Four main factors should be considered in assessing the legitimacy of intervention in the name of humanitarianism: (i) the existence of humanitarian motives; (ii) humanitarian grounds for intervention; (iii) humanitarian means of intervention; and (iv) humanitarian results. Debate over the NATO bombing in Kosovo has concerned application of these factors.
The Humanitarian Motive
The perceived requirement of humanitarian motivations can both constrain and enable state actors. One of the fundamental disagreements of pro-interventionists and anti- interventionists is the credibility of claims to a humanitarian motive for the NATO action in Kosovo. There is always much room for skepticism when it comes to the motives of intervenors. Rarely are motivations pure and altruistic. The United States and NATO intervene when it is in their interests to do so. Still, the motives of the Clinton administration and the NATO allied governments are pluralistic. While the Clinton administration had mixed motivations for the NATO action in Kosovo, including bolstering the credibility of NATO and protecting neighboring countries from a tide of refugees, humanitarian motives were among the concerns legitimizing intervention. With widespread media images of humanitarian disaster creating a public groundswell in support of "doing something" in the Balkans, many U.S. policymakers viewed humanitarianism as in the United States' interests. To the extent that humanitarian concerns have gained influence over decision-making and the behavior of state and non-state actors, we can discern a significant normative shift.
Another factor that must be considered is whether sufficient grounds exist to justify intervention in legal and/or moral terms. Under one theory of justifiable intervention, governments that commit gross violations of human rights are said to forfeit any claims to the protection normally offered by sovereignty against intervention. Where a state is incapable of protecting the human rights of a political or ethno-national minority or is itself the perpetrator of violations against civilians, the use of force on human rights grounds stands as a legal option.
Intervention that promotes central principles of the UN Charter is permissible within certain parameters. The central purpose of the United Nations, as set forth in Article 1, includes developing "respect for the principle of equal rights and self-determination of peoples" and "encouraging respect for human rights and for fundamental freedoms without distinction as to race, sex, language or religion." Humanitarian intervention promotes the most central aim of the organization, namely, the maintenance of international peace and security. Peace means more than the absence of an internationally recognized war. Human rights violations short of all-out war also constitute major breaches of peace and security, and Articles 55 and 56 of the UN Charter implore "all Members [to] pledge themselves to take joint action in cooperation with the Organization for the achievement of...universal respect for, and observance of, human rights and fundamental freedoms for all." Accordingly, the UN Charter not only permits intervention on humanitarian grounds, in cases of gross and systemic human rights abuses against civilians who are members of minority groups, it requires it.
Pro-interventionists and anti-interventionists have factual differences in terms of whether sufficient humanitarian grounds for intervention existed with respect to Kosovo. Some anti-interventionists contend that gross human rights violations did not exist in Kosovo until the NATO bombing began. This is not true. In fact, human rights researchers had been cataloguing gross human rights abuses in Kosovo since the early 1990s. Western diplomats were well aware of the widespread abuses in Kosovo. In the face of international inaction, the human rights abuses in Kosovo continued and, indeed, worsened. By October 1998, Serbs had driven 300,000 Kosovar Albanians from their homes. The forced displacement, combined with the pattern of human rights abuses and the track record of the Milosevic regime in Bosnia and Croatia, support the argument that there were substantial grounds for humanitarian intervention. As times passes and more and more Kosovar bodies are unearthed from mass graves in Serbia, the factual basis for the intervention will become even clearer.
Finally, the breakdown of diplomatic negotiations is for many commentators a prerequisite for grounds for intervention. Conspiracy theories abound about the Rambouillet negotiations. And yet the argument that the negotiations were designed to fail is without merit. The terms of the proposed agreement may not have all been well crafted, but to read into a conspiracy theory is to deny human error. By the time of Rambouillet, the situation on the ground had worsened and any solution would have had to contain a strong military option that would have been objectionable to Milosevic. While an earlier diplomatic effort may have been successful if its timing and terms had been appropriate, the Rambouillet talks came too late for an agreement acceptable to both sides to be reached.
