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Sordid aggression or humanitarian intervention? : why the Kosovo intervention divided so many international… Richmond, Sean 2005

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SORDID AGGRESSION OR HUMANITARIAN INTERVENTION? WHY THE KOSOVO INTERVENTION DIVIDED SO MANY INTERNATIONAL RELATIONS AND INTERNATIONAL LEGAL SCHOLARS by SEAN RICHMOND B.A. (Honours), Queen's University, 2001 A thesis submitted in partial fulfillment of the requirements for the degree of MASTER OF ARTS in The Faculty of Graduate Studies (Political Science) The University of British Columbia August 2005 © Sean Richmond, 2005 A B S T R A C T This study examines the scholarly debate over the North Atlantic Treaty Organization's (NATO) military action against the Federal Republic of Yugoslavia in 1999 with a view to better understanding why it generated such intellectual polarization and fundamental disagreements amongst international relations and international legal scholars. Employing a method of comparative literature review, this investigation focuses on constructivist, neo-Marxist, liberal, and international legal accounts of the Kosovo intervention. It finds that the Kosovo intervention proved divisive because it speaks to substantive differences in the meta-views of scholars regarding the source and nature of legitimacy, sovereignty, and hegemony, and the values they ascribe to the international community. Many of the disagreements depend on whether a scholar prioritizes freedom and justice or equality and fairness and whether they emphasize the natural and universal moral foundations of international law and legitimacy or base these foundations more procedurally on state consent and sovereign equality. Finally, scholarly disagreement about the Kosovo intervention stems from differing views on the existence and desirability of larger global trends - such as "imperial sovereignty" and "Empire" - post-Cold War. As this study aims to have policy-level and theoretical relevance, the implications for both elements are briefly considered in the conclusion. ii T A B L E O F C O N T E N T S Abstract i i Table of Contents i i i Acknowledgements iv Introduction -. 1 Section 1: Four General Approaches to the Kosovo Intervention 5 Section 2: Right Authority and Legitimacy 7 Section 3: NATO's "Right Intentions" 15 Section 4: Legitimate Liberation Struggles 24 Section 5: The Kosovo Intervention as US Hegemony or Collective Identity? 39 Section 6: The Kosovo Intervention as "Empire" 53 Section 7: "Just Cause" - Justice versus Fairness .61 Conclusion , ....73 Bibliography : 87 iii A C K N O W L E D G E M E N T S Researching and writing a Master's thesis is a rather large endeavour and I have numerous people to acknowledge and thank for their help along the way. Many of the ideas expressed in this paper are a collective product of the debates I have had with colleagues and professors during my time as a graduate student in the department of political science at the University of British Columbia. I thank them all for their challenging feedback and positive encouragement. I would like to note in particular the support I have received from professors Michael Byers and Richard Price over the course of the year. They have entrusted me with considerable intellectual freedom while still providing extensive inspiration and analytical guidance. On a more personal level, I would also like to thank my parents. Their keen editing skills are matched only by their comprehensive knowledge of theoretical Marxism. And finally, I dedicate this work to the memory of Mary Richmond and her commitment to the pursuit of higher education. iv INTRODUCTION With the end of the Cold War, the world witnessed an increase in military interventions aimed at protecting people from humanitarian disasters (Finnemore 2003, Wheeler 2000). Two of the main characteristics that have defined these operations are consent from the state in question and legal authorization from the U N Security Council (Wheeler 2004). This latter element of multilateralism is of such importance that Martha Finnemore argues it is the norm by which "humanitarian" interventions are now deemed "to be acceptable and legitimate" (2003: 53). The North Atlantic Treaty Organization's (NATO) military action1 against the Federal Republic of Yugoslavia2 (FRY) in 1999, however, had neither the consent of the FRY nor the expressed authorization of the U N Security Council. Deviation from these norms is a challenge to constructivist positions that emphasize the constitutive and regulative effects of norms on state identity and behaviour. Equally intriguing, however, is why N A T O member states intervened in Kosovo when the situation posed little threat to their national interest, narrowly conceived, and offered limited material gains. Why should powerful "states care what happens inside the borders of peripheral states which pose no threat to the balance of power? Neo-realist theory is thus also limited in its ability to fully explain the situation. We are left with an interesting theoretical puzzle. Moreover, when the situation in Kosovo is compared with other humanitarian crises that were occurring at the time we also encounter an intriguing empirical puzzle. 1 Codenamed "Operation Allied Force", NATO's campaign started on 24 March 1999 and lasted 78 days. Involving both missile strikes and air attacks, 13 NATO member states deployed over 1000 aircraft and flew 38,400 sorties, releasing more than 26,000 munitions over the region (Independent International Commission on Kosovo 2000: 92). On 10 June 1999 a peace agreement was reached and UN Security Council Resolution 1244 established the framework for an international military and civilian presence. 2 Now known as Serbia and Montenegro. 1 In 1998-99, other countries with large numbers of refugees and internally displaced persons (IDPs) included: Angola (300,000-500,000), Congo-Brazzaville (250,000), Sierra Leone (550,000), and Colombia (300,000) (Daalder and O'Hanlon 2000: 280). These situations were either similar or worse than the one in Kosovo, where IDP figures numbered around 200-300,000 and refugees around 25,000 prior to the bombing campaign (UNHCR 2000: 12). With respect to mortality figures, around 2,000 people had been killed in Kosovo. In Colombia, around 2-3,000 people had been killed and most of these deaths were also attributable to paramilitary and military forces (Chomsky 1999: 49). In light of the empirical similarity of these situations we are left wondering why the Kosovo crisis was thought to require military intervention but others were not.3 It seems that numbers alone will not tell the story. The theoretical and empirical puzzle that is the Kosovo intervention (KI) has led to heated ethical, legal, and political disagreement. As Tariq A l i observes, "The Balkan conflict has divided both Left and Right" (1999: 68). While advancing a different overall position than A l i , pro-KI scholars Chris Reus-Smit and Peter Christoff make a similar point, that "The war in Kosovo has split the Left" (1999: 1). Why did the KI divide so many international relations and international legal scholars? I argue that the KI proved divisive because it speaks to substantive differences in the meta-views of scholars regarding the source and nature of legitimacy, sovereignty, and hegemony, and the values they ascribe to the international community. Many of the disagreements depend on whether a scholar prioritizes freedom and justice or equality and fairness. Furthermore, the divisions reflect whether a scholar emphasizes the natural and universal moral 3 Granted, when comparing the number and types of victims of different humanitarian crises, it should be noted that the severity of the situation in Kosovo is often assessed in light of the prior conflicts in the area, particularly the large numbers of people who were killed and displaced in Bosnia beforehand. 