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PRESIDENT CLINTON'S RESPONSE TO KOSOVO1
Copyright © 2000 by Howard Tolley, Jr., with grant support from the U.S. Institute of Peace. All Rights Reserved. THRO Case No. 200-3, ISSN 1529-2215.
The problem confronts students with the political, legal and moral choices the U.S. faced when Yugoslavia violated the human rights of Albanians in Kosovo. Clinton's decision required a complex strategic, political, and legal calculus.
Background materials review Balkans history and identify the options President Clinton and his advisers considered in January 1999. Students online may either read the text or listen to the audio of the President's address to the nation announcing NATO air strikes. Study guide multiple choice questions accompany each section, and a final three part essay requires systematic analysis of competing principles. A model answer presents conflicting arguments on the legality of NATO's humanitarian intervention.
The case outline (Contents) provides links to all sections of the problem which begins with "A Call to Bomb."
A. U.S. Interests in the Balkans
B. A Clash of Civilizations in Kosovo
C. Milosevic: Intentions and Capabilities
A. Humanitarian Intervention vs. State Sovereignty
B. NATO vs. U.N.
C. NATO vs. Russia
D. 11th Hour DiplomacyPresident Clinton's March 24, 1999 Address to the Nation (external link)
IV. Operation Allied Force: A Just War?
A. The Combat Zone
President Clinton's June, 1999 Address to the Nation (external link)
B. The Domestic Battlefield
C. The International Arena
D. Conclusion
VII. Exercises:
A. Practice Questions
1. The Mission
2. U.S. Checks and Balances
3. The International Arena
4. Operation Allied Force: A Just War?
5. Answer Key
On January 19, 1999, President Clinton had more on his mind than impeachment and an 8 p.m. State of the Union address. Earlier that Tuesday, U.S. General Wesley Clark confronted Slobodan Milosevic in Belgrade for six hours. The Yugoslav leader denied all Serbian responsibility for a Kosovo massacre that Clark documented with color photographs. When Clark renewed threats of NATO air strikes, a defiant Milosevic repudiated concessions made the prior October. Yugoslavia expelled the U.S. observer in Kosovo and barred admission to the U.N. War Crimes Prosecutor. Intelligence reports indicated a continuing build-up of Yugoslav troops for action against Kosovo's Albanian majority.
In a White House situation room meeting Secretary of State Madeline Albright renewed her proposal for immediate air strikes. NSC adviser Sandy Berger, Secretary of Defense William Cohen, and Joint Chiefs of Staff Chair General Henry Shelton agreed.
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Berger informed the President that his top advisers now all recommended NATO bombing. The mission: compel Milosevic to allow 30,000 peacekeepers in Kosovo, including 7,000 U.S. troops. Clinton's decision required a complex strategic, political, and legal calculus. Could a lame duck, Democratic President impeached by a Republican controlled Congress successfully lead the U.S. and its NATO allies into war?
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A. U.S. Interests in the Balkans
President Bush and Geopolitics. When Serbs expelled Croatians from Krajina in 1990 and Muslims from Bosnia in 1991, President Bush's Secretary of State James Baker declared: "We don't have a dog in that fight." Baker's successor Lawrence Eagleburger, agreed: "This tragedy is not something that can be settled from outside and it's about damn well time that everybody understood that. Until the Bosnians, Serbs and Croats decide to stop killing each other, there is nothing the outside world can do about it."2 The situation was viewed as a European problem that would ultimately burn itself out. U.S. geopolitical interests centered on major powers--Russia and China.
The United States did join France, Germany, Italy, the U.K. and Russia in a Balkans "Contact Group" and supported a U.N. Security Council arms embargo and economic sanctions. In response to public outrage, the U.S. also enabled a U.N. ad hoc tribunal at The Hague to prosecute individuals for war crimes in the former Yugoslavia. None of those efforts reduced the carnage. In the 1992 Presidential election campaign, Clinton attacked Bush, the "foreign policy president," for ignoring ethnic cleansing.
Only when Milosevic ordered the killing and expulsion of Muslims in Kosovo did President Bush threaten unilateral U.S. military action. If Muslims now fled to Albania, Macedonia, and Bulgaria, those refugees would inflame ethnic rivalries in fragile states and might also exacerbate differences between NATO members Greece and Turkey.
In Bush's final days, . . . Eagleburger, sent a classified cable to Belgrade with instructions that the acting U.S. ambassador read it to Milosevic -- verbatim, without elaboration, and face to face. The Dec. 24, 1992, text, . . . read in its entirety: "In the event of conflict in Kosovo caused by Serbian action, the U.S. will be prepared to employ military force against Serbians in Kosovo and in Serbia proper."3
President Clinton and Human Rights. President Clinton's first Secretary of State Warren Christopher reaffirmed that Christmas warning in both February and July 1993. More importantly, Clinton added humanitarian goals to U.S. policy, extended the "red line" from Kosovo to Bosnia, and deployed troops there in a multilateral NATO peacekeeping force. Srebrenica in 1995 was the turning point. Albright, the U.S. Ambassador to the U.N., had pushed for international peacekeepers to provide safe havens for Bosnia's Muslims. Serbian forces systematically executed 7,000 Muslims the U.N. had promised to protect at Srebrenica. From 1991 to 1995 ethnic cleansing had repeatedly followed a similar pattern:
1. Concentration: Surround the area to be cleansed after warning the resident Serbs. Often they are urged to leave or are at least told to mark their houses with white flags. Intimidate the target population with artillery fire and arbitrary executions and then bring them out into the streets.
2. Decapitation: Execute political leaders and those capable of taking their places: lawyers, judges, public officials, writers, professors.
3. Separation: Divide women, children, and old men from men of "fighting age"--sixteen years to sixty years old.
4. Evacuation: Transport women, children, and old men to the border, expelling them into a neighboring territory or country.
5. Liquidation: Execute "fighting age" men, dispose of bodies.4
By 1994 an estimated 250,000 people had been killed and two million made homeless, many seeking refuge elsewhere in Europe.
The U.N. enforced an economic and arms embargo on the combatants. Clinton approved NATO air strikes, but vetoed legislation authorizing military assistance to Bosnian Muslims. The U.N. war crimes tribunal took into custody soldiers indicted for committing atrocities. Croatians with U.S. arms recaptured Krajina, expelling 150,000 Serbs; freshly armed Bosnian forces began to reclaim territory the Serbs had cleansed. As NATO air sorties increased in frequency, Milosevic consented in the Dayton Peace Accords to peacekeeping troops. In order to reach a swift agreement on Bonsia, Ambassador Richard Holbrooke never put Kosovo on the Dayton negotiating table in 1995. The U.S. contributed 20,000 of the 60,000 peacekeepers who effectively partitioned Bosnia creating a U.N. approved protectorate. By 1997 Clinton removed all deadlines to the U.S. deployment and made an official visit to Bosnia.
B. A Clash of Civilizations in Kosovo
Roots of Conflict: After reading Balkan Ghosts "[s]o haunted was the president by the picture of insoluble ancestral hatreds that he dismissed the Wars of the Yugoslav Succession as a 'problem from hell' that warranted no American intervention."5 Three empires, three world religions, and three language groups clashed in the Balkans. The Roman, Byzantine and Ottoman Empires brought competing Catholic, Eastern Orthodox, and Muslim faiths to Croatia, Serbia, and Bosnia. Catholic Croats and Eastern Orthodox Serbs had their own imperial ambitions.
Albanians made up ninety percent of Kosovo’s two million people. Most were Muslim, and their Illyrian language was separate from the Slav language family. Serbs and Albanians had both resisted the Nazis and Croatian fascists in World War II. Yugoslavia's President Tito had allowed Kosovo considerable autonomy. As Yugoslavia began to unravel in 1989, Milosevic revoked local control of the courts and police and restricted use of the Albanian language. Holbrooke concluded:
The animosity in Kosovo, the ethnic hatred is real, not like Bosnia where it was manufactured by demagogues and racists and Mafioso crooks. There was a lot of intermarriage in Bosnia, it's a common language, a common history. Albanians and Serbs are really different people and there's very little interaction and intermarriage and the hatred is much deeper.6
In response to renewed Serbian nationalism in the 1990s, Albanian separatists in the Kosovar Liberation Army (KLA) terrorized their oppressors. After Kosovo was ignored in Dayton, their numbers and brutal tactics increased. By early 1998 Clinton faced new atrocities against Albanians in Kosovo and a liberation army the U.S. had condemned for terrorism.