To ensure legitimacy, the means of intervention must be consistent with international humanitarian law. That is to say, the means employed should be necessary for a legitimate objective, they should be proportionate to a legitimate military outcome, they should discriminate between civilian and noncivilian targets, and the efficacy of the means should be appropriately related to the probability of success. Interventions that fail to conform to these criteria are not only illegal, they are immoral.
There were several problems with the Kosovo case. The NATO allies attempted to exercise care in their choice of individual targets and, for the most part, they were successful. The main error with the humanitarian means deployed rested at a higher level: the very strategy and assumptions underlying the campaign. Above all, as other commentators have pointed out, the adverse effects of the campaign stemmed from the lack of a coherent Balkans policy and, consequently, an incremental and reactive method of dealing with Milosevic. Planners erred in assuming that a short bombing campaign would succeed and that ground troops would not be needed to achieve the desired results in a humanitarian manner.
Both pro- and anti-interventionists agree that the NATO bombing was designed to avoid any allied casualties and that such bombing entailed a greater risk to civilians. Where pro- and anti-interventionists part company is on whether "flying high" comports with international humanitarian law standards. The Geneva Conventions IV and Protocol I provide that civilians shall be protected against "indiscriminate attacks," that is, attacks that "employ a method or means of combat which cannot be directed at a specific military objective," or "employ a method or means of combat the effects of which cannot be limited as required." In addition, Protocol I requires military planners to "take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects." It is not within the spirit of these provisions to increase the risk to civilians in order to avoid military casualties.
Throughout the bombing campaign, the principle of "proportionality" required NATO to undertake action designed to achieve some legitimate military objective. To the extent that the bombing campaign was necessary for ending human rights abuses and returning deported civilians, the action was within the scope of international law. Unavoidable and unplanned damage to civilian targets incurred while attacking legitimate military targets was also consistent with international standards. However, when it became apparent that the bombing was not effectively advancing military objectives and mainly civilians felt the impact of the bombing, the legitimacy of the campaign became more problematic from a legal and moral perspective.
The most damning critique of the intervention is its failure to have provided protection to innocent civilians. Kosovo Albanians expected protection, which they never received. NATO embarked on a campaign not to protect Kosovo, but rather to defeat and punish Serbia. Not only was NATO's bombing of specific targets open to question as possible violations of international law, the entire strategy behind the campaign, which ignored the protection needs of civilians, was counter-humanitarian. The counter-humanitarian means employed by the NATO allies in their bombing campaign severely undercuts the humanitarian pretensions of the action.
To some extent the results of the NATO bombing campaign can be viewed as humanitarian. In comparative terms, there were few civilian casualties and, amazingly, no NATO casualties. Milosevic did accept a deal that returned the refugees to their homes, established an international force to guarantee security (KFOR), and created a UN civil administration committed to helping the Kosovars build a multiethnic polity based on the rule of law. Though imperfect, the transitional society in Kosovo, at least theoretically, holds far greater promise for the respect of human rights and the humane governance than the old Belgrade rule.
The negative impact of the intervention, however, looms large. The promise of a better society has yet to be fulfilled. Postwar Kosovo, beset by revenge killings of Serbs and Roma and border clashes between Albanians and Serb police, is little improved. To the extent that the NATO campaign sought to promote a multiethnic and human rights-abiding society, the campaign was a dismal failure. As long as revenge attacks continue against Serbs and the occupying international force fails to stop it, the result of NATO action in Kosovo cannot be called "humanitarian." The failure of international forces to protect against revenge killings negates a humanitarian result.
Safeguards must exist to prevent the misuse of force in the name of humanitarianism and human rights. The weighing of evidence of humanitarian motives, grounds, means, and results provides some limitations. When examining these four factors in the case of Kosovo, it is obvious that the first two factors are met and questions arise mainly about the latter two factors. The means chosen for the intervention fell short of international standards because of fundamental misunderstandings about the conflict, in particular concerning the necessity of protecting civilians and the need to use ground troops. The most significant shortcoming of the intervention, however, was a failure to achieve humanitarian results. A culture of impunity remains strong in Kosovo.
Dr. Mertus spoke at an EES noon discussion on June 6, 2001. The above is a summary of her presentation. Meeting Report #234.