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Kosovo: Senator Roche's Speech in the Senate
June 15, 1999
Lessons that NATO, the United Nations and Canada should learn from the Kosovo war concerning the future of international law are the theme of this address. The Kosovo war was fundamentally about the rule of law. How will international law be imposed in the years ahead: by the militarily powerful determining what the law will be, or by a collective world effort reposing the seat of law in the United Nations system? It is in no light vein that I stand to oppose Senator Grafstein whose high respect in the Senate has been eminently earned. Senator Grafstein has argued that not only was NATO's bombing of Serbia and Kosovo legal but also that it was necessary because of the failure of the United Nations to act against the brutal aggression against the Kosovars committed by the forces of Slobodan Milosevic. Senator Grafstein is in accord with the Government of Canada's position, as articulated by the Government Leader in the Senate, who said that NATO had to intervene because: "The alternative would have been to watch passively as an entire population was terrorized and expelled from its ancestral land." I am in profound disagreement with this viewpoint. I hold that NATO did not have the right to take the law into its own hands. Moreover, NATO's continued bombing for 78 days caused immense suffering and damage, worsened the situation for the Kosovars, undermined the United Nations, and destabilized international relations. I do not feel alone in opposing the weight of government thinking on this matter. Former U.S. President Jimmy Carter criticized the NATO campaign, stating: "The decision to attack the entire nation has been counterproductive, and our destruction of civilian life has ... become senseless and excessively brutal."
Former Soviet Leader Mikhail Gorbachev said the possibilities for a political solution were not used, and NATO's disregarding the views of countries like Russia, China, and India has placed the world "in a very, very difficult situation." Pope John Paul II deplored the human suffering caused by the bombing. Here in Canada, James Bissett, former Canadian Ambassador to Yugoslavia, said: "NATO's unprovoked attack is a blatant violation of every precept of international law."
The historian Michael Bliss said NATO's action was "ill-considered and reckless."
Let us consider for a moment what actually happened. Using 700 aircraft and 20 ships, NATO flew nearly 35,000 sorties, dropping 20,000 bombs on 600 cities, towns and villages. There were 13,000 civilian casualties, including 2,500 dead. Utilities, roads, bridges, hospitals, clinics and schools were destroyed along with military targets. There has been no spring planting and, thus, there will be no autumn harvest. Countless wells, which are the principal water source, have been poisoned with human bodies, dead animals, and toxic substances like paint and gasoline. The NATO bombardment, which cost NATO countries about $100 million a day, has set much of Yugoslavia back into a pre-industrial state and the cost of rebuilding the demolished infrastructure will be between $50 billion and $150 billion.
Western media have downplayed the fact that the negotiations between U.S. envoys and Milosevic were on the verge of an agreement. The Serb Parliament was ready to accept the withdrawal of the bulk of Serb forces from Kosovo, and permit the entry into Kosovo of 1,800 unarmed international inspectors, and would allow overflights by NATO planes. NATO threatened air strikes to force a peace agreement to be monitored exclusively by NATO's ground troops. The negotiations foundered on NATO's threat to bomb. Once NATO had issued this threat, it felt compelled to follow through. Thus, when Milosevic rebelled, NATO - without a legal mandate - started bombing.NATO persisted in the bombing because the credibility of NATO had become the issue.
Why was the Secretary General of the U.N. not immediately dispatched to personally conduct negotiations on behalf of the entire Security Council? The answer to that question, which historians will surely probe, is that the U.S., which proudly proclaims itself as the "indispensable nation" decided that it, and its NATO partners, would force a solution.
The consequences of the imposition of force by the nuclear-armed Western military alliance have been startling. The military action has virtually halted Russian-American consultations on nuclear disarmament, buried the START II Treaty, and has bred a dangerous trend pushing some countries out of the non-proliferation regime. China, whose Belgrade embassy was bombed, has excoriated the U.S. and NATO for bullying tactics. NATO should learn that humiliating the Russians and the Chinese is no way to build world peace.
Only a decade after the end of the Cold War, the hopes for a cooperative, global security system have been dashed on the rocks of power. The trust, engendered during the early post-Cold War years, is now shattered. New arms races are under way.
It has been said that the NATO action was a "just war," and Senator Grafstein cited Hugo Grotius, the father of international law, to advance this idea. However, two of the requirements for a "just war" are limitation and proportionality. The damage must be limited to combatants and no greater than the securing of a military objective. Such rules were formulated before the technological development of modern warfare. Killing and damage, as Kosovo showed, are now indiscriminate. The phrase "collateral damage" is military doublespeak, covering up the killing of innocent people.
It was said that the bombing was to stop the ethnic cleansing of the Kosovars. When the bombing started, there were 45,000 Kosovar refugees who had fled. After the strikes began, the number of refugees swelled to 855,000. Bombing worsened their situation.
To say that the Kosovo war was not just, nor justifiable in the political circumstances, does not mean that I am closing my eyes to the horrors for which Milosevic now stands indicted before the special Yugoslav tribunal. Of course, something had to be done. But it is the U.N. Security Council, not NATO, which has the primary responsibility for the maintenance of international peace and security.
When nations signed the U.N. Charter, they accepted the obligation, as set out in Article 2.4, to refrain from the threat or use of force; and, under Article 42, to use force to stop acts of aggression only under a mandate of the Security Council.
