Law and the NATO World Order Labour & Trade Union Review, May 1999
"The UN Charter bans the use of force unless it is explicitly authorised by the Security Council, or is in self-defence. The NATO attack was not authorised by the Security Council, and it was not in self-defence of any NATO member.
"NATO has justified its departure from the UN Charter on humanitarian grounds. The Universal Declaration on Human Rights guarantees the rights of individuals against oppressive states. NATO could indeed claim, with justice, that Yugoslavia was breaking the declaration in its treatment of the Kosovans. But war launched by a third party is not included among the remedies authorised under the Universal Declaration on Human Rights.
"NATO might respond that the safety of people is the first law, and that the fact that it may be breaching international law is of secondary importance to the humanitarian emergency. That argument would have pragmatic validity if, in practice, the NATO action had alleviated suffering. In fact, the NATO action made it worse. As predicted, it accelerated both the ethnic cleansing and the flow of refugees."
Those are the words of John Bruton, leader of Fine Gael, in an article in the Irish Times on 12th April.
None of that can be challenged. NATO has broken the primary pillar of international law, the UN Charter, by attacking Serbia without the authorisation of the Security Council. Of course, such sanction was not sought because there was no chance of getting it since Russia and China would have vetoed it. It is now being said in the most liberal of circles that the UN system is useless as the basis of international law, since its ability to act is circumscribed by the veto of the great powers. Fine, but what's sauce for the goose is sauce for the gander: if NATO led by the US and the UK make war on a sovereign state with UN authorisation, then nobody can complain when other states, including Russia and China, do likewise. And that is a recipe for international instability on a grand scale.
Other international laws have also been disregarded. According to Andreas Whittam Smith writing in the London Independent on 29th March, four in all. In addition to the UN Charter, NATO has broken its own Charter which is committed to the use of force only in the event of one of its members being attacked. NATO is after all supposed to be a defensive alliance, established 50 years ago to defend the West against the Soviet bloc. Furthermore, according to Smith:
"There is also the 1980 Vienna Convention on the Law of Treaties which forbids the use of coercion and force to compel any state to sign a treaty or agreement. Moreover, the Helsinki Accord Final Act, 1975, guarantees the territorial frontiers of the states of Europe."
Arguably, the latter was breached when, with the encouragement of the West, the multi-national state of Yugoslavia was broken up. The West used the fig leaf that the frontiers of the new states had to correspond to the frontiers of the former republics of the Yugoslavia, no matter how ethnically diverse they were. This led to the creation of Bosnia, the most absurd state in this world, which can only be held together by outside force. Clearly, if at the end of this war Kosovo is an independent state, or part of a greater Albania, the Helsinki agreement will be broken, unless the signatories to the agreement, including Russia, consent to its amendment.
The occasion for the start of the NATO bombing was Serbia's refusal to sign the draft peace treaty drawn up at Rambouillet, specifically Serbia's refusal to assent to a NATO-led implementation force to be stationed in Kosovo. The expectation was that if there was going to be a war the stated NATO war aim was going to be to force Serbia to accept terms of the draft treaty, which would have been contrary to the Vienna Convention on the Law of Treaties.
Whether the obvious illegality of such a stated war aim played a part in it being discarded is difficult to say. But it was discarded. George Robertson, amongst others, said it wasn't the aim of the war; he actually said on TV that it would be illegal under international law. In reality, of course, it is the war aim because, assuming NATO is victorious, something like the Rambouillet draft treaty will be forced upon Serbia.
But as the up front stated aim, it was replaced by the humanitarian aim of protecting the Albanian population of Kosovo from Serb aggression, presumably because it was believed that this would enlist more popular support in NATO countries. This was declared to be legal under some unspecified piece of international law and, despite the fact that a war is being justified by this unspecified piece of international law, no journalist has thought to ask any of our political masters to specify it. Some sort of answer has been prepared to this question because George Robertson muttered vaguely on TV on one occasion that the justification predated the formation of the UN, which was why the UN authority was unnecessary, he implied. As John Bruton pointed out above, it is not justified by the Universal Declaration of Human Rights.
