III. International Law
Denitch and Williams claim that in fact the NATO actions diminish the United Nations less than would leaving Milosevic to stand in violation of more than 50 Security Council resolutions. But would they also consider it a contribution to world law and the UN if Russia or the Arab League decided to attack Israel so that that country's brazen defiance of countless Security Council resolutions would not stand? Would Japanese bombing of Jakarta for its flouting Security Council resolutions on East Timor promote the rule of law?Or perhaps Libya or Iraq or Osama Bin Ladin could be encouraged to set off some bombs in New York City to enhance the prestige of the World Court, whose ruling against the United States on Nicaragua has been shamelessly ignored by Washington. No, vigilantism doesn't does not heighten respect for law.
The Security Council of the United Nations, say Denitch and Williams, was blocked from action by the prospect of Chinese and Russian veto. Twelve out of the fifteen members, they note, refused to support a Russian draft resolution on March 26 condemning the bombing.But a vote after the fact, particularly after the stepped up ethnic cleansing that the bombing had set off, on a resolution that crassly included no condemnation of that accelerated ethnic cleansing, is not the same as prior Security Council authorization for the bombing. The UN Charter is quite clear in prohibiting enforcement action by regional organizations without the authorization of the Security Council. (The Rio Group, an organization of Latin American countries, issued a communique on March 25, 1999 regretting the recourse to the use of force in the Balkan region in contravention of the UN Charter.)
To be sure, the Security Council is a terribly undemocratic body, with five countries having permanent membership and the right of veto.But the answer to the undemocratic nature of the Council is not to resort to an organization that is even less accountable to world opinion, namely NATO. The value of the United Nations is that it places some small check on unilateral big power actions. Sometimes (as during the Gulf War) the United States will be able to bribe, cajole, and intimidate the UN into going along with it, but not always. To bypass the UN for NATO is to unleash big powers, particularly the biggest of them all, to act without restraint.
Of course, socialists and democrats do not consider law to be sacrosanct. Civil disobedience is often a moral imperative and revolution is sometimes necessary.But the story of democracy has been the struggle to get governments to obey the law, both domestic and international -- not because the law is unproblematic, but because the alternative is arbitrary power. We don't want the government to protect us from crime by engaging in illegal searches or by denying defendants a fair trial -- not because we fetishize law, but because we fear arbitrary power. To give the United States carte blanche to violate international law will increase human suffering. Sure, if Washington were run by angels we might be less concerned about the need for law. But -- and here the discussion of moral consistency and motives comes in again -- there are no angels inside the Beltway.
National sovereignty, say Denitch and Williams, is a "dubious" right. But while certainly not an absolute, it does provide some measure of protection for the weak. When Latin American countries pressed the United States in the 1930s to give a pledge of non-intervention, they no doubt realized that some hypothetical interventions could be beneficial. But counterposed to those theoretical possibilities was the grueling reality of U.S. marines landing whenever U.S. interests were threatened.
There is a tension in international law between the right of national sovereignty and the individual rights of human beings: governments are supposed to refrain from intervening in the internal affairs of other countries, but at the same time governments have international obligations to respect the human rights of their people. What should a government do when some other government is violating its people's rights? It should urge the violator to adhere to its international human rights obligations; it should use its diplomatic influence to try to end the abuses. Certainly, it should avoid supporting oppressive regimes.But generally it should not begin bombing the other country to punish human rights violations.
This is so for at least three reasons. First, because outsiders can rarely bring people freedom; freedom comes from one's own activity. Second, because violence is so often counter-productive. And third, because the right of humanitarian intervention is an asymmetrical right -- it is the right of the powerful to intervene in the affairs of the weak, and not vice versa. Humanitarian intervention, Richard Falk has reminded us, is like the Mississippi River: it only flows from North to South. Uruguay cannot use B-52s to punish Britain for its policy in Northern Ireland. Yemen cannot launch cruise missiles on Washington out of solidarity with the oppressed in U.S. cities. So we need to be very careful about a right that can be enjoyed only by the powerful.
From the point of view of the powerful, the humanitarian rationale for intervention has great appeal.Because every country violates human rights to some extent, if the United States were allowed to decide which human rights abuses were most serious and which warrant intervention, Washington would have a built-in rationale for intervening wherever and whenever it wanted. Again, given the motives of U.S. foreign policy, this cannot be a welcome prospect.
Genocide, of course, is different. There the human stakes are so high that our general presumption against non-intervention may be overridden.But what was going on in Kosovo before March 1999 was not even close to genocide.
