The Kosovo Precedent and Syria (Or Why International Laws Apply Only To Some)

In an official leak to the New York Times on Saturday, "a senior administration official" from the tough-on-leakers Obama White House cited the 1999 US/NATO Kosovo bombing campaign as a precedent potentially justifying bombing Syria without a United Nations mandate. Kosovo, it seems, has taken on a special role at junctures like this, based upon an assumption that it stands as an example of a just and effective military action - an assumption seldom challenged.

Kosovo was the last stage of the civil wars that broke up Yugoslavia starting with the 1991 secessions of Slovenia and Croatia. The events of the 1992-1995 Bosnian Civil War still loomed large in world consciousness - above all the massacre at Srebenica of 8,000 unarmed Muslim men by the Bosnian Serb army. Although the Bosnian Serbs were ostensibly acting as an autonomous force independent of Yugoslavia, that country's leader, Slobodan Milosevic, was widely considered responsible for the massacre.

In 1999, Kosovo was a province of Serbia. At the time Montenegro and Serbia continued under the name of Yugoslavia and the leadership of Milosevic. Although Kosovo held great historical meaning for Serbs, over the centuries it had become ninety percent ethnic Albanian. In the breakup of Yugoslavia, separatist and Greater Albania movements had inevitably sprung up. In the year before the bombing campaign approximately 2,000 Kosovars had been killed and there were estimated to be several hundred thousand internal refugees. Most were from the ethnic Albanian majority, victims of the Yugoslav police and military fighting Milosevic's third unsuccessful war against secession. A smaller number of Serbs were victims of the secessionist Kosovo Liberation Army or other paramilitaries that controlled perhaps 40 percent of Kosovo. (Additionally, according to New York Times correspondent Chris Hedges, "between 1966 and 1989 an estimated 130,000 Serbs left the province because of frequent harassment and discrimination by the Kosovar Albanian majority.")

By way of challenging the standard assumptions, here are a few conclusions I've drawn from the Kosovo experience:

The US Government Can Safely Ignore Less Violent Approaches

In October 1998, Yugoslavia had agreed to accept a 2,000 member unarmed civilian Kosovo Verification Mission operating under the auspices of the Organization for Security and Cooperation in Europe as a way to address the continuing crisis. Only 1350 were ultimately deployed and violence continued during its five month existence, yet a December 24 UN Secretary General's Report stated that "[D]espite tensions, displaced persons continue to return to their homes. UNHCR estimates that some 100,000 people have now returned." A January 30 Report estimated 190,000 citizens displaced within Kosovo and another 93,000 outside the province and noted a certain portion of refugees returning after each exodus. A March 17 Report put the number of internally displaced at 211,000. While it would seem a misuse of the language to call a situation with over 200,000 refugees "stabilized," it also seemed to be the case that it was not rapidly deteriorating either.

Nonetheless, NATO announced its intention to bomb and the monitors were quite understandably withdrawn two days later - over the objections of the Yugoslav government.

The US Government Can Easily Keep Important Facts out of the Discussion

Yugoslavia's Milosevic government had long since exhausted most of the world's sympathy in the Bosnian Civil War, so its apparent intransigence at the Rambouillet Conference negotiations called to deal with the ongoing Kosovo crisis only served to dilute what little remaining patience remained in the outside world. On March 18, 1999 negotiators for the US, the UK and the Albanian Kosovars signed the Rambouillet Agreement while the Yugoslav and Russian negotiators refused to do so. Six days later began the NATO bombardment of Kosovo and the rest of Serbia.

It turns out, however, that a central element of NATO's demands on Yugoslavia had gone unmentioned during the peace negotiations. The June 5, 1999 New York Times reported, "Under an annex of the Rambouillet accord, a purely NATO force was to be given full permission to go anywhere it wanted in Yugoslavia, immune from any legal process," something that no less than former Secretary of State Henry Kissinger insisted, "the U.S. had to know ... would be unacceptable to Yugoslavia, as it would be to any nation." It is hard to avoid the conclusion that the US/NATO wanted the negotiations to fail.

The US Government Can Get Away With Illegal Bombing

From the mouths of its supporters: Canadian Errol Mendes is a professor of constitutional and international law at the University of Ottawa who is pro-intervention both in Kosovo and Syria. Yet he wrote in the Toronto Globe and Mail (May 1, 2013): "The military intervention by NATO in Kosovo was clearly illegal under the UN Charter and international law. However, there were international experts and jurists, including this author, who regarded the intervention as illegal but legitimate. It has been called the Kosovo exception: It creates, de facto, an illegal but legitimate military intervention."

(Small countries should probably not try to make use of the "Kosovo exception," however. It probably will only work if you've got aircraft carriers.)

Civilian Casualties and the Rules of War Won't Matter

The U.S. used cluster bombs in Kosovo; it bombed a passenger train, a television station and the Chinese Embassy. The latter was presumably an accident, but there was no mistaking the intent regarding the TV station where 16 people were killed: British Prime Minister Tony Blair himself said, " Strikes against TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY (Federal Republic of Yugoslavia) propaganda machinery."

