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Morgan Institute for Human Rights

A Just War? President Clinton's Response to Kosovo

Copyright © ISSN 1529-2215. All Rights Reserved

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The Educator’s Guide to Teaching Human Rights Online provides a brief theoretical rationale for online instruction and explains how e-case study guides were designed to foster critical thinking and collaborative problem solving. This Teaching Note for "A Just War?"

1. identifies teaching objectives and appropriate courses that might spend one to three sessions on the case
2. offers class discussion questions with sample answers
3. explains role-playing options for class simulation and conferencing online.

The goal is to use instructional technology for active learning that enhances faculty-student interaction and to resist computer applications that dehumanize education. Feedback offering ideas for other instructors will be reviewed for possible sharing so that new faculty using THRO cases may benefit from specific recommendations based on classroom experience.

Course Objectives

"A Just War?" confronts students with the political, legal, and moral choices that U.S. policymakers faced when Yugoslavia violated the human rights of Albanians in Kosovo. The case engages students in critical thinking about the decision to launch a multilateral NATO bombing campaign. The President’s top advisers all recommended he initiate an air war against Yugoslavia. Could a lame duck Democratic President, impeached by a Republican controlled Congress successfully lead the U.S. and its NATO allies into a European War? What were the U.S. interests in Kosovo? Could an air campaign succeed without invading Yugoslavia and removing Slobodan Milosevic from power? The goal is to promote both understanding of U.S. foreign policy and higher order cognitive skills.

Up to two hours may be required to complete all the background reading and practice questions. For a shorter assignment, students can complete the exercise without reading the President’s two speeches. All the self assessment multiple choice and essay questions can be completed without reading either address. If there is only time for one, his May 24 address should be assigned.

The problem was prepared for upper division undergraduate political and social science classes on International Law and Organizations, U.S. Foreign Policy, International Relations, Comparative Government, Contemporary Moral Issues, and Human Rights. Instructors and students in other disciplines, at other educational levels, and in other countries may also benefit from the exercise. Peer review and pilot tests indicate the exercise may not be suitable for less advanced students and instructors in other subject areas.

The teaching objectives include basic lessons drawn from current theories of international relations, U.S. foreign policy, international law and organization.

• However weak in domestic politics, a U.S. President retains ultimate authority in making war and the conduct of foreign policy.
• The U.S. and international legal restraints on Presidential war-making power are ineffective.
• Human rights as well as geopolitical concerns have now become a U.S. national interest and foreign policy concern sufficient to justify military intervention.
• Military enforcement of international human rights may violate the rights of noncombatants caught in the line of fire
• When the cold war ended, the U.S. became the dominant power in a unipolar world

Scheduling Options: The problem should be scheduled during the term when other reading assignments, activities, and lectures address similar issues. Instructors should decide how much if any class time will be allocated for the exercise--one, two or three sessions. The case can be used as an outside assignment with or without class discussion, for in-class simulation, and for a text chat or video conference between students at different universities.

Class Discussion After Outside Assignment

Students who prepare in advance contribute most effectively to class discussion. Two hours of preparation with the Just War exercise is recommended for a one hour class meeting. The problem includes 8,000 words of reading, 31 multiple choice questions, and a three part essay problem. A set of forced choice questions follows each section of readings, and the program identifies correct choices after students answer. The final assignment is to write a three-part essay of up to 1,000 words before reviewing the model answer provided online--a two part 750 word legal analysis. The self assessment tools have far less value for students who look ahead in order to answer the questions correctly and to improve their essay.

Students should email or print out and submit their answers in class, and full credit should be awarded for completing the exercises. By awarding an equal pass to every student who turns in a completed printout, the instructor can promote a more genuine student effort to understand the material. Those who do poorly should be encouraged to repeat the exercise and learn from their errors. Submission of a perfect score ought to earn the same passing grade as a paper with many errors. The e-case questions are for learning, not for evaluation.