The two thousand Kosovar deaths, most at the hands of Serbian security forces, between March 1998 and March 1999 were appalling and inexcusable, as were the several hundred thousand displaced persons.But this was not genocide. We cheapen the term if we use it to characterize every atrocity. Nor is ethnic cleansing, despicable as it is, the same as genocide. When in 1948 Israel expelled three quarters of a million Palestinians, propelled by a massacre here and there to speed the flight, this was ethnic cleansing; it was not genocide.
Writing in The Nation of March 30, 1998, when the death toll was a small fraction of 2,000 and the refugee count in the tens of thousands, Ian Williams declared that Belgrade's behavior was "on the verge of triggering the duties of signatories to the Genocide Convention." But if these atrocities approached genocide, then the term had no meaning at all, and dozens of countries would be engaging in genocide every year.The Genocide Convention requires signatories to act to stop genocide -- though it doesn't specify how the existence of genocide is to be decided and what actions should be taken. Does Williams really think that China should have intervened (indeed, was duty bound to intervene) in India to stop "genocide" in Kashmir (where the toll far exceeded that of Kosovo)? According to Amnesty International, in June 1997, 40,000 people fled their homes during Philippine army counter-insurgency operations against the Moro Islamic Liberation Front. Should North Korea have intervened? Was North Korea obligated to intervene?
In 1994,actual genocide took place in Rwanda -- the goal of the Power Hutu regime was not to drive the Tutsi out of the country, but to kill every Tutsi man, woman, and child they could lay their hands on -- and the world stood by. The U.S. State Department even prohibited its officials from using the word "genocide" to describe the situation, despite clear information that this is precisely what was going on. Many people, including many on the left, seem to have drawn the wrong lessons from this horror story. The lesson is not that every atrocity should be called genocide. (Genocide should be called genocide; lesser crimes should be called what they are -- which doesn't preclude the most vigorous condemnation.) Nor is the lesson that humanitarian concerns require the United States to side-step the United Nations and international law. (The UN could have acted -- it had a peacekeeping force in Kigali -- but the force was downsized when the killings began at the insistence of the United States; and all further UN action was blocked by Washington.) Nor is the lesson that military intervention is the only way to deal with such crises. (Various non-military measures could have helped immensely -- such as threatening the killers with a loss of aid and being held accountable, or pressing France, which had much influence in Kigali, to restrain its ally.) Nor, finally, is the lesson that any military intervention is better than nothing. (The UN finally authorized the French to intervene, a move cheered by the killers; perhaps 20,000 Tutsis were saved -- more than half a million had been slaughtered -- but because France had its own dirty motives it helped the killers regroup over the border, which has led to a continuing human rights catastrophe in the entire Great Lakes region of Africa.)
Glib use of the term genocide causes another problem. During World War II, when it was proposed that the United States air force bomb Auschwitz or the rail links leading to the death camp, Assistant Secretary of War John J. McCloy refused, saying that it "might provoke even more vindictive action by the Germans." This was morally abhorrent, given that the Nazis were already doing the worst; there was no more vindictive action possible. To argue in early March 1999 that Milosevic was committing genocide against the Kosovar Albanians encouraged the view that nothing could be worse and that therefore NATO bombardment couldn't hurt. But much in fact could be worse, and NATO bombing has led to just that.
Some on the left have gone from the correct observation that there was no genocide in Kosovo to a position whitewashing Milosevic's very real crimes, including the savage ethnic cleansing now going on.For example, Diedre Griswold of the International Action Center criticizes those who demand that Milosevic cease his horrific policy of ethnic cleansing, declaring that such a demand is tantamount to "blaming the victim" (http://www.iacenter.org/blamvict.htm). It is no wonder that well-meaning people are confused by events in Kosovo when they hear leftists propounding such morally obtuse nonsense.
To be sure, the U.S. government is doing all it can to demonize Milosevicand U.S. government claims and those of much of the lock-step media need to be examined with an extremely critical eye. But that enemy leaders are demonized by U.S. propaganda does not make those leaders victims. After all, U.S. propaganda also sought to demonize Hitler during World War II and Stalin before and after the war, two gentlemen about whom the first word that comes to mind would not be "victim." So we mustn't take official U.S. claims on faith, but nor should we be blind to overwhelming evidence of criminal behavior.