2 foundations of international law and legitimacy, or bases these foundations more procedurally on state consent and sovereign equality. Finally, scholarly disagreement about the KI stems from differing views on the existence and desirability of larger global trends - such as "imperial sovereignty" and "Empire" - post-Cold War. With respect to a theoretical orientation, this study examines a broad group of scholars who do not necessarily share political views but who are committed to some form of universalism or internationalism, broadly conceived. Accordingly, neo-realist perspectives are deemphasized as are those that argue that there is no place for morality in international relations and that military intervention is never necessary unless a state's strict "national interest" is threatened. Adopting the method of comparative literature review, this paper critically examines liberal, constructivist, neo-Marxist, and international legal accounts of the KI. Normative elements are prioritized over legal arguments because, as J.L. Holzgrefe argues with respect to the issue of humanitarian intervention, "any attempt to separate legal questions from moral ones is doomed to failure" (2003: 49). Thus, much of the investigation focuses on the debate over the justness of the KI and analyzes how scholars with different perspectives define "just". This study assesses why these scholars espouse this position and what theoretical assumptions, ontological commitments, and empirical and normative interpretations inform their argument. This investigation aims to have both theoretical and policy-oriented relevance. Studying the KI is significant because in many ways it speaks to larger questions, such as how the world should manage conflict (Keohane 2003: 9) and what the biggest threat to human welfare is in the twenty-first century. While it is true that the KI has been 3 investigated by countless scholars, this study probes an area that has not been adequately addressed in the literature. Many arguments lack empirical substantiation and coherent normative theorizing. Whether they are denouncing or exonerating NATO's behaviour, numerous scholars take analytical "shortcuts" in both areas. As Tim Judah observes, "In the months after the war, those who supported the bombing, and those who did not, engaged in what could only be described as ideological warfare. However, their selective use of facts, or ignorance, often made many of their arguments tenuous in the extreme" (2002: 309). A contribution to the literature can be made by identifying where, and theorizing why, some of these shortcomings exist. A comprehensive account of why scholars were divided over the KI also helps us to better understand why the pro-human rights community does not speak with a united voice when humanitarian crises arise. These disagreements obstruct the articulation of a coherent policy alternative to "pre-emptive self-defence" and the "war on terror". And, as the US-led war on Iraq showed, human rights and "humanitarian" intervention as concepts are prone to co-optation. This paper is organized into seven sections. Section one briefly outlines four main approaches to the KI. Section two examines the debate over the issue of "right authority" vis-a-vis the KI. Section three looks at NATO's intentions in Kosovo. Section four examines how and why scholars prioritize one side of the Kosovo conflict over the other. Sections five and six investigate whether the KI should be understood with respect to larger global trends, such as US hegemony or "imperial sovereignty". Section seven analyzes the importance of justice versus fairness in the debate over "just cause". I conclude by considering some policy-level and theoretical implications of this study and the future of the debate over the KI. 4 SECTION 1: FOUR GENERAL APPROACHES TO THE KI Many accounts of the KI are differentiated by the ontological primacy they grant to either ideational or material factors. Generally speaking, liberal scholars argue that both contributed to the KI (Roberts 1999, Ignatieff 2000, Daalder and O'Hanlon 2000). In one of the most widely cited articles on the subject, Adam Roberts argues that the main factors involved were a sense of shame from inaction in Bosnia, humanitarian concern, and a desire to maintain NATO's credibility (1999: 104-109). Espousing a similar view, Ivo Daalder and Michael O'Hanlon argue that the root cause of the Kosovo conflict was former President Slobodan Milosevic and his oppression of the Kosovar Albanians (2000: 6). Accordingly, one of the main policy objectives of the KI was to protect the human rights of this minority population (Daalder and O'Hanlon 2000, Ignatieff 2000). Thus, from a liberal perspective, the Kosovo crisis and subsequent intervention are primarily interpreted as human rights issues. Constructivist perspectives also posit a normative belief in human rights as key to understanding the KI (Wheeler 2004, Christoff and Reus-Smit 1999, Reus-Smit 2004, Finnemore 2003). The growth of concern for human rights amongst domestic populations in the West after the Cold War was a "condition of possibility" that partly accounts for "humanitarian" interventions like the one in Kosovo (Wheeler 2000 and 2004, Finnemore 2003). While constructivists acknowledge that the KI involved a mix of humanitarian and security imperatives, ideational factors are prioritized over material concerns. NATO's humanitarian objectives are considered to have been sincere and not simply a disguise for "the projection of American power in the Balkans" (Wheeler 2004: 5 48). Thus, there is an important relationship between the public justifications offered for the intervention and the private motivations of the actors involved. Standing in stark contrast to constructivist and liberal accounts, neo-realists argue that NATO's involvement in the Balkans is best understood as delusional moral crusading and dangerous US expansionism, primarily due to the disappearance of a balancing superpower post-Cold War (Waltz 2001, Carpenter 2000, Mearsheimer 2000). Kenneth Waltz argues that the KI was an opportunity for the US to use N A T O to serve its "national interests" and to extend its power and influence into Europe (2001: 33). Interestingly, Waltz has to cite domestic politics in the US, arguing that "[former US President Bill] Clinton needed to show himself to be an effective leader in foreign policy" (2001: 30) and admitting that "the motivations of the artificers of expansion... were to nurture democracy in young, fragile, long-suffering countries" (2001: 34). The inclusion of these non-material factors, however, seems to deviate from neo-realism's systemic-level commitment and detract from its ability to fully account for the KI. While similar to neo-realism in that they prioritize material factors, neo-Marxists seek to offer a more comprehensive account of the KI that is grounded in the logic of US-led global capitalism and American military dominance. They argue that the KI, far from representing a collective expression of humanitarian concern, was best understood as an aggressive and illegal action aimed at extending US hegemony into Europe (Chomsky 1999, Johnstone 2002, Said 1999, A l i 1999). Noam Chomsky argues that, after the Cold War ended, the US hegemon adopted a new discourse of "military humanism" in order to legitimize its absolute power and pursue familiar interests under the cloak of good intentions (1999: 11). Importantly, many neo-Marxist scholars profess a commitment to 6 universal human rights, the United Nations, and an international order ruled by law and not force (Chomsky 2000, Bartholomew and Breakspear 2003). Due to the fact that liberal and constructivist accounts often make similar normative commitments, the question arises as to why neo-Marxists think the KI deviates from them. Let us begin the exploration of why this is so. SECTION 2: R I G H T A U T H O R I T Y A N D L E G I T I M A C Y One source of division for many scholars is whether NATO had proper authorization for its intervention in Kosovo. Critics argue that NATO lacked formal approval from the UN Security Council, the sole body authorized by the UN Charter to threaten and use non-defensive force. Thus, according to a strict textual reading of international law, the KI was illegal. Proponents, however, argue that by denouncing it as illegal critics confuse legality with legitimacy (Reus-Smit and Christoff 1999, Franck 2003). Because this legitimacy is often cited as a justification for the KI, much turns on how it is defined and where it is located. In this way, the debate over whether NATO had right authorization reflects scholarly disagreement about the source and nature of legitimacy and authority in international affairs. Illegal but legitimate Proponents often argue that, while it is true that the KI lacked expressed UN Security Council authorization, it was still legitimate for other reasons. There are at least four sources proposed for this legitimacy: a purportedly shared understanding amongst 7 international actors that the KI was appropriate, NATO's effective and democratic nature, the consequences of the intervention, and morality. Generally speaking, the concept of legitimacy implies that an action was conformable to or sanctioned by law or principle or conformed to a recognized standard. Expanding on