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The Illegal War in Kosovo

by James Hirsen


The undeclared war NATO is pursuing in Yugoslavia raises a fundamental legal and moral issue that demands an explanation, particularly from the United States and the Clinton administration that regularly cites international law to validate its policy decisions: are the current combat operations legal according to the standards established under international law?

Amidst a myriad of international charters, treaties, resolutions and laws, not a single explicit justification can be found for the present military action in Yugoslavia. The world community has not questioned the sovereignty of the Federal Republic of Yugoslavia, which includes Kosovo within its borders. In fact, numerous resolutions unanimously passed by the U.N. Security Council throughout 1998 declared "the commitment of all member?states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia."

It appears as though the United States and NATO are invoking some vague, unwritten principle in which interference within the internal affairs of a sovereign nation is permissible in order to halt human rights violations. Yet, if conditions in Yugoslavia warrant this kind of extensive multilateral bombing campaign, then why was assistance lacking in the African Great Lakes region where two million people were massacred in the last five years? Did the one million people slaughtered in Sudan over the past ten years not constitute a sufficient example of human suffering? What about the atrocities that have occurred in Ethiopia, Tibet or Turkey, or the casualties that continue to mount as a result of a whole host of contemptible human rights violations that are taking place across the globe?

There is a dangerous precedent being set here, one with potentially treacherous consequences. By invoking a fuzzy standard, a military force, thrust within the borders of a sovereign nation, can appear to be merited, perhaps even noble. But there is a flip side to this equation - any nation with unsavory intentions could easily invade another independent country under the guise of being a human rights protector. Not only is NATO's use of force in Yugoslavia not authorized under international law, it is expressly prohibited by a number of international instruments. Article 2 of the United Nations Charter prohibits the use of force against the territorial integrity of a sovereign nation unless it engaged in aggression against another sovereign state. Yugoslavia did not engage in any assault of neighboring states outside its sovereign borders. The U.N. Security Council does not authorize military force in this case, a prerequisite to the use of military action under Article 51 of the UN Charter, unless a nation is defending itself from attack.

NATO's charter, the document that gave birth to its existence, is violated by this bombing campaign. NATO was formed as a defensive organization. Force is sanctioned only if one of its member nations is attacked. No mandate exists in the North Atlantic Treaty for launching an offensive against a sovereign nation, despite its internal conflicts.

The 1980 Vienna Convention on the Law of Treaties forbids the use of coercive force to exact adherence to a treaty. Milosevic was given an offer he couldn't refuse: sign the agreement or be bombed into submission. Rather than acting as an intermediary, the United States, a third party to the "peace process," is using military force as a method of negotiation.

The Helsinki Accords Final Act of 1975 guarantees the territorial integrity of the nations of Europe. The peace plan that Yugoslavia was being asked to sign would have resulted in the eventual modification of its borders. Customarily, a peace accord is drafted with the goal of reaching a middle ground so as to persuade both sides to endorse the pact. Not so in this instance. No conscientious, mainstream Yugoslavian leader could ever support the proposed agreement, much less a depraved figure such as Milosevic. The agreement shows disrespect to the territorial integrity and sovereignty of Yugoslavia. It creates a self-governing Kosovo, empowered to affect Yugoslav politics, but with no reciprocal arrangement for the Federal Republic of Yugoslavia. Elections would effectively be controlled by NATO occupiers.

The Kosovo Liberation Army, a terrorist faction seeking Kosovo independence, is not mentioned by name in the agreement. However, what would absolutely preclude a Yugoslav leader from signing the proposed pact is the mechanism for a referendum that would insure that after three years Kosovo would be severed from Yugoslavia and become independent. This is infeasible both culturally and politically. Serbian claims to Kosovo go back a thousand years and are steeped in legendary significance.

The president has placed the country in a precarious situation. The human rights violations cannot be stopped without the use of a formidable ground force. Fighting a conventional ground war in the rough terrain of the Balkans could quite possibly result in a Vietnam-style protracted engagement. If the U.S. and NATO merely retreat, the international embarrassment would be an unacceptable conclusion with potentially detrimental aftereffects. We already see a growing anti-U.S. mood as shown by protests in Greece, Macedonia, Slovakia and Moscow.

A new peace plan should be designed; one that takes into account the cultural, historical and political circumstances and is, above all else, a formula that will work and a plan that will endure.

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