Law and diplomacy - how NATO's war against Yugoslavia breached international law

April 2000

By Mark Littman QC

At a Committee for Peace in the Balkans public seminar in the House of Commons on 4th April 2000, Mark Littman QC scrutinised NATO's justifications for its war against Yugoslavia - that military intervention was lawful; that the possibilities of a peaceful settlement had been exhausted; and that the use of force was necessary to avert what would otherwise have been a humanitarian catastrophe in Kosovo - and concluded that none of them stood up to examination. The Kosovo intervention, he argued, must count as one of, if not the greatest humanitarian disaster in Europe since the end of World War II. The following is the full text of his introduction:

The NATO justification for the operation against Yugoslavia contains the following assertions:

1. The operation was lawful.

2. The possibilities of a reasonable and peaceful settlement had been exhausted.

3. The force used was necessary to avert what would otherwise be a humanitarian catastrophe in Kosovo.

Differences not along party lines

The first observation is that although all these questions are controversial, the controversy has not been along party lines. Thus, when the government decision to support the bombing was first announced in Parliament on 23/24 March 1999 it was supported by the Front Bench of both of the Opposition Parties. On the other side, the minority that spoke against it also extended across party lines.

Similarly, these was a diversity of critics in the world at large. They included, for example, two Nobel Peace Prize winners, President Mandela and Dr. Kissinger; Lord Carrington ; and President Carter. Readers the Times could find the views of the current editor on the right hand centre page and the opposite views of two previous editors on the page opposite.

Reappraisal essential

The second preliminary observation is that it is essential that we now have a re-appraisal of the NATO intervention in the light of the facts now available and re-consideration of the legal issues. And this for two reasons:

The supporters of the intervention put it forward as a splendid precedent for the future. That they are serious about this is shown by the support of some of their leaders for a new European force of 50,000 soldiers etc to be available for non-Article 4 operations. Article 4 is, of course the clause of the NATO Treaty which provides for each member to come to the assistance of any other member that is attacked. This is the only provision in the treaty for the use of force. That is why it is correctly described as a mutual defence pact.

The force would thus be available for Kosovo-like operations when the operation is not defensive at all but is aggressive but supposedly in support of humanitarian policies. There might, indeed, be many opportunities for such a force, since studies by think-tanks such as the Carter Foundation in Atlanta and the Institute of Strategic Studies in London show that at any one time there are between 30 and 40 armed conflicts in the world, almost all of which raise humanitarian issues. And these opportunities would be available not only to the 18 members of NATO but, on the same principle to any of the other 180 nation-states of the world who might chose to invoke it. And to invoke it according to their own ideas as to what is right and wrong. So if it is to be a precedent, it is essential for us to know whether it is a good precedent to be followed or a bad precedent to be avoided. The second reason why a re-appraisal is necessary concerns the cost of making good the damage. Obviously, the 24,000 bombs dropped by us on Yugoslavia did a good deal of human and material damage. NATO `s posture is that it has no legal or moral responsibility for that damage. This must affect its attitude towards the cost of making good that damage. If a re-appraisal shows that NATO does indeed have a legal or moral responsibility, perhaps that attitude might be revised.

The three assertions

With this in mind let us now look at the assertions that were at the heart of the NATO justification.

"The intervention was lawful"

The British government accepted from the start that force could not be used unless its use was, in the circumstances of the case, lawful in accordance with international law. Thus the Minister of State Foreign Office stated on 3 February 1999 that: "any military action by British forces would have to be lawful under international law": and the Attorney General informed the International Court of Justice on 11 May 1999 that: "I say very firmly that the U.K. has acted and will continue to act in conformity with international law." Both the Foreign Secretary and the Defence Secretary stated that legal position was "without doubt" and quite "clear"; reliance being placed on what was described as "the accepted principle that force may be used in extreme circumstances to avert a humanitarian disaster." The question is whether these assertions will stand up to examination in the light of the evidence now available.

