Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
Brian Barder's website
home blog politics family miscellaneous links contact about search
Kosovo: illegal, but moral? By Mark Littman QC
The Hous e of Commons S elect Committee on Foreign Affairs has reported that the NATO air war on Yugos lavia was illegal but "moral". That the NATO action was unlawful is doubtles s correct. It des erves , however, the following comments:
(1) It directly controverts statements made by Ministers to justify the intervention:
Any military action by Britis h forces would have to be lawful under international law. Tony Lloyd, Minister of State, Foreign Office, 3 February 1999
It is clear we have legal authority for action to prevent humanitarian catas trophe. Robin Cook, Foreign Secretary, 1 February 1999
We are in no doubt that NATO is acting within international law George Robertson, Defence Secretary, 25 March 1999
1 of 6
04/05/2009 12:22 AM
Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
I s ay very firmly that the United Kingdom has acted and will continue to act in conformity with international law. John Morris, Attorney-General, 11 May 1999
(2) It raises the question whether HMG even believed at the time that the action was lawful?
The full facts are not yet known but there are reports that lawyers advis ed that the bombing was illegal.
S unday Expres s 3 October 1999: John Morris (Attorney General) was pres ent at all 'War Cabinet' meetings in Downing S treet to give advice on international law and is s aid to have frequently irritated Mr. Blair. One minis ter s aid: 'He was awkward about the bombing. He kept coming up with excus es why we s hould not do it.'
The opinion of the committee that the bombing was nevertheless "moral" is much more dubious.
It is difficult to s ee how s uch a deliberate defiance of the central provis ions of the UN Charter governing the us e of force could ever be morally jus tifiable. Thes e are the provis ions prohibiting the us e of force in the s ettlement of international dis putes , without the authority of the S ecurity Council, otherwis e than in s elf-defence. Thes e provis ions create s olemn obligations to which all members of the U.N. are committed by their own cons ent. Can there be a moral right or duty to act as if s uch obligations are of no s ignificance ? The contrary opinion of the Foreign Affairs Committee s ugges ts a s erious failure to appreciate the importance to mankind of the Charter and the United Nations . For the main purpos e of the Charter, as s et out in its preamble, was "to s ave s ucceeding generations from the s courge or war, which twice in our lifetime has brought untold s orrow to mankind." It is not clear that there can ever be moral jus tification for frus trating s uch a purpos e. Even as s uming, however, that the theoretical pos s ibility of s uch a jus tification exis ts , it can hardly be doubted that the right to invoke it depends upon clear and convincing proof of the jus tificatory facts . This burden of proof mus t be even greater where the degree of force employed is as great as it was in this
2 of 6 04/05/2009 12:22 AM
Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
cas e. For the NATO intervention involved an attack by 18 s tates , with a combined population of about 600 million, upon a s ingle s tate, with a population of only 10 million. It involved the dropping, by day and by night, of 24,000 bombs and mis s iles upon populated areas . It res ulted in the death or maiming of thous ands of men, women and children. It inflicted catas trophic economic damage from which Yugos lavia will take years to recover. S o one has to as k ones elf whether s uch clear and convincing proof has been s hown to exis t. There are s everal reas ons to doubt it.
Reasons for doubting the moral justification for the NATO intervention
(a) NATO force was us ed exclus ively agains t the S erbs whereas it is quite clear from contemporaneous official reports that the ethnic Albanians were at leas t as much to blame for the prevailing hos tilities as the S erbs . Thus the Report from the S ecretary General of the United Nations dated 17 March 1999 covering the period 1 January to 17 March 1999 (7 days before the s tart of the air attacks ) s howed that the res umption and continuation of hos tilities in this period was initiated by the KLA and not by the S erbs . Thus the Report accepted the s tatement of the OS CE that "the current s ecurity environment in Kos ovo is characterized by the dis proportionate us e of force, including mortar and tank fire, by the Yugos lav authorities in res pons e to pers is tent attacks and provocations by the Kos ovo Albanian paramilitaries ." Thes e "pers is tent attacks and provocations " included ambus hes and killings of S erb s oldiers police and other officials . Furthermore, the dis placements of the S erbs in this period was jus t as great in relation to their population as that of the ethnic Albanians . It included in their cas e many thous ands of dis placements of S erbs from Kos ovo. This was not the cas e in res pect of the ethnic Albanians who, des pite dis placements from their villages , were not actually driven from Kos ovo until after the bombing s tarted. (b) In fact, NATO`s decis ion to attack the S erbs and the S erbs alone was not bas ed s o much on the contention that it was the S erbs and the S erbs alone who were currently res pons ible for the prevailing violence. It was bas ed on the fact that the S erbs had refus ed to s ign the draft Rambouillet agreement, whereas the KLA had agreed to do s o. But the S erbs were perfectly jus tified in refus ing the s ign this draft becaus e it contained a number of provis ions that were totally ins upportable and which had eventually to be dropped. Thes e included: The provis ion that the military and civilian pres ence in Kos ovo was to be exclus ively NATO in compos ition and authority.
