Nato's shame

Amnesty says we committed war crimes in Kosovo. British ministers come perilously close to shrugging it off.

Isabel Hilton

Thursday June 8, 2000

Nato's intervention in Kosovo, the House of Commons foreign affairs select committee has ruled, was illegal under international law, but justified on moral grounds. Even in the age of the new imperialism, this is a pretty breathtaking conclusion. We are being asked to accept that it is morally fine to break international law, as long as we do so with good intentions. This is because we are the good guys - so although we do things that may look wrong, they are not wrong really. If Slobodan Milosevic breaks international humanitarian law, which we could certainly argue that he did, we are entitled to break international law to teach him what's what.

It is the sort of argument that, were it to be put by anyone not quite as nice or pure in heart as we are, might make me a touch uneasy. But it gets worse.

Nato's actions were illegal under Nato's own treaty, which does not permit it to undertake aggressive military action without a UN mandate. The foreign affairs committee's solution to this is to propose that Nato rewrite its charter. It's a brilliant solution, as long as the only part that bothers you is Nato's breach of its own rules. If, like me - and a stream of expert witnesses who testified to the committee - you are also bothered by the fact that international law does not permit the alliance to bomb Kosovo on its own recognisance, however worthy the intention, then changing Nato's rules will not reassure you.

The inconvenience, of course, is that a UN mandate requires us to sign up the awkward squad - the Russians and the Chinese - or at least, to persuade them not to veto any action we might wish to take. Certainly this is difficult, but it hardly supports Nato's claim to be on the side of democracy, justice and the rule of law if it ditches the rules when they do not suit.

Also, according to Amnesty International, the way the military campaign was conducted involved Nato forces in the commission of a series of war crimes. As the Amnesty report points out, aspects of the rules of engagement - specifically the requirement that Nato aircraft fly above 15,000ft - actually made full adherence to international humanitarian law virtually impossible. Direct attacks on civilians, attacks that do not attempt to distinguish between military and civilian targets and those with a disproportionate im pact on civilians are prohibited. Given the disparity between civilian and military casualties in the bombing campaign, it would be interesting to hear Nato's argument that these rules had not been broken.

A close reading of the select committee's report reveals a twinge or two of unease on this front, though, given the general tone, it is no surprise that it stops short of endorsing Amnesty's comments.

You could take the robust view that a war crime committed by men with pure hearts and high moral purpose (ie our side) is not a war crime. George Robertson, indeed, has come perilously close to such a position. Or you can acknowledge that the fact that Milosevic is a very bad man does not in any way diminish Nato's responsibility to respect the laws of war. It is from the observance of such laws that Nato derives its claim to moral superiority over men like Milosevic and Saddam Hussein and its right to sit in judgment on them. Once you throw that thought away, rather an important baby disappears down the plughole.

If we no longer feel that a UN mandate is necessary in order to intervene militarily in another country, could we perhaps have a new set of rules that will govern future interventions? I ask because it would be nice to know how we are to judge which of the 30 or 40 armed conflicts that rage around the world at any moment in which we might get involved on this unilateral basis. Secondly, if we accept that we are allowed to commit acts of doubtful legality in pursuit of our noble ideals, do we continue to support the international community's right to prosecute other individuals for war crimes and crimes against humanity?

And thirdly, if we are content to violate one of the most basic principles of the UN charter, does this mean that we regard the organisation as fatally flawed? If so, what does that mean for our continued membership? Would we support other members of the security council who decided to dispense with the irksome restraints represented by international law? If the Chinese decided to invade Taiwan, for instance, would we slap them on the back and say "welcome to the club"? Or would we tut-tut and threaten a boycott of soft toys until they came round to our point of view?

Surely the point of the post-Nuremberg effort to build international law - painfully slow and flawed though it has been - was to provide a universally agreed measure by which the actions and misdeeds of states could be judged and through which they could be sanctioned. Of course it is irksome to have to persuade one's fellow states, many of whom act out of ignoble motives. But the alternative is to sacrifice the principle of international law while claiming (as scoundrels might) to be acting in defence of humanitarian principle.

Original article