The law with which we are concerned is not English domestic law. It is international law - public international law. This is the law that governs the relation between states. It is to be found in custom; in treaties; in the decisions of the International Court of Justice at the Hague and in the writings of jurists. The part of that law which concerns us is the law governing the use of force by one state against another. Unquestionably the dominant source for the present purpose is the Charter of the United Nations. This, as you know, was created in 1945. It expressed at that time the will of the victorious nations. It has since been ratified by 185 out of approximately 190 states. By its terms it takes precedence over every other treaty. It lays out principles governing the use of force and sets up machinery for the implementation of those principles.

Its most important objective is as described in its very first words: "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" The Charter has several other objectives; e.g. human rights; social and economic progress; environmental protection. But all these take second place to the prevention of war. Indeed, this is easy to understand as there is no human activity that can so imperil the achievement of these other objectives as the outbreak of war.

The importance of the Charter cannot be exaggerated. One hundred years ago no wars were unlawful. In the first half of the last century, after much grief , the United Nations was brought into existence. If it were now to be destroyed, emasculated or sidelined, we could be back where we were 100 years ago.

The way the Charter achieves its objective of the prevention of war is by provisions that prohibit the use of force other than in self-defence (Article 5) or upon the authority of the Security Council. This is achieved by Article 2 (4) of the Charter which provides that: "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."

If any more explicit provision is sought it can be found in Article 53 of the Charter which provides that: "...no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council." Article 5 of the Definition of Aggression adopted by the General Assembly on 14 December 1974: "No consideration of whatever nature ,whether political, economic, military or otherwise, may serve as a justification for aggression."

The only exceptions to this prohibition are the use of force in self- defence or under the authority of the Security Council. This formulation of the law is adopted in the standard encyclopaedia of English law "Halsbury's Laws of England" 4th edition re-issue 1996 vol.49(`1) Para 501.

In the present case no question of self-defence arose nor was there any authority of the Security Council to use force. Attempts have been made to establish an additional exception along the lines of what the Defence Secretary described on 25 March 1999 as the "accepted principle that force may be used in extreme circumstances to avert a humanitarian disaster."

Such an attempt was made by the U.S. in the Nicaragua Case in 1985 in the ICJ where faced with a claim by Nicaragua that it had unlawfully used force gains Nicaragua, the U.S sought to justify its actions by alleging that Nicaragua had committed serious violations of civil rights against its own citizens. the Court rejected this plea in the words: "The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States." In 1986 the Foreign Office published an opinion to the same effect stating: "...the overwhelming majority of contemporary legal opinion comes down against the existence of a right of humanitarian intervention.." In his very recent evidence to the House of Commons Select Committee on Foreign Affairs Professor Ian Brownlie, former Professor of Public International Affairs at the University of Oxford and author of "International Law and the Use of Force by States" quoted opinions to the same effect given in the last 40 years by 18 distinguished international jurists of 12 nationalities. These jurists included 3 former Presidents of the International Court of Justice. Professor Greenwood, Professor of International Law at the London School of Economics, who also gave evidence to the Foreign Affairs Committee, agreed that this was the position until about ten years ago, but gave it as his opinion that a new custom had grown up in the last decade supporting a principle of humanitarian intervention.

This is a very short period for a new principle of customary law to be established especially in the face of opposition by a number of states and, in response to Prof. Greenwood, Prof. Brownlie replied: " In relation to the data offered by Professor Greenwood, in my submission it comes nowhere near the threshold of proof of a new customary law." "If Professor Greenwood is correct, what has appeared is a principle which directly qualifies the clear provisions of the United Nations Charter. A customary rule may modify the provisions of the Charter but only on the basis of the congruent practice of the preponderance of member States. No evidence of such practice has emerged." I personally find the views of Prof. Brownlee completely persuasive.

However, some non-lawyers may ask: "How are we to be expected to decide between these experts ?"

