NATO Involvement in Yugoslavia-
Relationshipto International Law

Debates of the Senate (Hansard)
1st Session, 36th Parliament,
Volume 137, Issue 150
Tuesday, June 15, 1999

On the Order:

Resuming debate on the inquiry calling the attention of the Senate to thequestion of international law: Canada and the NATO action in the FederalRepublic of Yugoslavia.- (Honourable Senator Roche)

Hon. Douglas Roche: Honourable senators, lessons that NATO, the UnitedNations and Canada should learn from the Kosovo war concerning the future ofinternational law are the theme of this address. The Kosovo war wasfundamentally about the rule of law. How will international law be imposedin the years ahead: by the militarily powerful determining what the law willbe, or by a collective world effort reposing the seat of law in the UnitedNations system?

It is in no light vein that I stand to oppose Senator Grafstein, whose highrespect in the Senate has been eminently earned. Senator Grafstein hasargued that not only was NATO's bombing of Serbia and Kosovo legal but alsothat it was necessary because of the failure of the United Nations to actagainst the brutal aggression against the Kosovars committed by the forcesof Slobodan Milosevic. Senator Grafstein is in accord with the Governmentof Canada's position, as articulated by the Leader of the Government inthe Senate, who said that NATO had to intervene because:

The alternative would have been to watch passively as an entire populationwas terrorized and expelled from its ancestral land.

I am in profound disagreement with this viewpoint. I hold that NATO did nothave the right to take the law into its own hands. Moreover, NATO'scontinued bombing for 78 days caused immense suffering and damage, worsenedthe situation for the Kosovars, undermined the United Nations anddestabilized international relations.

I do not feel alone in opposing the weight of government thinking on thismatter. Former president of the United States Jimmy Carter criticized theNATO campaign, stating:

The decision to attack the entire nation has been counterproductive, and ourdestruction of civilian life has...become senseless and excessively brutal.

Former leader of the Soviet Union, Mikhail Gorbachev, said that thepossibilities for a political solution were not used and NATO's disregardingthe views of countries like Russia, China and India has placed the world "ina very, very difficult situation." Pope John Paul II deplored the humansuffering caused by the bombing. Here in Canada, James Bissett, formerCanadian Ambassador to Yugoslavia, said:

NATO's unprovoked attack is a blatant violation of every precept ofinternational law.

Historian Michael Bliss said that NATO's action was "ill-considered andreckless."

Honourable senators, let us consider for a moment what actually happened.Using 700 aircraft and 20 ships, NATO flew nearly 35,000 sorties, dropping20,000 bombs on 600 cities, towns and villages. There were 13,000 civiliancasualties, including 2,500 dead. Utilities, roads, bridges, hospitals,clinics and schools were destroyed along with military targets. There hasbeen no spring planting and, thus, there will be no autumn harvest.Countless wells, which are the principle water source, have been poisonedwith human bodies, dead animals, and toxic substances such as paint andgasoline. The NATO bombardment, which cost NATO countries about $100 milliona day, has set much of Yugoslavia back into a pre-industrial state and thecost of rebuilding the demolished infrastructure will be between $50 billionand $150 billion.

Western media downplayed the fact that the negotiations between the U.S.envoys and Milosevic were on the verge of an agreement before the bombing.The Serb Parliament was ready to accept the withdrawal of the bulk of Serbforces from Kosovo and permit the entry into Kosovo of 1,800 unarmedinternational inspectors, and would allow overflights by NATO planes. NATOthreatened air strikes to force a peace agreement to be monitoredexclusively by NATO's ground troops. The negotiations floundered on NATO'sthreat to bomb. Once NATO had issued this threat, it felt compelled tofollow through. Thus, when Milosevic rebelled, NATO - without a legalmandate - started bombing. NATO persisted in the bombing because thecredibility of NATO itself had become an issue.

