Reflections on the Kosovo War

Richard Falk is Albert. G. Milbank Professor of International Law and Practice at Princeton University. His paper is an expanded version of an article published in the Nation on 28 June 1999.

Only the most dedicated spinmaster at the White House would have the audacity to claim that “victory” was the outcome of the 1999 Kosovo War. Milosevic’s “surrender” ended the bombing campaign and paved the way for a new political order in Kosovo, but such results hardly vindicate the means used to reach goals that are themselves problematic. If anything, this war, more so than any other, transmits the dreadful message that the United States and its main European allies are willing to bomb a small country ferociously and indefinitely, or as long as it takes to obtain submission.

Not since Vietnam has the West fallen so deeply into a black hole with regard to a major foreign-policy initiative as it did in Kosovo. In Vietnam, however, once Washington had acknowledged its policy failure and withdrawn its forces, the country was left geographically, ethnically and psychologically intact. Kosovo continues to offer a far more difficult, and still unresolved, challenge. Ethnic cleansing, which initially provided compelling grounds for intervention, became a full-scale onslaught with the onset of the war. After a week of bombing, the policy miscalculation in Kosovo became manifest and irreversible. There are lessons to be learned from Kosovo, most particularly as to whether “humanitarian intervention” is morally, legally and politically feasible in the post–Cold War world.

Grave difficulties were present in the Kosovo situation, before the bombing, that made it extremely hard to intervene successfully in a diplomatic or military way. The United Nations Security Council seemed to be politically unavailable because of the anti-intervention stances of China and Russia in support of Belgrade’s “sovereign rights”. Besides, in Washington and the main European capitals, the United Nations had emerged from the Bosnia ordeal as a toothless tiger, while NATO bombing late in the Bosnian war was widely perceived as having finally induced the Serbs to accept the diplomatic solution that emerged from Dayton at the end of 1995.

Another set of difficulties concerned the choice of military tactics. Ever since the Vietnam War, political leaders in the United States have been determined to use force to promote their view of national interests, but to do so in a one-sided manner that minimises the risk of death for Americans so as to avoid a feared political backlash at home. This Washington consensus was especially strong in relation to any US undertaking regarded as humanitarian. Such a political resolve was further strengthened by the angry domestic reaction to the death of eighteen American soldiers, operating under US command, in a 1993 firefight during a UN peacekeeping operation in Somalia. Meanwhile, the 1991 Gulf War greatly encouraged the erroneous view that major warfare could now be effectively conducted on a virtually casualty‑free basis by the technologically superior side.

An additional difficulty related to facts and the contradictory way in which they were reported in Belgrade and the West. Most Serbs (and Russians) believed that the Yugoslav action of the past year or so in Kosovo was provoked by the anti-Serb violence of the Kosovo Liberation Army (KLA), whereas public opinion in the West attributed blame for the atrocities in Kosovo exclusively to Slobodan Milosevic and his minions. This disparity of perception continues to this day. Most people in Belgrade, despite being disenchanted with Milosevic’s opportunism, appear to regard his Hague indictment as a war criminal as mainly confirming NATO’s anti-Serb vendetta. In contrast, the public in the rest of Europe and North America views the charges against Milosevic as a fully justifiable and overdue response to the criminal policies that he masterminded, first in Bosnia and then in Kosovo.

Finally, there was the issue of international law and human rights. The central undertaking of the UN Charter and of international law since 1945 was to prohibit any international use of force that could not be justified as self-defence, unless it was undertaken with the explicit authority of the Security Council. But recently we have witnessed the emergence of human rights as a growing matter of international concern, especially in a setting where the abusive behaviour of the territorial government amounts to the commission of crimes against humanity and has a genocidal quality. Such a pattern creates a moral and legal foundation for intervention under UN authority and, arguably, by any responsible outside forces.

