Robert Skidelsky
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Kosovo: The Balance Sheet
Robert Skidelsky
Financial Times | Tuesday, December 14, 1999

Ten months after the end of the Kosovan war sufficient time has elapsed and information accumulated to draw up a tentative historical balance sheet. I say 'historical', because what has been done cannot be undone. We must live with the consequences, and do our best in the new situation.
This does not mean, though, that efforts at historical truth are useless.Unless they are made, we fly into the future burdened with misconceptions and lies, which, at very least, make it more difficult to pursue sensible aims and policies. The vast superiority of the post-war settlement of 1945 to the Treaty of Versailles in 1919 is powerful testimony to the difference which learning accurately from the past can make. Too much is at stake not to make the same effort now.
For the Kosovan war was a defining moment: the moment when we crossed over from a politics based on national sovereignty, self-restraint, and some attention to the balance of power into one in which hegemonic power is let loose.In his recent televised debate with George Bush, the Republican Presidential hopeful, Senator McCain said that if he were elected he would start a policy of 'rogue state rollback'. This would involve overthrowing 'rogue' governments by force and installing 'free and democratically elected' ones in their place. This is a possible lesson from Kosovo: but what sort of a world would be in if the Americans and their junior partners felt they had a right to do this to any state in the world which did not measure up to their standards of good behaviour?
Before turning to other possibe 'lessons of Kosovo', let me mention one thing which has worried more almost more than anything else: namely, the unwillingness of our so-called free press and the main opposition parties either before, during, or after the war to challenge the assumptions underlying the policies of our government and the results of its actions, even though there were, and remain, huge questions to be asked about its motives, its legal basis, the diplomacy which preceded it, its conduct of the war, and its effects. Editorially, the media were unanimous in support of the government, even though material was already in the public domain which could have supported a different judgment. The publication, on 16 December 1999, of the report on human rights violations in Kosovo by OSCE Verification Mission, which casts a massive illumination on the situation on the ground in Kosovo both before and during the war was greeted by almost complete silence.
At first I thought this wholesale swallowing of the government (and NATO) line was simply due to investigative laziness. But I now think it was largely because the war raised issues which were too abstract to be readily handled by the media; or at least by our dumbed-down, commercially-driven media. No obvious national interests of Britain were involved, thus precluding the emergence of the classic and familiar public debate as to what our true national interests are. Secondly, it was a war without bycasualties to our own side. The only casualties suffered were by the enemy -something unique in the history of war, although already foreshadowed by the Gulf War of 1991-2.Add to this that television only captured the atrocities which the Serbs were committing, and was incapable of conveying, almost by its nature, any of the history behind the images of suffering, and Jamie Shea's life was made easy for him.
What, then, is the balance sheet? I concentrate on four issues: the legality of NATO's action, the Rambouillet and post-Rambouillet diplomacy, the human rights question, and the effects of the war on international relations.
There is no doubt to my mind that the NATO action was contrary to international law as it stands today, a view that has been powerfully re-stated in a recent Centre for Policy Studies paper, Kosovo: Law & Diplomacy by Mark Littman, QC. Except for an inherent right of self-defence, all military action under the UN Charter has to be authorised by the Security Council and is limited to protecting members from aggression and countering threats to, or breaches of, the peace, the Council having determined that these threats exist. Most members have also signed up to a number of declarations and covenants of human rights. Taken together, these constitute what the preamble to the UN's Universal Declaration of Human Rights calls 'a common standard of achievement for all peoples and all nations'. However, no enforcement machinery is provided. The state of the law as it was till recently understood was summed up by O. Sachter, International Law in Theory and Practice, 1991, p.128:
International law does not, and should not legitimise the use of force across national lines except for self-defence (including collective self-defence) and enforcement measures ordered by the Security Council. Neither human rights, democracy or self-determination are acceptable legal grounds for waging war, nor for that matter are traditional just war causes or righting wrongs. This conclusion is not only in accord with the UN Charter as it was originally understood; it is also in keeping with the interpretation adopted by the great majority of states at the present time.