Eight additional short essay/discussion questions are posed at the end of the online exercise without any model answers. The instructor may use those questions as an alternative essay assignment, for in class discussion, or on a written test of student’s ability to apply concepts learned by doing the web exercise. A paragraph responding to each of those questions appears below.

In order to develop analytical skills, students should write papers assessing the strengths and weaknesses of arguments for both sides. Students might consistently favor one party, or attempt a synthesis of the rival positions. All choices should be carefully reasoned and cogently explained.

Student’s written essays should be printed in duplicate and one copy submitted at the start of class discussion. All should be encouraged to mark up their own copies as class discussion of each question proceeds. Once students receive prompt feedback during class, the instructor will then have less need to write comments on the papers submitted for credit.

In order to encourage collaborative problem solving and broader participation, the instructor may have class work groups debate the pros and cons of NATO intervention. Individuals in each class group should compare their written answers, noting areas of consensus and disagreement. A designated reporter from each group may then give an oral summary to initiate discussion by the entire class. Individuals who rarely volunteer an opinion might be invited to read a brief conclusion from their written answer to an assigned question.

Class discussion may also focus on different response options provided for the multiple choice questions, especially when students dispute the correct option used in the scoring rubric. All the questions and correct answers can be printed in advance. Selected multiple choice items can be prepared as an overhead transparency to assist the analysis in class.

1. Which argument offers the best support for President Clinton’s response to Kosovo?

2. Which argument offers the most serious challenge to President Clinton’s response to Kosovo?

1. Selective humanitarian intervention appears arbitrary when the U.S. and U.N. ignore Chechnya, Kashmir, and Tibet.
2. *KLA refugees might provoke Yugoslavia to attack Macedonia and Albania.
3. The War Powers Resolution clearly violated the Commander-in-Chief’s constitutional powers under Article II.

As students express competing views, the class may or may not be divided along the domestic fault lines identified in the problem. Do some liberal students argue like humanitarian hawks and find common ground with conservative internationalists who want to defend U.S. geopolitical interests in Kosovo? Do students who oppose U.S. military intervention divide into an anti-war liberal pacifist group and a more conservative cluster opposed to U.S. multilateral, international engagements? If those categories do not fit, is there an alternative classification that better explains the division among students and in U.S. public opinion?

Essay Question(s) Was the NATO decision right or wrong? What criteria apply?

Many students expect correct answers. The instructor’s challenge is to help them identify an appropriate normative framework for evaluation and to articulate the most relevant criteria for reasoned judgment. In Essence of Decision Graham Allison identifies three distinct lenses of analysis. Bureaucratic and institutional imperatives may conflict with a rational choice approach. Clinton may be judged differently based on distinct ethical, political, legal, and military perspectives.

Was the best military strategy improperly compromised by deference to political considerations? Allied commanders had to balance unity of command and consensus decision making.

Was there a higher ethical duty that justified disregard for the law? The instructor may want to explain conflicting moral principles that are not considered in the materials online. "Non-maleficience" means "do no harm," inflict no injury or suffering on innocent victims. "Beneficence" mandates doing good, protecting others from harm, and alleviating suffering. In order to reconcile those norms in Kosovo, students may debate whether the ends justifies the means and whether might makes right.

Here are possible responses to the additional discussion questions that instructors may use to promote political and legal analysis in class or as essay questions on an examination:

Discussion Questions:

1. What U.S. interests justified further military intervention in the Balkans?

The region has little economic importance to the U.S. President Clinton identified both geo-political and moral interests. Instability in the Balkans might trigger a larger European war and/or topple friendly governments in Macedonia. NATO’s credibility, as well as U.S. prestige was on the line. Many also recognize an ethical duty to prevent genocide, never again, especially in Europe. Values either trump interests or are distinct interests.

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?

