The Hindu (India)
Friday, February 22, 2008

The trouble with the Balkans, it has been said, is that they produce far more politics than can safely be consumed at home. Indians can relate to this.

On Sunday, Kosovo formally declared independence to the accompaniment of festive celebrations by the good citizens of the world's newest country. We can but wish them well as they chart a new course inside a new Europe free of the distracting co nflicts that ravaged the continent until the middle of the 20th century.

The two iconic cases of international intervention in 1999 were Kosovo and East Timor. As the recent attempted assassinations of the latter's President and Prime Minister show, the euphoria of independence is not enough to sustain the structures and practices of a civic community and viable polity. It would be naïve to believe that centuries-old history of Serbian-Kosovar conflict was brought to a closure on Sunday.

There are two larger questions for outsiders. Do we really want to take on the burden of determining by force the quest for independence by all the world's wannabe secessionists? Does the line of illegal warfare run from Kosovo in 1999 to Iraq in 2003?

Slobodan Milosevic's Serbia was guilty of ethnic cleansing and unspeakable atrocities against the people of Kosovo. This still does not mean that the blame lay 100 per cent with the Serbs and that the Kosovars were nothing but innocent victims. NATO became the tool for the Kosovo Liberation Army's policy of inciting Serb reprisals through terrorist attacks in order to provoke NATO intervention. A year later, United Nations Secretary-General Kofi Annan acknowledged that his call for a debate on "the challenge of humanitarian intervention" had led to fears that the concept "might encourage secessionist movements deliberately to provoke governments into committing gross violations of human rights in order to trigger external interventions that would aid their cause."

Indeed. In rough, round and easily remembered figures, there are about 20 broadly homogenous nation-states, 200 states and over 2,000 nationalities in the world today. To support, or give the impression of international encouragement to, armed secessionists is to risk unleashing the most violent phase of human history ever.

Secondly, one of the curious features of the Iraq war was the serious split across the Atlantic. What seemed to puzzle and infuriate Americans was why the Europeans, having signed on to war without U.N. authorisation against Milosevic, "the butcher of Belgrade," refused to do so against Saddam Hussein, "the butcher of Baghdad."

Of course, there are important differences. But some differences are exaggerated, while there are also important similarities and continuities that overshadow the differences. In 1999, there were claims of a compelling humanitarian tragedy in Kosovo that was an affront to an internationalised human conscience. But just as the claims of weapons of mass destruction have been shown to have been greatly exaggerated and amplified through a surprisingly gullible media, so were the claims of mass murders of up to 200,000 people in Kosovo.

Moreover, there was every prospect of action being blocked by one or two vetoes in the U.N. Security Council. But this was never put to the test, and NATO launched a "humanitarian war" - a war over values, not interests - without U.N. authorisation. "Humanitarianism" was married to "war" in a clever and successful ploy to label opponents of the war as anti-humanitarian. Few noticed that the intervention was confined to bombing, leading to the logically absurd conclusion of "humanitarian bombing."

The justification for a collective defence organisation bypassing the U.N. to wage an offensive war was and remains problematic. The Kosovo precedent remains deeply troubling for having posed a fundamental challenge to the normative architecture of world order. The Independent International Commission on Kosovo concluded that NATO's intervention was illegal but legitimate. The intervention was illegal because the use of force is prohibited by the U.N. Charter except in self-defence or when authorised by the Security Council.

It was legitimate, nevertheless, many insisted, because of the scale of atrocities by the Milosevic regime, the failure of other means used to try to stop the atrocities and the political stalemate in the Security Council created by Russia and China. The proponents of this argument clearly believe that legitimacy is on a higher plane than legality. Thus opposition to the perfectly legal apartheid regime in South Africa was fully justified: illegal, but legitimate.

There is a problem, nevertheless. Suppose I have witnessed a murder by a rich celebrity. Suppose further that for reasons to do with courtroom techniques of expensive trial lawyers who exploit every technicality or, in the Indian context, because of police or prosecutorial corruption, the murderer is acquitted. Can I claim legitimacy in inflicting vigilante justice on the murderer?

A normative commitment to the rule of law implies a commitment to the principle of relations being governed by law, not power and the willingness to accept the limitations and constraints of working within the law, in specific instances if necessary against individual notions of just or illegitimate outcome. The best that can be said of the NATO actions was that it fell into, indeed enlarged, a "grey area" between lawfulness and legitimacy, where the use of force is neither condemned nor condoned but tolerated.

Critics argued that NATO acted illegally in terms of its own constitution, the U.N. Charter and state practice. The illegal-but-legitimate argument turned the normal process of reasoning upside down. The war, illegal but necessary and justified, highlighted defects in international law, not shortcomings in NATO behaviour. The (anticipated) failure of the Security Council to authorise the war was a reflection on flaws in the Council's functioning, not on the invalidity of NATO bombing: the Council failed to meet the challenge of international moral authority. The moral urgency underpinning NATO actions, and the military success of those actions, would in due course shape legal justification to match the course of action.

Structural continuity

This subverts the Charter and turns the principle of authorisation on its head. Put like this, the essential structural continuity from Kosovo in 1999 to Iraq in 2003 is clearly apparent. For this was precisely the challenge posed to the U.N. by George Bush and Tony Blair: act to enforce your own resolutions and your own authority, or suffer a decline in your authority and become irrelevant.

True, the case against Iraq was not framed in terms of the humanitarian argument but in terms of weapons of mass destruction - and the WMD case fell apart completely. But the case against Serbia in 1999 was not framed in humanitarian language either. People overlooked then that NATO's case was equally dubious: it went to war because Milosevic rejected the Rambouillet ultimatum.

Had the Rambouillet diktat been given as close a scrutiny in 1999 as the WMD argument in 2003, it would likely have met with matching scepticism. NATO succeeded in 1999 in diverting attention from Rambouillet to the humanitarian liberation argument; Blair and Bush failed to shift the chief justification from WMD to humanitarian outcomes in the case of Iraq.

The differences were that the ethnic cleansing by Milosevic was much closer in time to the 1999 war, not 15 years in the past; no NATO power had been complicit through diplomatic and material assistance to Serbia in the perpetration of those atrocities at the time that they were committed; the European powers collectively were sick and tired of Milosevic's deceit, evasions and atrocities being committed on European territory itself; the Rambouillet diktat reflected the trans-Atlantic horror at Milosevic's record; and there was no oil that could be pointed to as the main motive for intervention. The humanitarian motive stood out far more clearly as the main driver of the intervention for most countries that went to war. Because of this, the major Western allies stood solidly united at the level of both people and governments in 1999, whereas the democratic alliance fractured deeply in 2003.

Saddam Hussein's alleged links to international terrorism and the al Qaeda was also based on deceptions and flawed conclusions drawn from heavily qualified, faith-based intelligence. How much closer scrutiny would have been given by NATO to the links between the al Qaeda and Serbia's main military opponents in Kosovo, the Kosovo Liberation Army, after 9/11?

A majority of developing countries were strongly opposed to the NATO intervention in Kosovo at the time. Their strongest opposition was grounded in the violation of the norm of non-intervention without U.N. authorisation. Most NATO countries insisted that their action did not set a precedent. The Iraq war proves that claim to have been false. Do-gooders must accept responsibility for the unintended but predictable consequences of their actions. For countries as for international organisations, including both NATO and the U.N., choices today have consequences tomorrow.

About the Author

Ramesh Thakur, former CIGI Distinguished Fellow

The opinions expressed in this article/comments are those of the author(s) and do not necessarily reflect the views of CIGI or its Board of Directors and/or International Board of Governors.