this formal conception, constructivists argue that legitimacy is a social relation amongst actors whose source and nature stems from a shared understanding of appropriate behaviour (Wheeler 2004, Reus-Smit 2004). Accordingly, they and other scholars interpret the U N Security Council's 12-3 vote against a Russian draft resolution which sought to condemn the KI in March 1999 as evidence that the actors involved recognized the appropriateness of NATO's actions. Nicholas Wheeler argues that, while different members voted for different reasons, "The majority of Council members (excluding the five N A T O states and Slovenia) rejected the Russian resolution because they accepted that NATO' s action was justifiable on humanitarian grounds" (2004: 45). Legal scholar Thomas Franck also argues that the legitimacy of the KI was increased because the degree of its unlawfulness and the facts of the case were debated and judged in the political organs of the international community (2003: 266). Like Wheeler, he emphasizes that the U N Security Council "voted overwhelmingly not to condemn NATO's intervention is of procedural significance" (2003: 267). A second source of legitimacy advanced by some proponents is that N A T O is an effective and democratic defensive-security organization that can unilaterally determine when to threaten and use force in extreme circumstances. Equating legitimacy with effectiveness, Alan Henrikson argues that: NATO, as the most effective instrument in the Atlantic world for taking forcible military action, is the enabler of the participation of others, including the United Nations 8 Organization. This surely is a basis of the legitimacy of the action it took over Kosovo. NATO does not legitimize power. But it does give power to legitimacy (2001: 53). Moreover, not only is N A T O effective, it is comprised of democratic states who themselves share a collective understanding of appropriate behaviour. Highlighting the struggle for a N A T O mandate to threaten and use force in the fall of 1998, Henrikson argues that it is important to remember that many of the allies had a tremendous desire for proper authorization and were extremely uncomfortable not having the approval of the U N Security Council (2001: 49-51). Only after the reluctance of several N A T O members (notably Germany and Italy) was overcome and disagreements were resolved by debate in the North Atlantic Council (NAC) did N A T O issue its activation order to use force on 13 October 1998. Faced with the difficult task of, on the one hand, placing NATO's approval of coercive force in the context of the humanitarian crisis recognized by the U N , and on the other, asserting NATO's right to act unilaterally, former N A T O Secretary General Javier Solana defended NATO's decision using an array of political, moral, and legal arguments (Henrikson 2001: 50). Making much of these developments in the fall of 1998, Henrikson argues that "Though it is too early to say, as a historical judgment, [the] venue shift of October 1998 may have subtly changed the nature of the North Atlantic Council from the consultative chamber of a military alliance to something like the legislative, or rule-making, organ of a Euro-Atlantic security system" (2001: 53). In addition to NATO's effective and democratic nature, some argue that the KI was legitimized retroactively by its consequences. Concluding that "the N A T O military intervention was illegal but legitimate" (2000: 4), the UN-sponsored Independent International Commission on Kosovo argues that the KI was "justified because all diplomatic avenues had been exhausted and because the intervention had the effect of 9 liberating the majority population of Kosovo from a long period of oppression under Serbian rule" (2000: 4). Thomas Franck concurs. While he also acknowledges that it was technically illegal, Franck argues that the KI was still justified in so far as "no undesirable consequences followed... [and] the illegal act produced a result more in keeping with the intent of the law (i.e. 'more legitimate') - and more moral - than would have ensued had no action been taken to prevent another Balkan genocide" (2003: 226). As Franck's argument suggests, a fourth source of legitimacy advanced by some scholars is the morality of the KI itself. Chris Reus-Smit and Peter Christoff argue that, by focusing narrowly on the fact that N A T O lacked legal authorization, critics sidestep the difficult debate of whether, overall, the KI was still justified (1999: 5). They argue that, historically speaking, the absence or presence of U N Security Council authorization has not necessarily determined whether a coercive intervention was ethical or legitimate (1999: 5). For example, both the economic sanctions imposed on Iraq after the first Gulf War4 and the US attack on Afghanistan in 2001 were authorized by the U N Security Council yet many left-wing scholars (Said 1999: 74) still denounce these actions. Moreover, there are a number of historical examples of military interventions that lacked explicit Council authorization at the time yet are now often supported on humanitarian grounds, such as Vietnam's intervention in Kampuchea (Cambodia) in 1978-79, India's intervention in East Pakistan/Bangladesh in 1971, and Tanzania's intervention in Uganda 4 While the economic sanctions were clearly authorized, indeed mandated, by the UN Security Council, this was not true of the US and UK enforced no-fly zones. 10 in 1978-79. Thus, proponents believe that critics need to provide a more detailed explanation of why the KI specifically was unethical or illegitimate.6 Legitimate According to Whom? By arguing that the KI was legitimate even in the absence of formal approval from the U N Security Council, proponents are essentially arguing that there are alternative sources of authority and legitimacy in international affairs. Critics are eager to point out some of the limitations and potential dangers of this line of argument. The idea that the legitimacy of the KI was increased because there was a shared understanding that it was appropriate depends a great deal on why a scholar believes an actor supported the KI and which actors they prioritize. Wheeler's conclusion that the majority of Security Council members voted against the Russian draft resolution because they believed the KI was legitimate follows less by demonstrating each state's private motivations and more by assuming that they perceived the Balkan humanitarian crisis in a similar manner. As Wheeler acknowledges himself, the degree to which a scholar believes that the Security Council was dominated by US hegemony at the time will affect whether they explain the voting behaviour of non-NATO states with reference to fear and coercion, rational self-interest, or perceptions of legitimacy and moral rectitude (2004: 38). Moreover, a negative Council vote is a questionable indicator of explicit approval. Michael Byers and Simon Chesterman remind us that official endorsement would have to 5 For a good summary of these events, see Simon Chesterman's Just War or Just Peace? (2001:71 -80). 6 While not quite the same point, it is true that numerous scholars argue that legal debate about the KI, such as the one over right authority, cannot be understood without ethical and political analysis (Holzgrefe 2003: 49, Byers 2005: 103). 7 This speaks to the ongoing disagreement between constructivist and neo-liberal scholars. Both accuse the other of not being able to explain by what social influence or causal process legitimacy makes actors behave the way they do (Reus-Smit 2004: 20). 11 have come in the form of a positive authorization, not a negative vote on the Russian draft (2003: 182). A negative Council vote is also a questionable indicator of international support. Contrary to the argument that the international community perceived the KI as appropriate, Byers and Chesterman argue that "international reaction to the intervention was at best mixed" (2003: 184). Numerous states, such as China, Russia, India, Namibia, Belarus, Ukraine, Iran, Thailand, Indonesia, South Africa, and the 133 developing states of the G77, all reaffirmed at the time that unilateral humanitarian intervention was illegal and unacceptable under international law (2003: 184). The U N General Assembly in September 1999 voted 107 to 7 (with 48 abstentions) in favour of a resolution reaffirming Q the same conclusion. It is noteworthy that proponents are unable to cite the General Assembly as an alternative source of legitimacy for the KI and are often silent with respect to its role in the matter. Critics highlight that, not only did N A T O not receive authorization from the Security Council, it also failed to seek an alternative U N mechanism for approval or legitimacy, such as the General Assembly's "uniting for peace" option. Brad Roth argues that "The refusal to invoke it - where, as here, there was sufficient time for such a special meeting of the General Assembly to be convened on the topic - is surely a strike against the effort to reconcile the N A T O action with the demands of international normativity" (2003: 259). Thus, it is apparent that scholars disagree over the degree to which the "international" community accepted the KI as legitimate, let alone as legal, and prioritize 8 "The General Assembly. ..Reaffirming.. .that no State may use or encourage the use of economic, political or any other type of measure to coerce another State... [and] Deeply concerned that... [unauthorized] coercive measures continue to be promulgated and implemented...Rejects [unauthorized] coercive measures." GA Res. 54/172, UNGAOR, 54th session, UN Doc. A/RES/54/172 (1999). 