Humanitarian Intervention

Humanitarian Intervention in Kosovo - 1999

Edmund Tan (2014461102)
Introduction

On 24th March 1999, the North Atlantic Treaty Organization (NATO) launched a 78 day long air campaign Operation Allied Force (OAF) over former Yugoslavia, with the intent to stop the Milosevic regime from committing human rights abuses and ethnic cleansing of the Kosovo Albanians in Kosovo. This was a significant event with regards to humanitarian intervention in recent history as it was seen as a new international phenomenon. It was the first time that a group of states intervened without the authorization of the United Nations Security Council (UNSC) and it was also the first time that NATO used military force to prevent a humanitarian disaster.
This event divided the world in their support for or against NATO’s humanitarian intervention in Kosovo. Critics of the intervention felt that NATO was breaking international law in acting without the authority of the UNSC and this could have jeopardized international order should any state or group of states decide to act on their own accord in intervening in a foreign territory in the future. Supporters of the intervention argue that the war gave human rights precedence over the rights of states. According to then Czech Republic President Vaclav Havel, even though NATO acted without a direct UN mandate for intervention, they have not acted out of license, aggressiveness or disrespect for international law. NATO has acted out of respect for the rights of humanity as they are articulated by our conscience as well as by other instruments of international law (Moore, 2007). Furthermore, apparent lapses in the operation resulted in undesirable effects such as collateral damage caused controversy which would be discussed later on.
In this paper I will attempt to explore the justification of NATO’s intervention from a neutral point of view, if it has met the criteria for a humanitarian intervention while bearing both sides of the argument. I will also analyze the extent to which NATO and the international community adhered to the responsibility to protect (R2P) and evaluate the failures of the intervention. Finally as humanitarian intervention is an important political issue, the difficulties addressing it need to be improved. I would identify key problems in the current international security system and propose amendments to avoid another event like the intervention in Kosovo.
Background

Kosovo lies in the central part of the Balkan Peninsula in the southernmost part of Serbia. It is a landlocked area covering about 11,000 square kilometers and shares its bothers with the remainder of Serbia from the northeast through the east, by the Former Yugoslav Republic of Macedonia (FYROM) on the southeast, Albania on the southwest, and Montenegro on the west. Before the war, Kosovo’s population stood at 2 million, with an overwhelming 90% of the population being ethnically Albanian and a minority of 10% Serbians.
Before 1989, the Kosovo region enjoyed a high degree of autonomy within former Yugoslavia and the Serbs and Albanians lived peacefully together. The constitution of 1974 gave Kosovo the right to issue their own constitutions, assemble a parliament, and hold the same number of delegates to the federal assembly as the other republics. Most importantly, Serbia could not pass legislation affecting Kosovo without the provincial assembly’s approval. However, the peaceful situation ended in 1989 when Serbian President Slobodan Milosevic forcibly altered the status of the region, removing its autonomy and bringing it under the direct control of Belgrade, the Serbian capital. The entire structure of regional administration was taken down and all of a sudden, Kosovo Albanians were denied their rights and faced discrimination by Serbs in their own homeland. They were dismissed from their jobs, denied education in their own language, and exposed to massive abuse of their human rights and civil liberties.
Led by Ibrahim Rugova, the Kosovo Albanians decided to fight for their self-determination rights through peaceful campaigns but it was unsuccessful and the international community paid little attention to it until the Kosovo Liberation Army (KLA) came into picture. They were formed to fight against the Serbian leadership using force. In 1996 they claimed their first attack against Serbian police posts. Fighting went on until in 1998 it erupted into a open clash which left 1,500 Kosovo Albanians dead and 400,000 forced to leave their homes. It was then that the international community became gravely concerned about the escalating conflict, its humanitarian consequences, and the risk of it spreading to other countries and the international media began covering the conflict widely.
Investigations showed that there were organized persecutions involving mass executions, exploitation of civilians as human shields, mass rape and expulsions, burning and looting of homes and villages; destruction of crops and livestock, suppression of identity, origins and property ownership by confiscation of documents; hunger, starvation and exhaustion and many other abuses of human rights and international norms of civilized behavior. On 28th May 1998, NATO had its first meeting regarding intervention in Kosovo and on 13th October 1998, an air strike on the Serbian military was authorized by the NATO council. The air strikes were later called off after a round of negotiations but the situation did not improve.
Meanwhile, the UN Security council adopted resolution 1199, demanding that all parties in Kosovo and the Federal Republic of Yugoslavia (Serbia and Montenegro) cease hostilities and maintain a ceasefire. Both Serbia and Montenegro and the Kosovo Albanian leadership were urged to take immediate steps to improve the humanitarian situation and begin talks to resolve the crisis. The FRY was also demanded to stop all hostilities against civilians and to allow the presence of international monitors and to make rapid progress to finding a peaceful solution to the political problems in the region. The situation however, flared up again in early 1999 after a number of acts of provocation on both sides and the use of excessive and disproportionate force by the Serbian Army and Special Police, in particular the massacre of 45 ethnic Albanians in Racak.
Renewed efforts were then made again to ease the situation through the form of talks held in France, known as the Rambouillet talks which ended on 18th March 1999 with the Serbian delegation refusing to accept the Rambouillet agreement. US Ambassador Halbrooke then flew to Belgrade in a final attempt to try to convince Milosevic to stop the attacks on Albanians or face imminent air strikes but he failed to do so. Over the next 78 days, NATO flew more than 38,000 sorties prosecuting the air war over Serbia.
Humanitarian Intervention and R2P