After Human Rights Watch documented hundreds killed by Serbs in 1998 a U.S. special envoy visited Yugoslavia. When a moderate Muslim leader visited the White House in May, President Clinton assured him: "We will not allow another Bosnia to happen in Kosovo."7
1998 Cease Fire. The six member Balkans Contact Group began drafting military contingency plans for Kosovo. The KLA effectively controlled forty per cent of the territory, and Milosevic launched a major summer offensive. As winter approached, an estimated 300,000 Kosovo refugees had been driven from their homes. The U.S. representative to NATO Alexander Vershbow recommended a U.N. approved protectorate secured by up to 30,000 troops in cooperation with Russia.
When NATO defense ministers met in September, Secretary of Defense Cohen urged a new activist role for the alliance. France, Germany, and Italy favored deployment of NATO peacekeeping forces. Clinton refused to commit additional U.S. personnel, even for an "extraction force" the Europeans deployed in neighboring Macedonia. Republicans might exploit any expansion of U.S. troops beyond Bosnia to gain votes in the fall elections.8 Following a visit to the Balkans, former Presidential campaign rival Robert Dole visited Clinton and supported the type of credible bombing threat that produced concessions at Dayton.9 NATO approved an action order for air strikes that Clinton explained in a letter to prominent Senators. Air sorties would "progressively expand in their scale and scope . . . There will be no pinprick strikes."10
Clinton dispatched Holbrooke to Belgrade in October armed with NATO's pledge to start bombing if Milosevic refused to withdraw Yugoslav troops from Kosovo. After nine days of negotiations, a cease fire agreement enabled Albanian Muslims hiding in the hills to return home before winter. Yugoslavia agreed to NATO overflights and allowed 2,000 unarmed observers to monitor the withdrawal of Serb army units from Kosovo. Clinton publicly cautioned that Milosevic had repeatedly broken past promises. Milosevic had demanded that NATO lift its order for air strikes, and he protested bitterly when the alliance merely suspended it. "He considered it a declaration of war."11
Massacre at Racak. The Yugoslav military and KLA both prepared for a fresh offensive. KLA units acquired new weapons and reoccupied territory as Serb forces departed. U.S. intelligence reported Yugoslav forces on Kosovo's border preparing for an operation code named Potokva (Horseshoe). Unarmed international monitors led by William Walker could only observe. After KLA agents killed three Serb police officers, on January 15, Serbs in black hoods terrorized Racak using intimidation tactics developed in Bosnia and Croatia:
as the operation unfolded, according to leaks from American intelligence sources, a Serb deputy prime minister was ordering the Kosovo police commander to "go in heavy." Arriving in Racak the following day, Kosovo Verification Mission investigators would find:
1 adult male shot in the groin. He appeared to have been shot while running away.
3 adult males shot in various parts of their body including their backs....
1 adult male killed outside his house. The top of his head had been removed and was found approximately 15 feet away from his place of death. The wound appeared to have been caused by an axe....
5 adult males shot through the head.
1 adult male shot outside his house with his head missing....
1 adult male shot in head and decapitated. All the flesh was missing from the skull.
1 adult female shot in back....
And so on. The Serbs had "gone in heavy." Forty-five were dead.12
C. Milosevic: Intentions and Capabilities
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Milosevic had made Kosovo a Serb holy land. He used the 1389 Turk victory there as a symbol to arouse Orthodox Serbian nationalism. In June 1989 on the 600th Anniversary of the Serbs defeat, Milosevic spoke at the historic battlefield Kosove Polje, the Field of Blackbirds. A curse inscribed on a battle monument captured his rhetoric: "Whoever is Serb and born of Serbs that dare not shed blood for Kosovo", it reads, "let nothing be born from his hand, let him be without son or daughter, without white wine or bread, and may his descendants be cursed.13 |
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As a child living in Belgrade Albright had learned Serbo-Croatian. "By her own account, the Czech born secretary has a bit of a Munich complex, a belief that appeasing dictators only encourages their worst impulses."14 During three years of nonintervention after 1990, the Serbs’ first attacked Slovenia and then proceeded to aggression and mass murder in Croatia and Bosnia. Unless Clinton responded, Milosevic would conclude that despite past threats "a village a day keeps NATO away."15 NATO leaders wanted to restore their credibility before April when they would celebrate the alliance’s 50th anniversary in Washington. |
The President's advisers reasoned that air strikes had persuaded Milosevic to admit peacekeepers in Bosnia, and would work as well in Kosovo. Even after Milosevic had called him a "war criminal" for threatening strikes, General Clark believed that an air campaign might succeed. Holbrooke noted that Milosevic kept promises made at Dayton, and Serbs stopped fighting in Bosnia. What if Milosevic reacted by launching a major ground offensive to expel Muslims in Kosovo? Intelligence and military estimates were inconsistent--some predicted a concession, while others forecast a humanitarian disaster. Would bombing rally public support strengthening Milosevic against moderate opposition groups? Would combat troops be needed, either to expel Serbian forces or to remove Milosevic from power?
Republican and Democratic leaders in the Senate had urged Clinton to remove Milosevic: "Such a transition in the very near future is not only essential to the Serbian people, but is a necessary prerequisite to a stable peace in the Balkans. . . . Until Milosevic leaves power, he will be able, and willing, to ignite the Bosnian war (with possibly serious consequences for the U.S. personnel deployed there), unleash renewed repression in Kosovo, or generate a new crisis as his needs require."16
Prosecution of Milosevic at the International Criminal Tribunal for Yugoslavia would require an invasion force. An air campaign might kill him. Presidents Reagan and Bush directed strikes at sites in Libya and Iraq where Mohamar Quadaffi and Saddam Hussein might be killed. A Vietnam era law prohibits the President from singling out an enemy for assassination, but current public opinion would not be an obstacle to "immaculate coercion," high tech, low-risk war waged by U.S. pilots who returned alive from their missions
Test Your Understanding: Before reading further, answer the study questions for this section and then review the correct responses to assess your factual knowledge.
Practice Questions on Part I, The Mission
Enter the correct name for each:
Bosnia, Croatia, Kosovo, Macedonia, Montenegro, Serbia, or Yugoslavia
The Constitution grants Congress the power to declare war in Article I and designates the President as Commander in Chief in Article II. Presidents have repeatedly won disputes over war-making power triggered by that division. Congressional opposition to the undeclared war in Vietnam resulted in the 1973 War Powers Resolution, adopted over President Nixon's veto.17
The Resolution requires a report to Congress within forty-eight hours after deploying U.S. forces. Congress may vote to end the engagement immediately, and the President may not continue a deployment beyond sixty days without express approval. Neither Presidents nor Congress have respected the Resolution.