12 different sources for this legitimacy. Robert Keohane argues that, by emphasizing the absence of positive authorization from the Security Council and General Assembly and the presence of extensive dissent amongst non-Western actors, Byers and Chesterman prioritize the principles of state consent and formal equality (2003: 7). On the other hand, by arguing that NATO's illegal act produced consequences more in keeping with the intent of the law, Thomas Franck's view seems to be that "legitimacy depends on law not being so strongly at odds with the ethical views of influential people that powerful states find it easy to discard" (Keohane 2003: 7). Franck's argument is noteworthy for at least two reasons. Firstly, it begs the question of what the intent of the law is. While the original purpose of the U N Charter was arguably to prevent aggression and unilateral determinations of just war (Byers and Chesterman 2003: 181), Franck's argument suggests that it can be interpreted in other ways, recognizing non-traditional sources of insecurity. Some scholars argue that, with the end of the Cold War, internal armed conflicts, humanitarian catastrophes, and displaced populations have increasingly come to be recognized as threats to peace and security by the international community (Wheeler 2000 and 2004). U N Security Council resolution 1199, of 23 September 1998, and resolution 1203, of 24 October 1998, expressed alarm at "the impending humanitarian catastrophe" in Kosovo and emphasized "the need to prevent this from happening" (S/RES/1199: 2, S/RES/1203: 2). Resolution 1199 expressed grave concern over the displaced population in Kosovo and affirmed that the deterioration of the situation constituted a "threat to peace and security in the region" (S/RES/1199: 2). Acting under Chapter VII of the U N Charter, resolution 1203 endorsed the agreements between the FRY, the Organization for Security and Cooperation in 13 Europe (OSCE), and N A T O (agreements which sought to verify the FRY' s compliance with all previous Council requirements), and demanded "the full and prompt implementation of these agreements" (S/RES/1203: 2). This is relevant because Chapter VII of the U N Charter explicitly authorizes the Security Council to use force when international peace and security are threatened but it is less clear when it comes to intrastate conflict and insecurity. In light of the official recognition of the severity of the situation, the explicit and repeated demands placed upon the FRY, and the reference to Chapter VII of the Charter, one could argue that, far from acting in contravention of the Security Council, N A T O was actually enforcing its own demands. The problem with this argument, however, is that neither resolution 1199 nor 1203 expressly endorsed the threat or use of force9, deciding instead to "remain seized of the matter" (S/RES/1199: 5, S/RES/1203: 4) and that "should the concrete measures demanded.. .not be taken, to consider further action and additional measures to maintain or restore peace and stability in the region" (S/RES/1199: 5). Moreover, one can argue that, because resolution 1203 did not specify to which article it was referring with respect to its invocation of Chapter VII, this was not the same as endorsing military action against the F R Y . 1 0 The second reason Franck's argument is noteworthy is because it begs the questions of whether N A T O has the authority to enforce its own interpretation of the intent of international law and whether non-NATO states agree with this. Generally speaking, having the authority to do something means having both the power and the 9 Although, it should be noted that resolution 1203 did affirm that, in order to guarantee the safety of the OSCE ground and NATO air verification missions, "in the event of an emergency, action may be needed to ensure their safety and freedom of movement" (S/RES/1203: 3). 1 0 As Catherine Guicherd points out, "It is important not to equate Chapter VII and the use of force". Chapter VII, she argues, allows for many other options which fall short of the use of force, such as sanctions. See: "International Law and the War in Kosovo", Survival, Summer 1999, 41/2, p.20. 14 right to do so. It is true that NATO's overwhelming military dominance fulfills the former criterion. However, it is less clear that it possesses the latter quality, which is based more on socio-legal recognition granted willingly by other international actors. It is this latter socio-legal element that Alan Henrikson misses when he argues, somewhat confusingly, that the KI was legitimate because N A T O is an "effective instrument" and "the enabler of the participation of others". Arguing that N A T O gives "power to legitimacy" only sidesteps the difficult questions of what comprises legitimacy and why this might be important for the practice of "humanitarian" intervention. In the same way that some critics of the KI focus solely on the issue of right legal authorization at the expense of larger ethical issues, some proponents are also guilty of adopting a narrow viewpoint. By seeking to find alternative sources of legitimacy these scholars do not adequately address what might be lost if we endorse the use of coercive force in the absence of U N authorization." SECTION 3: NATO's "RIGHT" INTENTIONS Another source of division for many analysts is what NATO's intentions were in the FRY. Proponents argue that, while it is true that the KI involved a mix of ideational and material objectives, NATO's desire to avert a humanitarian catastrophe was real. Critics, on the other hand, argue that NATO's purportedly noble intentions acted as a cover for less commendable objectives. These disagreements stem from methodological, ontological, and theoretical differences in scholars' perspectives. The question of what NATO's "real" intentions were is less a social scientific query amenable to empirical 1 1 For example, one can argue that multilateralism helps guard against powerful states abusing the concept of humanitarian intervention and that it represents an (evolving) democratic process that is itself intrinsically valuable. 15 validation and more an ethical argument over whether or not N A T O had the "right" intentions. The idea of "right intent" comes from just war literature and stipulates that, i f a humanitarian intervention is to be considered just, its primary purpose must be to stop human suffering. Thus, much is at stake in the scholarly battle over whether or not N A T O had right intent. Public Justifications and Private Motivations Publicly, N A T O and its member states claimed to have had right intent. On 24 March 1999 Javier Solana explained that NATO's actions were "directed against the repressive policy of the Yugoslav leadership" and aimed to "stop the violence and bring an end to the humanitarian catastrophe" taking place in Kosovo (Weller 1999: 497). The US State Department exclaimed at the time that "averting a humanitarian catastrophe" was one of its "three strong interests at stake in the Kosovo conflict".1 3 Privately, though, some scholars argue that an array of less noble motivations - such as the perceived need for threat diplomacy, geopolitical pressures, and the logic of war and prestige - were also influencing N A T O ' s actions. Tim Judah argues that NATO's objectives were, at best, mixed. "The humanitarian catastrophe was a part of the reason", he argues, "but the other part was a modern-day version of gunboat diplomacy" (2002: 233). Judah argues that the humanitarian motives were aimed more at providing legal cover and that the primary objective of the air strikes was to change Milosevic's position and force him to 1 2 The Independent International Commission on Kosovo argues that one of the three threshold principles "which must be satisfied in any legitimate claim to humanitarian intervention" is that the interveners must have an "overriding commitment to the direct protection of the civilian population" (2000: 10). While it provides additional criteria in its policy-oriented report, The Responsibility to Protect, the International Commission on Intervention and State Sovereignty (ICISS) makes a similar point with respect to right intention: "The primary purpose of the intervention must be to halt or avert human suffering" (2001: 35). 