Andre Gunder Frank

NATO'S KOSOVO POLITICAL BOMB

A Post Cold-War Coup de Grace to the UN, International Law, Constitutionality and Democracy

Because of its dominant role in the United Nations Security Council and NATO, the United States tends to orchestrate global peacemaking. Unfortunately, many of these efforts are seriously flawed. We have become increasingly inclined to sidestep the time-tested premises of negotiation [provided for in Articles 42 and 43 of the UN Charter], which in most cases prevent deterioration of a bad situation and at least offer the prospect of a bloodless solution. The approach the United States has taken recently has been to devise a solution that best suits its own purposes, recruit at least tacit support in whichever forum it can best influence, provide the dominant military force, present an ultimatum to recalcitrant parties and then take punitive action against the entire nation to force compliance. The often tragic result of this final decision is that already oppressed citizens suffer .

- President Jimmy Carter May 1999

This is not a UN war. It's a US war

- UN Gen. Sec. Perez de Cuellar 1991
[so he should have resigned]

NATO member states should have consulted the Security Council

- UN Gen. Sec. Kofi Annan, March 25,1999
[so he too should have resigned]

From the beginning of the NATO war against Yugoslavia, the American Military Commander of NATO and then all its major political spokespersons claimed to speak and act for the 'International Community.' Of course that was a deliberate hoax, since the membership of NATO is only about 15 percent of the states and even less than that of the population of the United Nations. Its two largest countries with 2 billion people, two of the five permanent members of the Security Council and probably a vast majority of the states represented in the General Assembly opposed this action. UN Secretary General Kofi Annan put it mildly the day bombing started on March 24 that NATO member states should 'consult' the UN Security Council [SC] before attacking. They did no such thing in the knowledge that two permanent members would have exercised their veto and thereby paralyzed the SC. The General Assembly [GA] could have been convened to establish a UN Emergency Intervention Force, as it did in the 1956 Suez crisis; but the GA was never convened and its members were not even allowed to express their opposition to and rejection of this totally illegal NATO war. Instead like a wild west vigilante posse, NATO took all international law into its own hands only to break it and discard - indeed even totally to abrogate - it as useless for its war-making purposes, and then to pervert the UN and that law for its subsequent 'peace' making purposes. Moreover, NATO neglected or overran what little international or domestic political, legal, and media opposition it encountered.

LAW

NATO action was not only criminal, but dangerously so; because it not only violated but virtually abrogated the UN Charter, structure, and process and its replaced it by NATO and its dominant power in the United States. It is difficult to decide where to start a quick review of this process. In 1950 the United States was able to fight the Korean War under the UN flag, because in the Security Council China was represented by the regime in Taiwan, and the USSR was absent the day of the vote. Never mind that the UN Charter requires the affirmative vote of all permanent members. In 1961, the UN was used as a cover for United States foreign policy in the Congo, which resulted in the installation by the CIA of Mobuto after the expulsion and killing of Lumumba and the death there of UN Secretary General Hammerskjold. In the 1980s, the United States alleged that it is not subject to the rulings of UN International Court in the Hague after the latter found that US mining of the Nicaragua harbor violated the UN Charter.

But in 1990/91 the United States and its allies availed themselves of the UN and its Security Council to 'legitimate' the war against Iraq by pulling legalistic wool over the eyes of the world community to pretend that their action was carried out for the UN. Nonetheless, the then UN Secretary General Perez de Cuellar clearly said 'This is a US war, not a UN war." His resignation for that reason would have made it much more loud and clear. In fact, the US led war against Iraq clearly violated at least seven different clauses of the UN Charter. The first one is that Article 27, Clause 3 of the UN Charter requires the concurring votes of all permanent members. That was not the case, since China abstained [ and the USSR only voted yes after being bribed to do so in its economic crisis. If it had at least abstained, China might have voted No, and probably France also ]. This requirement is again relevant in 1999 The United States and its NATO allies did not 'consult' the Security Council as the UN Secretary General reminded us because Russia and China would have vetoed the war. Even the resolution about the 'peace' still violated this provision, because China abstained and thus did not concur.