An answer is readily available. All that we have to do is to persuade HMG to accept the Yugoslav challenge to have the matter decided by the International Court of Justice which is the principle judicial organ of the United Nations. Yugoslavia made the challenge by instituting proceedings before the Court shortly after the bombing started. But HMG declined the challenge by raising an objection to the jurisdiction of the Court based upon the absence of UK consent. If this objection is persisted in and succeeds (as well it might) it would mean that the British public will be deprived of the benefit of an authoritative decision on this very important matter. The case is, however, still continuing and it is still possible for the UK to waive this objection and allow the Court to proceed to determine the merits. At an earlier stage, Sir Franklin Berman reminded the Court of the long attachment the UK had accorded to the principle of the judicial settlement of international disputes. It would be a striking proof of this attachment if the UK abandoned its technical point on jurisdiction. Against this background one is naturally curious to find out what was the advice upon which HMG was acting when it informed Parliament that the was no doubt that the intervention was lawful. In the case of the U.K. one would have expected this to have been the Attorney General who traditionally advises the Government on questions of public international law. On a matter as important as the present, one would expect that such advice to be in writing. So far. however, HMG has declined to produce such advice or to say whether the newspaper report which suggested that the A.G. had advised that the NATO action was unlawful was well-founded or not. So, at present, one cannot take this matter any further. It is a pity since if the advice was favourable to the operation and was cogent it might persuade one to change one's mind.

Similar considerations apply to the legal advice given to NATO itself. Richard Holbrook has been reported in the press as having said that NATO would have started the bombing much earlier than March 1999 had the NATO lawyers not advised that without a specific resolution of the Security Council this would be unlawful. Mr. Holbrook allegedly went on to say that the NATO Secretary-General Mr. Solana had told him later it was alright to go ahead with the bombing even without Security Council authority. Mr. Solana is, it seems, a specialist on solid state physics rather than on international law, so I must suppose he had some legal advice. But, so far as I am aware that advice has also not been published. So, in tracing the legal advice upon which NATO acted I feel like a mouse in a maze chasing an elusive piece of cheese. Should we regret the absence of this alleged principle from international law as it exists today ? Would it be a good thing if somehow it could be introduced ? I think not. There are, in my view, several reasons for thinking that it would be against public policy and, in fact do more harm than good.For example, it would negate the central role in the maintenance of peace given by the Charter to the Security Council and hence threaten the very existence of the United Nations.

Such a principle would be available not only to the 18 states members of NATO but the rest of the 198 states in the world. This, as the Foreign Office pointed out in 1986, would create a grave risk of abuse. It is a principle whose benefits could only be enjoyed by larger and more powerful nations against weaker ones. It would increase the frequency of wars.

Even if I am wrong on all this and international law does admit some principle of humanitarian intervention free from Security Council control, there still has to be a valid factual and moral basis for such an intervention. This raises additional questions concerning the NATO action.

"The possibilities of a reasonable and peaceful settlement had been exhausted"

The first concerns the question whether the possibilities of a reasonable and peaceful settlement had been exhausted. At Rambouillet the discussions concerned two aspects:

1. The political settlement.

2. The implementation provisions.

As to the political settlement it is clear from the Statement dated 23 February 1999 issued by the Office of the High Representative for the Contact Group that by that date consensus had been reached on "substantial political autonomy for Kosovo, including on mechanisms for free and fair elections to democratic institutions, for the governance of Kosovo, for the protection of human rights and the rights of national communities, and for the establishment of a fair judicial system." As to the implementation provisions the Statement went on to say that: "a political framework is now in place.....and the groundwork has now been laid for the implementation Chapters of the Agreement including the modalities of the invited (sic) civilian and military presence in Kosovo. It is essential that the agreement on the interim accord be completed and signed as a whole."

Only one day before the date fixed as the deadline for conclusion of the agreement NATO produced its draft of these implementation chapters which it declared to be non-negotiable. This draft provided for NATO to be entitled not only to occupy the whole of Kosovo but also to have the right of access for the rest of Yugoslavia. They were to have that right for an unlimited time and for unlimited purposes. In exercising that right NATO forces were to enjoy total immunity from all civil and criminal liability. They were also to be exempt from any financial costs or charges for the use, for example, of port and aircraft facilities. The draft contained no provision for U.N. involvement either in the military provisions or in follow-up administration of the province which was contemplated These demands were made under threats of force. They were fairly characterized by Dr Kissinger in the following terms: "The Rambouillet text, which called on Serbia to admit NATO troops throughout Yugoslavia was a provocation, an excuse to start bombing. Rambouillet is not a document that an angelic Serb could have accepted. It was a terrible diplomatic document that should never have been presented in that form." Yet it was the refusal of Yugoslavia to sign that document containing these military clauses that was treated by NATO as the casus belli. Recently a suggestion has been made that the provision for a right of NATO to occupy the whole of the rest of Yugoslavia on the terms stated is no more than a normal provision for a peace-keeping force. If it is, it is surprising that Dr. Kissinger should have been unaware of it. The fact that NATO dropped the demand for it in the June settlement also indicates that it was by no means essential and could have been dropped in March. Finally, it is difficult to see why this should in any way have made it more acceptable to the Yugoslavs. Another suggestion has recently been made that Yugoslavia raised no objection to this provision at the time. I am puzzled this suggestion.

