispute with Iraq (Reading: Ithaca Press, 1997); Hassan, Hamdi A.: The Iraqi Invasion of Kuwait. Religion, Identity and Otherness in the Analysis of War and Conflict (London: Pluto Press, 1999). On their nuclear weapons programme see Samore, Gary: "Iraq", in Mitchell Reiss & Robert S. Litwak: Nuclear Proliferation After the Cold War (Baltimore: John Hopkins University Press, 1994), pp. 15-32. On the Israeli nuclear weapons see Evron, Yair: Israel's Nuclear Dilemma (London: Routledge, 1994); Cohen, Avner: Israel and the Bomb (New York: Columbia University Press, 1998). Back.

Note 13: See, for instance, Strauss, Barry S. & Josiah Ober: The Anatomy of Error. Ancient Military Disasters and Their Lessons for Modern Strategists (New York: St. Martin's Press, 1990); Dupuy, Trevor N.: Understanding Defeat. How to Recover from Loss in Battle to Gain Victory in War (New York: Paragon, 1990); Paul, Thaza Varkey: Asymmetric Conflicts: War Initiation by Weaker Powers (Cambridge: Cambridge University Press, 1994); Borer, Douglas A.: Superpowers Defeated. A Comparison of Vietnam and Afghanistan (London: Frank Cass, 1999). Back.

Note 14: Pape, Robert A.: Bombing to Win: Air Power and Coercion in War (Ithaca: Cornell University Press, 1996). On World War II, see the official British study; Webster, Charles & Noble Frankland: The Strategic Air Offensive Against Germany 1933-1945 (London: Her Majesty's Stationery Office, 1961); and its US counterpart: Craven, Wesley Frank & James Lea Cate (eds.): The Army Air Forces in World War II, Volumes 1-5 (Chicago: University of Chicago Press, 1948-1953). On the strategic thinking behind strategic bombing see Warner, Edward: "Douhet, Mitchell, Seversky: Theories of Air Warfare", in Edward Mead Earle (ed.): Makers of Modern Strategy. Military Thought from Machiavelli to Hitler (1941, reprint New York: Atheneum, 1970), pp. 485-503; and MacIsaac, David: "Voices From the Central Blue: The Air Power Theorists", in Peter Paret (ed.): Makers of Modern Strategy. Military Thought from Machiavelli to the Nuclear Age (Princeton, N. J.: Princeton University Press, 1986), pp. 624-647. On the Vietnam experience see Gibson, James William: The Perfect War. The War We Couldn't Lose and How We Did (New York: Vintage Books, 1988); Clodfelter, Mark: The Limits of Air Power. The American Bombing of North Vietnam (New York: Free Press, 1989). On the war against Iraq see Keaney, Thomas A. & Eliot A. Cohen: Revolution in Warfare? Air Power in the Persian Gulf (Annapolis, Maryland: Naval Institute Press, 1995); Mueller, John: "The Perfect Enemy: Assessing the Gulf War", Security Studies, vol. 5, no. 1 (Autumn 1995), pp. 77-117; Posen, Barry R.: "Military Mobilization in the Persian Gulf Conflict", SIPRI Yearbook 1991, pp. 640-654; Biddle, Stephen: "Victory Misunderstood. What the Gulf War Tells Us about the Future of Conflicts", International Security, vol. 21, no. 2 (Fall 1996), pp. 139-179; Ganyard, Stephen T.: "Strategic Air Power Didn't Work", US Naval Institute Proceedings, vol. 121, no. 8 (August 1995), pp. 31-35 Back.

Note 15: Baratta, Joseph Preston: "The Kellogg-Briand Pact and the Outlawry of War", in Richard Dean Burns (ed.): Encyclopedia of Arms Control and Disarmament, vols. I-III (New York: Charles Scribner's Sons, 1993), vol. II, pp. 695-705. Back.

Note 16: Lailach, Martin: Die Wahrung des Weltfriedens und der internationalen Sicherheit als Afgabe des Sicherheitsrates der Vereinten Nationen (Berlin: Duncker & Humblot, 1998). Back.

Note 17: Niccolò Machiavelli: The Prince (Harmondsworth: Penguin Classics, 1999), pp. 39-40. See also idem: The Art of War (New York: Da Capo Press, 1965), pp. 14-16. On modern mercenaries see Musah, Abdel-Fatau & J. 'Kayode Fayemi (eds.): Mercenaries. An African Security Dilemma (London: Pluto Press, 1999). Back.

Note 18: Fati_, Aleksandar: Reconciliation via the War Crimes Tribunal (Aldershot: Ashgate, 2000); Fischer, Horst & Sascha Rolf Lüder (ed.): Völkerrechtliche Verbrechen vor dem Jugoslawien-Tribunal, nationalen Gerichten und dem Internationalen Strafgerichtshof (Berlin: Verlin Verlag Arno Spitz, 1999); Meron, Theodor: "Answering for War Crimes", Foreign Affairs, vol. 76, no. 1 (Jan-Febr. 1997), pp. 2-8; Pfaff, William: "Judging War Crimes", Survival, vol. 42, no. 1 (Spring 2000), pp. 46-58. Back.