President Reagan deployed marine peacekeepers in Lebanon and combat forces in Grenada while disputing Congress' authority to limit his discretion. President Bush sent combat troops into Panama, Somalia, and Iraq. Congress actually debated and voted to approve Operation Desert Storm against Saddam Hussein, but President Bush insisted the legislators' resolution was purely advisory.18 In response to a lawsuit challenging the undeclared war, administration lawyers argued that the President had sole discretion to determine when U.S. action constituted "war."19
Similarly, President Clinton prepared to invade Haiti while arguing that a U.N. peacekeeping mission was not "war " that required Congress' approval. "I would strenuously oppose such attempts to encroach on the President's foreign policy powers."20 "Like my predecessors of both parties," he said, "I have not agreed that I was constitutionally mandated to get [approval]."21 In a Defense Department appropriations measure Congress made funding for the Haiti operation contingent on a Presidential report of findings. Rather than expressly authorizing military intervention, Congress had instead voted that funds were not "off limits" for an invasion.22
Immediately after taking office, Clinton had pledged 20,000 U.S. peacekeepers as part of a multilateral force to be deployed in Bosnia. House Republican leaders lost a vote to repeal the War Powers Resolution because some defectors wanted to retain the 1973 law as a check on Clinton’s ability to keep that promise.23
Without interference by Congress, Clinton waged a limited NATO air war against Serbs in Bosnia--Operation Deliberate Force or Dead Eye. Before the Dayton peace negotiations had concluded, the House of Representatives voted twice against U.S. troop deployment in Bosnia. Republican Senator John Ashcroft unsuccessfully objected to the President amending the NATO Treaty without Senate ratification. Article 5 of the 1949 Washington Treaty limited NATO to collective defense of members' territory. Without satisfying the Constitutional requirement of Senate approval, Clinton gave the alliance a new post Cold War mission. "NATO has expanded and will continue to expand its political functions, and taken on new missions of peacekeeping and crisis management in support of the United Nations (UN) and the Organisation for Security and Cooperation in Europe (OSCE) . . ."24
After Clinton announced the Dayton Peace Accord, Congress appropriated funds for the 20,000 U.S. peacekeepers in Operation Joint Endeavor; the House measure also expressly disapproved the administration policy.25 "Some members of Congress] wanted to have it both ways: to avoid responsibility for a bad outcome in Bosnia but to share in the political fruits of a good outcome . . . they said the mission was not worth fighting for, and then they off handedly accepted that American soldiers should be sent to fight for it."26
In foreign as well as domestic policy, legislators practiced a "credit claiming" and "blame avoiding" strategy. Neither Congress nor the courts would be likely to enforce the War Powers Resolution to check a Presidential order for U.S. air strikes on Yugoslavia. According to John Hart Ely: "a tacit deal has existed between the executive and legislative branches . . . that the president will take the responsibility (well, most of it) so long as he can make the decisions, and Congress will forego actual policy-making authority so long as it doesn't have to be held accountable (and can scold the president when things go wrong)."28
As the Kosovo body count mounted during 1998, the U.S. press devoted considerably more attention to Clinton's grand jury statements about relationships with Paula Jones and Monica Lewinsky. In addition to the Independent Counsel’s impeachment investigation and GOP adversaries in Congress, Clinton was also confronted by Russia's economic collapse and difficult issues addressed on state visits to China and Africa. On his brief stop in Rwanda, Clinton publicly apologized for the U.S. failure to respond when alerted in advance to plans for genocide by Hutus that eliminated 500,000 Tutsis.
The President had gradually escalated U.S. commitments in Bosnia despite political obstacles--limited air strikes first, followed by an initial one-year deployment of peacekeepers that was renewed for an indefinite period. In keeping with the lessons of Vietnam, Lebanon, and Somalia, his advisers recommended the same model for Kosovo. In their calculus, the U.S public would support humanitarian intervention so long as young men did not return home in body bags.
The Powell Doctrine from the Gulf War offered a different model--intervention with overwhelming force when victory for vital U.S. interests appeared highly certain. Clinton's advisers had not provided a clear exit strategy. Critics in the foreign policy and military establishment objected to the U.S. maintaining Balkans protectorates for the indefinite future. Persuading the public to accept another humanitarian venture might be a tough sell.
Some internationalist Republicans, such as Robert Dole, and even the isolationist Jesse Helms, publicly advocated a firmer response to Milosevic. The Republican chair of the Senate Appropriations Subcommittee on Foreign Operations called for the U.S. to recognize Kosovo's independence and provide security assistance.29 Other foreign policy hawks grudgingly believed that the U.S. and NATO would lose credibility if Clinton failed to deliver on past threats.
By a party-line vote in December, the House of Representatives approved impeachment articles charging the President with perjury. A lame duck Democrat in the midst of an impeachment trial in the Republican controlled Senate might be tempted to "wag the dog." Skeptics viewed Clinton's 1994 military intervention in Haiti as a deliberate political diversion. "In a 'confidential' memorandum to UN Secretary General Boutros Boutros-Ghali, the UN special representative to Haiti reported that Clinton's aides saw political advantage in an invasion that would demonstrate 'the President's decision making capability and the firmness of leadership in international political matters.'"30
Public opinion polls in January 1999 revealed concern about the President's character, but support for his official conduct and considerable distrust for the Republican Congress. One commentator had described Clinton's 1995 address to the nation justifying U.S. Peacekeepers in Bosnia as "one of the more eloquent speeches of his Presidency."31 Despite his difficult political situation, a resilient Commander in Chief might still have the capacity to initiate a U.S. led NATO air campaign followed by a peacekeeping mission.
Test Your Understanding and Analytical Skills: Before reading further, answer the study questions for this section and then review the correct responses to assess your comprehension and to practice critical thinking skills.
1. Which precedent offers the greatest support
for President Clinton to exercise unchecked power as Commander in Chief?
In recommending NATO air strikes without prior U.N. Security Council authorization, Clinton's advisers significantly challenged the established international legal order. The proposed response would elevate principles of humanitarian intervention above norms of state sovereignty and would make a regional organization rather than the Security Council the final arbiter.
A. Humanitarian Intervention vs. State Sovereignty.
Invoking a customary law doctrine of unilateral humanitarian intervention, 19th Century Christian governments had justified rescue missions in the Ottoman Empire's Balkans territory. U.N. Charter Article 2(4) appears to forbid such military intervention after 1945: "All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, . . ." Chapter VII of the Charter grants the Security Council the military means to maintain international peace. After the Cold War, the Council began approving U.N. humanitarian intervention when anarchy in countries like Somalia caused massive suffering, even though international conflict was unlikely.
As a member of the 1992 Carnegie Endowment National Commission on America and the New World, Holbrooke believed: "A new principle of international relations is arising: the destruction or displacement of groups of people within states justifies international intervention. A new balance must be struck between traditional sovereignty and the world community’s interest in human rights."32 The Haiti initiative illustrated Clinton's preference for multilateral U.N. action rather than unilateral U.S. intervention. Since Russia and China would surely veto air strikes against Yugoslavia, Clinton's advisers now recommended NATO action without prior U.N. review.
"Acting under Chapter VII of the Charter of the United Nations" demanded the parties agree to a cease-fire, that both sides end criminal acts and allow the diplomatic monitoring group, the OSCE and the International Committee of the Red Cross to have access to the province. Finally the resolution said the Security Council "Decides, should the concrete measures demanded in this resolution and resolution 1160 (1998) not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region."33
Before undertaking military action in Iraq and elsewhere the U.S. had first obtained Security Council resolutions authorizing use of "all necessary means." Germany did not want to set a precedent for unauthorized NATO action, but did not prevent the allied consensus to threaten bombing.
The President's advisers now wanted NATO to exercise independent peacekeeping authority without submitting to the Charter obligations in Chapter VIII. "Secretary of Defense William Cohen said in June, 1998, that the U.S. took the position that NATO would not need a U.N. Security Council authorization to intervene in Kosovo."34 "Deputy Secretary of State Strobe Talbot agreed: ". . . [W]e must be careful not to subordinate NATO to any other international body or compromise the integrity of its command structure. We will try to act in concert with other organizations, and with respect for their principles and purposes. But the Alliance must reserve the right and the freedom to act when its members, by consensus, deem it necessary."35
National Security Adviser Berger concluded that several of NATO’s 19 members so opposed ground troops that an air campaign was the only possible consensus approach. Combat decision-making might become a problem for the U.S. if all NATO members had to agree on bombing targets. U.S. General Wesley Clark the Supreme Allied Commander in Europe (SACEUR), might have less freedom of action over Yugoslavia than General Schwartzkopf enjoyed in the U.N. approved Gulf War. The only way to circumvent a Russian veto in the Security Council would be a "Uniting for Peace Resolution" adopted by the General Assembly. The allies had so little prospect of winning an Assembly majority, that U.N. approval of air strikes appeared impossible. By using NATO as its agent, the U.S. could still affirm multilateral principles while avoiding the legal/political sin of unilateral intervention.
Despite Russia's devastating economic collapse, Clinton could not ignore Moscow's anticipated reaction to air strikes on Yugoslavia. President Boris Yeltsin depended on Western financial aid, but the Russian military could still offer meaningful support to Milosevic. Russian nationalists viewed Serbs as traditional allies who shared an Orthodox faith. Old line communists might exploit public resentment at NATO to bring down pro-Western reformers in Moscow. NATO support for autonomy in Kosovo would also threaten Moscow's campaign against Muslim secessionists in the Caucasus.
Russians felt diminished when NATO admitted as members three former client states in Eastern Europe-- Poland, Hungary and Czechoslovakia. To assuage the pain, NATO had assured Moscow that the organization remained purely a defensive alliance in a "Partnership for Peace." In the 1997 Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation the alliance promised not only to cooperate with Moscow on peacekeeping but also to respect the U.N. Charter and OSCE.