Hidden Agendas

In addition to these complexities, the NATO war seemed dictated by subtexts having nothing to do with the actual Kosovo situation. One was a desire to validate the need for NATO so as to justify its high cost. Ever since 1989, the rationale for maintaining an expensive defensive alliance, established four decades earlier to meet the threat to Europe posed by Soviet power, had seemed thin indeed. But there was always more to NATO than its Cold War rationale: it was the means to ensure a continuing US presence in western Europe, which is widely believed on both sides of the Atlantic to be responsible for the regional peace and prosperity that contrasted with the unhappy European experience in the first half of the century, when the United States was not actively engaged. For many Europeans, support for reliance on NATO rested on this concealed premise that the alliance would soon wither away unless its existence could be revalidated in a dramatic fashion. Washington shared these sentiments, with the added worry that any further evolution of European regionalism could harm the economic interests of the United States and erode its geopolitical leadership role.

Another subtext was the Pentagon’s desire to demonstrate how it could wage war without serious casualties by relying heavily on information technology for high-altitude precision targeting of missiles and bombs. It was part of the drive to maintain military budgets and relevance in an era in which there were no credible strategic threats to US security and in which it would be difficult to gain political support for military action if American lives were placed at risk. To regain congressional and public confidence after the debacle of Vietnam, the Pentagon has insisted on a military capability that exceeds the traditional great-power goal of “military superiority”. Instead, the goal became that of “predominance”, which implies such an overwhelming military advantage as to make resistance a futile and self-defeating gesture. Such a military edge has been sought, and provisionally and partially attained, through the American lead in applying informatics and computer technologies to combat situations, as illustrated by the Gulf War, and even more so by the Kosovo War.

Perhaps as important in terms of unspoken concerns that prompted NATO was the fact that both Americans and Europeans were properly ashamed of their performance in Bosnia: they had allowed Serbian forces to overrun the UN safe haven in Srebrenica and massacre many of those who were being protected; they had validated the main ethnic-cleansing scenario at Dayton; and they had permitted Radovan Karadzic and Ratko Mladic, the masterminds of Bosnian Serb criminality, to remain at large for many months despite the Dayton commitment to prosecute war criminals. For many, an ethnic-cleansing rerun in Kosovo was too much. Something needed to be done, and in a manner that would not reinforce the Bosnian image of futility. All these factors led to, and were reinforced by, disastrous errors of judgment.

Miscalculations

The slide towards war seemed almost orchestrated by Madeleine Albright’s insistence that Belgrade swallow whole the Rambouillet Accord, without adjustment, despite its blatant and extensive challenges to Yugoslavia’s sovereign rights. On one level, the war seemed to result from Richard Holbrooke’s theatrical diplomacy, which can only be defended on the false presupposition that Milosevic was certain to back down at the last moment, thereby reinforcing his image as a careerist politician whose commitment to Serb nationalism was purely manipulative.

That image was based on his acceptance in 1995 of the murderous Croatian push against the Serbs in the Krajina and on his abandonment of the Serb cause in Bosnia that same year in the face of small-scale NATO bombing in Bosnia. In effect, Holbrooke was playing a bluffing game of geopolitical poker with poor cards, relying on the false reading that Milosevic would in the end treat Kosovo as opportunistically as he had Bosnia and the Krajina. The fact that Milosevic eventually “folded” a losing hand doesn’t make the earlier bluff any more reasonable.

This circumstance of faulty expectations was compounded by miscalculations by Milosevic, who probably assumed on the basis of the Bosnian experience that calling NATO’s bluff would produce, at worst, a short-lived air attack with relatively mild consequences. Milosevic probably believed (from past action and anticipated disunity among European governments) that even if NATO initiated bombing it would be only a shallow and brief commitment.

The result, predictably, was disaster. Not only did the bombing persist for seventy-eight days, but the NATO cure greatly worsened the Milosevic disease. Ethnic cleansing was accelerated, creating a massive refugee ordeal for both the Kosovars and neighbouring Albania and the Former Yugoslav Republic of Macedonia. Further, by opting for high-altitude bombing to ensure zero-casualty warfare, the entire burden of risk and harm was shifted to the target society, including the supposed beneficiaries in Kosovo and innocent civilians throughout Yugoslavia. Kosovo was substantially destroyed as a viable society, as was much of the civilian infrastructure of Serbia.