1 3 See: www.state.gov/www/regions/eur/fs 990326 ksvobiectives.html 16 agree to the demands N A T O articulated at the diplomatic negotiations in Rambouillet, France, in February 1999 (2002: 233). Much turns on a scholar's interpretation of NATO's reasons for acting and whether they believe that its public justifications were related to its private motivations. Constructivist scholars in particular are concerned with the reasons an individual or group acts the way they do. With respect to the KI, Chris Reus-Smit argues that " A reason is both an individual or collective motive (the reason why N A T O bombed Serbia) and a justificatory claim (the reason N A T O gave for bombing Serbia)" (2004: 22). Like many proponents of the KI , Reus-Smit believes that there was, at some minimal level, a link between NATO's private motives and its public justifications. As he argues, "European norms governing how 'civilized' states treat their inhabitants and ideas about the interdependence of security, democracy, and regional stability informed NATO's decision, while international humanitarian norms concerning obligations to prevent genocide and egregious crimes against humanity provided the justificatory framework that N A T O used to license the bombing" (2004: 23). An important challenge to Reus-Smit's conclusion is that it is methodologically difficult to demonstrate. Because constructivist arguments are cultural claims about NATO's beliefs and identity, private intentions are usually inferred through retroactive proxy sources, such as behaviour and discourse. It is very difficult to empirically demonstrate that a collectively held norm, whether European or international, was the dominating factor in an international political outcome like the K I . 1 4 1 4 Thanks goes to Alan Jacobs for this point. 17 NATO's "Sordid" Intent - The Neo-Marxist and Serbian View Irrespective of any methodological shortcomings, however, theoretical and ontological differences seem to prevent neo-Marxist scholars from even considering the constructivist argument that NATO's private motives were related to its public justifications and that it had right intent. Neo-Marxists usually argue that NATO's purportedly noble intentions were either "fraudulent" (Said 1999: 2) or "sordid" (Ali 1999: 63). Edward Said argues that "the humanitarian concerns expressed are the merest hypocrisy since what really counts is the expression of US power" (1999: 75) and that "nothing of what the US or N A T O does.. .has anything really to do with protecting the Kosovars" (1999: 74). Tariq A l i argues that "the need to protect the Kosovars served as the pretext for NATO's bombardment, but its real aim was to secure its control of this strategic region and to fortify an extensive N A T O bridgehead in the heart of the Balkans" (1999: 64). Thus, these scholars believe that, ethically speaking, NATO's claim to right intent is discredited because its primary objective was not human protection but the expression of power and the consolidation of strategic control. That many politically "left-leaning" scholars and domestic populations in the West did not realize what NATO's "real" intentions were is partly what makes neo-Marxists so frustrated about the KI. As Diane Johnstone argues, "many people on the left, who would normally defend peace and justice, were fooled or confused by the claim that the 'Kosovo war' was waged for purely humanitarian reasons" (2002: 1). It is important to note here that few proponents of the KI claim that N A T O waged its war for "purely" humanitarian reasons. Johnstone does not say whether she believes an intervening force needs to have such altruistic intentions before its intervention can be 18 considered legitimate or just. By portraying N A T O as empirically failing this high standard, Johnstone makes it easier to ethically denounce its actions. Intriguingly, though, and contrary to many other neo-Marxists, Johnstone acknowledges that "perhaps" NATO's humanitarian motivations were sincere, "in line with the psychological tendency to see, in an obscure field of vision, whatever one expects to see" (2002: 11). By empirically dismissing what many believe was a sincere normative concern as nothing more than a psychological affliction, Johnstone avoids the difficult moral question of whether N A T O had right intent and, thus, whether the justness of the KI was increased. This is partly because she does not want to assess the justness of the operation using the ethical criteria of its proponents. As a neo-Marxist, Johnstone believes it is more important to critically examine NATO's unjust material objectives than it is to get side-tracked debating the ideational context that might or might not have influenced NATO's decision to intervene. It is important to realize that the neo-Marxist interpretation of NATO's "real" intentions resonated with many Serbian leaders and civilians at the time. Judah argues that part of the reason Milosevic was so uncooperative in the Rambouillet negotiations was because he was worried that NATO's real goals were to separate Kosovo from Serbia and to remove him from power (2002: 220). Milisav Pajic, a senior foreign ministry official in the FRY' s embassy in London during the KI, argues that NATO's "real goal" was not Kosovo but "to oppose the leadership of this country and introduce NATO here. It was a sort of ideological jihad" (Judah 2002: 231). While some might dismiss the neo-Marxist and Serbian viewpoints as extreme or pessimistic, there are elements of truth in Pajic's comments. 19 Firstly, it was no secret that many Western leaders were increasingly dissatisfied with Milosevic and his regime. Some even went so far as to portray his actions as the personification of evi l . 1 5 Secondly, Pajic is correct that the KI was, at least in one respect, an ideological battle over the values that would comprise the international community and the primacy that would be granted to absolute sovereignty and order versus human rights standards, freedom, and justice. Marc Weller, international legal advisor to the Kosovar Albanian delegation during the Rambouillet negotiations, argues that the Rambouillet agreement was less about the specific fate of the individual peoples of Kosovo and more about meta-questions concerning the post-Cold War order (1999: 211-212). The points of disagreement were over fundamental issues, such as changes in the role of international actors, the core values of the international system, and the legitimacy of the threat or use of force in international relations (1999: 211-212). Thirdly, from Belgrade's perspective one can see why it might seem like the proposed diplomatic solutions to the conflict were, at best, unwavering and unfair, or, at worst, designed to help justify and facilitate NATO's use of force and its occupation of the FRY. As evidence of NATO's unreasonable diplomacy, critics point out that the peace settlement to which Milosevic agreed in June 1999 contained three major concessions from NATO' s original demands at Rambouillet: the U N was given a stronger role, Russian presence in the diplomatic process and international peacekeeping force was increased, and N A T O abandoned its "status-of-force" demand which would have given it unimpeded access to the entire area of the FRY. This last issue is a source of 1 5 On 1 February 1999 former US Secretary of State Madeline Albright declared "that this kind of thing cannot stand, that you cannot in 1999 have this kind of barbaric ethnic cleansing. It is ultimately better that democracies stand up to this kind of evil". Cited in Barton Gellman's Washington Post Retrospective "The Path to Crisis", International Herald Tribune, 23 April 1999. 