NATO and Russia start from the premise that the shared objective of strengthening security and stability in the Euro-Atlantic area for the benefit of all countries requires a response to new risks and challenges, such as . . . persistent abuse of human rights and of the rights of persons belonging to national minorities and unresolved territorial disputes, . . .
This Act does not affect, and cannot be regarded as affecting, the primary responsibility of the UN Security Council for maintaining international peace and security, or the role of the OSCE as the inclusive and comprehensive organisation for consultation, decision-making and cooperation in its area and as a regional arrangement under Chapter VIII of the United Nations Charter.
To achieve the aims of this Act, NATO
and Russia will base their relations on a shared commitment to the following
principles:
. . .
* refraining from the threat
or use of force against each other as well as against any other state,
its sovereignty, territorial integrity or political independence in any
manner inconsistent with the United Nations Charter . . .
* respect for sovereignty,
independence and territorial integrity of all states and their inherent
right to choose the means to ensure their own security, the inviolability
of borders and peoples' right of self-determination as enshrined in the
Helsinki Final Act and other OSCE documents;
. . .
* prevention of conflicts and
settlement of disputes by peaceful means in accordance with UN and OSCE
principles;36
Those sweeping promises appear wholly unenforceable in light of a comprehensive escape clause: "Provisions of this Act do not provide NATO or Russia, in any way, with a right of veto over the actions of the other nor do they infringe upon or restrict the rights of NATO or Russia to independent decision-making and action."
The Moscow press had reported the Racak massacre in language suggesting that at least some Russians might favor collaboration on humanitarian intervention.37 As one of six members on the Balkans contact group, Russia would have a voice in allied deliberations. Skilled diplomacy might allay Yeltsin's concerns sufficiently to avert outright opposition, even if active Russian support was unattainable.
After Sandy Berger reported his advisers recommendation, President Clinton accepted the call to bomb. On Thursday he called U.K. Prime Minister Tony Blair, who had strongly favored military action. Blair’s Foreign Minister would host a Contact Group diplomatic strategy session in London on January 28 while NATO ministers met in Brussels to prepare a military response. Both groups declared publicly that Milosevic must accept KFOR, up to 30,000 NATO-led armed peacekeepers in Kosovo. The Contact Group demanded a safe return of all refugees and Yugoslav cooperation with a war crimes tribunal investigation of the Racak killings. NATO openly threatened air strikes if Milosevic refused to grant substantial autonomy to Kosovo. The British and French agreed to deploy peacekeeping troops. France and Germany agreed to expand NATO's mandate, but still pressed for approval by or at least notice to the U.N. Security Council.
A fresh clash with police left 23 rebels dead at Rugova. The "Director of Central Intelligence, predicted in Congressional testimony in February that there would be a major spring offensive by the Serbs in Kosovo and huge refugee flows."38
In an effort to achieve a European "Dayton," the allies summoned KLA and Yugoslav representatives to Rambouillet, France. Milosevic never joined the talks. Both sides rejected the proposed settlement despite Albright's personal intervention. On the home front, Clinton's impeachment ordeal ended with the Senate vote on February 12.
After seventeen days at Rambouillet the recalcitrant negotiators were granted a recess and two week extension. The Albanian negotiators then dropped their demand for a referendum on independence and agreed to three years of "autonomy" within Serbia. At a March 13 meeting in the White House, Clinton's advisers learned that Yugoslavia categorically rejected a NATO peacekeeping mission. The rebels signed an eighty-page agreement professing respect for Yugoslavia's territorial integrity, but also obtained allied support for regional autonomy.
NATO military commander Clark deplored further delay that would allow preparation for ethnic cleansing. The Joint Chiefs of Staff Chair predicted a refugee catastrophe. Clinton however responded to the European foreign ministers' appeal for diplomacy by sending Holbrooke to Belgrade for a final March 23 session with Milosevic. Holbrooke recalled the following exchange as their fruitless meeting ended:
when I leave this
room, if you have not accepted the position that the United States and our
NATO and Contact Group allies and friends, including the Russians, put forward
at Rambouillet, is it clear to you that NATO bombing of this country will
start immediately and it will be -- and I used the three words deliberately
and after consultations with the Pentagon -- swift, severe, and sustained?
. . .
Milosevic said: "I understand
this. You will bomb us. There's nothing I can do to prevent it."39
On March 24 the U.S. Commander in Chief ordered the launch of Operation Allied Force, NATO airstrikes against Serbian forces. He reported personally to Congressional leaders. In a television address to the nation Clinton recognized Kosovo was a province of Serbia, but added that American national interest justified intervention to prevent a wider conflict. Clinton noted the Milosevic regime’s intransigence towards numerous diplomatic attempts to solve the Kosovo problem and the urgent need to act quickly in order to prevent Bosnia like bloodshed due to ongoing Serb aggression against the Kosvars. Russia's premier heard the news while en route to Washington and ordered his plane back to Moscow. You may wish to consider his rationale by reading the text and/or by listening to a recording of the President's speech. (external link) Does the President identify both geopolitical/strategic as well as human rights interests to justify war? Why would he state: "I do not intend to put our troops in Kosovo to fight a war."?
Practice Questions: Before reading further, answer the study questions for this section and then review the correct responses to assess your comprehension and to practice critical thinking skills.
Practice Questions on Part III, The International Arena
1. Which would be the best legal authority for NATO
military intervention?
Bombing lasted seven weeks, considerably longer than Clinton had expected and with considerably more carnage than anticipated. "The President himself would later admit that he had been "50 per cent" sure the bombardment would be over in a week."40 On day two, the Yugoslav army launched Operation Horseshoe. Serbian police, military, and paramilitary units systematically burned homes, rounded up women and children for deportation, and executed hundreds of men.
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"On March 31, security forces drove an estimated 100,000 people out of Pristina, the province's capital. . . . The week culminated on April 1 in one of the most shocking images of the war: about 10,000 refugees forced at gunpoint to walk two by two for miles along the railway track to the Macedonian border." Within eight days an estimated 768,000 were displaced.41 |
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Without NATO troops on the ground, the allies could only strike Serbian units from the air. Clouds often limited visibility. In one tragic illustration of the inadequate view from his 6 inch monitor, a U.S. F16 pilot hit a convoy and killed 75 Albanian refugees instead of enemy soldiers.
Air strikes from 15,000 feet elsewhere in Serbia hit munitions factories, a power grid, bridges, oil refineries, party headquarters, a TV station, and command centers in Belgrade. General Clark chafed at political restraints on target selection. Bombs fell on one Milosevic residence in the capital. Only one U.S. plane went down over Yugoslavia, and the pilot was rescued; A Serb claimed "We didn't know it was invisible" (the Air Force Stealth F117 Nighthawk fighter-bomber.)42
Ultimately more Chinese than Americans died in the war. The U.S. claimed an outdated map caused the attack on China's embassy that killed three. Several other "smart" bombs went astray hitting a medical dispensary and homes instead of an army barracks. The allies acknowledged hitting a passenger train while destroying a bridge, and Serbs claimed that buses were also struck. Cluster bombs did not discriminate between combatants and non-combatants. An estimated 500 civilians died as a result of collateral damage from NATO bombing.43 Two U.S. officers died in a training mission with Apache helicopters, a resource that was never used in combat. High tech weapons were expensive:
NATO's 78-day air campaign against Yugoslavia cost the United States as much as $4 billion, according to private and congressional estimates. . . . The U.S. military contributed more than 725 aircraft, artillery, multiple- launch rocket systems and about 5,500 supporting troops. Clinton called up about 5,000 reservists. U.S. aircraft flew 2,300 missions in the 11 weeks of airstrikes. U.S. Navy ships fired about 450 Tomahawk cruise missiles, at a price of about $ 1 million a missile. U.S. Air Force B-52 bombers launched 90 cruise missiles costing about $ 2 million apiece."44
Several hundred thousand refugees destabilized neighboring Macedonia and Albania. Macedonian officials resisted the influx of additional Muslims, forcibly relocating some to Albania. The UN High Commission for Refugees and non-governmental relief agencies struggled to relieve the extraordinary burden. The U.S. accepted 10,000 refugees, and NATO began preparing for up to 1.5 million displaced Albanians.