Humanitarian intervention according to the United Nations is the threat or use of force by a state, group of states, or international organization primarily for the purpose of protecting the nationals of the target state from widespread deprivations of internationally recognized human rights such as genocides, war crimes, ethnic cleansing and crimes against humanity without the permission of the state within whose territory force is applied (Sean 1996). During the cold war, intervention was discouraged and emphasis on sovereignty was much higher than today. The traditional thinking was that outsiders have the responsibility to protect only to the extent that it satisfies demands of the locals. However, after the cold war ended, the concept of humanitarian intervention took a change and a new norm emerged. People became more aware of human rights issues and saw a need to stop any atrocities from happening. The importance of the UNSC rose as it became the only legal path for intervention. Sovereignty was re-thought and the responsibility to protect (R2P) was formed, expressing the international community’s right to use force if necessary in a state that has failed to fulfill its obligation of protecting its citizens or it itself is the cause of human suffering.

Literature Review

The case in Kosovo has been widely debated over the years, with lots of books and articles written about it. One of the most controversial issues of the intervention was the choice of military used during Operation Allied Force which was solely airpower. According to (Sheets, 2002) USA, the largest contributor of military in the operation, has no direct national interests in the Balkan regions. However, their ties with NATO and the European Union indirectly contribute to a political national interest. However, this connection is politically challenging to sell to the American people as a reason to have their sons and daughters dying in combat which was why aerospace power was chosen. Aerospace power was thought to be a compromise between non action and sending a full ground force invasion and most supporters of NATO’s intervention felt that it was sufficient to bring an end to the war within days. However, it was not to be as it took a painfully long 78 days. After the days of unsuccessful bombing, mobile targets like the Serbian army’s field forces were ordered to be targeted. This became extremely controversial as it resulted in the deaths of many civilians and collateral damage.
(Sheets, 2002) argues that OAF was based on the concept of incrementalism, that the operation was not well-thought out in the first place and many small and unplanned incremental changes were made along the way instead of a few extensively planned large jumps. This approach should not have been used in any military operation as it was based on the idea of hope, something you never want to be used in the planning process. According to Sheets, to have hope is one thing but to build your plan around it is dangerous. Once a decision is made to use military power to meet the political objectives, the application of this power should not be incremental. However, due to the complexity of the alliance and the political ties involved, it was inevitable that the operation turned out so controlled. Many argued that this contributed to the 78 days it took to meet its political objectives.
It has also been often shown that NATO’s actions contributed more harm than good in both Kosovo and FRY, causing unnecessary death and destruction among civilians. In Serbia the devastation of infrastructure, water supplies and electrical lines etc caused huge difficulties for the Serbian civilian population while in Kosovo, the bombing intensified the atrocities on Kosovo Albanians. Critics also argue that despite the violations of human rights, the intervention was illegal as it violated international law on state sovereignty, acting without the authorization of the UNSC. UN Secretary General Kofi Annan described the dilemma the international community was facing: undermining the UNSC’s power as a sole source of legitimacy on the use of force would be dangerous but at the same time inability unite in protecting the values of humanity in terms of human rights contradicts with the ideas upon which the United Nations was founded. NATO’s Secretary General Javier Solana described the Kosovo crisis as “one of the greatest challenges since the Cold War”. He argues that inaction in Kosovo would have jeopardized the plan of turning Europe into a common space where security, politics and economics were preserved if they tolerated the barbaric practice of ethnic cleansing at their doorstep.
Legal Basis