My argument against the NATO assault on Yugoslavia is not that the United States is attacking the innocent Milosevic, but that the attack will do nothing to help and much to hurt those whom Milosevic has been victimizing, as well as undermine the prospects for democracy in Serbia (which is, of necessity, an anti-Milosevic force) and, by legitimating U.S. power unrestrained by law or the UN, worsen the prospects for Kurds and Timorese and so many other of the world's victims.
The NATO attack has recklessly unleashed Serbian forces to escalate the level of ethnic cleansing in Kosovo.But this does not absolve Milosevic of his criminal responsibility. Why thousands of civilians are now "reportedly fleeing Kosovo":
The explanation carried by the media comes completely from U.S. and NATO military authorities, who claim the refugees are victims of a Serbian "rampage." No really independent reporting is allowed. The possibility that they may be fleeing because their villages are being destroyed by U.S. and NATO missiles and bombs is curtly dismissed (http://www.iacenter.org/liesfcts.htm).No mention is made of why there are no "independent" Yugoslav reporters on the scene now that Milosevic has silenced the country's independent media. Nor is there any consideration as to why there were several hundred thousand refugees before the bombing began. No doubt much refugees are fleeing the bombing, but the overwhelming thrust of refugee accounts indicates a rather different source for their flight.
Milosevic is no innocent victim. Even in 1997, before the fighting began in earnest in Kosovo,the UN General Assembly called on his regime to "take all necessary measures to bring to an immediate end all human rights violations against ethnic Albanians in Kosovo, including, in particular, discriminatory measures and practices, arbitrary searches and detention, the violation of the right to a fair, and to revoke all discriminatory legislation, in particular that which has entered into force since 1989," the year in which he rescinded Kosovo's autonomous status. The General Assembly further called on Yugoslavia to "release all political prisoners and to cease the persecution of political leaders and members of local human rights organizations," and to "allow the return in safety and dignity of Albanian refugees from Kosovo to their homes" (Resolution 52/139).
It would have been wonderful if the ethnic Albanians could have established ties with democratic forces throughout Serbia to fight for a multi-ethnic state fully protecting minority rights. But long years of oppression and a perceived lack of response from the Serbian side made the Kosovars eager for independence. So leftists should support an independent Kosova, insisting of course that in turn it recognize full democratic rights and protections for the Serbian minority,.But supporting something in principle and getting there are two different things. The strategy pursued by Ibrahim Rugova -- non-violent resistance to Serbian rule, with the building of democratic counter-institutions -- seemed to me to offer the best hope for achieving a just result, given the realities of the power imbalance and the need to minimize the hostility between the ethnic communities. But Rugova and the cause of the Kosovar Albanians was ignored by the United States as it put together its Dayton Accords in 1995, discrediting the non-violent route. In these circumstances the Kosovo Liberation Army (KLA, or UCK in Albanian) emerged. They undertook attacks on Serbian police, Albanian "collaborators," and Serb civilians, including Serbian refugees from the Yugoslav wars whom many Albanians viewed as colonizers intended to shift the demographic balance. These were not the first acts of violence -- they were proceeded by the daily violence of Serbian rule -- but the remarkable self-restraint of the Albanians was coming undone. Serbian security forces responded with great brutality to KLA attacks, which in turn drove thousands of Albanians into the KLA, and though still called terrorists by the Serbian authorities, they became a serious guerrilla army, with mass support. But attacks on civilians have continued, though not approaching the scale of atrocities committed by Serbian forces. The KLA claims not to target civilians, while acknowledging that abuses are committed by fighters in the field; I have seen no KLA statement, however, endorsing a multiethnic Kosova. And while popular backing of the KLA is extensive, threats and possibly attacks against Rugova's associates suggest that democratic persuasion is not the only factor in KLA growth (see Tim Judah in The Observer, Sept. 27, 1998).
Should the left have urged the United States to support and arm the KLA prior to March 1999? I am sympathetic to the argument that says that if people want to fight for their rights, if they are not asking others to do it for them, then they ought to be provided with the weapons to help them succeed. Such an argument seemed to me persuasive with respect to Bosnia.But I think there are four good reasons to reject this argument with respect to the KLA.
First is the nature of the KLA. Given the frightful ethnic violence in the Balkans, endorsement of an organization lacking a clear commitment to ethnic tolerance seems highly dangerous. (In Bosnia, on the other hand, there was a strong commitment to a multiethnic state, though reduced as the war and the ethnic cleansing wore on and as dependence on Islamic arms -- because of the Security Council's arms embargo -- grew.) Surely the lesson of conflicts from Palestine to Northern Ireland is that attacks on civilians set off a cycle of violence and hatred that undermines the prospects for peace or justice.