20 much scholarly disagreement. While Chris Reus-Smit and Peter Christoff argue that the status-of-force demand was for "reasons of military effectiveness" and "sheer practicality" (1999: 4), Michael Byers argues that Milosevic baulked at it because it was "a patently unreasonable provision" (2005: 101). Ethically speaking, the International Commission on Intervention and State Sovereignty (ICISS) report argues that, in a legitimate humanitarian intervention, "occupation of territory may not be able to be avoided, but it should not be an objective as such" (2001: 35). With respect to the status-of-force demand at Rambouillet, the cynical view is that either N A T O intended to occupy the F R Y or it knew that Belgrade would have to reject any peace agreement that contained such a provision. This interpretation is what leads some neo-Marxist scholars and Serbian politicians to argue that NATO's diplomacy was designed to fail . 1 6 By ensuring that Milosevic would reject the Rambouillet agreement, N A T O would then be morally and politically absolved to use force because he was the one rejecting peace. It is true that arguments such as these can appear to border on the conspiratorial. However, it is also true that it is hard to imagine why, from the F R Y ' s perspective, a sovereign state would be expected to grant complete and unaccountable territorial access to the world's most powerful military alliance, or why Western negotiators would think this was necessary for addressing human rights violations occurring in one particular area of the country. Diane Johnstone argues that the Rambouillet talks were "programmed" to breakdown, in order to provide "the pretext for NATO bombing" (2002: 11). Milisav Pajic, the Serbian foreign ministry official, believes that "the Americans prevented an agreement. They were looking for excuses because their intention was to bomb Yugoslavia. Their plans were ready but an excuse was needed" (Judah 2002: 231). 21 Limits of the neo-Marxist and Serbian View While there is demonstrable merit to the neo-Marxist and Serbian argument that NATO did not have right intent, there are a number of limits as well. While the status-of-force demand might have been unreasonable from the FRY's perspective, from NATO's perspective it was part of a larger effort to ensure that a peaceful resolution to the conflict was backed by credible force. For numerous reasons, such as the perceived failure of the U N in Bosnia and the US insistence on American command of peacekeeping forces post-Somalia, the US was adamant that any political agreement in Kosovo had to be enforced by a foreign military presence led by N A T O (Judah 2002: 211-212). Due to the legacy of 1 7 Srebrenica , other Western leaders were also eager to demonstrate that they had "learned their lesson" and that they were prepared to uphold principles and values with military force. Tim Judah argues that, had Milosevic at least accepted on principle that a foreign military presence was necessary, the specific nature and identity of this force could have been worked out after the fact (2002: 219).1 8 Thus, what a scholar interprets NATO's "real" intentions to have been partly depends on whether they believe that the status-of-force and foreign-military-presence demands were reasonable. Contrary to the argument that the Rambouillet agreement was designed to be unacceptable to Belgrade in order to facilitate NATO's use of force, many scholars believe that it sought to protect the territorial integrity of the F R Y and ensure meaningful 1 7 In what amounted to Europe's worst atrocity since World War II, about 8,000 Muslim men and boys were killed in Srebrenica by Bosnian Serb forces in 1995, even though the area was supposed to be under the protection of the UN at the time. 1 8 Judah argues that "although the US and Britain had made it very clear that the implementation force had to be NATO-led, with NATO 'command and control' structures, if Milosevic had asked for a face-saving deal whereby these troops would wear UN blue berets but still be NATO commanded, then it is more likely that such a deal could have been struck" (2002: 219). Judah, however, seems to miss the point. Milosevic opposed any foreign troop presence and had a referendum vote stating the same. Thus, to the extent that a foreign implementation force was one of NATO's non-negotiable principles, the FRY's position seems to have been fundamentally incompatible with that of NATO's. 22 autonomy for the Kosovar Albanians, thus reflecting a commitment to both sides of the conflict. Critics seldom mention that the Kosovar Albanian delegation was also opposed to the Rambouillet agreement, at least initially, because it did not guarantee a referendum on the issue of independence. However, it is true that, after extensive negotiation and questionable commitment from both sides, the Kosovar Albanians were essentially told by the US to "sign or we cannot bomb the Serbs" (Judah 2002: 212-213). Thus, to the extent that this empirical interpretation is accurate, NATO's full commitment to peaceful negotiation was indeed questionable. The problem is that, so too was Milosevic's. 1 9 By arguing that it was the US and N A T O who abandoned peaceful negotiation because they intended to use force all along, neo-Marxists seem to imply that Milosevic, by comparison, was committed to diplomacy and peace. Many would find this to be an inaccurate interpretation of Milosevic and his intentions vis-a-vis the Kosovo conflict.20 In their effort to demonstrate that N A T O did not have right intent, neo-Marxists can forget to apply the same standard to all parties involved in the conflict. Like the constructivists that seek to equate NATO's public justifications with its private motivations, the neo-Marxist critique of NATO's right intent suffers from methodological obstacles of its own. Neo-Marxist scholars have to homogenize complex phenomena like " N A T O " or the "US" and infer the "real" intentions of individual actors (such as Bi l l Clinton) from the larger objectives inherent in US hegemony or global capitalism (such as the expression of power or the protection of markets). This is a For a number of reasons, Milosevic decided to call what he interpreted to be NATO's bluff. Judah argues that, far from there being secret agendas on either side, both sides simply misjudged the limits of the other and "got it wrong" (2002: 311). 2 0 As Judah argues, disdain for Milosevic was so prevalent at the time that there were even Russian officials who did not trust him "because he humiliated them, just as he did Western officials, by making promises to them and signing agreements which he had no intention of keeping" (2002: 272). 23 somewhat teleological argument based on the poor logic that the goals of an actor or group of actors are the cause of their behaviour. Moreover, many scholars question whether the KI was a good example of the kinds of meta-goals neo-Marxists propose. Judah argues that the proposition that the region offered strategic geopolitical benefit to the West is somewhat dubious (2002: 224). Regardless, even i f the objectives which neo-Marxists propose are accurate and were in fact driving NATO's behaviour, many of them could have been secured if Milosevic had agreed to a peaceful settlement and no force was used by NATO. The US would have reasserted its hegemonic/leadership presence in Europe and N A T O would have demonstrated its aggressive role/credibility. This contradicts the argument that the US intended to use force all along. SECTION 4: LEGITIMATE LIBERATION STRUGGLES Ethical conclusions regarding the KI depend a great deal on the group with which a scholar identifies or sympathizes. While most scholars try to be fair to both sides, unsurprisingly, critics of the KI tend to emphasize the Serbian position while proponents highlight the Kosovar Albanian struggle. In this section I argue that, empirically, this division reflects a scholar's interpretation of the source and nature of the conflict in Kosovo, and, theoretically, it indicates a disagreement over what is and what is not a legitimate liberation struggle. Both critics and proponents long to see the respective sides they support as manifestations of larger universal struggles, even i f this is not empirically accurate. By arguing in favour of one side over the other, scholars are trying 2 1 Speaking of a "Serbian position" is an analytical short-hand adopted for the purpose of this particular investigation. It must be acknowledged that there were multiple non-Kosovar Albanian views both outside and inside Kosovo. From Belgrade's perspective, its actions in Kosovo represented the entire population of the FRY and were thus in the interests of all "Yugoslavs", regardless of national orientation or identity. 