Reconsidering the Legality of Humanitarian Intervention: Lessons from Kosovo

Abstract

For nearly ten years, human advocates tried to focus public attention on Kosovo. They issued report after report of gross and systemic human abuses in the troubled region. Nearly all of the reports detailed crimes committed by Serb civilians and Serb police against Albanian civilians.(1) They warned of escalating violence and impending forced deportations, and implored intergovernmental organizations and individual countries to take preventative action.(2) International policymakers had overwhelming evidence that the pressure in Kosovo was mounting and that an even greater human disaster loomed near.(3) Yet they treated the warnings as those of the boy who cried wolf. Without the wolf of all-out war, international leaders failed to treat Kosovo seriously. Indeed, international leaders failed to treat the Kosovo situation seriously even after many Albanians grew impatient with their campaign of passive resistance to Serb aggression and instead supported a new tactic of armed resistance. This situation became even more drastic at the end of 1997 when the Kosovo Liberation Army (KLA) was at the vanguard of armed resistance.(4) Still, international leaders failed to take preventative action. Even after the hot spring of 1998, when Serb forces killed fifty-one members of an Albanian family in retaliation for KLA provocation,(5) and after the summer of 1998, when Serb forces began a scorched-earth policy of destroying whole villages,(6) international leaders obstinately refused to take effective action. Indeed, even after the Milosevic regime reneged on its October 1998 agreement to decrease its forces in Kosovo(7) and instead continued attacks on civilians,(8) murdering forty-one civilians in the village of Racak in January 1999,(9) the international community still pretended that Kosovo was a small matter that would go away quietly.(10) In March 1999, the Contact group--United States, Britain, France, Germany, Italy, and Russia--brought Kosovar and Serbian negotiators together in Rambouillet, France. The agreement on the table required autonomy to be restored to Kosovo, a NATO peacekeeping force to be installed, the KLA to disarm, and Milosevic to reduce his troops in Kosovo. Neither side liked the arrangement. The agreement was unacceptable to Kosovars because it failed to require the complete withdrawal of Serbian troops and the guarantee of independence. At the same time, it was unacceptable to Serbs who refused to give up Kosovo and to permit the presence of an armed international military force. NATO threatened both sides: Kosovars would be cut off from any international support if they failed to sign and Serbia would be bombed if they failed to sign. Kosovars eventually signed the agreement, but Serbia refused. Then, on March 23, 1999, NATO war planes commenced military air operations and missile strikes in Yugoslavia. Suddenly, Kosovo was a lead story in every media outlet.(11) Kosovo finally came into focus, but the optic was blurred. In a rush to do the right thing or just do anything many human advocates, like the diplomats and pundits they criticized, started to get sloppy. They accepted a false slate of diametrically opposed choices--intervention or no intervention; protection of Serbian sovereignty or denial of Serbian sovereignty--without questioning what each choice actually meant under international law and without listening to the reasons proffered by the intervenors themselves. Renowned human advocates, such as Czech President Vaclav Havel, offered human rationales for NATO's actions. Havel claimed that the alliance acted out of respect for human rights and that the war was probably the first war that has not been waged in the name of `national interests,' but rather the name of principle and values.(12) If only this were true, the legitimacy of actions in Kosovo would be much clearer. The Clinton Administration considered but refused to base its actions in Kosovo solely on humanitarian grounds. …