Air power had succeeded in Bosnia, but Kosovo was far more important to Milosevic. Assembling an invasion force would have given Milosevic time to expel Albanian Muslims and Congressional Republicans an opportunity to block an invasion. In the Gulf War months of bombing preceded use of ground troops and helped prepare public opinion. Clinton obviously miscalculated how much bombing would be required, and reasonable minds will disagree over whether the growing likelihood of a ground invasion or intensified bombing produced victory.

3. Was it reasonable to assume that a NATO protectorate in Kosovo could resolve the Balkans conflict if Milosevic remained in power?

Reasoning by analogy it can be argued that a similar arrangement in Bosnia does (or does not) offer a promising model; that in Belgium and Switzerland multi-ethnic societies have peacefully shared political power. After World War II German leaders were removed and punished, but the Emperor of Japan remained in office with diminished authority. Allied occupation of those rogue states ultimately was required to transform those nations into good world citizens.

All recent presidents have read the resolution in ways contrary to its express meaning. Perhaps that has de facto legitimized unilateral war making by the Commander in Chief. Congressional appropriations to support U.S. military action that was never formally authorized also indicates post hoc acquiescence. Nevertheless, some would still argue that the Constitution’s plain meaning and the intent of the framers has been repeatedly violated.

Woodrow Wilson won European support for a new League of Nations but was too weak a Democratic President to secure Republican Senators approval for U.S. participation. Through World War II and most of the Cold War, "politics stopped at the water’s edge" and U.S. foreign policy was more bipartisan. Clinton had some Republican support for intervention, and his top foreign policy advisers were not influenced by partisan political considerations. Ultimately, Clinton demonstrated that he retained sufficient authority to prevail over political adversaries who opposed intervention.

Some argue that the customary international law norm allowing humanitarian intervention survived agreement on Article 2(4) of the U.N. Charter. Others parse the "territorial integrity" phrase of that article to argue that humanitarian intervention involves only temporary occupation not permanent seizure. Moreover the intervention supports the "purposes and principles" of the U.N. Multilateral intervention that does not advance the political or economic interests of a neighboring state may serve a higher end. Others will reject such reasoning as unpersuasive given the letter and spirit of the Charter language and its provisions entrusting the Security Council with a monopoly on the use of force.

7. Did the NATO Treaty limit allied military action to defense of a member state?

Both the NATO Treaty and the unenforceable Partnership for Peace Agreement with Russia provide no express authority for the allied bombing of Yugoslavia. There had been greater consultation with Russia before intervention in Bosnia, but that precedent clearly expanded NATO’s mission without a formal treaty amendment. In the same way that U.S. government practice accepted by the Supreme Court has informally amended express provisions of the U.S. Constitution, it now appears that NATO has acquired more power than originally envisioned by the treaty authors. Critics wondered whether NATO might now intervene outside Europe for humanitarian. Whatever checks exist appear more political than legal.

The court properly found that in the absence of formal consent, it had no jurisdiction over the U.S. and Spain. Although unwilling to favor Yugoslavia’s claims against eight other NATO members who had consented to ICJ jurisdiction, the court did indicate some disapproval of the bombing targets and will conduct further review. Humanitarian law seeks to regulate military conduct and policy that would be considered nonjusticiable political questions in U.S. courts. The ICJ has issued an advisory opinion against the use of nuclear weapons, and might in future offer a more critical judgment of NATO bombing in Yugoslavia. Human Rights Watch alleges the failure to mitigate civilian deaths is a violation of the Geneva Convention. The report states that NATO pilots should have done more to identify targets properly, although it also points to evidence that in at least one case, Yugoslav forces used displaced civilians as human shields. In January 2000, the International Criminal Tribunal for the Former Yugoslavia considered the possibility of NATO war crimes. NATO’s use of cluster bombs and targeting of Serb electric grids and bridges have been identified as problem areas.

Finally: Was the Just War exercise politically slanted or did it give balanced treatment to the issues?

The author welcomes feedback to determine whether proponents and opponents of intervention agree on which point of view the exercise favors.