By mid May, Clinton began to reconsider his objection to the use of ground forces. Air strikes alone might not enable the refugees to return home before the harsh Balkan winter. Intensified bombing and a reinforced oil embargo apparently had not weakened the Yugoslav army. Blair began to deploy U.K. forces in Macedonia ostensibly for post-war peacekeeping, but possibly as an invasion force if required. NATO commander Clark requested 175,000 troops for an invasion, Clinton was asked to provide 120,000, and Blair prepared call up notices for 30,000.45 The CIA estimated that 10,000 to 15,000 might be lost in a ground war.46 Arming the KLA was also proposed.
Kosovo fractured both political parties and old ideological camps. Some domestic critics insisted the President deploy ground troops, while other foes demanded an end to the bombing. Liberal, humanitarian hawks, mostly Democrats, allied with conservative internationalists, mostly Republicans. In their view the U.S. is exceptional with unique responsibilities for world leadership--the indispensable power. The pro-war liberals applauded Presidential leadership in stopping genocide; An ardent Presidential defender in the impeachment hearings, Senator Robert Torricelli of New Jersey, now blamed Clinton for refusing to commit ground troops. The pro-war conservatives believed defeat would endanger vital security interests in Europe and U.S./NATO credibility. "Zbigniew Brzezinski, President Carter’s national security adviser, accused the administration of indulging in a new ‘technological racism’47 based on the premise that the life of ‘one American serviceman was not worth risking in order to save the lives of thousands of Kosovars.’"
In the opposing camp, anti-war liberals were allied with conservative isolationists--truly a new world order. Liberal religious pacifists rallied to denounce the bombing, and rule of law advocates protested Clinton's disregard for U.S. and international norms. They insisted that humanitarian ends could not justify violent and extra-legal means. Stray bombs killed innocent women and children turning Serb moderates against the U.S.
Conservative isolationists opposed shedding more U.S. treasure in another European quagmire. Submission to international organizations and compromise with weak allies undermined effective unilateral defense. The House Republican majority adopted a resolution opposing U.S. troop commitments for peacekeeping; on a tie vote they defeated a Democratic proposal to endorse Operation Allied Force. In the Senate, procedural tactics stopped debate on whether or not the President should use "all appropriate means." On his own authority, the Commander-in-Chief called up 5,000 reserves, and Congress duly appropriated all the funds he requested for military operations and humanitarian relief.
As he stood firm in the middle, Clinton lost points in the polls. Confused and undecided centrists questioned whether the President's strategy made sense. Sixty per cent thought it was an error to announce in advance that no ground troops would be used.48 Some pragmatists complained that the bombing had brought on the very evil it was intended to prevent. On May 10 Newseek reported fewer than fifty per cent approved the President's Kosovo policy. Jesse Jackson embarrassed the President with a mission to Belgrade resulting in the release of three U.S. soldiers in Serb custody. Investigative reporters concluded that Clinton had stumbled into war, distracted by impeachment proceedings and misled by a strong willed Secretary of State. Negative editorial commentary forecast disaster. The President responded in a May 23 column "A Just and Necessary War" in the New York Times indicating that "I do not rule out other military options."
NATO. Clinton enjoyed unprecedented support from German socialists, ex-peaceniks, and French officials long suspicious of U.S. power in Europe. Observers noting Clinton's partnership with British Prime Minister Tony Blair, dubbed the pair "Franklin and Winston."49 Greece and the new Eastern European members closest to the fighting resisted a wider war. The generals complained about political interference, but the consensus held. NATO Heads of State met in Washington for the 50th anniversary celebration and reiterated that "President Milosevic must:
The President visited NATO's Brussels headquarters in early May. By the end of the month NATO ambassadors had agreed on a post war peacekeeping force of 50,000. In preparation, the European partners began sending troops to Macedonia, and Washington deployed a contingent of 5,000. The British led other allies in contributing more to an intensified air campaign that had been primarily a U.S. operation. Blair and the British media pressed Clinton to approve ground troops to end the war, but the U.S. was not alone in opposition. Religious groups and anti-war activists on the continent began to have an impact. At a June economic summer alliance unity would continue to be tested.
Russia. As soon as Clinton initiated bombing, Russia and China cosponsored a Security Council Resolution denouncing the "flagrant" Charter violation and threat to international peace. India was not a Council member, but its representative joined China on behalf of half the world's population in opposing the unauthorized military intervention. Namibia was the only other Council member to vote with the two cosponsors, and the resolution failed 12-3. Representatives of NATO countries insisted that it was Yugoslavia which had breached the Charter. Two weeks later, Yeltsin blustered: "Do not push us towards military action or there will be at the minimum a European and possibly even a world war."51
The Russian President soon adopted a more collaborative approach through special envoy Viktor Chernomyrdin. In a meeting with Clinton's advisers, Chernomyrdin agreed to play a "good cop" negotiating role in partnership with Finland’s President Martti Ahtisaari as the "bad cop" threatening Milosevic.52 By early May the Russians had accepted the allies’ terms in a plan approved at a ministers conference in Bonn. Chernomyrdin reportedly advised Milosevic that Russia could not help if NATO invaded.53 Just when renewed diplomacy offered fresh hope, the Chinese Embassy was bombed. Not until June 2 did Russia and the West overcome last-minute difficulties to unite in presenting Milosevic with an international peace plan for Kosovo.
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The United Nations. In the main arena, the U.N. Security Council adopted a statement of concern about the embassy bombing that fell far short of China's call for express condemnation. Clinton also won a skirmish in the International Court of Justice. In 1992 Bosnia had charged Yugoslavia with genocide at the world court. Now Yugoslavia asked the ICJ to find ten NATO allies responsible for genocide, war crimes and violation of the U.N. Charter. Operation Allied Force trampled Charter principles commanding peaceful settlement of disputes and respect for sovereignty. NATO violated the laws of war in bombing that killed noncombatants and hit non-military targets--the Chinese Embassy, a passenger train, private residences, and a broadcast station. The U.S. avoided an ICJ decision on the merits by successfully arguing that Washington had not consented to the court's jurisdiction.54 |
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The chief prosecutor for the International Criminal Tribunal for Yugoslavia investigated Milosevic for crimes against humanity in Kosovo--mass murder, persecution and deportation. Clinton's advisers worried that Milosevic would become even more recalcitrant if threatened with criminal prosecution. The international community had never before charged a current head of state with war crimes. The U.S. had avoided threatening Japan's Emperor at the end of World War II. NATO forces in Bosnia had not arrested local Serb commanders under ICTY indictment. Holding Milosevic personally liable might prolong the Kosovo conflict. When the independent prosecutor announced the indictment of Milosevic and four subordinates, Clinton nevertheless proclaimed his firm support.
A lawyer from Greece formally requested the prosecutor to investigate and prosecute those responsible for NATO bombing that killed noncombatants in violation of the Geneva Conventions. ICTY investigations in Bosnia had produced indictments of Croats and Muslims as well as Serbs, but the prosecutor appeared likely to find in Kosovo that only Serbs would be held accountable.
In early June the bombing intensified, NATO commanders pressed Clinton to approve invasion, and Chernomyrdin and Ahtisaari issued credible warnings. Milosevic conceded. On June 9 Serbian generals formally signed an agreement to withdraw from Kosovo and allow NATO forces to bring the refugees home. A day later, the UN Security Council promptly endorsed settlement terms dictated by the allies. Russia's Council representative denounced the NATO air war before voting in favor of a NATO led peacekeeping mission involving 30 countries. Despite lingering outrage, China did not cast a veto. By a vote of fourteen in favor with one abstention, the Council approved interim U.N. administration of Kosovo guaranteed by NATO forces with Chapter VII authority to use force. NATO units could remain in Kosovo indefinitely until the Security Council formally ended their mission. NATO would consult with but not be commanded by U.N. Secretary-General Kofi Annan.