The U.N. Charter is the modern embodiment of the international law that had been building up through previous centuries. To downgrade the U.N. Charter is to close one's eyes to the structural role the U.N. has played in the development of international law, which has at last produced an agreement on an International Criminal Court. Even NATO's own Charter says that NATO's actions must follow the U.N. Charter.
The Security Council did, in fact, adopt three resolutions on Kosovo, on March 31, 1998, September 23, 1998, and October 24, 1998. It is a myth for the proponents of the war to keep saying that the U.N. was "paralyzed." The Russians and Chinese were certainly opposed to NATO troops being the exclusive intervenors in Kosovo and would likely have vetoed a resolution authorizing NATO alone to intervene. But where is the evidence they would have vetoed an international force? In fact, the latest resolution, Number 1244 of June 10, 1999, specifies that the deployment of a force in Kosovo now will be "under United Nations auspices"; moreover, the interim administration 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 as coordinating humanitarian relief operations, has been handed back to the U.N. Thank God for the United Nations. It is a tragic irony that, after all the NATO blundering, we are back to where we were before the bombing - with the U.N. Security Council now determining how to maintain international peace and security. Moreover, the potential sovereignty for Kosovo, the stumbling block of the Rambouillet agreement, has now been removed.
It is only through the United Nations that the whole international community can jointly pursue such basic Charter values as democracy, pluralism, human rights and the rule of law. As Secretary General Kofi Annan has stated: "Unless the Security Council is restored to its preeminent position as the sole source of legitimacy on the use of force, we are on a dangerous path to anarchy."
Honorable Senators, the Security Council must unite around the aim of confronting massive human rights violations and crimes against humanity. In a world where globalization has limited the ability of states to control their economies,regulate their financial policies, and isolate themselves from environmental damage and human migration, the last right of states cannot and must not be the right to enslave, persecute or torture their own citizens. States must find common ground in upholding the principles of the U.N. Charter, and also find unity in defence of our common humanity - a double challenge.
Since the end of the Cold War, the world has witnessed important instances in which the Security Council rose to the challenge and legitimized both peacekeeping operations and the use of force where they were just and necessary. Central America and the reversal of the Iraqi aggression against Kuwait are prime examples of the Security Council playing the role envisioned for it by its founders. The failures of the Security Council should be measured against its successes to dispel the spurious charges that it cannot keep the peace.
Finally, the Kosovo crisis of 1999 exposed the contradictions in Canadian foreign policy. For a long time, Canada has tried to balance its adherence to the United Nations system and its allegiance to NATO. When the United Nations was trying to rid the world of nuclear weapons and NATO said they were essential, Canada tried to accommodate both viewpoints. When NATO expanded into Eastern Europe at the expense of the development of the pan-European security body, the Organization for Security and Cooperation in Europe, Canada went along.
When the United States and the U.K. began, in 1998, protracted bombing of Iraq without any mandate from the U.N. Security Council, Canada acceded. The war opened up by NATO's bombing of Serbia and Kosovo in direct violation of the U.N. Charter, as well as NATO's own Charter, has brought the fissures between Western military might and the global strategies of the United Nations into the open.
Canada is still trying to balance its adherence to both the U.N. and NATO. Increasingly, this is becoming an impossible task as the differences between each become irreconcilable. The U.N. wants peace through peace-making techniques. NATO wants peace through military dominance.
Canada is caught in a dilemma. Its fundamental values lie with the United Nations as the guarantor of international peace and security. Its own protection during the Cold War lay with a Western military alliance that would come to Canada's defence if attacked. As long as there was a reasonable compatibility between the two, Canada could absorb the clashing of the two systems.
In choosing to not only support but participate in NATO's bombing of Serbia and Kosovo, Canada -- for the moment -- put NATO above the U.N. Of course the other NATO members did the same thing; they all subverted international law by war.
The pragmatics of attempting to stop the ethnic cleansing and atrocities suffered by the Kosovars at the hands of the Serbs won out over the principle that only the U.N. Security Council has the right to take military action against an aggressor. The planes that Canada sent to bomb Serbia and Kosovo illustrate the skewing of Canada's priorities. Canada sent the planes to show that it was an active participant in the NATO action; but their need, relative to the overwhelming U.S. strength, was marginal. Canada's effort to resolve the Kosovo crisis would have been better served by using resources to strengthen political and diplomatic endeavours, then contribute forces to a U.N. approved international force.
[Senator Roche was unable to conclude his comments due to enforcement of time restrictions in the Senate. The balance of his prepared text follows.]
This would have underscored Canada's commitment to international law, but it would have meant stepping outside of NATO's action.
Canada is not ready to leave NATO. Yet Canada wants U.N. solutions. So the country continues to try to balance both sets of obligations. It is becoming clearer that remaining in a nuclear-armed Western military alliance is undermining Canada's ability and desires to express our yearning for peace through the United Nations system. If, by remaining in NATO, Canada can successfully work with allies to eliminate NATO's reliance on nuclear weapons and ensure that NATO works under, not above, the U.N., the allegiance will be worthwhile. But it will take far more determination than yet seen by Canadian government action to achieve these goals. As long as NATO remains imperious, the demand of thinking Canadians, concerned about the requirements for a truly global security system, for Canada to leave NATO will grow.
Hon. Douglas Roche, O.C.
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