Simulation Following Class Discussion

One or two extra class sessions are required for role-playing. The course syllabus or other advance handout should specify the simulation date, offer a preliminary introduction to the different roles, and provide a response form if students are invited to express a preference for a particular role. It is best to schedule one class session between the initial class discussion and the subsequent role play. After an initial reading of the problem, students need time to prepare while the class has other assignments, activities and lectures on related subjects. The instructor should set a date before the class simulation for students to post advocacy arguments on an electronic bulletin board and to exchange email. WWW.Nicenet.org provides a free service for email exchange and threaded discussion. The instructor who creates a Nicenet class can provide the access code on the syllabus or simulation handout.

The instructor may give students a choice of position or assign roles either to individuals or to teams organized for collaborative problem solving. Some students eagerly self identify as liberal or conservative, idealist or realist. Those who do not should never be required to disclose their personal political beliefs. Learning is advanced however when students try out unwelcome ideas; the most effective advocates practice by switching sides. Over the course of a term, each student should be required to play one liberal/idealist role and another conservative/realist part. The instructor should encourage students, especially those planning a legal career, to accept a role at odds with their personal convictions.

Romm and Mahler argue that simulation and role-playing are especially educational as "valuing can be achieved when students actually play a character. By experiencing a character as oneself they go beyond a mere accepting of the character’s point of view that is typical of ‘responding’, into an active involvement, internalization and commitment to it ." Assigning students an unpopular role promotes understanding of alternative values. As advocates for a human rights or for a government position they categorically reject, students may become less certain of their knowledge, more willing to entertain new ideas, to learn by questioning. Whether or not they ultimately modify deeply held personal beliefs, the exercise can provide fresh information and the ability to rebut an adversary.

The number of roles will vary based on class size and whether the instructor prefers to involve selected members or the entire class. Simulated litigation may have as few as three participants–two opposing counsel and one judge. An ICJ simulation could have up to fifteen judges and up to eight attorneys on teams of two or more co-counsel assigned to argue different issues in the case. The U.N. Security Council has fifteen members, but the number of assigned roles could be higher or lower–state delegations with several members, or a role-play limited to the five permanent members. If classroom seating can be rearranged, have opposing counsel face each other, the judge(s), and/or the class. For a U.N. simulation, placards identifying each country delegation by name should be in alphabetical order. The pecking order of advisers at a cabinet meeting can be clarified by an arrangement that sets the chief executive apart.

Unless the instructor expects students to master the format of appellate briefs or U.N. documents, written advocacy papers need not satisfy special technical requirements. Advance substantive preparation counts more than format. Co-counsel and members of the same delegation should collaborate on position papers by meeting outside of class or exchanging email. Writing assignments and grades may be individualized or group based. Each student may be required to write an original advocacy paper. Alternately group members could contribute separate sections of a combined presentation. Some instructors promote collaboration by requiring a group project that results in either a single grade for all contributors or evaluation that incorporates peer assessment. Students playing roles should post their advocacy papers online and send them by e-mail to the entire class 48 hours prior to the in class simulation. Advance notice is critical for others to prepare their presentations, questions, and rebuttal. Instructors may require submission of a hard copy immediately, but students will learn more if allowed to revise their work after the in-class simulation. By awarding a separate performance grade for oral presentation, the instructor recognizes a distinct communication skill.

An instructor who plays a major role in the simulation can focus student attention to issues that might otherwise be neglected. In the role of a decision maker--chief judge or executive--the instructor can thoroughly question student advocates, challenge their arguments, request more persuasive evidence, and demand improved analysis of precedent. Class members who write papers on the problem but do not have an advocacy role can also serve as judges or committee members, posing additional questions to student counsel.

The role-playing may conclude with a formal vote that could be limited to decision makers in the simulation or opened to the entire class. As much as 25% of the time spent playing-roles should be allocated for post-simulation debriefing. The students must consider what broader lessons can be derived from the case problem, and the instructor must follow-up as needed to realize course objectives. Here are four possible simulations.

