Was NATO's War Against Yugoslavia Legal?

July 28, 1999

Comment: #301


[1] "Humanitarian Hypocrisy," by Professor Robert Hayden, Director, Center for Russian & East European Studies, University of Pittsburgh, Jurist network.

[2] "NATO and International Law," by Raju G. C. Thomas, Department of Political Science
Marquette University, Jurist network.

[3] David A. Fulghum, "Pentagon Dissecting Kosovo Combat Data," Aviation Week & Space Technology, July 26, 1999, Pg. 68

There are at least three areas of "lessons learned" from the Serbo-NATO War that should be examined by independent bodies not having a vested interest in the answer.

The first is the question of the conduct of the war and its effectiveness (Why did Slobo cave?). Here the question is one of "lessons learned" versus the "lessons the Pentagon wants us to learn." Billions of dollars are at stake, but if the David Fulghum of the authoritative Aviation Week is correct [see Reference #3], the Pentagon's ongoing "lessons learned" exercise is motivated in part by a desire to "head off and endless series of congressional hears on successes and failures in the Kosovo air campaign..."

The second issue area that should be investigated by an independent body relates to how America stumbled into a war—or the decision process leading up to and culminating with Rambouillet. Here the question seems to relate to what could have been done differently to prevent the war, why did planners evolve a mindset that assumed Milosevic would cave after a few days of bombing, and why didn't planners in the State Department and NATO prepare for the possibility that Serbia might react to the bombing with a major escalation and mass expulsions? [A 20 July 99 report in the Washington Post hints that intelligence agencies may have known of the existence, if not the content, of the expulsion plan know as Operation Horseshoe as early as October.]

The third area for an independent assessment is perhaps the most important for a country that purports to be a nation of laws. That is the question of the war's legality. Earlier comments addressed obvious aspects of this issue from the perspective of the Constitution and the responsibility of Congress. The attached briefs raise serious questions about the international legality of the bombing of Serbia. Not being a lawyer, I can not judge them, but I have checked a few of the legal references, and they are quoted correctly as far as I can tell.

I urge readers to read these carefully. They seem to written for non-lawyers with an interest in the law.

Chuck Spinney

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