The American pretence that the war against Yugoslavia WAS 'legalized' by a previous Security Council resolution is a sheer lie as was also the case already in the war against Iraq. For Articles 2 and 3 of the UN Charter bar resort to war by a member state altogether, and Article 42 bars the resort to war even by a United Nations Force until the Security Council determines that all peaceful means to resolve the dispute have been exhausted pursuant to Article 41. [We return to peaceful means below.] Of course, there was never any compliance with any none of these and other requirements of the UN Charter, and least of all with the provision that the military action be under UN military command [which has never been really established], and not under that of the USA or NATO. On the contrary, the Iraq war initiated another dangerous precedent in this regard: although it was not a NATO operation, NATO offered its infrastructural facilities and some military equipment, which were used by its member allies in their illegal war against Iraq. By acting under the cover of the ill-famed Security Council Resolution 687 about 'all necessary means,' the United States violated and subverted the United Nations Charter in order to convert the U N into a de facto arm of its own foreign policy. Its spokespersons and the media availed themselves the tried and true methods of Joseph Goebbels to lie so much as to persuade many unsuspecting people that their war was 'legally sanctioned' by the UN. The same charade still continues nearly a decade later through the embargo on Iraq that has killed half a million people and the repeated American bombings in the 'no-fly' zones over Iraq, which are decreed by the United States without even the slightest basis in UN law or decision.

Bosnia offered the opportunity to take another major dangerous step down this criminal road. In the beginning, The Helsinki Security Organization OSCE and the United Nations were active in trying to defuse and then resolve the conflict. Both failed because its principal members, especially the United States, Britain, France, and also Germany and Russia were unable to agree and unwilling to act. That scuttled not only the Vance-Owens plan, which provided for essentially the same things as the Dayton agreement would three years later, but would have avoided the war and saved countless lives. But this impasse and paralysis, especially of and by the United States which prior to an election demanded the use of European but no American troops, also was another important stepping stone to the present: The United Nations declared itself unable, and what's worse incompetent, to resolve the conflict in Bosnia -- and handed it over for 'resolution' lock, stock and barrel to NATO!

This hand-over of UN responsibilities to NATO was a qualitatively significant further step in the de facto dismemberment of the United Nations and its alleged de jure replacement by NATO. In fact of course, it was the United States that took on the 'responsibility' and then dictated its terms of 'settlement' at Dayton, Ohio, USA. Among them were the capture and trial of indicted war criminals in the former Yugoslavia, principally Kardelic and Mladic, who remain safely at large; because the same United States has resolutely opposed and prevented their arrest ever since then. Thus, not only international law, but even its own dictates are conveniently flouted by the United States whenever they are inconvenient. Significantly also at Dayton, the United States appointed Slobodan Milosevic as its executor and guarantor of the Dayton Agreements on Bosnia, which by agreement with Milosevic deliberately made no mention of Kosovo. Thereby Milosevic received a green light and free hand to do as he wished in Kosovo - until it became politically convenient for the United States to have him indicted as a war criminal and to bomb 'him' as well, thus repeating the procedure the U.S. government had already followed with Saddam Hussein in Iraq. So the United States and its NATO have step by step set themselves up as accuser, prosecutor, judge, jury, and executioner of international law and its organizations - that is they have executed international law itself - according to American and NATO convenience.

In the war against Yugoslavia, NATO led by the United States deliberately bypassed the entire United Nations Organization and set aside the consultative procedures it, and especially its Security Council, offers for the discussion and settlement of international disputes in particular those that may threaten the peace. However, even if the NATO states had 'consulted' the Security Council, as Secretary General Kofi Annan belatedly requested, any Security Council 'sanction' of member state bombing would still have been in abject violation of numerous articles [2, 3, 27, 41, 42, 51] of the UN Charter, as was the bombing of Iraq in 1991 and again in 1999, when the Security Council was not even consulted.