If Blair were taken at his word, the action would constitute a war crime, but there was little reason to fear that the American (or British) press would pursue matters like that. More likely they would be leading the cheering for such operations, as in the case of New York Times columnist Friedman who wrote, "It should be lights out in Belgrade: Every power grid, water pipe, bridge, road has to be targeted." Friedman, it should be noted, has the reputation of being a centrist, a moderate within the American political spectrum. (Time magazine's senior national correspondent, Michael Grunwald, recently tweeted that "I can't wait to write a defense of the drone strike that takes out Julian Assange," so it seems little has changed in that realm, by the way.)

Human Rights Watch estimated the civilian death toll of the Kosovo bombing campaign as somewhere between 489 and 528. 201 of the deaths occurred in Serbia proper. The New York Times reported "at least 1,200 civilians have died in NATO accidents." (By way of comparison, the eventual indictment of Milosevic for war crimes in Kosovo charged him with responsibility for deaths numbering in the "hundreds" with an approximate figure of 758 given.) One set of numbers were treated as evidence of "genocide;" the other as "collateral damage."

Cause and Effect Can Easily Be Reversed in Public Discussion and Memory

The April 5, 1999 New York Times reported that 350,000 of the 1.8 million ethnic Albanians had left Kosovo since the start of the bombing. At the end, the UN Refugee Agency counted 671,000 refugees who had fled Kosovo; the Yugoslav Red Cross reported over a million internal refugees in Serbia. Some of those who left Kosovo were driven out by Milosevic's forces; some fled the bombing itself. The relative numbers of the two groups is probably unknowable, yet two things seem clear. The first is that the Milosevic government caused a large part of the exodus; the second is that even if that government's heinous actions were responsible for the totality, the bulk of what they did occurred after the start of the bombing campaign. In other words, while nothing that went on excuses the actions of the Milosevic government, it is also the case that the US did not and could not launch a bombing campaign to stop the ethnic cleansing campaign that began after the bombing started.

And yet that it how the US government insisted it was. As it was happening, President Clinton denied that the ethnic cleansing that had now clearly started was initiated in response to the bombing. Very soon the stated mission of the bombing campaign became to end the ethnic cleansing that it had appeared to trigger.

And that's largely how it is remembered. Just two years ago, the Kosovo analogy surfaced again as an argument in favor of the bombing campaign that President Obama eventually launched in Libya. In support of that action, a well known Israeli journalist, Uri Avnery (and actually a man of the left), provided a good thumbnail description of how the 1999 Kosovo events played out in the official historical reckoning: "Slobodan Milosevic was committing an act of genocide - driving out a whole people, committing barbarities along the way. ... When there was a worldwide outcry, President Bill Clinton decided to bomb installations in Serbia in order to induce Milosevic to desist. Nominally, it was a NATO action. It achieved its goal, the Kosovars returned to their homeland." The fact that far more returned than had been homeless before the bombing is seemingly now lost in the mists of time and the fog of war.

When the bombing ended after 78 days , the New York Times reported that "The key part of the proposal [to end the bombing] that made it acceptable for Belgrade ... was the limitation on the movement of the international forces ... to Kosovo itself."

Kosovo Was Useful for Developing Military Habits

At the time, its proponents hailed Kosovo as a type of new humanitarian military intervention (although virtually every government in history has claimed humanitarian goals when going to war.) Cynics saw an attempt to divert attention from President Bill Clinton's Monica Lewinsky problem (following the plot of the Hollywood hit,"Wag the Dog") but whatever the facts may be in that regard, it seemed significant that it was an intervention ordered by a Democratic President. The recent example of Texas Republican Representative Ron Paul notwithstanding, few Republicans ever feel much pressure to demonstrate their willingness to support military action. Democrats, on the other hand, are often suspect as to their eagerness to shed (someone else's) blood in support of Washington's foreign policy goals. Kosovo offered them the chance to show their willingness to back military action - cleanly, from the air, with no (American) casualties.

The above-mentioned Mendes allowed that "Critics warned that the [Kosovo] exception could be used for illegal and illegitimate military interventions," and he indeed concedes that "They were proved correct with the illegal intervention led by the United States in Iraq." However, for many prominent Democrats it appears that Kosovo may have been the slippery slope that got them to thinking that they ought to "Give war a chance," as Thomas Friedman once put it. When the Iraq War vote came up four years later, most Senate Democrats went with the Bush-Cheney program, including Vice President Joe Biden, Secretary of State John Kerry and former Secretary of State Hillary Clinton.

You will draw your own conclusions as to the significance of the Kosovo bombing campaign as a precedent in international relations, but the more closely you examine it, the less likely I suspect it will become that the words "just" or "effective" will be the first adjectives that come to mind.

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