The absence of NATO casualties only accentuates the irresponsible and illegal character of this strategy, while the number of bombing mistakes, which included hospitals, villages, schools and refugee convoys, has caused the finger of criminality to be pointed in NATO’s direction. Recourse to bombing civilian targets such as water and electricity infrastructure, which was deliberately undertaken after the initial phase of bombing military targets failed to achieve “victory”, was a grave violation of the laws of war. In addition, the larger concerns of global stability were put in great potential danger because of the allegedly accidental bombing of the Chinese embassy and the seeming alienation of Russia. It is ironic to realise that China suffered more casualties in the course of the NATO war than did the United States and all of its allies.

Roads Not Taken

All along, there had been preferable policy initiatives that could have been taken, which, while admitting their risks and limitations, would have had a good chance of achieving some measure of success without causing the pain and damage resulting from the policy relied upon. One option would have been to support the political independence of Kosovo. Given the treatment of Kosovo by Belgrade, and given the evident political will of the overwhelming majority of those living in Kosovo, this would have been a preferable option. It is true that the KLA has many dubious features, including a leadership drawn from Fascist and Stalinist circles and a record of terrorism against Serb civilians. Neither would it have been much of a match for the Yugoslav Army. But with outside support, a struggle for Kosovo independence might have been waged over time with reasonable prospects of success. The emergent Kosovo Republic would probably have taken the form of an authoritarian ethnic state, but its advent would have averted a wider, illegal, disastrous war and yet expressed European support for self-determination and human rights. Such an approach would not have undermined the authority of the United Nations to deal with peace and security issues, nor would it have denied the relevance of international law. And thus, it would not have set a horrible precedent with respect to the use of force.

A second approach would have been to exhibit far greater diplomatic flexibility in dealing with Milosevic, accepting the Yugoslav resolve to retain Kosovo as part of its sovereign territory but obtaining concessions by Belgrade on other related issues. Such an alternative would have avoided the sovereignty challenge contained in the central Rambouillet demand for a NATO peacekeeping force, relying instead on a UN force that included Russian participation. This manner of proceeding could also have included economic and political incentives for both Belgrade and the KLA. Moving in this direction would have meant renouncing the idea that NATO’s future was as much at stake as the wellbeing of the Kosovars.

A third approach would have been to embark on the war under NATO auspices, but with a serious prior attempt to secure some sort of UN authorisation, or at least acquiescence, and with a credible ground dimension built into the operation from the start. The idea would have been to threaten an occupation of Kosovo, thereby intimidating Serbian troops and police, and to remain poised for combat long enough to complete a process of civil/military restructuring in the province. Such an undertaking might in the end have required a major ground operation in difficult terrain and in the face of armed opposition, but in the setting of a population welcoming the invasion as a liberation. If successful, it would have eventually removed the taint of illegality arising out of NATO’s recourse to force, and it would have constructed a generally favourable precedent in support of humanitarian intervention under responsible regional auspices.

The rejection of these options is usually explained by the claim that they were not politically available at the outset. But they could have become real possibilities if Washington and NATO had been pursuing goals more directly associated with the wellbeing of the Kosovars and the avoidance of war.

Results of the War

Milosevic’s acceptance of NATO’s term s still cannot be reliably assessed, although certain tentative conclusions emerge. What is evident, even now, is that the outcome may well obscure the dangerous and ill-conceived character of the NATO effort. Eve n when a policy fails utterly, as in Vietnam, democracies in general, and the United States in particular, have trouble admitting error, especially when a strong investment of political effort has been made.

The NATO war exemplifies this pattern, with a compliant media generally endorsing the undertaking as a humanitarian success. At the same time, there are several potentially helpful features. For one thing, no allied blood was spilled in combat (the single death resulted from a flight accident), which creates an atmosphere more conducive to critical reflection. Furthermore, there is wide unspoken agreement, including among the original backers, that the policy badly backfired, even if it eventually yielded some positive political results. Also, the United Nations has exhibited a persisting willingness to play a constructive role, and even Russia and China appear inclined to go along with the imposed political outcome. At this point, the transfer of formal peacemaking responsibility from NATO to the United Nations has been encouraging. It is also helpful that NATO countries seem prepared to restore normalcy in Kosovo, although the fate of the rest of Yugoslavia still seems subject to a punitive war mentality. Also uncertain is the degree of commitment to the economic reconstruction of the southern Balkans, which is closely connected with prospects of peace and security in this entire region. The resettlement of Kosovo refugees on a genuinely voluntary basis has proceeded more rapidly than expected, but has been accompanied by considerable reverse ethnic cleansing, this time at the expense of the Serbs. Of an original Serb minority of an estimated two hundred thousand, fewer than fifty thousand remain in Kosovo. Remaining Serb villages are constantly harassed despite the UN/NATO peacekeeping presence.