Critics argue that NATO’s intervention was unlawful on the basis of Article 2(4) of the UN Charter which provides a general proscription against the use of force against the territorial integrity or political independence of any state. However, chapter VII of the charter provides two exceptions to this prohibition of the use of force. Article 39 of the charter states that the UN Security Council has the right to authorize the use of force to maintain or restore international peace and security and article 51 recognizes the inherent right of individual or collective self-defense.
In the case of Kosovo, NATO violated article 39 but whether they violated article 51 is widely debated. Advocates argue that although the Security Council did not express its authorization for intervention in Kosovo, NATO’s actions were consistent with the Security Council’s declared objectives and took place due to the Security Council’s inability to make any decision to maintain peace and security in the region. It can also be argued that the Kosovo Albanians were unable to defend themselves and self defense could be an argument for intervention. This was a controversial issue as article 51 states that collective self- defense is allowed if an armed attack occurs against a member of the United Nations but as Kosovo is not officially recognized as a state and hence not a member of the United Nations, the law here would have to be stretched to accommodate intervention. Therefore, in order for NATO to intervene legally on a basis of self-defense, the international community or at least NATO has to recognize Kosovo as an autonomous state which was not the case at that time.
Another argument against collective self-defense would be that the doctrine of self-defense is explicit on requirements of necessity and proportionality. However, this was not the case as seen when NATO bombed continuously for 78 days from extremely high altitudes. Should the argument be based on self-defense, then the principle targets would have been the military forces in Kosovo and not the civilian and military infrastructure in Serbia. To go with this argument, NATO would have to send ground forces or at least a different selection of aircraft such as A10s or Apache helicopters to specifically target the units which are causing harm instead of high altitude bombers. But this would have been out of the question for NATO as that would never be an option from the start. Therefore, based on the above arguments, I can conclude that on a legal basis, the Intervention in Kosovo was illegal as it has breached international law and failed to meet the requirements for a collective self-defense