The Yugoslavs rejected all the NATO implementation clauses, including the ones dealing with NATO access to the whole of Yugoslavia. They proposed instead discussions on the scope and character of an international presence to secure the implementation, a suggestion which NATO ignored.

By insisting on the implementation clauses of the draft Rambouillet agreement and by ignoring the offer of Yugoslavia made on 23 February and 23 March 1999, NATO failed to exhaust the possibilities of a fair and reasonable settlement.

Such failure is also evidenced by NATO`s failure to make at Rambouillet in March 1999 various concessions that it eventually made in June 1999.

For example:

NATO`s failure to accept any proper role for the U.N. in the implementation of a settlement or of the administration of the regime in Kosovo that would result from it, notwithstanding the reminder given by the Security Council in Resolution 1203 that "primary responsibility for the maintenance of international peace and security is conferred on the Security Council".

NATO`s failure to refer the matter back to the Security Council when negotiations broke down, instead of starting the bombing. That the international civil and security presence in Kosovo had to be endorsed and adopted by the U.N. under Chapter V11 of the Charter That the interim administration for Kosovo had to be decided by the United Nations to ensure conditions for a peaceful and normal life for all the inhabitants in Kosovo.

That the interim political settlement had to take full account (inter alia) of the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia. and the demilitarisation of the KLA. That all refugees and displaced persons i.e. including Serbs should be entitled to a safe and free return.

That Yugoslavia should not be bound to sign the Rambouillet draft, the non-signature of which had been NATO`s casus belli for the bombing. That the demand made by NATO to have a right of access to Yugoslavia outside Kosovo should be abandoned.

The conclusion is that NATO has not shown that it had exhausted the possibilities of a reasonable and peaceful settlement. It has not shown, therefore, that it was justified in using a power of "humanitarian intervention" even if such a power existed.

"The force intended to be used was necessary to avert what would otherwise be a humanitarian disaster in Kosovo."

This assertion has been taken head-on by Lord Carrington in his statement that the NATO bombing not only failed to avert the ethnic cleansing but actually caused it. If that is right, that is the end of this third assertion.

Of, course, Lord Carrington may be right or wrong but his opinion cannot be ignored. He has experienced war as a Guards officer in the last war earning a Military Cross for gallantry. He has been Foreign Secretary, Secretary General of NATO and Chairman of the European Conference on Yugoslavia.

I do not take Lord Carrington to mean that the Serbs who actually carried out ethnic cleansing during the bombing were not also responsible. What I take him to mean and what I am sure he did mean was that if the re had been no bombing the would have been no ethnic cleansing.

Of course there can be no certainty as to the answer to this question since, as the bombing did in fact take place the question as to what would have happened if it had not taken place must necessarily be hypothetical. We can only form a judgment on the probabilities of the case on the available evidence.

The contrary point of view was put by Lord Robertson in his paper in October 1999 when he said that the "expulsion of the Kosova Albanians from their home-land" would have taken place even if there had been no air-strikes. In support of this statement he relied upon an alleged covert Serbian plan code-named "Operation Horse-shoe" allegedly drawn up months before to expel Kosovo Albanians from their homeland.

What Lord Robertson does not mention in his paper is that this very alleged covert plan was carefully considered by Judge Arbour Chief Prosecutor for the War Crimes Tribunal in April and May 1999 when she was drafting the indictment against Milosevic and dismissed it as having no evidential value whatsoever. She said: "As to Operation Horseshoe, I have my doubts as to its capacity to prove anything. If it were a document with cover, date and signature, it would be fantastic. But mostly such things look more like verbal descriptions and conclusions."