3 of 6
04/05/2009 12:22 AM
Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
The provis ion that NATO forces would be entitled to acces s to the whole of Yugos lavia for an unlimited time and under conditions of complete immunity from cos t and civil and criminal liability. The provis ion that there would be "an international meeting ... to determine a mechanis m for a final s ettlement for Kos ovo, on the bas is of the will of the people..." (clearly implying a referendum) in three years ' time upon conditions that would in practice s ecure the s eces s ion of Kos ovo from Yugos lavia. A commitment to "cooperate fully" with the International Criminal Tribunal for the former Yugos lavia, with its implication the Milos evic would be handed over for trial. (c) The NATO action was expres s ed to be for the protection of the Kos ovo Albanians , but NATO knew full well that its air attacks were bound to lead to s erious repris als agains t the Kos ovo Albanians .
Kenneth Bacon, Pentagon s pokes man: In the Pentagon, in this building, we were not s urpris ed at what Milos evic has done. Reported in The Guardian, 6 April 1999
George J. Tenet Director CIA warned that the S erbs might res pond with a campaign of ethnic cleans ing. Reported in the Washington Post, 7 April 1999
General Wes ley Clark "We knew there were going to be s ome horrendous atrocities We knew it might lead to the expuls ion of Kos ovars from certain regions of Kos ovo." BBC 28 April 1999
In any event, the probabilities of violent retribution and revenge agains t the Kos ovar Albanians for the NATO bombing were obvious ly high s ince the S erbs were not in a pos ition to take s uch action agains t NATO or the KLA and it was highly probable that they would take it agains t the Kos ovo Albanians who were welcoming the NATO action. In fact the NATO attacks coincided with an enormous increas e in the dis placement of ethnic Albanians from their villages , and for
4 of 6 04/05/2009 12:22 AM
Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
the firs t time from the province of Kos ovo its elf, and a dramatic increas e in the volume of cas ualties . It is thes e facts that led Lord Carrington, former S ecretary-General of NATO, to as s ert that it was the bombing that caus ed the ethnic cleans ing. It is difficult to s ee how moral virtue can be claimed for action which actually made the pos ition of the Albanians , whom NATO s ay they were trying to protect, wors e rather than better. NATO has implicitly recognis ed the force of this criticis m by as s erting that the ethnic cleans ing would have taken place even if there had been no NATO bombing. However, the evidence cited in s upport of this as s ertion does not s tand up to examination. Thus Lord Roberts on in his recent book "Kosovo: An Account of the Crisis" s aid:
My German colleague Rudolph S charping revealed on 9 April 1999 details of a covert S erbian plan, code-named Operation Hors es hoe, to expel Kos ovo Albanians from their homeland.
However, in March 2000 Heinz Loquai, a retired brigadiergeneral now s erving with the OS CE, concluded after a s tudy of this "plan" that it was :
fabricated in Germany from run-of-the-mill Bulgarian intelligence reports
and that
it gave no s upport for the theory that the S erbs planned to evict the Albanians from Kos ovo.
As an alternative, it is s ometimes s ugges ted that the dis placements of Albanians from their villages which took place prior to the s tart of the bombing would have led, even without the bombing, to the infinitely wors e s ituation that took place after the bombing s tarted. This s peculation ignores , however, the fact that the dis placements that took place prior to 24 March 1999 were quite different in caus e, s cale and duration from thos e that took place after that date. They were different in caus e becaus e they were a reaction to the KLA guerilla attacks whereas the ethnic cleans ing after that date were a violent and retributive res pons e to the NATO bombing. They were different in s cale by a multiple of 4 or 5. They were different in duration
5 of 6
04/05/2009 12:22 AM
Kosovo: illegal, but moral? By Mark Littman QC
http://web.archive.org/web/20070712111044/www.b...
in that they were temporary, as was s hown by the return of almos t the whole of the dis placed villagers to their home in the quiet period at the end of 1998. Thus they furnis h no bas is for an inference that the ethnic cleans ing that took place after the s tart of the bombing would have taken place in any event even if there had been no bombing. The evidential bas is for the above is to be found in my pamphlet "Kosovo:War and Diplomacy" publis hed in November 1999 by the Centre for Policy S tudies , 57 Tufton S treet, London, S W1P 3QL, tel: 020 7222 4488, and in an article by Brian Barder on the Web at http://www.barder.com/brian/kos ovo.htm . One mus t conclude that the NATO intervention lacked not only legal but als o moral validity. MARK LITTMAN Q.C. JUNE 2000 S ee als o: Brian Barder's Kos ovo page A paper by Denis e Mumford, "Kos ovo: A Jus t War?", June 2001, written from a Chris tian viewpoint by a mature s tudent of theology and ethics . Do you remember Kos ovo?, by Mark Littman, 22 November 2004
About Brian | Privacy Policy | Contact Me |
6 of 6
04/05/2009 12:22 AM