Note 19: A classical formulation is that of Rousseau, Jean Jacques (1762): Du Contrat Social (Paris: Garnier-Flammarion, 1966), p. 47: "La guerre n'est donc point une relation d'homme à homme, mais une relation d'État à État, dans laquelle les particulliers ne sont ennemies qu'accidentellement, ne point hommes ni même comme citoyens, mais comme soldats; non point comme membres de la patrie, mais comme ses défenseurs". For a critique of this notion of "trinitarian war" (fought by the State, people and army) see Van Creveld, Martin: The Transformation of War (New York: The Free Press, 1991). Back.

Note 20: Best: op. cit. (note 2), pp. 264-285. Back.

Note 21: Excerpted in Burns (ed.): op. cit. (note 15), vol. 3. p. 1367. Back.

Note 22: Lederberg, Joshua (ed.): Biological Weapons. Limiting the Threat (Cambridge, MA: MIT Press, 1999); Robinson, Julian Perry, Thomas Stock & Ronald G. Sutherland: "The Chemical Weapons Convention: the Success of Chemical Disarmament Negotiations", SIPRI Yearbook 1993, pp. 705-734. The convention itself is appended on pp. 734-756; Kelle, Alexander: "Das Chemiewaffen-Übereinkommen und seine Umsetzung--einführende Darstellung und Stand der Diskussion", HSFK-Report, no. 12/1996 (Frankfurt: Hessische Stiftung Friedens- und Konfliktforschung, 1996); Mathews, Robert J. & Timothy L.H. McCormack: "Entry into Force of the Chemical Weapons Convention. National Requirements and Prospective Timetable", Security Dialogue, vol. 26, no. 1 (March 1995), pp. 93-107; Smithson, Amy E.: "Implementing the Chemical Weapons Convention", Survival, vol. 36, no. 1 (Spring 1994), pp. 80-95. On the underlying attitudes see Price, Richard M.: The Chemical Weapons Taboo (Ithaca: Cornell University Press, 1997). On the landmine campaign and convention see Goldblat, Jozef: "Anti-Personnel Mines: From Mere Restrictions to a Total Ban", Security Dialogue, vol. 30, no. 1 (March 1999), pp. 9-24; Thakur, Ramesh & William Maley: "The Ottawa Convention on Landmines: A Landmark Humanitarian Treaty in Arms Control?", Global Governance, vol. 5, no. 3 (July-Sept. 1999), pp. 273-302; Wurst, Jim: "Landmines: Bobbled Ban", Bulletin of the Atomic Scientists, vol. 52, no. 5 (September/October 1996), pp. 11-14; The Arms Project & Physicians for Human Rights: Landmines. A Deadly Legacy (New York: Human Rights Watch, 1993); Cornish, Paul: Antipersonnel Mines. Controlling the Plague of "Butterflies" (London: Royal Institute of International Affairs, International Security Programme, 1994); Roberts, Shawn & Jody Williams: After the Guns Fall Silent. The Enduring Legacy of Landmines (Washington, D.C.: Vietnam Veterans of America Foundation, 1995); Harpviken, Kristian Berg & Mona Fixdal: "Anti-Personnel Landmines. A Just Means of War?", Security Dialogue, vol. 28, no. 3 (September 1997), pp. 271-285. Back.

Note 23: Burroughs, John: The (Il)legatity of Threat or Use of Nuclear Weapons (Münster: Lit Verlag, 1997); Chazournes, Laurence Boisson de & Philippe Sands (eds.): International Law, the International Court of Justice and Nuclear Weapons (Cambridge: Cambridge University Press, 1999). Back.

Note 24: Wallensteen, Peter & Margareta Sollenberg: "The End of International War? Armed Conflict 1989-95", Journal of Peace Research, vol. 33, no. 3 (August 1996), pp. 353-370. Back.

Note 25: On the various terms see Beaumont, Roger: "Small Wars: Definitions and Dimensions", in W.M.J. Olson (ed.): "Small Wars", Annals of the American Academy of Political and Social Science, vol. 541 (London: Sage, 1996), pp. 20-35. Good works are Creveld: op. cit. (note 19); Snow, Donald M.: UnCivil Wars: International Security and the New Pattern of Internal War (Boulder: Lynne Rienner, 1996); idem: Distant Thunder. Patterns of Conflict in the Developing World. 2nd Ed. (Armonk, NY: M.E. Sharpe, 1997); and Kaldor, Mary: New and Old Wars. Organized Violence in a Global Era (Oxford: Polity Press, 1999). Back.

Note 26: I have written more extensively on this in the following works and articles: Møller, Bjørn: "The UN, the USA and NATO. Humanitarian Intervention in the Light of Kosovo", Working Papers, no. 23 (Copenhagen: Copenhagen Peace Research Institute, 1999); idem: "The Kosovo Crisis and the Northern Tier: Denmark, Norway, Iceland, Sweden and Finland", Working Papers, no. 24 (Copenhagen: Copenhagen Peace Research Institute, 1999). See also Back.