In addition to that, this NATO action is in direct violation of the precedent and decisions for international law established by the the Nuremberg Tribunal

• Helsinki Agreement establishing OSCE and its deliberations
• UN definition and prohibition of 'aggression' against a sovereign [member] state
• Vienna convention of 1979 declaring illegal all treaties and agreements signed under [military] duress
• several of the Geneva Conventions on
  • human rights
  • genocide
  • unnecessary targeting of civilians and their infrastructure
• the US Constitution
• the German Constitution
• other NATO countries' constitutions and laws

and on and on ---

Without trying to be exhaustive, it may be illuminating to take a brief look at least at some of the relevant Nuremberg principles and Geneva conventions:

The U.N. Geneva Convention on Genocide of 1948 states the following in its Article 2:

"In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. At Nuremberg, of all crimes, that of starting a war was judged to be the worst. "Three categories of offenses were regarded as punishable crimes under international law: (a) CRIMES AGAINST PEACE: (i) Planning, preparation, initiation or waging of war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i). (b) WAR CRIMES: Violation of the laws or customs of war, which include, but are not limited to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity. - (c) CRIMES AGAINST HUMANITY: -Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime."

[from Richard A. Falk, A Global Approach to National Policy. Harvard University Press, 1975, p. 149].

Moreover the Nuremberg Tribunal established clearly that the responsibility for these crimes is PERSONAL: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced….Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats and businessmen….When they, with knowledge of his aims, gave him their cooperation, they made themselves parties to the plan he had initiated. They are not to be deemed innocent because Hitler made use of them, if they knew what they were doing"

Accordingly, all of NATO political leaders [heads of government, foreign and 'defense' ministers] and its chief military personnel have been accused of war crimes by several groups of jurists from Canada, Greece, UK, Norway, and the US itself. They have filed detailed legal briefs with the International Criminal Tribunal for the former Yugoslavia [ICT-Y] in The Hague accusing more than 60 people by name of long lists of specific war crimes and other crimes against humanity. These Jurists have asked that the ICT-Y indict not only Yugoslavs but also NATO leaders of war crimes, and some have traveled to the Hague and have had personal interviews about the same with the ICT-Y Chief Prosecutor Arbour.

However. the aggressive NATO war against Yugoslavia was in total violation even of its own principles as a purely DEFENSIVE alliance with a NATO Charter that reads in part:

Article 1 The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations.

Therefore, this first time ever quite unprovoked NATO aggression sets very important and dangerous precedents in that

• it violates the above cited NATO and UN Charters, Nuremberg principles, Geneva Conventions, etc.
• it is against a sovereign state
• it is 'out of area' of the NATO alliance itself

POLITICS

Indeed, the new Clinton Doctrine as announced in several public post-war statements by the President himself now ominously threatens future repeat performances by the 'NORTH ATLANTIC Treaty Organization elsewhere in Eastern Europe and even in Asia and Africa.

This threat is not only ominous. It is also curious, since the war itself failed to achieve any of its stated aims; and success is dubious even in achieving any of the unstated aims like NATO eastward expansion and continued US military domination in Europe. Indeed, the Serbian withdrawal from Kosovo [long since offered by Yugoslavia before the bombing] showed that almost all Mig planes and battle tanks left unharmed, with their troops cheering. Post-war assessments show that the Yugoslav military machine - unlike its civilian infrastructure - remained substantially unharmed. Militarily moreover, Yugoslavia was prepared to continue absorbing the NATO onslaught. The settlement and peace was achieved only through diplomatic intervention by the Russians, who NATO and especially the US virtually begged to act on its behalf. Russian President Yeltsin's demission of 'anti-western' Russian Prime Minister Primakov [perhaps also as a result of American influence in Moscow?] was a hard blow to Milosevic, for it resulted in the appointment of the western-friendly Chernomyrdin as principal negotiator of a settlement. Milosoevic only signed the G-8 [Western G-7 & Russia] agreement when he found that he could get no more [from] Russian backing. However, this agreement and the subsequent UN Security Council Resolution based on it contained none of the 'un-negotiable' Western demands that Milosevic had rejected all along: No NATO occupation of Serbia, no referendum on Kosovo independence, No NATO unified command but a UN force including Russia and possibly others instead, and disarming the KLA- which was later changed to 'de-militarization' of the KLA. After Belgrade had agreed in principle, NATO has three times tried to pull a fast one to change the terms of agreement in its favor, once in the last diplomatic shuttle missions to Belgrade by Chernomyrdin and the Finnish president, then at the military commander meetings on the Macedonian/Kosovan border, and again in the wording of the Security Council resolution. Each time, Belgrade and Moscow still stood fast and prevented a NATO takeover at the negotiating table of what NATO had failed to get by force -almost. And this is where the UN comes back into NATO's plans and action.

