Volume 8 Number 3

Summer 1999

Feature: Questioning NATO's rationale for the war

Eastern Europe After Kosovo
     Humanitarian Hypocrisy
     Robert M. Hayden

In October 1998, NATO faced a dilemma: its member states were threatening air attacks against Yugoslavia in response to Yugoslav attacks on Kosovo Albanians, while they also recognized that Kosovo fell clearly within the sovereign territory of Yugoslavia. (NATO officials, western diplomats, and journalists prefer to use the term -air strikes" instead of -attacks," but this euphemism should be avoided. NATO mounted aggressive military attacks.) On March 24, NATO resolved this dilemma by committing the first unprovoked and opposed military aggression in Europe since Soviet troops invaded Hungary in 1956. The attacks were clearly contrary to international law and to the UN Charter. The aggression took the form of intensive bombing of the Yugoslav -infrastructure," the first such massive use of air attacks in Europe since World War II. As of May 23 (the time of this writing), after 60 days of bombing, NATO had mounted 7,000 air attacks on more than 500 targets, with munitions alone costing about $20 million per day. While Yugoslav military casualty figures in the first 60 days of the attacks were estimated to be -in the hundreds," NATO had in that time killed as many as 1,500 civilians (-The War So Far," The Times [London], May 23, 1999 [World Wide Web edition]). Further, in the third week of May, NATO began to commit textbook war crimes, aimed at depriving the Serbian civilian population of water and electrical power and explicitly not aimed at military forces in Kosovo.

Czech president Vaclav Havel has characterized NATO's war as one in which the alliance has -acted out of respect for human rights," adding that it is probably the first war that has been waged -in the name of principles and values." He also said that even though NATO acted with no authority from the UN Security Council, this violation of the UN Charter did not constitute an act of aggression or disrespect for international law but -happened, on the contrary, out of respect for the law, for a law that ranks higher than the law which protects the sovereignty of states," that is, the higher law of human rights (Vaclav Havel, -Kosovo and the End of the Nation-State," The New York Review of Books, June 10, 1999, p. 6). Yet this war, supposedly in defense of human rights, has led to war crimes being committed by NATO and a civilian casualty rate that is at least three times greater than the casualty rate of the -intolerable" violations of human rights that NATO was ostensibly acting to correct. This perversion of humanitarianism is the logical result of NATO's action. Moreover, such humanitarian catastrophes are most likely inevitable when the excuse of -humanitarian intervention" is used to justify aggression.

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The asserted justification for the NATO attacks: -To prevent a humanitarian disaster"

When he announced the NATO air attacks, on March 24, President Clinton said that this was occurring because Serbian forces were -moving from village to village, shelling civilians and torching their houses." Thus NATO purportedly was attacking to -protect thousands of people in Kosovo from a mounting military offensive" (New York Times, March 24, 1999).

It is clear, however, that the wide Serbian offensive against the Kosovo Albanians began after NATO's attacks were initiated. As the US State Department itself admits, -In late March 1999, Serbian forces dramatically increased the scope and pace of their efforts, moving away from selective targeting of towns and regions suspected of KLA sympathies" (US Department of State, Erasing History: Ethnic Cleansing in Kosovo, May 1999 [issued before May 12], p. 6; emphasis added). In other words, Yugoslav forces, until the NATO attacks commenced, were fighting a guerrilla force, in much the same way that American forces had fought in Vietnam (see the discussion of the rules of engagement for American forces in Vietnam in Michael Walzer, Just and Unjust Wars [New York, 1992]).

If NATO had indeed begun its attacks, in Clinton's words, to -prevent a greater catastrophe" than those the State Department characterized as the -selective targeting" of places suspected of KLA activities, it clearly failed: the attacks provoked the wider Serbian offensive against ethnic Albanians. This result was hardly unpredictable and was in fact foreseen by military and CIA analysts but went ignored. In addition, as I learned from administration sources, five days before NATO attacked, although Clinton was committed to bombing Yugoslavia, there was literally no plan for what to do next, except to predict that Milosevic would surrender.