Operation Allied Force was over. Its NATO successor, Operation Joint Guardian would include 7,000 U.S. peacekeepers in a KFOR total of 50,000. In a June 10 public address to the nation President Clinton announced victory and the suspension of bombing. Serbian forces would evacuate Kosovo and be replaced by an international security force, paving the way for the return of Kosvar refugees and the restoration of self-government. Clinton branded Milosevic an indicted war criminal and accused him of trying to eliminate the Kosovars through a campaign of terror. While acknowledging the suffering of the Serbian people, Clinton laid the blame on Milosevic and dangled the promise of aid to Serbia if he was deposed. You may read the text or listen to a recording of the President's speech. (external link)
A U.S. poll indicated that 66% of the adult respondents supported the deployment of U.S. ground troops for international peacekeeping in Kosovo.55 Senate Armed Services and Foreign Affairs Committee hearings began the post-mortem. Would the reorientation of NATO set a precedent for future U.S. humanitarian intervention or stand as an exception? Domestic critics continue the debate over whether Clinton's response achieved too little by leaving Milosevic in power, or did too much, both in wartime collateral damage and in a postwar U.S. commitment to a Kosovo protectorate for the indefinite future. In June 1999, 6,700 of the 20,000 U.S. troops from 1996 remained in Bosnia, and "not a single Serb civilian attended the anniversary of the battle of Kosovo Polje."56
Exercises:
1. Answer the study questions for this section and review the correct responses.
2. Complete an Opinion Survey and compare your answers to public opinion poll results.
3. Write a response to the three part Essay Problem and then review a model legal analysis.
Practice Questions on Part IV, U.S. Operation Allied Force
1. Which group was most likely to oppose President
Clinton’s response to Kosovo?
There are no correct or incorrect responses to the following public opinion survey questions. After making your selections you may review below the responses that others gave in 1999.
2. All in all, do you think the situation in Kosovo was worth going to war over, or not?
Survey results from several polling organizations that posed the above questions can be reviewed, or you may proceed directly to write an analysis of the problem based on a three part essay question.
1. "Do you think the U.S. government's bombing Serb targets was the right or the wrong decision?" The Harris Poll. June 10-15, 1999. 1,006 adults nationwide. Asked of those who have seen, heard or read about recent events in Kosovo
2. "All in all, do you think the situation in Kosovo was worth going to war over, or not?" Gallup/CNN/USA Today Poll. June 25-27, 1999. 1,016 adults nationwide.
Note similar results to a comparable question: "Thinking about the current situation in Kosovo, do you think the U.S. involvement in the military conflict was or was not worth it?" NBC News/Wall Street Journal Poll conducted by the polling organizations of Peter Hart (D) and Robert Teeter (R). June 16-19, 1999. 1,000 adults nationwide.
Was worth it 58%
Was not worh it 33%
Not sure 9%
3."How would you rate President Clinton's handling of the situation in Kosovo?" The Harris Poll. June 10-15, 1999. 1,006 adults nationwide. Asked of those who have seen, heard or read about recent events in Kosovo
4. "How much credit do you think President Clinton deserves for the peace agreement that was reached in Kosovo?" Gallup/CNN/USA Today Poll. June 11-13, 1999. 1,022 adults nationwide.
5. If Europe ever experiences another genocidal holocaust, would you be more likely to approve or to disapprove unilateral or multilateral humanitarian intervention?
The Guardian/European Barometer Poll of 9,436 European adults from 12 countries between May 6 and May 22 produced the following results:
Overall: 49% Supported NATO intervention and 40% Opposed
Britain 54% Supported NATO intervention and 33% Opposed
France 68%Supported NATO intervention and 27% Opposed
Denmark 70% Supported NATO intervention and 20% Opposed
Greece 3% Supported NATO intervention and 97% Opposed
Other polls conducted in the first week of bombing indicated that 48% in Italy and 70% in China opposed NATO intervention. 3/26/99 Xinhua reporting on Italian Public Opinion Data Media/Il Tempo Poll. 4/9/99 LAT/Chinese Press Peoples Daily Poll approximately 4/1/99 by Chinese Academy of Social Sciences, 2000 adults from 5 largest cities
6. What if anything would have justified use of ground troops to assure victory?
According to a November, 1999 New York Times report, President Clinton in early June was preparing to approve ground troops to assure NATO success, even if some allies strongly disapproved. Steven Erlanger, "With Milosevic Unyielding on Kosovo, NATO Moved Toward Invasion," New York Times November 7, 1999.
An April poll asked: "Please tell . . . whether or not you would support sending U.S. ground troops to Yugoslavia in the following circumstance: To force Yugoslav President Milosevic to agree to a NATO peace plan." Newsweek Poll conducted by Princeton Survey Research Associates. April 29-30, 1999. 751 adults nationwide.
Would 50%
Would not 42%
Don’t Know 8%
7. Which individuals should the U.N. have the authority to investigate for alleged violations of the Geneva Convention and, if sufficient evidence is found, to prosecute and to punish?
Agence France Press asked 100 adults in Greece "Who should be tried for War crimes?" and reported the following results on May 26, 1999:
Blair 35%
Clinton 75%
Milosevic 14%
8. How interested would you be in the following Kosovo related activities?
Note the Harris poll above attempted to report informed opinion by asking respondents whether they had "seen, heard or read about recent events in Kosovo, with bombing by U.S. and NATO airplanes, and Albanian refugees fleeing from their homes, or not?" 94% replied yes.
All things considered, do you think that the U.S. and NATO made the right decision or the wrong decision to conduct airstrikes against Serbia to force them to agree to the terms of the peace agreement and end the fighting in Kosovo?
1. Your analysis of whether the decision was right or wrong should rest on clearly stated criteria: select any one of the following:
a) Legal: U.S. and international norms, Constitution, treaties, statutes, custom
b) Moral: ethical principles to do no harm and to alleviate othersŐ suffering, Just War concepts, natural law, ends and means, right and might
c) Military: strategic doctrine, unity of command, deterrence
d) Political: rational choice, democratic process, foreign policy goals, balance of power, regional stability, state sovereignty, universal human rights
Identify your criteria in the essay title:
"The Kosovo Just War Problem: A _______ Analysis" (insert one) Legal Moral Military Political
2. Once you have determined which set of principles to apply, your analysis should identify the strongest possible arguments and evidence on both sides of the question.
a) Write at least one paragraph providing the strongest reasons, arguments, and evidence why the decision could be viewed as "wrong" (illegal, or immoral, or militarily defective, or bad public policy.)
b) Write at least one paragraph providing the strongest reasons, arguments and evidence why the decision could be viewed as "right" (legal, or moral, or militarily effective, or good public policy.)
c. Write at least one concluding paragraph explaining how you evaluate conflicting principles, competing arguments, and evidence to reach a final judgment about whether the decision to conduct airstrikes was right or wrong.
After completing the essay, review a model answer that applies legal principles from U.S. and international law both to indict and to defend NATO air strikes. The model answer does not pass judgment on the legality of U.S. and NATO intervention. It is provided to help students appreciate that the best answers clearly organize logical reasons supported by appropriate evidence.
1. Provide the strongest reasons, arguments, and evidence why the decision could be viewed as "wrong" (illegal, or immoral, or militarily defective, or bad public policy.)
After completing your own written analysis, review a two part model essay that applies legal criteria. Additional discussion questions raise further issues for consideration.
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
1. What U.S. interests justified military intervention in the Balkans?
2. Was it reasonable to expect air strikes alone to force Milosevic to admit peacekeepers immediately, or should President Clinton have prepared combat units to stop new Serbian atrocities in Kosovo?
3. Was it reasonable to assume that a NATO protectorate in Kosovo could resolve the Balkans conflict if Milosevic remained in power?
4. Was prior Congressional approval for military intervention required under the Constitution or War Powers Resolution?
5. Should a lame duck, Democratic President, impeached by the House of Representatives and on trial in a Republican controlled Senate have attempted to lead the United States against Milosevic?
6. Did the United Nations Charter require prior Security Council approval for NATO air strikes on Yugoslavia?
7. Did the NATO Treaty limit allied military action to defense of a member state?
8. Should the ICJ find that the collateral damage caused by NATO bombing violated the Hague and Geneva Conventions?
1 Albanian Muslims prefer Kosova to Kosovo. The case was developed with grant support from The U.S. Institute of Peace.
2 "Method to the Madness," Decision Brief (Center for Security Policy, Washington, D. C.), October 2, 1992, p. 3 quoted by Barton Gellman, "The Path to Crisis: How the United States and Its Allies Went to War," Washington Post, April 18, 1999, p. 1.
3 Gellman, n.2.
4 Mark Danner, "Endgame in Kosovo," The New York Review of Books; May 6, 1999; pp. 8-11.
5 Brenda Simms, Review of Kosvo Crossing by David Fromkin, Wall Street Journal, August 3, 1999. Citing Robert Kaplan, Balkan Ghosts: A Journey Through History (New York: St. Martins, 1993).