The ideology of the KLA is difficult to pin down. Knowledgeable observers describe its leadership as split, with "hints of fascism on one side and whiffs of communism on the other," and with both factions having "little sympathy with or understanding of democratic institutions" (Chris Hedges, Foreign Affairs, May-June 1999). The fact that the KLA has gained the support of most Kosovars has surely made the organization more democratic than its origins would suggest, but its politics are still troubling.
Second, the KLA had no credible chance of military victory. To have provided arms in such a situation would have encouraged suicidal efforts. (Even with the mammoth NATO bombing, the Serbian military still seems to have the upper hand vis-a-vis the KLA in Kosovo.) Of course, one can argue that if people want to engage in a suicidal struggle, that's up to them.But the price would be paid not just by the KLA fighters, but by the Albanian civilian population, not all of whom were freely choosing such a course of action. Nor is it clear that even the KLA would choose such a suicidal course if it were not for the expectation of being able to draw in foreign military assistance. Supplies of arms create the expectation of further help (even if explicitly denied): had the U.S. provided arms, many Kosovars would no doubt have concluded that if they got into trouble, the U.S. military would come to their rescue. And just because people who are oppressed believe that the U.S. should intervene to assist them, the left doesn't automatically have to support such intervention. Palestinians may want the United States to bomb Tel Aviv; Timorese may want the U.S. to bomb Jakarta (or even Washington). But the left doesn't have to defer to their wishes or agree with them that social justice would best be served by such actions.
Do people have the right of armed resistance against oppression? Not being a pacifist, I believe they do have such a right. But surely we need to consider the likely consequences of armed struggle in each particular situation. The KLA has correctly pointed to the lack of progress under Rugova's non-violent approach. But KLA killing of Serb police led predictably to atrocities against ethnic Albanian civilians. And the flow of KLA arms and recruits over the Albanian border led predictably to Serb clearing of border areas of civilian villages. Just as NATO actions do not provide any moral justification for Milosevic's atrocities, so too KLA actions do not justify the brutal Serbian attacks on Kosovo civilians. But just as NATO bears responsibility for the foreseeable consequences of its actions, so too does the KLA. And for the left to have urged arming the KLA in 1998 would have made it responsible as well for the larger scale atrocities that the Serbs would have let loose against a still relatively defenseless civilian population.A third problem with having urged the arming of the KLA is that the same rotten motives that make U.S. military intervention dangerous make its supplying arms dangerous. Washington supplies arms not out of humanitarian concern, but to further its own interests. So when it helped arm the Kurds in Iraq in the early 1970s, it was not with the intention of supporting the Kurdish goal of an independent state, but simply to destabilize Iraq. According to a classified report by the House Select Committee on Intelligence leaked to the press, U.S. officials "hoped that our clients [the Kurds] would not prevail. They preferred instead that the insurgents simply continue a level of hostilities sufficient to sap [Iraqi] resources.... This policy was not imparted to our clients, who were encouraged to continue fighting. Even in the context of covert action, ours was a cynical enterprise." Then, in 1975, aid to the Kurds was suddenly cut off, and as Saddam Hussein massacred the rebels, Washington denied them asylum. "Covert action," explained Henry Kissinger in secret testimony, "should not be confused with missionary work." Finally, for the United States to arm the KLA sets a very different precedent from arming Bosnia (leaving aside the Security Council arms embargoes in both cases). Bosnia was an independent country, a member of the United Nations.. That states may defend themselves is an internationally recognized right. But to arm the KLA means that the United States is deciding which rebel movements in which countries should receive weapons. This seems an awfully dangerous precedent, because we know that Washington will decide not on the basis of justice (let alone socialist principles), but on the basis of U.S. interests. Thus, in the U.S. view, the Salvadorans being slaughtered by death squads were not worthy of outside support, while the Contras attacking Nicaragua were.
So if NATO's bombing was unacceptable and arming the KLA was inadvisable, what could have been done to protect the Albanians of Kosovo?
"We had to do something!" insist the interventionists.This is not a compelling argument. One should do something only if so doing is likely to improve things. In this case, the bombing decidedly made things worse. True, no one will doubt Clinton's determination and toughness, but this has been a disaster for the people supposedly being helped.
In March 1999 there were no good choices, no policy that would have brought immediate security and justice to the Kosovar Albanians. But where some policies -- like NATO bombardment -- could have been predicted to make things worse, others had a chance of mitigating the suffering. In particular, continued negotiations -- diplomacy -- was the best of the bad choices.