After the NATO attacks began and Serb forces started the massive expulsion of ethnic Albanians from Kosovo, the goal of the NATO action presumably switched to returning the refugees. But the few reporters from Western media who were on the ground in Kosovo in April and May reported that Albanians were, by then, leaving mainly because of the NATO bombing. (In this connection, see, for example, -Dispatch From Kosovo: Serbs Steer Many Refugees Toward Home," Los Angeles Times, April 21, 1999 [World Wide Web edition]; -Fleeing Kosovars Dread Dangers of NATO Above, Serbs Below," New York Times, May 4, 1991, p. 1; -Kosovo's Ravaged Capital Staggers Back to Life," New York Times, May 5, 1999, p. 1; -World: Europe: The Refugees Who Remained," BBC Online Network, May 18, 1999.) With each passing day, as NATO increased the destruction of Kosovo, more Albanians fled, and there was less for them to return to. While Serbs burned Albanian houses, it was NATO that destroyed the infrastructure.

It is thus clear that NATO's actions provoked a humanitarian disaster. And the destruction of Serbia's infrastructure has only increased the scope of that disaster.

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"We -exhausted every diplomatic effort for a settlement"

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

It is certainly hypocritical for those who propose a take-it-or-leave-it deal to complain that the other side refused to negotiate, especially when the allegedly obstinate party actually offered a counterproposal (available at http://jurist.law.pitt.edu/kosovo.htm#

Rambouillet, as are the other Rambouillet documents). But the Rambouillet proposals would not be acceptable to any state, in any case. The political and constitutional sections followed the logic laid out in my Fall 1998 article in this journal, and they would have rendered Yugoslav and Serbian sovereignty in Kosovo largely fictive. The military-implementation annex (Appendix B) was even more interesting. Under its provisions, NATO would have -free and unrestricted access throughout the Federal Republic of Yugoslavia [FRY]" (para. 8); NATO personnel would be immune from all Yugoslav and Serbian legal processes and from -arrest, investigation or detention" (paras. 6 and 7), even though NATO would be able to -detain" individuals and turn them over to -appropriate authorities" (para. 21), not otherwise specified. While it has been suggested by some NATO sources that this military-implementation plan was patterned after that included in the Dayton Agreement, the assertion is incorrect: the agreement between NATO and the FRY in Annex 1A of the Dayton Agreement only granted NATO -free transit . . . through the territory of the FRY" and did not authorize NATO to -detain" anyone. Rambouillet, therefore, required that Yugoslavia renounce sovereignty over a large part of its territory and submit to occupation of the entire country by NATO, which it was hardly likely to accept.

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The legality of the NATO attacks

There is absolutely no question that NATO's attack on Yugoslavia violated the UN Charter. The assault was never authorized by the Security Council and could not by any stretch of the imagination be considered an act of self-defense. Interestingly, some commentators who acknowledged this uncomfortable fact argued that an exception to international law should perhaps be created for what Antonio Cassese called -humanitarian countermeasures" taken when, according to Bruno Simma, -imperative political and moral considerations may appear to leave no choice but to act outside the law," or, as Vaclav Havel put it, to find a -higher law" that justifies what international law defines, clearly, as aggression. This acknowledgment of NATO's illegal behavior, even by those supporting NATO's actions, is noteworthy.

