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Tuesday, April 28, 2009

Nato's 'good war' in Kosovo degraded international law

Nato's military action against Slobodan Milosevic is often held up as a triumph of justice over legality. But was it right?

by Aidan Hehir

Irish Times (March 23 2009)

TEN YEARS ago today Nato, the North Atlantic Treaty Organisation, launched Operation Allied Force against the Federal Republic of Yugoslavia. Nato claimed to be undertaking a humanitarian intervention, accusing Slobodan Milosevic's regime of a campaign of aggression and forced displacement against the ethnic Albanians in Kosovo, Serbia's southern province. Military action was a "moral imperative", according to then US president Bill Clinton.

The campaign itself was a success; it lasted just 78 days, Nato did not suffer a single casualty and at its conclusion Nato personnel were literally welcomed with open arms by the Kosovo Albanians. Milosevic's power was fatally undermined and within two years he had been toppled and sent to The Hague to stand trial for war crimes.

In many ways Operation Allied Force has come to be nostalgically remembered as the zenith of a better era. In 1999 "The Third Way" and "Ethical Foreign Policy" were terms which provoked hope rather than cynicism and Nato's actions appeared to affirm the power of people to force their governments to "do something" in the face of humanitarian tragedy abroad.

The then fresh-faced Tony Blair was regarded at worst as a naive "do-gooder" while Clinton's reputation for circumspection in foreign affairs has been retrospectively heightened by the eight years of war and international divisiveness which characterised George W Bush's administration; Clinton's "good war" in Kosovo has been regularly contrasted with Bush's "bad war" in Iraq.

Operation Allied Force was a spectacle of force the ordinarily cautious and sceptical could proudly support; this was not a war fought for interests or revenge, it was, according to Blair, "a war fought for values". Milosevic was the archetypal Balkan bad guy, the Kosovo Albanians clear victims and Kosovo had no oil or major strategic value.

It was the war the liberal left could, and indeed did, support while the anti-war movement failed to mobilise beyond the political margins. Mainstream media coverage, albeit periodically nervous, was favourable throughout, aided to a significant extent by Nato's polished Public Relations machine and the verbal dexterity of its chief spokesman Jamie Shea.

Lacking Security Council authorisation, Nato's campaign was illegal but this was deemed of minor importance and a function of an anachronistic legal framework which privileged states rather than the people who lived within them. Nato's actions were described as "illegal but legitimate" and evidence of a new dispensation among Western states to alter the norms governing the use of force.

Human rights, long rendered impotent by the restrictions of international law and the narrow national interests of the powerful few, were now, it seemed, finally to be realised. Supporters of Nato's intervention, emboldened by righteous victory, loudly heralded ever more exuberant predictions of the coming era. We were entering, according to Geoffrey Robertson QC, "the age of enforcement". Everything, it seemed, was possible now that power had been harnessed by justice. Events since, however, have not evolved according to this optimistic analysis.

It is a matter of some irony that the invasion of Iraq in 2003 was decried as a violation of international law by many of the same commentators who enthusiastically welcomed Nato's "illegal but legitimate" intervention just four years earlier.

The coalition which prosecuted the pointedly named "Operation Iraqi Freedom" explicitly drew parallels between their "liberation" of Iraq and the intervention in Kosovo. Supporters of Operation Allied Force were left to express wounded surprise at the commandeering of their humanitarian arguments. It would be an exaggeration to claim that Nato's intervention directly led to the invasion of Iraq but equally it is disingenuous to disavow any correlation; legal systems do not thrive when their most powerful subjects subvert their seminal prescriptions and it is not surprising that the "illegal but legitimate" argument advanced by Nato in 1999 has contributed to the unprecedented contemporary crisis of confidence in the UN framework.

What of the "age of enforcement"? The international response to the violence in Darfur from 2003 on - far worse than that which occurred in Kosovo - suggests that Western states have not undergone a conversion to an ethical foreign policy.

The high-publicity international campaign calling for intervention in Darfur and the massive anti-war protests against the invasion of Iraq suggest that in contrast to the analysis widely proffered at the time of Nato's intervention, public opinion has a limited influence on the foreign policy of even liberal Western states. Operation Allied Force has not led to any substantive reform of international law in favour of human rights apart from a nebulous commitment to a "responsibility to protect" at the 2005 World Summit. States in the developing world, fearful of neo-colonialism, have been to the fore in opposing legal reform but so too have Western states reluctant to subject themselves to international scrutiny or accept any commitment to intervene.

Kosovo itself has had a difficult ten years; though initially greeted as liberators the UN and Nato were soon accused of obstructing Kosovo's independence leading to the March 2004 riots when Albanians vented their fury at the international administration. Kosovo remains deeply divided, violent and economically underdeveloped and while the Kosovo Assembly declared independence in February 2008, Kosovo enjoys few of the traditional trappings of statehood, not least political autonomy.

Righteous, albeit illegal, vengeance has been a common narrative of popular culture. Frustrated by laws which appear to protect oppressors, heroes from Batman to countless John Wayne cowboys have "done the right thing" in defiance of "the rules". We have come to venerate many political actors who have similarly subverted the law in the name of morality.

Yet, history shows that the rejection of law in favour of morality carries enormous danger and echoes of vigilantism. Those who have orchestrated or supported the forcible subversion of one set of ostensibly immoral laws in favour of the pursuit of "justice" have often found that in the process they have unleashed forces beyond their control.

The excesses of the Bush administration and Blair's later zealotry owed much to Nato's actions in 1999 and as we assess the current predicament of international politics, and especially the increasingly impotent and sidelined UN system, the role of Operation Allied Force in the degradation of international law must be acknowledged.


Aidan Hehir is a senior lecturer in international relations at the centre for the study of democracy at the University of Westminster

(c) 2009 The Irish Times

Bill Totten


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