NATO's military action against Serbia was not carried out in self-defence or authorised by the Security Council (where Russian and Chinese vetoes would have operated). True enough, the Security Council did determine, notably in a resolution on 24 October 1998, that the unresolved situation in Kosovo 'constitutes a continuing threat to peace and security in the region', and expressed alarm and concern at the 'continuing grave humanitarian situation throughout Kosovo and the impending humanitarian catastrophe....' However, it did not authorise military intervention. This is the key point. The NATO action was, therefore unlawful.
Some people would be disposed to put 'technically' in front of 'unlawful', as though the breach was 'merely' technical, ie., of no great significance compared to the alleviation of the intolerable situation which the NATO action brought. We will take up this point of alleviation later. However, the view that international law is 'merely' a technical impediment to the execution of a vast and beneficent design is fraught with great danger. It has always been the classic argument of imperialists, and it has always led to conflict. The doctrines of non-interference in the domestic affairs of sovereign states and Great Power consensus for military action are the codification of all we have learnt about how to maintain peaceful international relations in a world of sovereign states since the Peace of Westphalia in 1648. To tear them in over a single case, however distressing, is to destroy a large part of our inherited knowledge.
To be sure international law is not static: it should evolve with changing circumstances. But necessary changes should be made by agreement, not by unilateral action.
It may be argued that changes in laws are generally brought about by people breaking them, and that we should, perhaps, see NATO's action in this light. However, this is a poor analogy. The struggle to establish the rule of law has been a struggle to protect the weak from the depredations of the strong, not to give the strong carte blanche to do what they like. When the most powerful military machine in the world breaks the law, our experience entitles us to believe that it is in its interest to do and that the bringing about of a juster state of law is not the motive uppermost in its mind.
Let me turn to the question of NATO's diplomacy. Had we, Mr. Blair asked in a speech made in Chicago while the bombing was in progress 'exhausted all diplomatic options'? The answer must again be no; in fact, it is hard to resist the conclusion that the Rambouillet negotiation of February to March last year was, in Henry Kissinger's words, 'merely an excuse to start the bombing'.
The bald facts are as follows. Yugoslavia was 'invited', under threat of being bombed, to agree to a set of 'non-negotiable' political principles based on a self-governing Kosovo within the FRY, together with a non-negotiable supervised implementation procedure (Appendix B. of the Accord). Both the Federal Government of Yugoslavia and the Kosovan delegation, led by the KLA ,accepted the political principles, but the KLA only on the understanding that three years after the interim settlement the future status of Kosovo would be decided by a referendum, thus achieving its long-proclaimed goal of independence. When US Secretary of State Madeleine Albright assured the KLA that it would be allowed to take Kosovo out of Yugoslavia, the Serbs refused to sign the political accord.
The Serb/Yugoslav delegation also rejected the two key implementation demands: the occupation of Kosovo by 30,000 NATO troops and the 'free and unimpeded access' of armed NATO forces 'throughout the Federal Republic of Yugoslavia including associated airspace and territorial waters'. The Berliner Zeitung commented: 'This passage sounds like a surrender treaty following a war that was lost'. Another German newspaper, Taz wrote: 'If the talks had really had the aim of producing agreement, and not merely trying to convince skeptics of the unavoidability of NATO's attacks, then the text of the Accord is incomprehensible'.
In his powerful polemic, The New Military Humanism, Noam Chomsky writes: 'In the massive US coverage of the war I found no report of these terms that was near accurate, notably the crucial article Appendix the absence of a clear and repeated explanation of the basic terms of the Rambouillet was impossible for the public to have any serious understanding of what was taking place'. The same was true of the British press.Yet Appendix B was available on Internet before the bombing started, and was picked up, as has been shown, by some Continental newspapers.
Most people to this day believe that it was the bombing which brought Milosevic to accept the Rambouillet terms. This ignores the fact that the terms of Milosevic's 'capitulation' on 3 June 1999, brokered by Russia's Viktor Chenomyrdin, included the withdrawal of the three Rambouillet demands most objectionable to the FRY: the new implementation force was to be United Nations-led, with NATO and non-NATO (including Russian) participation, it would have no right of access to Serbia proper, and no time limit was set for the interim regime in Kosovo. (In practice, NATO assumed control, pushing the UN, once more, onto the sidelines.) Why, one might ask were these terms not on the table before the bombing started?