Legitimacy of Intervention

Although the intervention in Kosovo failed to meet legal guidelines, many felt that it was a legitimate response by NATO. According to the new concept of Responsibility to Protect (R2P), established in 2001 by the International Commission on Intervention and State Sovereignty (ICISS), there are five criteria which permit the legitimate use of force by states regarding humanitarian intervention. They are: (1) seriousness of threat, (2) proper purpose, (3) last resort, (4) proportional means and (5) balance of consequences.
According to (1) seriousness of threat, the threatened harm to state or human security of a kind must be sufficiently clear and serious to justify the use of military force. In this case, the situation in Kosovo definitely posed a threat to the Albanian population in the region. Investigations on the situation in Kosovo prior to the bombings showed Evidence of Massacres, tortures and rapes towards the Albanian population in villages and cities all over Kosovo in an attempt of ethnic cleansing. Prior to the bombing, it was estimated that there were 2,000 deaths in Kosovo, mostly ethnic Albanians and hundreds of thousands displaced or escaped to neighboring countries as refugees. If no intervention were to be carried out, it would be expected that Milosevic would complete his plan to ethnically cleanse the province of Kosovo of ethnic Albanians to consolidate Serb control of the province.
The second criteria: proper purpose questions if the primary purpose of the proposed military action is to halt or avert the threat and reduce human suffering and if not, what other purposes or motives was involved? This criterion proves to be one of the most highly disputed and controversial points of the legitimacy in question. Many experts argue that although intention to reduce human suffering should be a prominent motive for intervening, it is unrealistic to expect morally pure motives and that equally positive result can also happen even though the primary motive was for national interests. On the other hand, critics argue that a lack of moral intentions could weaken the strength of a just cause argument, and that in the case of Kosovo, NATO’s motivations were primarily for its own interests. It is often believed by many that the primary purpose was never for humanitarian reasons even though NATO has never admitted this. NATO claimed that they acted solely on moral and humanitarian grounds, to stand up for the values that they were founded for but many believed that it was due to its credibility being questioned. NATO has failed to successfully change the outcome of the Bosnian war in 1995 and did not want to make the same mistakes again or it would be severely humiliated. Inaction in the Kosovo region would also severely weaken NATO’s credibility as a powerful alliance in the region. In this case, NATO’s track record of intervention also works against them and severely weakens their argument of moral intentions in Kosovo. NATO has failed to explain why they did not intervene in defense of Kurdish or East Timorese human rights which happened just months before Kosovo. They have also failed to explain why they did not act during the Croatian government’s ethnic cleansing of Serbs from the Krajina in 1995 or when the Tutsi population in Rwanda was being slaughtered in 1994.
The third criteria, last resort states that every non-military option for meeting the threat in question should have been considered, with reasonable grounds for believing lesser measures will not succeed. It has been mentioned earlier that the international community tried various diplomatic options such as sanctions and ceasefires through numerous UNSC resolutions while meeting multiple times to negotiate with Serbian leader Milosevic, including the Rambouliett talks which eventually broke down and led to the air strikes. Throughout all that, the atrocities went on and it was also a known fact that the UNSC would not be able to authorize any form of legal intervention due to the presence of the 5 permanent members with veto powers, especially Russia and China who have been against the idea of humanitarian intervention in Kosovo. Although critics may argue that the Rambouliett agreement proposed was designed to fail as the conditions were too much for Milosevic to accept, particularly one that required unhindered right of passage for 30,000 NATO troops on Yugoslav territory without being subjected to Yugoslav law, and that the proposal was just an excuse to start the bombing, I believe that it was inevitable that military intervention was warranted to stop Milosevic.
Next, proportional means states that the scale, duration and intensity of the proposed military action should be of the minimum necessary to meet the threat in question. In my opinion, this criterion was extremely hard to judge. Serbian atrocities were horrible, causing hundreds of thousands of people to flee their homes and leaving about 2,000 dead. According to Globalsecurity.org, NATO bombed FRY in one of the most intensive bombing raids ever recorded and over a relatively long time frame of 78 days. Compared to Bosnia, NATO dropped about 23,000 bombs in the Kosovan war while only 1,026 in Bosnia and flew 38,004 sorties in Kosovo while only 3515 in Bosnia which lasted less than a month in Operation Deliberate Force during the Bosnian war which saw much more severe crimes against humanity. In Operation Allied Force, NATO also attacked civilian infrastructure and caused suffering to a large population of civilians which was seen as unnecessary. Unwillingness to send any ground troops arguably caused the damage to be even greater than necessary for the Serbians, working against NATO in this criterion.
Lastly, for balance of consequences, there should be a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction. NATO’s objectives for OAF were to halt the repressive policy of Milosevic with the intent of avoiding civilian targets as much as possible. However it was apparent that NATO began to target civilian infrastructure as they realized that only bombing military targets would not meet its objectives. Collateral damage was widespread and about an estimated 500 civilians died due to NATO’s bombs in 90 incidents. There was a 2-1 combatant to civilian death ratio, meaning for every 2 soldiers killed, 1 civilian was killed in the bombings which was an alarmingly high rate. One of the reasons was due to high altitude bombing which made it more difficult to accurately hit the targets. Furthermore, it was argued that NATO escalated the conflict in Kosovo and failed to prevent human suffering. After Operation Allied Force began, it was noticed that the atrocities were intensified by the Serbian Army and hundreds of thousands more civilians were forced to flee their homes. Although NATO achieved their objective at the end, they failed to prevent the killings in the short term carried out by Serbian forces in retaliation to their bombings and arguably may have worsened the situation for the very citizens they were designed to protect. Ground forces were only deployed three months after the bombings which was too late to stop the short term killings. In this criterion, NATO failed to meet the required conditions in the short run but it is widely understood that inaction would have been worse. Therefore, with regards to balance of consequences, NATO’s actions proved to have very barely meet the conditions but not without great losses.
Therefore, after analyzing the legitimacy of NATO’s actions, I can conclude that NATO’s legitimacy in OAF was not a just intervention, as much as they would like us to believe. While undoubtedly a serious humanitarian crisis which warranted intervention, NATO’s methods were flawed. Although they managed to solve the conflict in the long run, they cause great suffering in the process, using seemingly non proportional means of actions and disregarded the safety of civilians by ruling out ground troops while having questionable reasons for intervention.