Why was the Secretary General of the UN not immediately dispatched topersonally conduct negotiations on behalf of the entire Security Council?The answer to that question, which historians will surely probe, is that theUnited States, which proudly proclaims itself as what it calls the"indispensable nation," decided that it and its NATO partners would force asolution.

The consequences of the imposition of force by the nuclear-armed westernmilitary alliance have been startling. The military action has virtuallyhalted Russian-American consultations on nuclear disarmament, buried theSTART II Treaty, and has bread a dangerous trend pushing some countries outof the non-proliferation regime. China, whose Belgrade embassy was bombed,has excoriated the U.S. and NATO for bullying tactics. NATO should learnthat humiliating the Russians and the Chinese is no way to build worldpeace.

Only a decade after the end of the Cold War, the hopes for a cooperativeglobal security system have been dashed on the rocks of power. The trustengendered during the early post-Cold War years is now shattered. New armsraces are underway.

Honourable senators, it has been said that NATO action was a "just war."Senator Grafstein cited Hugo Grotius, the father of international law, toadvance this idea. However, two of the requirements for a "just war" arelimitation and proportionality. The damage must be limited to combatants andno greater than the securing of a military objective. As we can see, suchrules were formulated before the technological development of modernwarfare. Killing and damage, as Kosovo showed, are now indiscriminate. Thephrase "collateral damage" had military doublespeak, covering up the killingof innocent people.

It was said that the bombing was to stop the ethnic cleansing of theKosovars. When the bombing started, 45,000 Kosovar refugees fled. After thestrikes began, the number of refugees swelled to 855,000. Bombing worsenedtheir situation.

To say that the Kosovar war was not just nor justifiable in the politicalcircumstances does not mean that I am closing my eyes to the horrors forwhich Milosevic now stands indicted before the special Yugoslav tribunal. Ofcourse something had to be done. However, it is the UN Security Council, notNATO, which has the primary responsibility for the maintenance ofinternational peace and security.

When nations signed the UN Charter, they accepted the obligation as set outin Article 2.4, to refrain from the threat or use of force, and underArticle 42, to use force to stop acts of aggression only under a mandate ofthe Security Council.

The UN Charter is the modern embodiment of the international law that hasbeen built up through previous centuries. We lost sight of that basic factyesterday. To downgrade the UN Charter is to close one's eyes to thestructural role played by the UN in the development of international lawwhich has at last produced an agreement on an international criminal court.Even NATO's own Charter says that NATO's actions must follow the UN Charter.

The Security Council did in fact adopt three resolutions on Kosovo: on March31, 1998, September 23, 1998, and October 24, 1998. It is a myth for theproponents of the war to keep saying that the UN was paralyzed. The Russiansand Chinese were certainly opposed to NATO troops being the exclusiveintervenors in Kosovo and would have likely vetoed a resolution authorizingNATO alone to intervene, but where is the evidence that they would havevetoed an international force? In fact, the latest resolution, number 1244,dated June 10, 1999, specifies that the deployment of a force in Kosovo willnow be "under United Nations' auspices." Moreover, the interimadministration for Kosovo is "to be decided by the Security Council."

NATO troops are a leading element of the international force, to be sure,but the overall responsibility for keeping the peace in Kosovo as well ascoordinating humanitarian relief foundations has been handed back to the UN.Thank God for the United Nations. It is a tragic irony that, after all theNATO blundering, we are back to where we were before the bombing, that is,with the UN Security Council now determining how to maintain internationalpeace and security. Moreover, the potential sovereignty for Kosovo, thestumbling block of the Rambouillet agreement, has now been removed.

It is only through the United Nations that the whole international communitycan jointly pursue such basic Charter values as democracy, pluralism, humanrights and the rule of law. As the Secretary-General of the UN, Kofi Annan,stated a few days ago:

Unless the Security Council is restored to its preeminent position as thesole source of legitimacy on the use of force, we are on a dangerous path toanarchy.