John Bruton makes an excellent point when he says that the NATO action would have some sort of pragmatic validity if it had actually succeeded in relieving suffering, which it manifestly hasn't. The plight of the Kosovo Albanians is immeasurably worse now than it was before the bombing started when the OSCE observers were still on the ground in Kosovo. Far from achieving the stated war aim of protecting Kosovo Albanians from Serb oppression, the NATO war has increased it beyond measure. And it is no good NATO trying to excuse their failure by saying "it's not us expelling the Kosovo Albanians, it's the Serbs led by the evil Milosevic". Their stated war aim was to stop the Serbs oppressing the Kosovo Albanians. They have signally failed to do so.
It was entirely predictable that, when faced with NATO bombing, the Serbs would go after the Kosovo Liberation Army and expel large numbers of Albanians. NATO was warned by aid agencies amongst others that it would happen. It is impossible to believe that NATO didn't expect it to happen but calculated, quite rightly as it has turned out, that this would enhance popular support for the war in NATO countries, so much so that NATO can now contemplate a ground invasion of Kosovo with significant NATO casualties. In the wake of the humanitarian disaster brought about by NATO bombing, opinion polls in the US and the UK indicate support for ground war. Indeed, one suspects the cry will grow that this time the job must be completed and that, unlike the Gulf War when Saddam Hussein was left in power, this time the "evil" Milosevic must be removed.
John Bruton asked another very pertinent question in his article:
"Given that there are so many emergencies in the world, resulting from wars, why have the Western allies chosen to go to war over this particular one? Colombia, Turkey, Laos, Sudan, Rwanda are all examples of disastrous humanitarian situations resulting from civil wars, but on which no similar action was taken. Why is the West treating the Yugoslav situation differently?"
Liberals in Britain, for example in the editorial office of the Guardian, have been dismissing this by saying that the humanitarian war against Yugoslavia is a start, the hope being that one day the international law which allows NATO to bomb the Serbs for humanitarian reasons will, in time, be applied universally. We will not hold our breath until NATO develops similar humanitarian concern for the Kurds in Turkey or the Palestinians.
Seumus Milne wrote the following in the Guardian on 15th April:
"The parallels between the treatment meted out by Serbia to Kosovan Albanians and Turkey's war on its Kurdish minority are even closer except that in the Turkish case it has been on a larger scale. The Turkish war against Kurdish PKK guerillas Turkey's own Kosovo Liberation Army has so far claimed 30,000 lives, driven three million Kurds from their homes and razed 4,000 villages to the ground
"This week, Turkey sent a 5,000-strong force, backed up by fighter aircraft and attack helicopters, to hunt down PKK units in northern Iraq, where United States and British bombers have also been in action again, ostensibly to protect Iraqi Kurds from Saddam Hussein.
"And while NATO bombs rain down on Yugoslavia, Israeli warplanes have also been back in action in Lebanon against Hizbullah fighters in and around the Lebanese territory it has held for the past 21 years along with the Syrian and West Bank territory it has occupied for rather longer in violation of a string of UN resolutions. Meanwhile, Israel has accepted 112 Kosovan refugees, while well over two million Palestinian refugees and their families are still unable to return to their homes, in some cases, more than 50 years after they were forced out of them.
"There are no lack of parallels around the world. The significance of these current acts of repression and war is not simply that the West is failing to act against the states responsible but that all are long standing staunch Western allies and continue to be armed and funded by the US, Britain and other NATO states, even while the occupations and attrocities roll on. Indeed, in the case of Turkey, which also illegally occupies half of Cyprus, it is not only a NATO member, but is actually an enthusiastic participant in Tony Blair's "war of values" against Yugoslavia".