On March 23, the Serbian Parliament voted to reaffirm Milosevic's rejection of foreign troops as part of the Rambouillet agreement. (The agreement provided for three years of autonomy for Kosovo, the withdrawal of Serbian forces, the disarming of the KLA, the presence of 28,000 NATO troops, and final status to be negotiated later.) But the parliament also stated that Serbia was willing to "'examine the character and extent of an international presence in Kosovo' immediately after the signing of an autonomy accord 'acceptable to all national communities in Kosovo,' the local Serb minority included." (Vesna Peric Zimonjic, Inter Press Service, March 23, 1999) This formulation had many problems, but was worth pursuing, not because Milosevic was a man of honor whose word could be trusted -- he's a gangster -- but because pursuing it offered the best chance of saving lives.
Would Milosevic have continued his attacks on Albanian villages while negotiations continued? Presumably, but one needs to realize the dynamic that NATO bombing threats had created. In October 1998, NATO had agreed to suspend the order authorizing air strikes in return for Milosevic's agreeing to withdraw the bulk of his forces from Kosovo. But, as the New York Times reported on April 18, 1999: The Kosovo Albanian rebels were pushing ahead with their own war aims. Sensing that the [October 1998] deal essentially placed the world's most powerful military alliance on their side -- despite NATO's continued assurances that it did not want to become the guerrilla army's "air force" --the rebels quickly reclaimed territory abandoned by the Serbian forces and mounted a continuous series of small-scale attacks. The bombing threats, however, encouraged KLA actions at a time when they could not defend themselves from the expected Serbian reaction. "Diplomacy backed with force" makes for ineffective diplomacy.
VI. What Now?
We are now in the midst of a horrendous bombing campaign said to be for the protection of the Kosovar Albanians which has set off massive ethnic cleansing and probably not stopped a single atrocity.On April 13, NATO commander Clark acknowledged that there were then slightly more Serbian troops in Kosovo than when the bombing began. At the same time, Clinton tells us that there are hundreds of thousands of Albanian refugees within Kosovo without adequate food. NATO, he assures us, is thinking very hard about how to get food to them, but air-drops are ruled out because of the danger to NATO pilots.
To continue this strategy is morally grotesque.Even if it finally gets Milosevic to capitulate (though many NATO planners are skeptical that air power alone can do this) the ethnic cleansing -- along with large numbers of killings and deaths from starvation and disease -- will already have taken place. And, as the Associated Press reported (Newark Star Ledger, April 18, 1999),
Now that NATO's air campaign in Yugoslavia is taking aim at bridges, roads and rail lines used by civilians, it will be harder to bomb Serb forces without killing ethnic Albanians fleeing Kosovo, U.S. defense officials and military analysts say.To switch to a ground war would likely be just as bad. No one knows for sure what would happen of course. It is possible that the Serbian military will surrender quickly, but this outcome is not suggested by either the history of Yugoslavia's resistance movement in World War II or the rallying around the flag that we've seen in Serbia under the U.S. bombing. In the more probable event that the Serbs put up a fight, the consequences for the hundreds of thousands of ethnic Albanian civilians still in Kosovo will be grim, given the brutishness of Serbian forces and the extremes to which U.S. forces will go to avoid harm to their own soldiers. (We've seen the accidental, but reckless, attacks on civilians in cases where NATO pilots were not under attack; it would surely be worse when NATO forces were drawing fire.) Moreover, the number of troops that NATO considers necessary for a ground invasion would take a considerable time to deploy -- time during which the plight of the ethnic Albanians will grow worse.
Arming the KLA now in conjunction with NATO air (and maybe ground) attacks can have no quick impact on the situation. Thus,the solution now is the same as it was on March 24: pursue diplomacy. This is not an ideal solution; it is just the best among miserable choices. The first step must be to accept a cease-fire, the stopping of NATO bombing and of Serbian military and paramilitary operations in Kosovo. Then humanitarian relief agencies and international observers -- from the United Nations or from the Organization for Security and Co-operation in Europe (OSCE) -- must be deployed. Peacekeepers too, again from the UN or OSCE, not NATO are needed. Since Russia is involved in the process, rather than being slapped in the face, some kind of arrangement in this regard seems possible. All refugees who wish to return to Kosovo must be permitted to do so, with funding from the NATO powers who were so eager to spend money on an irresponsible military operation.
We need to build the movements and the institutions that can challenge both the Milosevics and the NATOs of the world.