Evaluation of the Failures of Operation Allied Force (OAF)

One of the major key criticisms of OAF was that NATO did not deploy any ground forces. Doing so can not only minimize collateral damage but it can also at least serve in protecting the Kosovo Albanian citizens from further abuse while the bombing was going on. With all the intelligent minds in the planning team it was very likely that they would have expected that the use of bombing would increase and intensify FRY killings and crimes but yet chose to sacrifice civilian lives in saving their own soldier’s lives. Although a large reason was due to public opinion, it posed huge doubts to NATO’s humanitarian intentions. It can be argued that not only NATO was to be blamed for the backlash but also the international community who chose to step back due to lack of national interests. NATO or the international community could have formed a safe haven for Kosovo Albanians in Kosovo and heavily guard the area with ground troops supported by air power. As these ground troops would not be actually invading, it could be argued that public opinion would not be so harsh in disapproving it. A well planned defense may even deter any violence in the safe havens and may bring a faster end to the campaign as one of the reasons why the campaign lasted so long was that the Serbian Army was busy attacking Albanians in Kosovo.
Another mistake made by NATO was the decision to bomb from a high altitude and negligence in target acquisition resulting in unwarranted civilian deaths. The Grdelica train bombing where 14 civilians were killed and 16 wounded and the Chinese embassy in Belgrade which left 3 killed and 20 wounded were two of the many incidents that could have been avoided. Civilian deaths by NATO bombs have been the main reason why the operation was deemed a failure by many. More precision guided missiles should have been used instead of cluster bombs and more emphasis should have been placed on hitting the correct target. A few hundred less civilian deaths and the intervention would have been viewed in a very different light.
Lastly, there should be no reason why the bombing campaign should last over 78 days. It was probably because NATO underestimated Milosevic’s will as well as the Serbian will to resist. They had wrongly believed that the bombing would only last a few days before Milosevic would give in to their demands and therefore went with their incremental strategy as mentioned earlier in the paper.

Difficulties in Humanitarian Intervention and Proposals

Humanitarian intervention has never been a black and white sort of thing where right and wrong can be clearly differentiated. As seen from the Kosovo case, there exists a very broad area of grey which no amount of debating could come to a clear conclusion. In recent years, the situation has improved with the implementation of R2P and several guidelines which make it slightly clearer as to whether intervention is warranted. However, the method of intervention often raises controversies. This is mainly due to the issue of national interests as no states are willing to act solely on humanitarian grounds when it comes to their soldiers’ lives being at risk and also other political reasons.
The root of the problem I believe is the UN Security Council. It has been proven time and time again that the UN Security Council is unable to protect the human rights of citizens around the world. The current system is ineffective due to the P5 members having the power of veto. Having China and Russia, two countries which sees human rights as of little importance on the P5, their veto powers always threatens any successful authorization of an intervention. Due to alliances and other political reasons, even the other democratic states have been guilty of misusing their veto power as seen in the case of US vetoing or threatening to veto on intervention in Palestine and Israel. While it may be argued that the P5 bears the largest burden of any intervention authorized by the UN Security Council, therefore they should have a larger say, the veto should not be uncontested. In the case of Kosovo, it was a clear case of warranted intervention but the Security Council was unable to authorize any form of intervention. The situation in Kosovo would have been very different if it was an authorized intervention whereby there will be ground troops. I would propose that the P5 instead of having veto powers, they should have two votes instead.
Another failure of the Security Council would be the presence of states which are notorious to have no interests in human rights. For example China who have been known to ignore human rights and have been the cause of severe human rights violations themselves. It is ironic to have China be on the Security Council deciding if human rights of another country should be protected when they do not even care about their own citizens’ rights, let alone be one of the five countries with veto power. I argue that in a case of veto, a council of democratic states should have the last decision because democratic states are more likely to be concerned with the cosmopolitan interest of humanity and the chances of effective and unbiased decisions would be greatly increased.