In NATO's effort to extricate itself from an even much greater mess in Kosovo than they made themselves without the UN in Bosnia, NATO and the United States asked Russia to take their chestnuts out of the hot fire in Yugoslavia. The Russian envoy Chernomyrdin did not like the role of being a mere errand boy between Washington and Belgrade, nor did not wish simply to do NATO's bidding there. Yet Russia did much of that anyway at the G-8 meeting and agreement in Germany, where was Russia was represented by its newly appointed foreign minister. But once the bombing stopped, NATO wanted to go back to the UN Security Council for its blessing after the fact and especially for a UN umbrella under which to push through its post-war agenda. The deal at the G-8 meeting was that Russia [and before the bombing of its embassy, hopefully China] would lend Security Council approval and 'authorization' for an 'international security force' to go into Kosovo and neighboring areas to pick up the pieces that NATO had bombed to smithereens. How would that arrangement differ in 'peace'-time from what Jimmy Carter described above for war-time ? Recall that he said "the approach the United States has taken recently has been to devise a solution that best suits its own purposes, recruit at least tacit support in whichever forum it can best influence, provide the dominant military force, present an ultimatum to recalcitrant parties and then take punitive action against the entire nation to force compliance."

It is bad enough for the United States to [be able to] do that under its own or NATO flag. It is still worse for the US to be able to do the same under the flag of the United Nations if that is where it then can "recruit at least tacit support in whichever forum it can best influence" - and then claim to boot that it is only implementing the general will. That only emasculates and perverts the UN still more than it has been already. Alas and foreseeable, that is exactly what has happened. The 'UN intervention force' under 'UN command' turns out to be no more than the same old and some newly added US, British, German, French and a few other troops under the same old US NATO command that rushed in with tanks to occupy Kosovo militarily. In mid July several weeks after the 'peace' agreement, there is still no sign of a UN or even NATO civilian administration in Kosovo, other than that provided by the still armed KLA, which rushed in its own troops even before NATO. Russia occupied the airport with a few men and was then blocked from flying in any more, because the U.S. strong-armed neighboring even non-NATO countries from denying them overfly rights, until the Russians settled for a minor role in Kosovo that is acceptable to NATO. All these de facto military and even political measures were taken on the ground and in negotiations again in utter disregard of the United Nations, its Security Council resolution, not to mention its non-existent oversight and direction of, let alone intervention in, the events in Kosovo.

An alternative scenario would have been to resuscitate the United Nations in the General Assembly. That is what Canadian Prime Minister Lester Pearson did during the Suez crisis in 1956 when Britain and France invaded Egypt and also used their vetoes to paralyze the Security Council. So Pearson turned instead to the General Assembly, which at his instance created an International Emergency Intervention Force, as also foreseen in the UN Charter. Before it was then sent to Egypt. Britain and France asked to participate and were told that as parties to the conflict [that is the aggressors] they could not. For his efforts, Lester Pearson received the Noble Peace Prize; and he would turn in his grave at the prospect of the same two and other NATO countries now marching into Kosovo under a UN flag. [My second modest proposal was that it is time for a repeat performance by Canada, which then should urge the General Assembly also to vote to move the UN out of the US - no better time than now - and to invite it to Canada, specifically to French/English Montreal]. The provision of Russian, Ukrainian, Chinese and other Asian, yes and why not once to turn the tables African, as well as other forces and a real CIVIL administration mandated by the UN General Assembly would surely have found and might still find political support, although economic support from the rich NATO countries footing the bill is more doubtful. Of course, they should also be made to pay for the post-war reconstruction of all they destroyed. But who would make them?