6 Testimony before the Senate Foreign Relations Committee, Washington, D.C. Federal Document Clearing House, Inc. June 24, 1999.
7 Special envoy Robert Gelbard and Muslim leader Ibrahim Rugova. Elaine Sciolino and Ethan Bronner, "How a President, Distracted by Scandal, Entered Balkan War," New York Times Apr 18, 1999, p. 1.
8 Michael Hirsh and John Barry, "How we stumbled into war," Newsweek; Apr 12, 1999; pp. 38-40.
9 "A Plan for Kosovo," The Washington Post , February 5, 1999, p. 33.
10 Sciolino and Bronner, n. 7.
11 Sciolino and Bronner, n. 7.
12 Gellman, n. 2.
13 Bronwen Maddox, "The 80 days war," The Times (London), July 15, 1999.
14 Hirsh and Barry, n. 8.
15 Sciolino and Bronner, n. 7.
16 Letter of December 22, 1998. The group included Senators Richard G. Lugar, R-Ind., Jesse A. Helms, R- N.C., Joseph I. Lieberman, D-Conn., and Robert Kerrey, D-Neb.
17 50 U.S.C. 1543(a), 1544(b) (1988).
18 " Excerpts: The Great Debate on War Powers, National Law Journal, January 21, 1991, p. 26.
19 Dellums v. Bush, 752 F. Supp. 1141, 1145 (D.D.C. 1990).
20 Interview With Radio Reporters, 29 Weekly Comp. Pres. Doc. 2097 (Nov. 11, 1993). See also Letter from Assistant Attorney General Walter Dellinger to Sen. Robert Dole et al. (Sept. 27, 1994), in 140 Cong. Rec. 140, at S14314 (1994) as cited in Mary Ellen O’Connell , "The U.N., NATO, and International Law After Kosovo," Human Rights Quarterly, 22:1, February, 1999.
21 The President's News Conference, 30 Weekly Comp. Pres. Doc. 1616 (Aug. 3, 1994).
22 Michael J. Glennon, "War and Responsibility: A Symposium on Congress, the President and the Authority to Initiate Hostilities: Too Far Apart: Repeal The War Powers Resolution," 50 University of Miami Law Review, 1995, p. 17.
23 "House Refuses to Lift Restriction on President's War Authority," Sacramento Bee, June 8, 1995, p. A4. When Senator Jesse Helms asked whether she personally favored repeal of the War Powers Resolution, Albright replied yes. Senate Foreign Relations Committee Hearing on the Contract with America Defense Policy Provisions, Federal News Service, March 21, 1995. Clinton foreign policy adviser Anthony Lake and others called for amendments to allow for more than a 60 day commitment to UN peacekeeping under U.S. command.
24 NATO, Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation Paris, 27 May 1997.
25 Helen Dewar & Guy Gugliotta, "Senate Backs Troops to Bosnia; House Retreats on Funds Cut-off," Washington Post, December 14, 1995, p.1.
26 "Congress and Bosnia," Washington Post, December 15, 1995, p. 24.
27 R. Kent Weaver, Automatic Government: The Politics of Indexation, Brookings, Washington, D.C. 1988, pp. 18-19.
28 John H. Ely, War and Responsibility, Princeton University Press, 1993 p. 54 as quoted in Glennon.
29 Mitch McConnell, "Independence For Kosovo," The Washington Post, January 22, 1999, p. A35.
30 Glennon, The document was entered in the Congressional Record. 140 Cong. Rec. H6433 (daily ed. July 28, 1994) (Memorandum from U.N. Special Envoy Dante Caputo).
31 Gellman, n. 2.
32 Changing Our Ways : America and the New World, Carnegie Endowment for International Peace National Commission, Washington, DC : Carnegie Endowment for International Peace, 1992 p. 51. Other Commission members who joined the Clinton administration included Henry Cisneros, Alice Rivlen and David Gergen.
33 U.N. Doc. S/RES/1198 (September 23, 1998) as cited by O’Connell.
34 Remarks of Secretary of Defense William S. Cohen at Los Angeles Foreign Affairs Council Breakfast, Federal News Service, June 29, 1998, p. 10, cited in O'Connell.
35 Quoted in Simma, NATO, the UN and the Use of Force, supra note 63, at ___. and cited by O'Donnell.
36 Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation Paris, 27 May 1997.
37 Yulia Petrovskaya, "Mass murder in Kosovo alarms the world," The Current Digest of the Post - Soviet Press v51 n3 February 17, 1999. p.19-20.
38 George J. Tenet. Scoliono and Bronner.
39 Testimony before the Senate Foreign Relations Committee, Washington, D.C. Federal Document Clearing House, Inc. June 24, 1999.
40 Maddox, n. 13.
41 Maddox, n. 13.
42 Maddox, n. 13.
43 According to a February 2000 Human Rights Watch Report.
44 Tom Raum, "U.S. spent $ 2-4 billion on Kosovo Peace will be costly, too," The Des Moines Register, June 28, 1999, p 1.
45 Steven Erlanger, "With Milosevic Unyielding on Kosovo, NATO Moved Toward Invasion," New York Times November 7, 1999.
46 Jamie Dettmer, "Kosovo ground war--CIA says 15,000 U.S. dead," Insight on the News v15 n19 May 24, 1999. p. 6.
47 R.W. Apple, "A Domestic Sort With Global Worries," New York Times, August 25, 1999, p. 1 quoting an op ed column from The Wall Street Journal.
48 Hirsh, n. 8.
49 Hirsh, n. 8.
50 NATO A joint statement was released by the heads of state and government participating in the meeting of NATO on Apr 23-24, 1999 on NATO's involvement in Kosovo Yugoslavia.
51 Maddox, n. 13.
52 Maddox, n. 13.
53 Erlanger, NY Times, Nov. 7, 1999.
54 International Court
of Justice, Legality of Use of Force (Yugoslavia v. U.S..), 1999 I.C.J. ___
(Request for the indication of provisional measures of 29 April 1999.)
http://www.icj-cij.org/cijwww/idocket/iyall/iyall_cr/iyall_iyus_icr9924_19990511.html.
55 Gallup/CNN/USA Today Poll. Latest: June 25-27, 1999. N=1,016 adults nationwide. "Do you favor or oppose the presence of U.S. ground troops, along with troops from other countries, in an international peacekeeping force in Kosovo."
56 Maddox, n. 13.
Books, Journal and Periodical Articles
Allison, Graham. And Philip Zelikow, Essence of Decision: Explaining the Cuban Missile Crisis. 2nd ed. New York: Longman, 1999.
Clinton, William Jefferson. "A Just and Necessary War," The New York Times, May 23, 1999, Sec. 4; p. 17.
Danner, Mark. "Endgame in Kosovo," 46 New York Review of Books, May 6, 1999, p. 10.
Cohen, William. at Los Angeles Foreign Affairs Council Breakfast, Federal News Service, June 29, 1998, at 10,cited in Mary Ellen O’Connell , "The U.N., NATO, and International Law After Kosovo," 22 Human Rights Quarterly, February 2000.
Ely, John Hart.War and Responsibility, Princeton University Press, 1993.
Fromkin, David. Kosovo Crossing," Free Press, 1999.
Gellman, Barton. "The Path to Crisis: How the United States and Its Allies Went to War," Washington Post, April 18, 1999, p. 1.
Glennon, Michael. "War and Responsibility: A Symposium on Congress, the President, and the Authority to Initiate Hostilities: Too Far Apart: Repeal the War Powers Resolution," 50 University of Miami Law Review (1995), p. 17.
Hirsh, Michael and John Barry. "How we stumbled into war, " Newsweek; April 12, 1999.
Hirsh, Michael. "War on many fronts," Newsweek; May 10, 1999, pp. 60-62.
Kaplan, Robert. Balkan Ghosts: A Journey Through History (New York: St. Martins, 1993)
Mertus, Julie A. "Kosovo, How Myths and Truths Started a War," (1999); The Balkans, The Economist , January 24, 1998, p. 3.
Neustadt, Richard E. and Ernest May, Thinking in Time: The Uses of History for Decision Makers. New York: Free Press, 1986.
O’Connell , Mary Ellen. "The U.N., NATO, and International Law After Kosovo," 21 Human Rights Quarterly, 22:1, February 2000.