1. International Court of Justice

Issues:

Depending on the number of parties and issues identified and the number of judges participating, the simulation can work with as few as three students, and it is possible to involve up to twenty-five. The instructor should assign opposing counsel to prepare oral argument and direct judges to prepare questions. Yugoslavia’s legal team included Rodoljub Etinski, Chief Legal Adviser in the Ministry of Foreign Affairs, Professor of International Law, Novi Sad University; and Ian Brownlie, C.B.E., Q.C.,Chichele Professor of Public International Law, Oxford, as Co-Agent. David R. Andrews, Legal Adviser Department of State led the U.S. side.

Additional information is available online at the ICJ web site, but no additional assignments are needed for students to conduct the simulation. The instructor may play the role of presiding judge in order to pose essential questions. Yugoslavia’s representatives should make the opening argument, and advance time limit of five or ten minutes should be established for oral presentations. Instructors may wish to award separate grades for written and oral presentation.

Here is a format for ten students playing two judges and two co-counsel for each side on two of the three possible issues. The remaining issue can be used in class discussion to assist those preparing for the simulation.

Judges of the ICJ

President of the court (Weeramantry from Sri Lanka) Instructor or student

Ad hoc judges appointed by Yugoslavia (a Serbian)

Advocates for U.S.

2 Co-counsel Issue of U.N. Charter Article 2(4)

2 Co-counsel Issue of War Crimes

Advocates for Yugoslavia Present argument before U.S. or other N

2 Co-counsel Issue of U.N. Charter Article 2(4)

2 Co-counsel Issue of War Crimes

2. U.N. Security Council

Issues:

Roles: (Council President should preside)

In Favor of the Resolution--3

Opposing the Resolution--12

3. U.S. Senate Foreign Relations Committee

4. U.S. Senate Armed Services Committee

Issues:

Roles:

Conference Online

Instructors at two or more institutions may arrange an online chat or videoconference for their students. Perhaps students will prepare more thoroughly to impress outsiders. THRO-Net connects faculty with colleagues in the U.S. and abroad interested in scheduling online conferences. A text chat does not require any additional hardware or software beyond the web browser and personal computer used for regular THRO access. If no other chat capability is available, THRO maintains a chat link open to anyone anywhere in cyberspace. Internet videoconferencing requires a special PC camera, microphone, and software. No more than two individuals are on camera at a time, but the desktop video can be projected on a classroom screen. Wide bandwidth, high speed access to the internet is needed for a conference with very basic audio and video. A state of the art videoconference requires more expensive broadcast facilities that use multiple phone lines, fiber optic cable, or satellite capability. Conferencing technology may also be used for online meetings with representatives of non-governmental organizations, public officials or academic experts.

When students in a class all share a similar viewpoint, assigning roles in a simulation assures that diverse views are heard. Transnational conferences should bring together students eager to express different personal and national perspectives. If so, instructors could use text chat for discussion rather than for simulation. Transnational videoconference simulations enable instructors to have students represent their own state or adopt a different national role. In a videoconference simulation of the world court, students at two institutions could represent opposing parties in the litigation. Alternately the instructors might want students in different countries to collaborate as co-counsel representing the same party. Co-counsel from mock transnational law firms would use email to prepare co-authored memoranda and coordinate oral pleadings. Once a convenient time and format has been arranged, instructors should encourage advance student preparation--posting statements on an electronic bulletin board and exchanging email. WWW.Nicenet.org provides a free service for email exchange and threaded discussion. The course instructor who creates a Nicenet class can share the access code with any individual or group invited to participate in the online exchange.

Conclusion

The case was prepared for educators to teach substantive human rights content as well as the value of reasoned analysis and collaborative problem solving. THRO must be distinguished from uses of instructional technology that dehumanize education and replace faculty with teaching machines. Effective teaching online requires significant professional commitment to master active learning strategies. Instructors must learn how to engage students online and to promote interaction with others. "Who dares to teach must never cease to learn."