Secondly, it is important not to swallow entire the proposition that Kosovo proved that 'bombing works', and that the West has discovered a 'costless' way of bringing law and order to lesser breeds all over the world. It is a controversial, though tenable position, that nothing was achieved by the bombing which could not have been better accomplished without it.
Chomsky also brings to light the fact that on 23 March, the Serbian National Assembly passed a resolution which, while rejecting the demand for NATO military occupation, declared its readiness to 'review the size and character of the international presence in [Kosovo]'. Perhaps the Serbs were bluffing; in any event, this diplomatic option was not 'exhausted' because it was never explored.
Thirdly, what about the humanitarian dimension? Our government has consistently claimed that the NATO Alliance went to war to avert an impending humanitarian catastrophe and that it succeeded in its aim, by the reversing the ethnic cleansing of the Albanian population which was the avowed and long-matured objective of the Belgrade regime.(We have already questioned its claim that it was acting legally in so doing.) Important new evidence on this point has been produced by the Report on Human Rights Violations in Kosovo, published by the OSCE Verification mission on 16 December 1999. The report covers three periods: 1 November 1998 to 21 March 1999; 21-24 March 1999 to 10 June 1999-that is the period of the bombing- and the post-bombing period till October.
In the first of the periods, 2000 OSCE observers were on the ground in Kosovo to monitor and limit human rights' violations, placed there under Security Council Council Resolution 1199 of 23 September 1998 and the implementing Milosevic-Holbrooke Agreement of 16 October 1998.The Report itself, though not the executive summary which accompanied it, makes it clear that for the four and a half months the monitors were in place, human rights' violations were markedly down on their peak earlier in the year (when the armed struggle for independence had really started), and it was only after they left Kosovo and the bombing started (21-24 March) that general and systematic violation of human rights started to occur.
This break in trend is captured in the following quotations: 'The level of incidents of smmary and arbitrary killing escalated dramatically after the OSCE withdrew on 20 March'. 'Summary and arbitrary killing became a generalized phenomenon throughout Kosovo with the beginning of the NATO air campaign...on the night of 24-25 March'. 'Indiscriminate attacks on populated areas, sporadic prior to 24 March 1999, became a widespread occurrence after that date'. 'The loss of life of large numbers of Kosovo Albanian civilians was one of the most characteristic features of the conflict after 24 March'. 'Once the OSCE..left on 20 March and particularly after the start of the NATO bombing...on 24 March, Serbian police and/orVJ, often accompanied by paramilitaries, went from village to village and, in the towns, from area to area, threatening and expelling the Kosovan Albanian population'. 'Between March and June 1999 the FRY an Serbia forcibly expelled 863,000 Kosovo Albanians from Kosovo'.
In the light of these facts, it is hardly possible to deny that the NATO bombing precipitated the humanitarian catastrophe it was designed to avert. Indeed, this conclusion is now widely accepted. But it does not deflect the government and its supporters from arguing that Milosevic always intended to force out the Albanian Kosovars by a mixture of state-terrorism and expulsion, and that NATO's intervention stopped him carrying out his plan successfully. The evidence for this is that the expulsions followed immediately the bombing started, revealing a long-matured plan (Operation Horseshoe). That Milosevic had a contingency plan in event of war is not the point at issue. The question is whether he would have been in a position to carry it out had the war not started. Under no circumstances can Yugoslav response to NATO's action be justified. But it has to be remembered that Yugoslavia had every reason to expect a ground invasion of Kosovo by NATO forces as well as facing a KLA uprising in its rear.
If the prevention of a human rights catastrophe had been uppermost in the mind of the NATO alliance it would surely have made every effort to ensure that an expanded force of monitors was kept in place in Kosovo. But this was inconsistent with its determination to use force rather than diplomacy to resolve the Kosovan problem.
This brings us to the real motive for NATO's action. Having threatened bombing back in October 1998, NATO's leaders convinced themselves that the credibility of the alliance was at stake if they did not bomb. Credibility for what purpose?
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