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Model Essay: The Kosovo Just War Problem: A Legal Analysis
The following should illustrate that reasonable minds
can reach different conclusions. Legal professionals, academic experts, informed
voters, and attentive citizens may articulate compelling arguments that support
opposing viewpoints. Identifying the right reasons for a principled judgment
is the correct approach, whether the conclusion finds that the decision to
bomb was right or wrong.
1. The President’s response to Kosovo violated both U.S. and international law
A. U.S.
Article I of the Constitution expressly gives Congress the power to declare war. Air strikes are an act of war that place U.S. pilots at risk. The Commander in Chief’s Article I powers may authorize a defense of U.S. territory against attack; the Constitution does not give the President authority to make war on a government for humanitarian ends without Congressional approval. President Clinton had ample time to secure Congressional approval before launching air strikes. Before President Bush dispatched U.S. forces to invade Iraq, Congress voted to approve Operation Desert Storm. Resolutions approving intervention failed to pass in both the Senate and the House. The War Powers Resolution has never been repealed; Congressional failure to enforce its terms does not alter the Constitution’s plain meaning and the intent of the framers. In their successful revolution against the British monarchy, the founding fathers deliberately restricted unilateral war making by the U.S. President. Under the rule of law, in a democratic system of checks and balances, the Chief Executive must obtain legislative approval before starting a war.
With Senate approval in 1949, the NATO Treaty became U.S. law that President Clinton had no legal right to amend without formal ratification of new terms. NATO greatly exceeded its self defense mandate by intervening in a non-member’s civil war even though no member of the alliance had been attacked. In their effort to enforce Serbian compliance with humanitarian law, allied leaders set themselves above their own treaty law. NATO’s legal charter establishes territorial limits, but the Kosovo precedent leaves unclear whether the military alliance now asserts a legal responsibility to police the entire world.
B. International Law
The U.N. Charter clearly denies to NATO the powers asserted by allied leaders. Charter Article 2(4) expressly prohibits states from using force to settle disputes, and there is no exception for humanitarian intervention. Chapter VII grants the Security Council a monopoly on the use of force to secure peace. The Council may delegate peacekeeping responsibilities to regional organizations under Chapter VIII, but the NATO mission of collective self defense falls within Article 51 of Chapter VII. The allies never sought or obtained Council approval for Operation Allied Force and clearly violated the Charter’s most vital provisions.
2. NATO air strikes Respected both U.S. Precedent and Higher Law
A. U.S.
Neither the Constitution nor the War Powers Resolution required prior Congressional approval for the military rescue mission in Kosovo. Formal declarations of war have been the exception throughout U.S. history. Consistent executive practice accepted by Congress has informally amended the original Constitution. All presidents have read the War Powers resolution in ways contrary to its express meaning. Congress has invariably provided funds, thus legitimizing unilateral war making by the Commander in Chief, de facto if not de jure. In Kosovo, Congress once again made appropriations to support U.S. military action that was never formally authorized.
Although the NATO Treaty and the Partnership for Peace Agreement with Russia provide no express authority for the allied bombing of Yugoslavia, their provisions are unenforceable. There was consultation with Russia before NATO peacekeeping in Bosnia, and that precedent clearly expanded NATO’s mission without a formal treaty amendment. NATO has now acquired more power than originally envisioned by the treaty authors, and that authority is subject to political rather than legal restrictions. Members take decisions by consensus; eighteen partners effectively check each other as illustrated by the restraints Greece imposed on the bombing of Yugoslavia.
B. International
The United Nations Charter did not require prior Security Council approval for NATO air strikes on Yugoslavia. The customary international law norm allowing humanitarian intervention survived adoption of Article 2(4) in the U.N. Charter. Humanitarian intervention does not violate the "territorial integrity" secured by the Charter because any occupation is only temporary. There is no permanent seizure or any territorial acquisition by another state. Moreover the intervention supports the "purposes and principles" of the U.N. to secure human rights. Multilateral intervention that does not advance the political or economic interests of a neighboring state serves a higher end–to prevent mass slaughter. Parties to the Genocide Convention have a legal duty to stop another holocaust.
The Security Council rejected draft resolutions that would have found NATO guilty of international law violations, and the International Court of Justice properly dismissed Yugoslavia’s claims against the United States. Humanitarian law seeks to regulate military conduct and policy that would should be considered nonjusticiable political questions, inappropriate for judicial decisionmaking. Whatever checks on war crimes exist appear more political than legal. Ultimate Security Council approval of NATO peacekeeping in Kosovo affirms the legality of prior intervention.
3. Conclusion
The essay question was taken from a June 9-13, 1999 nationwide survey of 1,153 adults conducted by Princeton Survey Research Assoc. for the Pew Research Center for the People & the Press. U.S. respondents answered:
Right Decision 68%
Wrong Decision 22%
Don’t Know 10%
Additional discussion questions raise further issues for consideration.