24 to provide the international community with criteria by which to guide its interventions and a theory by which to locate political legitimacy. The Kosovar Albanian Struggle By what criteria should the international community recognize a legitimate liberation struggle? Chris Reus-Smit and Peter Christoff argue that the rise in self-determination and recognition struggles associated with the end of colonialism and the end of the Cold War "require[s] us to be subtler in distinguishing between liberation struggles based on cosmopolitan and universalist principles, and those driven by exclusivist self-interest, in order to choose between those we should support and those we should oppose" (1999: 8). David Campbell makes a similar point. "What we have seen in so-called 'ethnic' and 'nationalist struggles'", he argues, "appears to be the political demise of universalism and its practical substitution by particularism" (2001: 108). Campbell argues that this particularism is due to the fact that ethno-nationalist struggles do not operate in terms of the aspirations of a universal subject or a universal history, "but in terms of a particular subject (a specific ethnic or national group) and a particular history (the aspirations of that group)" (2001: 108). Like many proponents of the KI, Reus-Smit, Christoff, and Campbell believe that the Kosovar Albanian struggle exhibited the cosmopolitan and universalist qualities that these scholars prioritize and that Milosevic's nationalism represented the exact opposite. With respect to its means, proponents emphasize that the Kosovar Albanians adopted the tactic of non-violent civil resistance throughout most of the 1990s (Clark 2000). With respect to its ends, they argue that the group's desire for self-autonomy and independence 25 was legitimized by the fact that the population lacked effective and meaningful participation in their own affairs after Milosevic revoked the province's autonomy in 1989. Regarding Milosevic, they argue that his oppressive policy in Kosovo needed to be opposed because it was founded upon the politics of exclusion. This argument implies that the Kosovar Albanians demonstrated, at least comparatively, a greater commitment to the politics of inclusion and difference. However, in their effort to portray the Kosovar Albanian struggle as modern, inclusive, and cosmopolitan, many proponents tend to ignore its non-universalist characteristics, such as the importance of clan loyalties in the area and the historical ethos of revenge and blood feuds. Thus, scholars see in the struggle the elements that resonate with their normative and theoretical perspectives and downplay the characteristics that contradict these world views. Nature of the Kosovo Conflict Whether a scholar supports the Kosovar Albanian struggle partly depends on their view of the timeframe and nature of the conflict in Kosovo. Proponents usually consider 1989, the year Belgrade revoked Kosovo's autonomy, as the start of the recent crisis. From this perspective, Milosevic is seen as the root of the problem and Kosovar Albanian behaviour as reaction to Milosevic's policy of repression (Franck 2003, Daalder and O'Hanlon 2000, Campbell 2001). Thus, the Kosovo conflict is conceived of primarily as a human rights issue. Other scholars look further back in history and offer an alterative portrayal of the nature of the conflict (Judah 2002, Johnstone 2002, Krstic-Brano 2004). Branislav Krstic-Brano argues that "The Serbo-Albanian conflict in Kosovo has been present for a whole century and has experienced seven solutions", such as division of 26 territory and changes in the political status of the territory (2004: 17). He argues that not one of these solutions has passed the test of history because none resolved the essence of the conflict, which is that, in the Balkans, "neither the Serbian nor the Albanian national question has yet been resolved.. .that Kosovo is a territory that both nations want to see within their own state" (2004: 17). Krstic-Brano warns that without a parallel solution for both the Serbian and Albanian national question, "there can be no solution for the secular conflict and therefore no peace or stability in the Balkans" (2004: 17). Some scholars argue that it is precisely because NATO's actions failed to provide a parallel response to the Serbian position that the KI was, overall, not justified (Falk 2003). This conclusion depends on whether a scholar prioritizes the value of equal treatment and whether they perceive Serbian interests in Kosovo to have been legitimate and thus worthy of Western recognition. Krstic-Brano's historical portrayal and normative prescription resonates with neo-Marxist scholars. Emphasizing the fact that the West's response to the Kosovo conflict has been historically inconsistent, Diane Johnstone argues that state behaviour that was tolerated when Yugoslavia's unity was geopolitically important was now regarded simply as "human rights abuses" in the post-Cold War environment (2002: 220). Johnstone argues that portraying the Kosovo conflict primarily as a human rights issue obfuscates the political nature of the situation and confuses cause for effect. She contends that severe repression in the area was in response to the perceived threat of Kosovar Albanian independence. "The concentration on 'human rights' issues", she argues, "blurred the basic political issue, which was always the status of the province, inside or outside of 27 Serbia.. .The Western interpretation of the Kosovo conflict reversed cause and effect by presenting human rights violations as the cause of the problem" (2002: 220-221). Johnstone and Krstic-Brano's portrayal of the situation suggests that the Kosovo conflict was one that was, at best, extremely difficult to resolve, or, at worst, unresolvable. Johnstone seems to stumble upon this possibility when she argues that Milosevic's "claim to be able to resolve the problem of Kosovo was based on illusion" as the problem was "much more difficult than he realized" (2002: 20). "Whether he or anyone else could have solved it", she argues, "is a matter of speculation" (2002: 20). As the Independent International Commission on Kosovo argues, "it is impossible to conclude...that a diplomatic solution could have ended the internal struggle over the future of Kosovo" as "the minimal goals of the Kosovar Albanians and of Belgrade were irreconcilable" (2000: 4). While less explicit in his conclusion, Krstic-Brano makes a similar point. Through his extensive analysis of demographic changes, ethnic development of settlements, land ownership, Serbian and Albanian historical monuments, changes in state constitutions, and the role of international law and the great powers, he argues that: At the core of the conflict in Kosovo and Metohija is the unresolved clash between two rights: the historical right22 of the Serbian people - who had established their state, church, and culture in these territories, yet kept leaving them - and the ethnic right of the Kosovo Albanians, who have inhabited these same territories since long ago, yet doubled the size of their population in the 1960s-1980s and pressed their claim for self-determination (2004: 19). v 2 2 One problem with the Serbian claim that they have a historical right to the land of Kosovo and that this claim is stronger than the ethnic claim of the Kosovar Albanians is that this logic was not applied in other parts of the Balkans. Serbian enclaves in Croatia and Bosnia were, like the Kosovar Albanian struggle, justified on the logic of ethnic composition and the notion that the republican boundaries of Yugoslavia had no international status and could be thought of simply as "administrative boundaries" within a state (Judah 2002: 59). "By contrast", argues Judah, "Kosovars were not entitled to this same right to self-determination because Kosovo was Serbian thanks to 'historical right'. In this case, then, the 'administrative boundaries' were inviolable" (2002: 60). This contradiction in Serbian policy was not lost on the Kosovar Albanian independence movement. 