Serbia continues to be denied reconstruction aid and remains subject to comprehensive sanctions. The resulting deterioration in conditions is imposing much hardship and suffering on the civilian population. The NATO position, strongly voiced by President Clinton, is that Serbia must be kept under this pressure as long as the Milosevic leadership remains in control of the country. Such an approach seems mindlessly to mimic the humanitarian catastrophe inflicted on Iraq in the aftermath of the Gulf War.

The Lessons of Kosovo

As we move forward from this uncertain point, it is not too early to learn from the Kosovo experience. To begin with, humanitarian intervention is notoriously difficult to carry out effectively. Governments with the capability, above all the US government, are not currently prepared to risk the lives of their military for such goals. At the same time, zero-casualty intervention is highly unlikely to achieve its objectives without imposing huge collateral human costs on the civilian population of the target society. Such a reality is certain, as in Yugoslavia, to tarnish, if not entirely undermine, the fundamental humanitarian claim. The frequent unintended, yet predictable, civilian losses produced by the tactics relied upon are integral to the manner in which zero-casualty interventions are conducted. And as the Kosovo war exemplified, failure to achieve a diplomatic victory in the early days of an air campaign concentrates bombing more and more on the civilian society itself. This style of post-modern warfare leads to severe abuses of the community that is the supposed beneficiary of international intervention.

Humanitarian intervention, if viable at all, requires the most careful attention to the relationship of means to ends, along with a maximal effort to act in conformity with applicable international law, including respect for the United Nations and its charter. Whether such a stiff test can ever be met in a world of sovereign states that define their interests by a primary reference to strategic concerns is admittedly questionable. It points to the need for structural reform, especially the creation of a volunteer UN peace force recruited on a professional basis that is as geopolitically and financially independent as possible. Even then, humanitarian intervention is problematic in the face of determined opposition and nationalist mobilisation. In general, humanitarian goals almost always have to be pursued by other means—through economic assistance, by UN preventative diplomacy and peacekeeping, and by support, in extreme circumstances, for movements of self-determination. It is not a matter of deferring unconditionally to the sovereign rights of an oppressive government, of the sort headed by Milosevic, which is subjecting an ethnically distinct part of its citizenry to unacceptable suffering; it is a recognition that even the “smartest” military technologies and tactics are often unable to provide relief in an acceptable manner.

Electronic Bloodsport

There is a further element present in this NATO undertaking that applies to the United States in particular. The logic of war has always sought war-fighting doctrines and weaponry that keep casualties among one’s own forces as low as possible, while possessing the maximum capability to harm the enemy. By itself this is normal and to be expected in a world that remains organised around the sovereign state. But new informatic technologies enable the United States in particular to carry this logic to an extreme that invites reckless and overbearing recourses to force and gives rise to an alarming tendency of the Anglo-American public to convert warfare into a new kind of electronic bloodsport. It establishes and celebrates a one-sidedness that resembles the structure of torture, with the perpetrator choosing the method by which to inflict pain and the victim rendered helpless to retaliate. Probably no country has the maturity to use such a military option prudently and morally. Certainly the United States has demonstrated its lack of such a capacity.

It is possible that American policymakers are engaging behind closed doors in a process of self-criticism that will inhibit recourse to Kosovo-style interventions in the near future. After all, despite the impressiveness of a “casualty-free” major war, the results were disappointing on many counts. The military predominance did not prove to be politically effective soon enough to produce a clear sense of “victory”.