Maddox, Bronwen. "The 80 days war," The Times (London), July 15, 1999.
Sciolino, Elaine and Ethan Bronner, "Crisis in the Balkans: The Road to War," The New York Times, April 18, 1999 p. 1.
Government Documents
William J Clinton, Address to the nation on airstrikes against Serbian targets in the Federal Republic of Yugoslavia (Serbia and Montenegro) March 24, 1999Weekly Compilation of Presidential Documents; Washington; Mar 29, 1999; Volume: 35 Issue: 12 Start Page: 516. http://www.channel6000.com/news/kosovo/news-kosovo-990324-193103.html
Address to the Nation on the Military Technical Agreement on Kosovo, Public Papers of the Presidents, June 10, 1999 35 Weekly Comp. Pres. Doc. 1074.
International Court of Justice, Legality of Use of Force Yugoslavia v. U.S. (Request for the indication of provisional measures of 29 April 1999.) http://www.icj-cij.org/icjwww/idocket/iyus/iyusframe.htm
NATO The North Atlantic Treaty, Washington D.C. - 4 April 1949 North Atlantic Treaty, 34 U.N.T.S. 243. http://www.nato.int/
NATO Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation, Paris, 27 May 1997.
NATO Joint statement was released by the heads of state and government participating in the meeting of NATO on Apr 23-24, 1999 on NATO's involvement in Kosovo Yugoslavia.
United Nations S/RES/1199 (1998) __ September 1998.
United Nations S/RES/1244 (1999) 10 June 1999 Adopted by the Security Council at its 4011th meeting, on the deployment of international civil and security presence in Kosovo 10 June 1999, 8 p. http://www.un.org/Docs/scres/1999/99sc1244.htm
U.S. Senate Foreign Relations Committee, Washington, D.C. Hearings on U.S. Policy in the Balkans, Richard Holbrooke testimony, Federal Document Clearing House, June 24, 1999.
U.S. Senate Armed Services Committee, Washington D.C., Hearing on Kosovo, Federal Document Clearing House, Inc. Political Transcripts July 20, 1999.
1. The Mission
For each number, select the correct response a. Kosovo b. Bosnia c. Croatia d. Serbia e. Yugoslavia
1. Montenegro never seceded and remains a junior partner Yugoslavia
2. Territory where Ottoman Turks defeated Serbs in 14th Century Kosovo
3. Predominantly Eastern Orthodox province of former Yugoslavia Serbia
4. Nationalist leader Milosevic intensified wars of Yugoslav succession Serbia
5. Most likely to ally with Albania Kosovo
6. Fascist allies of Nazi Germany engaged in WWII atrocities Croatia
7. Four year NATO peacekeeping mission protects a fragile federation Bosnia
8. Tito’s leadership maintained unity with minority rights Yugoslavia
9. Province of former Yugoslavia with 3 major religious groups Bosnia
10. Predominantly Roman Catholic province of former Yugoslavia Croatia
11. Which group would be most likely to want President Clinton to protect Kosovo’s Albanian Muslims?
*a. Turkish descendants of the Ottoman Empire
b. Eastern Orthodox Greek descendants of the Byzantine Empire.
2. The Home Front
1. Which precedent offers the greatest support for President Clinton to exercise unchecked power as Commander in Chief?
a. The 1960s Tonkin Gulf Resolution authorizing a military response after communist North Vietnamese ships attacked a U.S. destroyer
b. The 1991 debate and vote in Congress to approve Operation Desert Storm before U.S. ground troops initiated combat in the Gulf War.
*c. The 1983 Reagan administration deployment of U.S. peacekeepers in Lebanon without regard for the War Powers Resolution
2. Which rule of law provides the greatest legal authority for President Clinton to initiate military action?
a. U.S. Constitution, Article I
*b. U.S. Constitution, Article II
c. 1973 War Powers Resolution
d. 1949 NATO Treaty
e. Dayton Peace Accords
3. If persuaded that military intervention was needed, which individual would be most likely to prefer a unilateral U.S. military operation rather than a multilateral campaign?
a. Robert Dole *b. Jesse Helms c. Boutros Boutros Ghali
*a. John Ashcroft b. George Bush c. Colin Powell d. Ronald Reagan
5. In which situation did Congress take equal responsibility with the President for a military initiative that could have brought blame as well as credit?
a. Haiti b. Grenada c. Somalia *d. Iraq
6. In which case did a Democratic majority in Congress allow a Republican President to ignore the War Powers Resolution?
a. Bosnia b. Haiti *c. Somalia
7. If true, which might best be described as a "wag the dog" military intervention for personal political gain? Clinton deciding to
a. protect Bosnia’s Muslims with U.S. air power to avoid the kind of genocide which resulted after inaction in Rwanda
*b. stop Serb atrocities in Kosovo to win public support against domestic political adversaries seeking to cripple his Presidency
c. stop Haitian refugees from fleeing to the U.S. by overthrowing that country’s oppressive military government
3. International Arena
1. Which would be the best legal authority for NATO military intervention?
a. The U.N. Charter Article 2(4)
b. 1997 Founding Act, NATO and Russia
*c. Customary international law
d. The U.N. Charter, Chapter VII, Article 51
2. Which Presidential adviser would have the most direct command responsibility for any military action Clinton initiated?
a. National Security Adviser Berger
b. Secretary of State Albright
*c. Secretary of Defense Cohen
3. Which institution would afford Boris Yeltsin the greatest opportunity to check NATO?
*a. U.N. Security Council
b. Organization of Security and Cooperation in Europe
c. Balkans Contact Group
4. Which case illustrates the Security Council’s inability to act?
a. Resolution approving Operation Restore Hope in Somalia
*b. Uniting for Peace Resolution to continue UN multilateral action in Korea
c. Resolution authorizing a collective response when Iraq invaded Kuwait
5. Which office would be most supportive of Yugoslavia’s sovereignty?
*a. President of Russia
b. Supreme Allied Commander Europe (SACEUR)
c. U.N. Secretary General
6. The Rambouillet talks were less successful than the Dayton mediation because
*a. Milosevic refused to negotiate
b. NATO foreign ministers were divided
c. The KLA demanded independence
7. Milosevic apparently feared that
a. KFOR would stop ethnic cleansing
*b. The KLA would acquire sovereignty in Kosovo
c. NATO bombing would destroy Serbia
8. Why did President Clinton declare that he would not send U.S. ground troops into Kosovo?
a. Respect for the U.N. Charter
b. Deference to the U.S. Constitution
c. Concern that Serb forces were superior
*d. Concern about domestic opposition to casualties
9. What explanation for his response to Kosovo would Clinton find most objectionable?
a. prevent wider war in the Balkans destabilizing U.S. allies
*b. rally U.S. public opinion to support the Commander in Chief
c. prevent Serb atrocities against Albanian Muslims in Kosovo
d. maintain NATO credibility
4. A Just War?
1. Which group was most likely to oppose President Clinton’s response to Kosovo?
a. Carnegie Endowment National Commission on America and the New World
b. Anti-war liberals from the 1960s who opposed South Vietnam's persecution of Buddhists and political dissidents.
*c. Conservative opponents of the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO).
2. Which argument offers the best support for President Clinton’s response to Kosovo?
*a. Appropriation of funds for Operation Allied Force by Congress and Security Council approval of NATO peacekeepers retroactively legitimized U.S. policy.
b. Massive human rights violations do not justify U.S. high tech measures that kill enemy combatants and non-combatants with minimal risk to American lives.
c. Since absolute power corrupts absolutely, U.S. "hyper-power" must submit to international law and intergovernmental organizations with universal membership.
3. Which argument offers the most serious challenge to President Clinton’s response to Kosovo?
*a. Selective humanitarian intervention appears arbitrary when the U.S. and U.N. ignore Chechnya, Kashmir, and Tibet.
b. KLA refugees might provoke Yugoslavia to attack Macedonia and Albania.
c. The War Powers Resolution clearly violated the Commander-in-Chief’s constitutional powers under Article II.
4. If Milosevic had not conceded, what would Clinton have been most likely to do next?
*a. deploy ground troops in preparation for an occupation of Kosovo
b. propose UN Security Council approval of a NATO occupation force
c. seek US Congressional approval for a ground war
d. arm KLA refugees in Albania to expel Serbs from Kosovo
