RE: Kosovo: A Response to the Critics

From: Carlos Alzugaray <calzugaray@minrex.gov.cu>
Date: 2 May 1999.

In an April 27 posting to several lists, Jeffrey Beatty made some very
thoughtful points refuting 6 concrete criticisms against NATO's bombing of
Yugoslavia. Although these issues have been discussed for quite some time
and there seems to be very small room for new insights, I would like to
share some of my most recent thoughts on the subject of international law,
power relations and the 'right of humanitarian intervention'.

Beatty argued then in his first point:

> The critics of the NATO bombing have made a powerful argument that NATO's
> action is illegal because the action was undertaken without the approval
> of the UN Security Council.  They've also argued that the bombing
> constitutes illegal aggression against a sovereign country. 
> 
> It is clearly difficult to argue that NATO's bombing constitutes the
> operation of a collective security system as envisioned in the United
> Nations Charter.  It may even be aggression under international law.
> Nevertheless, the legal absolutism of some of NATO's critics seems
> misguided, especially considering that the treatment of the Kosovars by
> the Serbian authorities violates norms of human rights enshrined in the
> Geneva Convention, the UN Charter; the Universal Declaration of Human
> Rights; the UN International Covenant on Civil and Political Rights; and
> the UN International Covenant on Economic, Social, and Cultural Rights, to
> name only a few.  Legal proscriptions against war are by no means to be
> casually thrown aside.  Nevertheless, it is well to remember the spirit,
> if not exactly the letter, of Abraham Lincoln's response to those who
> criticized him for suspending the right of _habeas corpus_ during the
> Civil War:  "[A]re all the laws _but one_ to go unexecuted, and the
> government itself go to pieces, lest that one be violated?" (Lincoln,
> 1953, p. 430).   
> 
The issue is more complicated than that. Human rights violations fall under
the aegis of the Commission on Human Rights which sits every year in Geneva.
Although subjected to criticism, the Commission's authority is by and large
accepted by most UN members. Even those countries that feel that they have
been unfairly treated or that the Commission has not addressed adequately
the issues presented, continue to be members of the Commission and work with
it. In order to reinforce the mechanisms for human rights in the UN system,
a few years ago the General Assembly created the post of Human Rights
Commissioner. These two examples demonstrate that the international
community is aware of the problem and is ready to go forward in developing
the necessary mechanisms for the protection of human rights. I would posit
that they are not perfect but that they reflect what is possible in the
present international context.

However, the 'right of humanitarian intervention', i.e., the creation of a
mechanism that would allow the international community as a whole to
intervene with military coercive measures in the internal affairs of a
sovereign state in order to enforce human rights compliance, has not found a
similar consensus among UN members. The reasons for that resistance to this
new development in international human rights law are very strong and should
not be rejected out of hand.

First, because it would undermine the cornerstone of the whole international
system: national sovereignty with its collateral principles
(non-intervention, sovereign equality and self-determination). No country,
not even those who claim for themselves the 'right to humanitarian
intervention', are ready to relinquish their sovereign rights, the most
important of which is the exclusive authority of the state to use legitimate
force inside its territory.

Second, because it would be very difficult indeed to establish a mechanism
that would not be influenced by ideological and cultural positions. While
some countries give more importance to the violations of certain rights,
others are more worried with the violations of others. Although that is
acceptable under the present system of international humanitarian law, it
would be extremely dangerous and therefore forcefully resisted by many small
states if the concept of lawful coercive military measures be accepted.

Third, because the 'right of humanitarian intervention' necessarily implies
the use of overpowering force against the will of the state subject to
'humanitarian intervention', the inevitable conclusion is that it can only
take place either by one superpower, the combination of several major powers
or a broad international coalition not opposed by one or more of the major
powers. 

In practice, given power relationships in the present world system, this
would mean that 'humanitarian intervention' would reinforce the inequality
present in the international system and even its unipolar tendency. It is
obvious that a 'humanitarian intervention' could only be carried out by the
United States, a coalition led by the United States or a coalition not
opposed by the United States. On the other hand, for those same reasons,
certain countries (the United States, Germany, Russia, China, India, etc.)
could not be subjected to a 'humanitarian intervention' even if the
international community considered that they were committing violations of
human rights that deserved it, since it would be impossible or reckessly
dangerous to mount an international coalition capable of carrying it out.

This latter implication has two aspects that cannot be overlooked. First,
the United States has an interventionist record not based in humanitarian
concerns. As any other great power in history, its main thrust has been to
intervene for its own interests, although it has tried to legitimize its
interventions. Only in the case of Haiti could it be argued that
intervention served human rights and democracy, but then, one must wonder if
it would have intervened if it would not have been for the practical issue
of massive Haitian inmigration.

Second, the 'right of humanitarian intervention' would give the United
States a very dangerous legitimizing weapon. That is why it will be very
difficult for it to be adopted as part of the 'modus operandi' of the United
Nations. The unilateral attitude of the United States and its superior
military capabilities would make it very difficult to convince other major
players in the world arena, except its closest allies, to give Washington
such an empowerment.

A further issue related to Kossovo, NATO's bombing of Yugoslavia and the
'right of humanitarian intervention' is the nature of that intervention
itself. The U.S. and NATO are claiming this right, against the major
precepts of international law, the authority of the Security Council itself
and NATO's charter, by arguing the high moral imperative that the ethnic
cleasing taking place in Kossovo is such a crime that it should be stopped
and punished at any cost. Yet, the U.S. and NATO seem to be quite reluctant
to deploy ground froces in order to protect the Kossovars. Are the U.S. and
NATO been morally coherent and consistent? Would it not be inevitable to
conclude that if the U.S. and NATO are so morally insulted by what they
claim the Yugoslav army is doing in Kossovo they should intervene on the
ground and put their own troops at risk instead of a bombing campaign which
has caused so much 'collateral' and 'unintended' damage against Serbs and
Kossovars?

An important final point. Although one can understand European governments
and public opinion to put an end to the wars in the Balkans with their
atrocities, it is difficult to put the United States in the same category.
In my view what we have here is a combination of 'the arrogance of power'
which led to the Vietnam disaster with the point made by Paul Kennedy more
than a decade ago about 'imperial overstretch', in his book _The Rise and
Fall of Great Powers_. Obviously, the U.S. and NATO have overestimated their
possibilities of imposing a solution by the use of force against the
government in Belgrade. This will be a major development in the future.
Hopefully, it will make leaders in Washington, London and other capitals of
the leading nations of the world to understand better what the new world
order is about. Prudence and cuation have been lacking in their actions,
including the criminal bombing of the Serbe Television Studios. Although, we
must strive to eliminate human rights violations, we cannot do it at the
risk of creating precedents that could serve for new abuses of the weak by
the powerful. 

All the best,

Carlos Alzugaray