Several adverse consequences resulted: a greatly enhanced dynamic of ethnic cleansing (from an estimated two thousand Albanian Kosovars killed before NATO’s bombardment to a number believed to be over ten thousand in the course of the war, with an additional eight hundred thousand to one million expelled or displaced); a bombing campaign that became increasingly “dirty” in terms of targets, “accidents” and pollution; a post-war reassessment of military damage inflicted that showed a surprisingly small dent in the Serb military capability; a felt need to soften diplomatic demands and approach so as to bring the war to an end, including reliance on a major Russian role and a formal UN cover for the NATO peacekeeping force, which saved Milosevic’s face sufficiently so that he could (implausibly) claim “victory”; a European political backlash that prompted discussions about how to establish more independence from Washington in the future, undoubtedly weakening NATO, which is precisely the reverse of what was intended; a post-war dynamic that has associated the NATO-led peacekeeping force with a persistence of ethnic cleansing, but with the identity of victim and perpetrator reversed; and a vindictive posture towards Serbian Yugoslavia that withholds reconstruction aid and sustains pressure, further undermining the humanitarian claims of the interveners.

A final, related observation. When the atomic bomb was initially developed, it was used against Japanese cities in a setting where there was no prospect of retaliation. I doubt very much that Hiroshima and Nagasaki would have been attacked with such weapons if the Japanese had possessed atomic bombs of their own or if Germany had used them earlier in the war against British cities. During the Cold War, massive mutually destructive capabilities were deployed by both military superpowers. As a result, great caution was exercised by the nuclear weapons states, and no weapon of mass destruction was used—despite tactical pressures to do so in several crisis situations. It seems doubtful that the Kosovo/Yugoslav ordeal will produce any fundamental rethinking about the role of force.

East Timor

The subsequent slowness of international response to the horrifying violence that occurred in East Timor reinforces the view that humanitarian intervention as an undertaking remains partially beneath the dark cloud of American-led geopolitics. After all, East Timor, unlike Kosovo, was a separate, independent state before being forcibly and brutally annexed by Indonesia in 1975, with the tacit approval of a Kissinger-led foreign policy. And the recent cycle of violence has been designed to nullify the outcome of democratic elections, overseen by UN monitors, in which 78 per cent of the voters backed the restoration of sovereignty and independence to East Timor. To watch such a spectacle of horror from the sidelines so soon after Kosovo seemed unacceptable to public opinion, prompting political leaders in Washington and elsewhere to support, perhaps too belatedly to render real help to the victimised people of East Timor, the dispatch of a UN peacekeeping force. Even Jakarta has had its arm twisted until it gave its consent.

We must face the reality that there does not presently exist a morally and legally principled foundation for humanitarian intervention. The UN system is too weak and compromised. The geopolitical structure, dominated by the United States, is governed by strategic concerns of power, wealth and ideology that are inconsistently linked to circumstances of humanitarian catastrophe. This is not to set aside an ethos of human solidarity or to neglect the real need to protect peoples and societies at risk, but it is to face the unpleasant truth that such a capability does not now exist, nor is it likely to come into being, without some very fundamental changes in the character of the world order.

Of course, memories are short with respect to “incidents” of this sort that do not impact too heavily on leading states. Already, East Timor has emerged to challenge the international community from the opposite direction of Kosovo, recalling the world’s woeful passiveness during the Rwandan genocide of 1994 that took upwards of one million lives. If Kosovo illustrates the negative consequences of doing too much of a dubious character in response to a humanitarian catastrophe, Rwanda and East Timor exemplify doing too little. In a fundamental sense, both doing too much and too little manifest what might be called “the tyranny of geopolitics”. For this tyranny to be overthrown, it will be necessary to democratise international politics and bring its practice into far greater conformity with international law than is presently the case. Among other things, this would mean relegating forcible intervention to a position of last, ultimate resort as intended by the UN Charter. It would mean adopting a peacekeeping approach that was guided at every stage by the Security Council (or the Secretary General) in a genuinely collective manner that sought to minimise civilian damage and accepted its essential mission as being dedicated to saving lives in the target country at least to the same extent as those of the intervening forces.

Only once those conditions were satisfied could we begin to have some confidence in the humanitarian character of “humanitarian intervention”. In the meantime, we should not be deceived by media spins or be too supportive either of claims to intervene for allegedly humanitarian reasons or of prudential arguments against such intervention. In effect, world order is beset by confusion and continues to be dominated by the strategic calculations constructed on an ad hoc basis by geopolitical leaders.