On the other hand there is evidence to support the view of Lord Carrington what Lord Robertson described as the expulsion of the Albanians from Kosovo would not have happened if there had been no air-strikes.

The fact that the air-strikes and the expulsions coincided in point of time.

The fact that it was both predictable and predicted that the Serbs under a form of air attack against which they had no real defence would seek some form of retaliation and would be likely to pick upon the Kosovo Albanians who were supporting the air-strikes.

Statements at the time show this was foreseen. Thus: The Guardian report on the 25 March 1999, quoted in the House of Commons the next day that: "Many feared that the bombing would enrage the Serbs and encourage them to retaliate on a large scale against the Kosova." The statement by the Pentagon spokesman reported in the Guardian on 6 April 1999 that the ethnic cleansing following the bombing had caused no surprise in the Pentagon.

The warning given before the bombing the CIA Director George J. Tenet and reported in the Washington Post on 7 April 1999 that the Serbs might well respond to the bombing with a campaign of ethnic cleansing. The statement by General Wesley Clark on BBC Panorama Special on 28 April 1999 the: "We knew there were going to be some horrendous atrocities... we knew it might lead to the expulsion of Kosova from certain regions of Kosova."

The statement by George Robertson in October 1999 that NATO had anticipated that its offensive might result in "violent repression of the civilian population"

The NATO personnel who have made these statements have said that they did not anticipate that the ethnic cleansing had been as bad as it turned out to be. But, according to a report in the Irish Times, even this has been doubted by Mr. Bruton, who refers to a conversation, apparently with a person within NATO, on the day the bombing was due to start, predicting that the bombing would result in a million refugees within a few days. My conclusion is, therefore, that the evidence and probabilities strongly support Lord Carrington's view that the ethnic cleansing that took place after the bombing would not have taken place had it not been for the bombing.

From this it follows that the best way for NATO to have prevented the humanitarian catastrophe that happened between the 24 March and 10 June 1999 was for it to have abandoned its threats of violence.

Conclusions

I am, therefore, of the opinion that none of the three assertions upon which the NATO justification is based stand up to examination and the NATO justification itself fails. All in all, the Kosovo intervention must itself count as one of, if not the greatest, humanitarian disaster in Europe since the end of the last World War.

Outstanding problems

How are NATO and the UN to carry out their obligations of under UN Security Council Resolution 1244 of 10th June 1999, which include the obligation: "to ensure conditions for a peaceful and normal life for all inhabitants of Kosovo" (including the Serbs and gypsies); "to ensure the "safe and free return of all refugees and displaced persons"; to establish an interim political framework agreement for Kosovo, taking full account of.... the principles of sovereignty and territorial integrity of the Federal Republic of Yugoslavia; to bring about " a comprehensive approach to the economic development and stabilization of the crisis region"; to permit the return of an agreed number of Yugoslav and Serbian personnel; to effect the maintence of civil law and order and the protection of human rights.

The threat to the future of the United Nations and its Charter created by the NATO claim that no Security Council authority is required for the use of force by one state against another where the state using force considers that it is necessary to avert a humanitarian catastrophe. In this connection it may be necessary for an opinion to be obtained from the ICJ as to the legal position.

The future of NATO, having regard to the fact that by Article 5 of its Treaty the organization is entirely defensive in character, only providing for the use of force by NATO where one of its members is attacked, whereas it is now claiming the right to use force in other circumstances, such as in the case of Kosovo. In this connection it will be necessary to take into account the demand by officials of NATO for a substantial armed force to be placed at its disposal for other than defensive purposes.

Appendix

Concerning the Period 1 January to 24 March 1999: During the first 9 months of 1998 there was a great deal of violence in Kosovo. This arose from attempts by the Serbs to crush the ethnic Albania insurrection in Kosovo. In the course of this violence a considerable number of Albanians were displaced from the villages in which the insurrection was partly based. In October 1998, however, this changed as the result of the Holbrook Agreement under which the Yugoslav Government undertook to reduce its forces deployed in Kosovo to a certain level as confirmed in Security Council Resolution 1199.

It has been suggested by NATO that Yugoslavia broke this undertaking. That is not, however, the case. It carried out the undertaking and did so very rapidly. They say they were willing to do this as they considered they had eliminated the KLA threat.