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A war against civilians

Every time NATO bombed a hospital, bus, market, town center, apartment building, or refugee convoy, NATO spokesmen asserted that NATO -never targets civilians" but that, although NATO's bombs are the most accurate in history, -collateral damage" was inevitable. But NATO's attacks were aimed against civilian targets from the very outset of the bombing, as was apparent when a tractor factory in the Belgrade suburb of Rakovica was destroyed by cruise missiles. After that, NATO targets included roads, railroad tracks, and bridges hundreds of miles from Kosovo, power plants, factories of many kinds, food-processing and sugar-processing plants, water-pumping stations, cigarette factories, central-heating plants for civilian apartment blocks, television studios, post offices, nonmilitary government administrative buildings, ski resorts, government official residences, oil refineries, civilian airports, gas stations, and chemical plants. NATO's strategy was not to attack Yugoslavia's army directly but rather to destroy Yugoslavia itself, all in order to weaken the army. With this strategy, military losses became the -collateral damage" because most of the attacks were aimed at civilian targets. (See New York Times, April 30, 1999, p. 1, for some examples. An account of the infrastructure damage between March 24 and April 19, compiled by the European Movement in Serbia, a nongovernmental group that had been pro-Western before the war, was posted on the Web site MSNBC.com, on April 26. Pictures of the many destroyed buildings may be found at http:// www.beograd.com, among other sources.)

Evidence that the attacks have targeted mainly civilians can be seen in casualty figures. As mentioned above, after 60 days of bombing and more than 7,000 attacks, Serb military losses were -in the hundreds," while civilian casualties were as high as 1,500 killed and 6,000 wounded. NATO claims that less than 1 percent of its bombs missed their targets, so if Serb civilian casualties outnumbered military losses, the reason must be that NATO was targeting civilians more than the military.

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

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

But it is technically feasible in the 1990s. On May 23, -fifteen NATO bombs hit water pumps . . . in the northwestern town of Sremska Mitrovica for the second night in a row" (Washington Post, May 24, 1999 [World Wide Web edition]). Attacks on May 24 -slashed water reserves by damaging pumps and cutting electricity to the few pumps that were still operative" (Washington Post, May 25, 1999, p. A1). Only 30 percent of Belgrade's two million people had running water, and the city was down to 10 percent of its water reserves (New York Times, May 25, 1999, p. A1). That these attacks were not aimed at military operations in Kosovo is apparent from the remarks attributed by the Washington Post to a Pentagon official, who stated that the attacks had been limited to Serbia proper but that -NATO commanders are understood to be planning to extend the attacks to Kosovo" (Washington Post, May 25, 1999, p. A1). A clearer example of NATO's targeting civilians in Serbia rather than soldiers in Kosovo would be hard to find.

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NATO war crimes

Depriving a civilian population of water is a textbook example of a violation of international humanitarian law, specifically of Art. 54 of Protocol I of the Geneva Conventions of 1949. As Aryeh Neier has noted, the UN War Crimes Commission that investigated the Bosnian war concluded that attacking the civilian population was prima facie a war crime and recommended that the commander of the Bosnian Serbs be indicted for attacking the civilian population (Aryeh Neier, War Crimes [New York, 1998], pp. 168-69). There would seem to be no doubt that NATO commanders and, presumably, at least some NATO political leaders are guilty of war crimes on this count alone.

But this count is not alone. The level of damage done to clearly nonmilitary infrastructure targets in Serbia would seem to render the NATO military commanders, and at least some of NATO's own political leaders, liable to the same charge made by the prosecutor of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the July 1995 indictment of Ratko Mladic and Radovan Karadzic: -. . . that they individually and in concert with others planned, instigated, ordered or otherwise aided and abetted in the planning, preparation or execution of the extensive, wanton and unlawful destruction of . . . property, not justified by military necessity, or knew or had reason to know that subordinates were about to destroy or permit others to destroy . . . property or had done so and failed to take necessary and reasonable measures to prevent this destruction or to punish the perpetrators thereof."