Conclusion

It is seen that the intervention in Kosovo, although not legal, was justified on several criteria for humanitarian intervention, but the consequences of its actions go against the purpose of intervention in the first place as they failed to halt human suffering in the short term. NATO also escalated the conflict through the bombing while failing to protect the Albanian civilians from further harm. The result of my analysis was that NATO’s actions were not in accordance with the purpose of humanitarian intervention and the international community as well as the Security Council sacrificed little and failed to impede human suffering in Kosovo. Even though inaction would most probably have resulted in a worse outcome, OAF was considered a failed operation in a sense that civilian lives were not adequately protected through carelessness and personal interests and was not solely humanitarian in purpose.
Flaws in the foundation of the UN Security council are mainly to blame for the Kosovo case as well as all other cases of inactions that led to innocent lives being lost. The veto power and decision process of the UN Security council should be looked into to prevent further loss of civilian lives.

THE END

Bibliography Chomsky Noam (1999) The New Military Humanism – Lessons from Kosovo Common Courage Press, Monroe
Barlazino Sergio (1999) NATO’s Actions to Uphold Human Rights and Democratic Values in Kosovo: A Test Case for a New Alliance, Fordham International Law Journal Vol. 23 Issue 2 Article 4
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Hehir, J.B. Kosovo: A War of Values and the Values of War America – New York- ; 1999, 180(17): 7-12 Pub: United States, America Press Inc, 1999
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Moore R. Rebecca (2007) NATO’s New Mission- Projecting Stability in a Post- Cold War World Patrick T. Egan (2001) The Kosovo intervention and collective self defence, International Peacekeeping, 8:3, 39-58
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Weiss G. Thomas. Humanitarian Intervention: Ideas in Action. Cambridge: Polity Press, 2007. 176

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[ 1 ]. Moore R. Rebecca (2007) NATO’s New Mission- Projecting Stability in a Post- Cold War World p.48
[ 2 ]. Sean D. Murphy (1996) Humanitarian Intervention: The United Nations in an evolving World Order p.11-12
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[ 4 ]. Sheets Patrick (1999) Lessons From Kosovo: The KFOR Experience p. 99
[ 5 ]. Chomsky Noam (1999) The New Military Humanism – Lessons from Kosovo p.34
[ 6 ]. Lellio Di Anna (2006) The Case For Kosovo – Passage to Independence p.122
[ 7 ]. Barlazino Sergio (1999) NATO’s Actions to Uphold Human Rights and Democratic Values in Kosovo: A Test Case for a New Alliance p.365
[ 8 ]. Kirgis L. Frederic (1999) The Kosovo Situation and NATO Military Action, American Society of International Law, Vol. 4 Issue. 1
[ 9 ]. Patrick T. Egan (2001) The Kosovo intervention and collective self‐defence, International Peacekeeping, 8:3, 39-58
[ 10 ]. The Independent International Commission on Kosovo, The Kosovo Report (Oxford, Oxford University Press, 2008) p.88
[ 11 ]. Weiss G. Thomas, Humanitarian Intervention: Ideas in Action, 2007 p.7
[ 12 ]. GlobalSecurity.org (1995) http://www.globalsecurity.org/military/ops/deliberate_force.htm
[ 13 ]. Hehir, J.B. Kosovo: A War of Values and the Values of War America – New York- ; 1999, 180(17)