Instead, there is a pure and simple NATO MILITARY occupation of Kosovo in violation of the G-8 agreement, and there is precious little effort at and much less finance for economic reconstruction from the destruction, or even clean up from the chemical and other (e.g., depleted uranium) pollution, caused by NATO bombing. To Serbia, the same is even explicitly denied in an effort by political and economic blackmail now where military bombing failed then to achieve a change of government - and not only of its head but more importantly of its policy. Meanwhile and from the very beginning in Kosovo, the KLA was allowed [or prompted?] to rush in with a 'civil' administration to fill the vacuum - or rather to continue ethnic cleansing, but now against the Serb population. Moreover, a NATO imposed or even only condoned KLA government in Kosovo poses multiple dangers. The KLA's Greater Albanian ambitious to annex Albania and to carve up Macedonia, Montenegro and even Greece would keep the region, then also including Turkey and Bulgaria, in turmoil and offer NATO plenty of continuing opportunities for more 'humanitarian' intervention. Beyond that, NATO's geopolitically and militarily dangerous 'out of area' south-eastward projection in the directions of both Arabian Gulf oil and of the Caucasus and the Caspian Sea oil and pipe line routes has attractions for the West and poses even greater political and military threats to Russia. Beyond even that, the aggressive out of area NATO war has already generated a highly dangerous threat of a new cold - and even hot - war with a Moscow, Beijing, Delhi alliance, each with nuclear weapons, that Chernomyrdin already evoked in his May 26 Washington Post article [as I also did in my own already on the second day of the NATO bombing on March 26 one].

These dangers are not only imaginary, witness the speech by President Carter. They are also reflected elsewhere and very concretely so, e.g. by Sinclair Stevens, now Chairman of the Georgia Bankcorp. and who was a Conservative Party cabinet minister in the Government of Canada:

When the Berlin wall came down, it was evident the cold war was over. At a conference celebrating NATO's 50th anniversary, held last February in Toronto at the Canadian Forces College, several speakers stressed that without a new mission NATO would be out of business. Kosovo was subsequently welcomed as a rallying point to help NATO re-shape its mandate. Politicians, the press, and the public have all been orchestrated to accept this new aggressive role. It is a dangerous precedent.

Now NATO, with its new unilateral aggressive stance, is creating new hot points. This is the most dangerous world development since the end of the cold war. NATO is undermining the United Nations. It has already created friction with Russia, antagonized China, and encouraged other minor despots to seek nuclear weapons, as a deterrent should NATO target them. If NATO is allowed to follow this path, it will lead us to a major world conflict, in which only the arms makers will win. It is particularly dangerous when we realize it is inspired by the armament manufacturers who have witnesses slumping sales since the cold war ended. They are one of the most powerful lobbies in the democratic world and it is they who have triumphed in identifying a new NATO role. Their cash registers are ringing again. Kosovo was used as a conventional justification for action by the NATO alliance to give them a new mission now that there is no longer a cold war. Since the cold war ended, the sales of arms manufacturers has fallen in real terms by 25 per cent.

Canada's reason for joining in this aggression is difficult to understand. We are not a significant armament manufacturer such as the United States, Great Britain, or France. So we are not pressured by the arms lobby, and employment is not an issue.

Indeed, the same question should be raised for many other member countries of NATO: So who was pressured by whom? And WHO in these countries made the decision - and subject to what constitutional, legal, parliamentary or other public control - to launch an aggressive war against a country that posed no threat? And of course, there is the issue of democratic control over NATO in its member countries itself: in fact, all pretence and reality of parliamentary or other democratic control over its own military was thrown to the winds in each of the combatant NATO countries. In many of them including the USA and Germany, the war and/or the procedure used for going to war violated the Constitution. So the 'collegial decisions' of the NATO 'alliance' itself were shown to be answerable to NO legal, parliamentary or other democratic institution of any kind; not nationally; since none were shown to exist with control over NATO; and also not internationally; since those that did exist at the United Nations and the International Court were set aside and circumvented. Indeed, one of the most alarming developments is that hardly anybody wanted or was able to offer any effective resistance to fait accomplit decisions, and that the question of their il/legality in fact or procedure was hardly raised; and when it was, it was treated as a mere 'legal technicality.'of . Yet these decisions were taken in conscious violation of all international and much national law by no more than a handful of NATO political and military leaders for whom public support was then [indeed also pre-] orchestrated by the appalling propaganda role of the media, which would have put Dr. Goebbles to shame. In other words, NATO has become - or has always been? - a loose cannon or now missile, which is answerable to no one, except perhaps to the White House.

And that appealed to the UN again at the end of the war - and presumably will do so again in the future - only when that is politically convenient to proceed - again to quote President Carter - to implement "the approach the United States has taken recently has been to devise a solution that best suits its own purposes, recruit at least tacit support in whichever forum it can best influence, provide the dominant military force, present an ultimatum to recalcitrant parties and then take punitive action against the entire nation to force compliance."