A period of comparative peace then occurred and all the displaced Albanians, with the exception only of a few hundred, returned to their villages. These developments are evidenced by the following quotations: Albright: "Today the Alliance was able to report that President Milosevic is in very substantial compliance with Security Council Resolution 1199". Hill: "...the humanitarian and security situation has improved significantly in the past few weeks." (09.11.98 ) Cook "most refugees have returned to their settlements, with only some hundreds living in the open".

In January and February hostilities were resumed. The overall character of these hostilities was summarized in a report of the Secretary General of the U.N. dated 17.03.99 relying on reports by the OSCE , the monitoring authority. It describes them as "characterized by the disproportionate use of force, including mortar and tank fire, by the Yugoslav authorities in response to persistent attacks and provocations by the Kosovo Albanian paramilitaries." This description applies to the character of the hostilities from the beginning of the year up to17 March 199, just a few days before the bombing started.

These "persistent attacks and provocations by the Kosovo Albanian paramilitaries" included repeated attacks on police stations, VJ positions, patrols, and villages, in many of which both police, military and civilians were killed taken hostage.

ENDS

Committee for Peace in the Balkans Events:

Conference - One year after NATO bombing - Building bridges to the people of Yugoslavia Saturday 10 June - Conway Hall, Red Lion Square, London WC2 Speakers include Alice Mahon MP, Harold Pinter, Diana Johnstone

A year ago, by bombing Yugoslavia for 78 days, NATO both committed a colossal crime against the civilian population of that country, and dealt a major blow to international law and the United Nations. The United States used NATO's war to shatter the international order created after the Second World War. The bombing of the people of Yugoslavia by a military alliance of some of the richest states in the world was deliberately used to assert that henceforth the US has taken upon itself the 'right' to use military force when and where it pleases.

For that very reason the bombing of Yugoslavia was seen as threatening by states representing the majority of the peoples of the planet. In Kosovo, NATO intervention has produced a criminalised colony from which every ethnic minority is being systematically cleansed. In Yugoslavia, NATO continues it efforts to bludgeon the civilian population into submission by a strict regime of sanctions against the state with the largest refugee numbers in Europe.

In the Balkans, NATO intervention has exacerbated virtually every national conflict and transformed the region into a poverty-stricken armed camp. In the world, NATO's attack on Yugoslavia threatens any and every state which might come into conflict with Washington's desire for global dominance.

Twelve months on, this conference will consider all of the consequences and implications of NATO's attack on Yugoslavia for the peoples of the Balkans and the world.

Speak out against NATO war crimes in Yugoslavia Events to commemorate the first anniversary of NATO bombing

Wednesday 3 May
Public Seminar: What could peace in Yugoslavia look like?
7.30pm Committee Room 10, House of Commons, London SW1 With Johan Galtung, Professor of Peace Studies at Witten/Herdecke Universities and director of the Foundation for Peace, Sweden Wednesday 7 June Lift the sanctions against Yugoslavia! Protest at Downing Street 12 noon to 1.30pm Alice Mahon MP will lead a delegation to No.10 to present the Committee for Peace in the Balkans petitions calling for sanctions to be lifted. (Please return your petitions by Friday 3 June at the latest.)

[The Author Mark Littman QC is a practicing barrister and former Master Treasurer of the Middle Temple. He is a member of the Court of Governors of the London School of Economics. He is on the council of Index on Censorship and is a trustee of the Aids Crisis Trust. He was formerly a director of several companies in the UK and USA including the British Steel Corporation (Deputy Chairman), RTZ, Commercial Union (Vice-Chairman), the Granada and Burton Groups, the Amerada Hess Corporation and the Envirotech Corporation. He served in the Royal Navy from 1941 to 1946. - source: Centre for Policy Studies (UK).] [Previously published pamphlet: Title: Kosovo -- Law and Diplomacy Author: Mark Littman QC Publisher/Date: Centre for Policy Studies (UK), November 1999]

This article is posted on the website of the UKs Committee for Peace in the Balkans. The article is for fair use, but please retain the reference to the website: http://www.peaceinbalkans.freeserve.co.uk

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