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

The probable culpability of NATO military and political leaders in the eyes of the ICTY would seem particularly clear since the prosecutor of the Tribunal had in fact warned NATO that it, too, was bound by the Geneva Conventions (CBCNews Online, May 5, 1999). Additionally, Human Rights Watch had sent a letter to NATO's secretary-general expressing concern about specific violations by NATO of international humanitarian law (Human Rights Watch Letter to NATO Secretary-General Javier Solana, May 13, 1999; available at http://www.hrw.org). NATO, however, seems unlikely to be overly concerned. When questioned, on May 16, about the possibility of NATO liability for war crimes before the ICTY, NATO spokesman Jamie Shea said that -NATO is the friend of the Tribunal . . . NATO countries are those that have provided the finances to set up the Tribunal, we are among the majority financiers." He repeated the same message on May 17: NATO countries -have established these tribunals . . . fund these tribunals and . . . support on a daily basis their activities." No, he did not anticipate indictments against NATO leaders or military personnel.

The tribunal's independence and impartiality was, in any event, utterly compromised by the indictment, on May 27, of Yugoslav president Milosevic and four of his political associates. While there is little question that Milosevic is guilty of war crimes, -justice" that is not impartial cannot be seen as just. The prosecutor's failure to indict NATO or those subordinate to it would seem to confirm Shea's message that he who pays the prosecutor determines who is charged. It is particularly noteworthy that even though the prosecutor has reportedly been unable to indict Croatian generals for the 1995 ethnic cleansing of the Krajina, because the US government has refused to provide requested information, she did make well-publicized visits to American and British officials to gather information with which to indict Milosevic. When a prosecutor who is a citizen of one NATO country seeks assistance from the governments of other NATO countries in order to indict the president of the country that NATO is attacking, not even the pretense of prosecutorial independence remains.

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Humanitarian hypocrisy

The -humanitarian intervention" in Kosovo has resulted in flagrant violations of international law and the UN Charter by NATO countries; it has turned what had been the brutal repression of a brutal armed uprising into a humanitarian catastrophe, and produced the first massive bombings of a European country since World War II, bombings that were aimed mainly at civilian targets and on the face of it constitute probable war crimes committed by NATO, the supposed humanitarian intervener. At the same time, NATO's transformation of itself from a defensive alliance into the first proud aggressor in Europe since the Soviet Union's invasions of Hungary and Czechoslovakia has threatened to start a new cold war, this time between the -West" and pretty much the rest of the world. (NATO's new strategic concept, released during the organization's fiftieth-anniversary ceremonies in April 1999, would permit it to operate outside the territories of its members and in the absence of authorization by the UN Security Council-in other words, to commit aggression, as it has in Yugoslavia; see The Alliance's Strategic Concept, at http://www.nato.int/docu/pr/

1999/p99-065e.html). Former Russian prime minister Victor Chernomyrdin, acting as Russia's intermediary in the diplomacy surrounding the Kosovo crisis, found it necessary to directly contradict President Clinton's published views on relations with Russia and to predict a new cold war in which Russia would be backed by other great powers, such as China and India.

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

Of course, one may argue that the civilian population is a legitimate target because the nation as a body is guilty. Indeed, Clinton's eager executioners, Anthony Lewis, in the New York Times (May 29, 1999), and Daniel Goldhagen, in The New Republic (May 17, 1999), have made such arguments, asserting, in Goldhagen's words, that the Serbian nation -clearly consists of individuals with damaged faculties of moral judgment and has sunk into a moral abyss from which it is unlikely to emerge . . . unaided." This assertion ignores the fact that Milosevic was never elected in a free and fair election; that there were massive anti-Milosevic demonstrations in 1991, 1992, 1993, 1994, and 1996-97, all while Richard Holbrooke continued to negotiate with Milosevic, even as he was telling the opposition not to boycott rigged elections; or that many of the main targets of NATO bombing (the cities of Belgrade, Novi Sad, Kragujevac, Cacak, and Nis) were centers of the democratic opposition to Milosevic that had sought help from the West with no success. Possibly NATO's bombs will now raise them from their moral abyss. Of course, when one advocates killing civilians it is comforting to suppose that they are not innocent.

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

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

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Robert M. Hayden is associate professor of anthropology, associate professor of law, and director of the Center for Russian and East European Studies at the University of Pittsburgh.

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