Note 27: Quoted in Dinstein, Yoram: War, Aggression and Self-Defence. Second Edition (Cambridge: Grotius Publications, Cambridge University Press, 1994), p. 127. Back.

Note 28: On the negotiations see Weller, Marc: "The Rambouillet Conference on Kosovo", International Affairs, vol. 75, no. 2 (April 1999), pp. 211-253; Øberg, Jan: "Rambouillet--A Process Analysis", PressInfo, no. 56 (Lund: Transnational Foundation, 20 February 1999). Both the Rambouillet draft and UNSCR 1244 are excerpted at length in Møller: "The UN, the USA and NATO" op. cit. (note 26). Back.

Note 29: Jakobsen, Peter Viggo: "Focus on the CNN Effect Misses the Point: The Real Impact on Conflict Management is Invisible and Indirect", Journal of Peace Research, vol. 36, no. 2 (March 2000), pp. 131-144. Back.

Note 30: Data from Sköns, Elisabeth & al.: "Tables of Military Expenditure", SIPRI Yearbook 1998, pp. 222-227. Back.

Note 31: For an elaboration see Møller, Bjørn: "The Never-ending Iraqi Crisis", Working Papers, no. 7/1999 (Copenhagen: Copenhagen Peace Research Institute, 1999), revised version forthcoming in idem (ed.): Oil and Water. Cooperative Security in the Persian Gulf (London: I.B. Tauris, 2000). Back.

Note 32: Luttwak, Edward N.: "A Post-Heroic Military Policy", Foreign Affairs, vol. 75, no. 4 (July-August 1996), pp. 33-44; Gentry, John A.: "Military Force in an Age of National Cowardice", The Washington Quarterly, vol. 21, no. 4 (Autumn 1998), pp. 179-191. Back.

Note 33: See Butcher, Tim & Patrick Bishop: "NATO Admits Air Campaign Failed", Daily Telegraph, 22 July 1999; or BBC: "NATO's Inner Kosovo Conflict", 20 August 1999, available at news2.thls.bbc.co.uk/hi/english/world/europe/newsid_425000/425468.stm. Back.

Note 34: See e.g. Wood, Paul: "KLA Sticks to Its Guns", BBC Online Network, 10 June 1999; Hedges, Chris: "Kosovo's Next Masters", Foreign Affairs, vol. 78, no. 3 (May-June 1999), pp. 24-42. Back.

Note 35: The full text of the indictment is available at www.un.org/icty/indictment/english/24-05-99milo.htm. Back.

Note 36: On the term see Hart, Basil Liddell: Strategy. The Indirect Approach, 2nd ed., 1967: (New York: Signet, 1974). Back.

Note 37: Horne, Alastair: A Savage War of Peace. Algeria 1954-1962, (Harmondsworth: Penguin Books, 1977); Gibson: op. cit. (note 14); Record, Jeffrey: The Wrong War. Why We Lost in Vietnam (Annapolis: Naval Institute Press, 1998). Back.

Note 38: See, for instance, the list of "NATO's Bombing Blunders" (20 May 1999), at news.bbc.co.uk/hi/english/world/europe/newsid_340000/340966.stm. Back.

Note 39: A very detailed analysis is Cordesman, Anthony: "The Lessons and Non-Lessons of the Air and Missile War in Kosovo". Report to the USAF XP Strategy Forum, 8 July 1999, updated 3 August and available from www.csis.org/kosovo/Lessons.html. Back.

Note 40: Figures from UNHCR, cited by Cordesman: loc. cit. (note 4), p. 182. Back.

Note 41: Rogers, Paul: "High-tech War in Kosovo", published by the BBC, 7 May 1999 (news.bbc.co.uk/hi/english/special_report/1998/kosovi/newsid_337000/337679.stm). See also Morehouse, David A.: Nonlethal Weapons. War Without Death (Westport, CT: Praeger, 1996); Lewer, Nick & Steven Schofield: Non-Lethal Weapons: A Fatal Attraction? (London: Zed Books, 1997). Foster, Gregory D.: "Non-Lethality: Arming the Post-Modern Military", RUSI Journal, vol. 142, no. 5 (October 1997), pp. 56-63, 82; Starr, Barbara: "Pentagon Maps Non-Lethal Options", International Defense Review, vol. 27, no. 7 (July 1994), pp. 30-32; Lewer, Nick: "Non-Lethal Weapons", Medicine and War, vol. 11 (1995), pp. 78-90. On the effects on the environment see Krusewitz, Knut: "Ein Umweltkrieg in humaner Absicht? Ökologische und humanitäre Folgen des Krieges gegen Jugoslawien", Antimilitarismus Information, vol. 29, no. 7 (1999), pp. 103-115. Back.

Note 42: All the documents are available from: www.icj-cij.org/icjwww/idocket/iyus/iyusframe.htm. Back.