If Clinton attacks Yugoslavia it's illegal

Last Friday President Clinton said: "Make no mistake, if we and our allies do not have the will to act [against Yugoslavia over Kosovo] there will be more massacres. In dealing with aggressors in the Balkans, hesitation is a licence to kill. But action and resolve can stop armies and save lives".

Explaining his rationale for using force against the forces of President Slobodan Milosevic, Mr Clinton stated: "This is a conflict with no natural boundaries. It threatens our national interests. If we don't act, the war will spread. If it spreads we will not be able to contain it without far greater risk and cost. I believe the real challenge of our foreign policy today is to deal with problems before they do permanent harm to our vital interests. That is what we must do in Kosovo".

Yesterday the Washington Post reported one of Mr Clinton's foreign policy advisers as saying that although there were massive bloodbaths all over the world in which the United States was not intervening, "the difference is this one's in the heart of Europe. I'd argue that the [NATO] alliance itself is at risk if it's unable to address a major threat within Europe; it really loses its reason for being."

The article's writer, Barton Gellman, commented: "Bluntly they [the Clinton Administration] want to kill enough Serbs and destroy enough of their war machine to prevent the defeat of a much less powerful rebel force, but not so many that the rebels will be emboldened to press for victory [i.e. independence] themselves."

There are between 350 and 400 warplanes ready to drop bombs on Yugoslavia. Of these, 250 are American and the rest from Belgium, Canada, Denmark, France, Germany, Italy, the Netherlands, Norway, Portugal, Spain, Turkey and the United Kingdom. Several warships are off the coast of Yugoslavia, including the USS Philippine Sea, from which guided missiles are to be launched.

There are conflicting reports on the form the assault is intended to take. One report suggests there will be an initial "softening up" process, involving thousands of assaults on air bases, radar installations and military compounds, followed by a pause. Another report says the onslaught will continue for several days.

It is a certainty that hundreds of civilians will be killed in these assaults. The infrastructure of Yugoslav society will be destroyed, involving the devastation of the lives of hundreds of thousands of Serbians and, inevitably, Kosovars. It is also likely that bombs will fall not just in the wrong places in Yugoslavia but in the wrong country (the United States bombed Pakistan last year when attempting to kill bin Laden in Afghanistan and it dropped a bomb in Iran when assaulting Iraq last December).

On a moral calculus it might be argued that this assault on Yugoslavia will ultimately save more lives than it will destroy, and may have the bonus of removing one of the world's most detestable war criminals, Slobodan Milosevic. But even if this rationale is accepted, another crucial difficulty remains.

This planned assault on Yugoslavia is illegal.

The Federal Republic of Yugoslavia, encompassing Kosovo, is a sovereign, independent state and there is no quibble about this apart from the Kosovars who want to secede. In resolutions unanimously passed by the UN Security Council (most recently in March and September 1998) the US, Britain, France, Russia, China and all the other Security Council members affirmed "the commitment of all member-states to the sovereignty and territorial integrity of the Federal Republic of Yugoslavia".

The UN Charter does envisage (under Chapter VII) force being used against sovereign states, but only in very limited circumstances. Article 42 specifically provides for such contingencies but only for the purpose of maintaining and restoring "international peace and security".

World peace and security are not issues here, and any action under Article 42 must be taken under UN auspices. Only where individual or collective self-defence arises in the context of an armed attack may a UN member-state act unilaterally (Article 51). The textbook on international law, Oppenheim's International Law, outlines how military intervention in the internal affairs of another state may be justified.

These are where a state's nationals are being improperly treated in a foreign state (not relevant here); where collective self-defence requires intervention (not relevant and, anyway, this applies only in the most restricted circumstances); where intervention is to assist peoples of a territory to achieve self-determination (again not relevant here for all the states now proposing to intervene in Yugoslavia oppose the demand for Kosovo independence); and where a right to intervene arises from a treaty entered into by the state concerned (again not relevant).

There is one further instance where it is argued that there is a right of lawful intervention. This is where the treatment of the nationals of the state concerned is so shocking to the conscience of mankind as to require intervention in the interests of humanity.

Oppenheim is doubtful if this could be a justification for intervention and says that if any such intervention is ever justified it would have to be "a peaceful action, in a compelling emergency, where the transgression upon a state's territory is demonstrably outweighed by overwhelming and immediate considerations of humanity and has the general support of the international community".

It might also have been argued that such action must be under UN auspices.

This proposed action is certainly not "peaceful". It is being done because it is seen to be in the US interest, not primarily or solely because what is happening in Kosovo "is so shocking to the conscience of mankind".

If what is going on in Yugoslavia is "so shocking to the conscience" of American mankind, one wonders why what is going on in the African Great Lakes region (about two million people killed in the last five years); Sudan (about a million people killed in 10 years); Ethiopia-Eritrea (hundreds of thousands killed); Indonesia (114 people killed in Borneo in the last week alone); Turkey (where there is regular massacre of Kurds - and Turkey is about to attack Yugoslavia!).

The proposed action does not enjoy the "general support of the international community", which is precisely why it is being conducted outside UN auspices. Therefore it fails to meet even the tentative Oppenheim criteria. Over the weekend before last, the US unlawfully bombed Iraq four times. It is now proposing to bomb Yugoslavia unlawfully, and not a country in the world is protesting. China and Russia have uttered muted opposition.

This lawlessness will inevitably result, sooner or later, in catastrophe. The Leviathan is reborn.