Honourable senators, the Security Council must unite around the aim ofconfronting massive human rights violations and crimes against humanity. Ina world where globalization has limited the ability of states to controltheir economies, regulate their financial policies and isolate themselvesfrom environmental damage and human migration, the last right of statescannot and must not be the right to enslave, persecute or torture their owncitizens. States must find common ground in upholding the principles of theUN Charter and also find unity in defence of our common humanity - a doublechallenge.

Since the end of the Cold War, the world has witnessed important instancesin which the Security Council did rise to the challenge and legitimized bothpeacekeeping operations and the use of force where they were just andnecessary. Central America and the reversal of the Iraqi aggression againstKuwait are prime examples of the Security Council playing the roleenvisioned for it by its founders. The failures of the Security Councilshould be measured against its successes to dispel this spurious charge thatit cannot keep the peace.

Honourable senators, finally the Kosovo crisis of 1999 has exposed thecontradictions in Canadian foreign policy. For a long time, Canada has triedto balance its adherence to the United Nations system and its allegiance toNATO. When the United Nations was trying to rid the world of nuclear weaponsand NATO said they were essential, Canada tried to accommodate bothviewpoints. When NATO expanded into Eastern Europe at the expense of thedevelopment of the pan-European body, the Organization of Security andCooperation in Europe, Canada went along.

When the United States and the United Kingdom began, in 1998, protractedbombing of Iraq without any mandate from the UN Security Council, Canadaacceded. The war, opened up by NATO's bombing of Serbia and Kosovo, a directviolation of the UN Charter as well as NATO's own Charter, has brought thefissures between western military might and the global strategies of theUnited Nations into the open.

Canada is still trying to balance its adherence to both the UN and NATO.Increasingly, this is becoming an impossible task as the differences betweeneach become irreconcilable. The UN wants peace through peacemakingtechniques. NATO wants peace through military dominance. Canada is caught ina dilemma. Its fundamental values lie with the United Nations as theguarantor of international peace and security. Its own protection during theCold War lay with the western military alliance that would come to Canada'sdefence if attacked. As long as there was a reasonable compatibility betweenthe two, Canada could absorb the clashing of the two systems.

In choosing to not only support but participate in NATO's bombing of Serbiaand Kosovo, Canada for the moment put NATO above the UN. Of course, theother NATO members did the same thing. They all subverted international lawby war.

The pragmatics of attempting to stop the ethnic cleansing and suffering bythe Kosovars at the hands of Serbs won out over the principle that only theUN Security Council has the right to take military action against anaggressor. The planes that Canada sent to bomb Serbia and Kosovo illustratethe skewing of Canada's priorities. Canada sent the planes to show it was anactive participant in the NATO action. However, their need, relative to theoverwhelming U.S. strength, was marginal. Canada's effort to resolve theKosovo crisis would have been better served by using resources to strengthenpolitical and diplomatic endeavours than to contribute forces to aUN-approved international force.

My final point is that Canada's effort to resolve the Kosovo crisis wouldhave been better served by using resources to strengthen political anddiplomatic endeavours and then contributing forces to a UN-approvedinternational force. This would have underscored Canada's commitment tointernational law, but it would have meant stepping outside of NATO'saction. Canada is not ready to leave NATO, but Canada wants UN solutions.Therefore, this country continues to try to balance both sets ofobligations.

It is becoming clearer that remaining in a nuclear-armed western militaryalliance is undermining Canada's ability and desires to express our yearningfor peace through the United Nations system. If, by remaining in NATO,Canada can successfully work with allies to eliminate NATO's reliance onnuclear weapons and ensure that NATO works under, not above, the UN, theallegiance will be worthwhile. However, it will take far more determinationthan has yet been seen on the part of the Canadian government to achievethese goals.

As long as NATO remains imperious, the demand of thinking Canadians,concerned about the requirements for a truly global security system, forCanada to leave NATO will grow.