28 In other words, the conflict in Kosovo can be conceived of as one in which two peoples have equally legitimate claims to the same piece of land. While they are careful not to make such a contentious and explicit moral conclusion, Albrecht Schnabel and Ramesh Thakur do make a similar empirical observation. They argue that "competing constructions of history have served to perpetuate a climate of hatred between ethnic Serb and Albanian communities", triggering a spiral of conflict, and that "each side has maintained a perception of history as an oscillating domination by one or the other side, and each claims exclusive rights and sovereignty over the same piece of land" (2000: 6). These "competing constructions of history" are a terrain of heated disagreement amongst scholars and local actors alike and a comprehensive analysis of them is beyond the scope of this paper. Some scholars argue that myths and truths were utilized by each side and that both contributed to the eventual dissolution into war (Mertus 1999). Suffice it to say, choosing which side had a more legitimate claim will depend on the criteria a scholar prioritizes, such as the size and proportion of the populations, continuity of habitation, behaviour of the groups towards each other, legal borders, and historical and cultural ties. What is important to highlight, for the purpose of this investigation, is that interpreting the nature of the conflict as a traditional political fight over land has controversial ethical implications. It either equalizes the moral claims of each party (even though there may be other factors involved) or grants primacy to the Serbian claim (because of the historical primacy afforded to the principles of sovereignty and territorial integrity). There are, of course, many scholars who offer an alternative depiction of the situation and do not agree that both sides had equally legitimate claims. Chris Reus-Smit and Peter Christoff argue that the nature of the conflict in Kosovo reflected the larger 29 challenge of modernity and the historical tension between two different sources of political legitimacy (1999: 7). They argue that, after the collapse of absolutism in the nineteenth century, two contradictory notions evolved which both sought to tie the newly enfranchised individual to the state: a cosmopolitan rights discourse on the one hand and an ethno-nationalist discourse on the other (1999: 7). The former conceived of the state as a vehicle of the will of the citizenry while the latter bounded the citizen to an "organic" community embodied by the state. Both have been called upon over the past two hundred years as sources of political legitimacy and both have been manifest in the Balkan wars of the 1990s. As Reus-Smit and Christoff argue, "It is the clash - with a brutality unparalleled in Europe for almost 50 years - between ascendant republican norms and localized political mobilization based on 'blood and soil' in previously integrated societies which has produced the Kosova crisis" (1999: 7). According to these scholars, the international community had a moral duty to support the former over the latter. As they argue, "Insofar as NATO's action leads to the restoration of the contested space for democratic discourse and politics - or, more grimly, simply spares people from destruction during the tectonic shifts of political realignment - we feel such intervention (even if military, in the last resort) is warranted" (1999: 8). By contextualizing the nature of the Kosovo conflict within the larger debate over legitimate and illegitimate political communities, Reus-Smit and Christoff offer an important and candid ethical justification for why they support the KI. Moreover, they provide tangible substantive criteria that they think the international community should use when choosing which liberation struggles to support in the future. As they argue, "simply to say that we are merely witnessing the extension of capitalist hegemony, and 30 then to stand idly by or to oppose those forces which represent and embody cosmopolitan and universalist principles, is to sacrifice - literally - what we must protect" (1999: 8). It is important to remember, though, that Reus-Smit and Christoff are prioritizing cosmopolitan identities over nationalist ones and arguing that a state can temporarily relinquish its right to non-intervention i f its nationalist identity devolves into violent oppression of difference and contested political space. They are essentially arguing that there are now legitimate and illegitimate political ends which can animate a group's existence and that the international community has a responsibility to coercively enforce extreme deviations from these standards if need be. This is a radical departure from those who believe that the world still does not have a universal political theory of the good life and that questions regarding the proper nature of political community are still very much up for debate. Pro-Serb View of Neo-Marxists In contrast to Reus-Smit and Christoff, neo-Marxist scholars usually emphasize the Serbian position and see it, and not the Kosovar Albanians, as a manifestation of a more universal struggle. This choice reflects their material interpretation of the source and nature of the Kosovo conflict and their normative view of what constitutes a legitimate liberation struggle. While they usually acknowledge that oppression in Kosovo was severe (Said 1999, A l i 1999) and that the Kosovar Albanians, like all the peoples of the area, were entitled to self-determination, neo-Marxists seek to offer an ethical justification of why NATO's actions should still be opposed and why Serbian resistance should be celebrated. However, trapped by ontological and theoretical 31 commitments that can border on the dogmatic, these scholars are unable to provide a full social scientific account of the situation. One of the main reasons they tend to favour the Serbian position is because neo-Marxists have a difficult time recognizing the legitimacy of the Kosovar Albanian independence struggle in so far as it is founded upon the politics of identity and recognition. As Tariq A l i argues, "The Kosovo Liberation Army is not the wing of a political movement" but is "a national movement-in-formation" (1999: 69-70). Generally speaking, neo-Marxists view legitimate liberation movements as ones of material class struggle and social emancipation. From this perspective, the problem with recognition struggles is that they do not fundamentally challenge inequalities in the distribution of power and wealth. As such, their ability to fulfill the emancipatory promise is lacking. As Nancy Fraser argues, in the face of "an aggressively expanding capitalism [which] is radically exacerbating economic inequality...questions of recognition are serving less to supplement, complicate, and enrich redistributive struggles than to marginalize, eclipse and displace them" (2000: 108). If anything, recognition and self-determination struggles have the potential to erode the sovereign nation state23, the unit most capable, from a traditional neo-Marxist perspective, of resisting the unchecked power of US hegemony and global capitalism and offering "a progressive model of alternative development" (Johnstone 2002: 11). Another reason neo-Marxists prioritize the Serbian position is because their material explanation of the Kosovo conflict emphasizes external Western interference and deemphasizes internal nationalism. This empirical interpretation, in turn, has ethical 2 3 Diane Johnstone argues that, not only is the sovereign nation state being broken down subtly by the pressures of economic globalization, "it may also be undermined from within, by domestic insurgencies" (2002: 10). . . 32 consequences. The moral culpability of Western powers increases while that of local actors decreases. As A l i argues, "the West bears a central responsibility for encouraging" the break-up of Yugoslavia and "the claim that it is all Milosevic's fault is one-sided and erroneous, indulging those Slovenian, Croatian and Western politicians who allowed him to succeed" (1999: 70). Johnstone argues that, to understand the crisis in Kosovo, one has to look at the way in which material power struggles and economic transformations in the 1980s and 1990s contributed to disaffection and insecurity in the region. "Economic troubles", she argues, "were a prime cause of the clash of nationalisms, which in turn made problems even more intractable" (2002: 20). Dependent on the West for credit in the 1970s, Yugoslavia fell into a "debt trap" and was forced to accept the harsh demands of the International Monetary Fund (IMF). As a result, argues Johnstone, during the 1980s "the relatively high living standards of the Yugoslav people underwent the shocks of IMF austerity policies" (2002: 21). Blame for the rapid rise in the cost of basic necessities and for cuts to social services and jobs was, intriguingly, "not directed against the growing Western influence" but against domestic communist politicians, or, increasingly, other national groups (2002: 21). Importantly, Johnstone's materialist account is supported by other non-Marxist voices. Brookings Institute scholar Susan Woodward also argues that the process of rapid economic decline in the former Yugoslavia had, by the end of the 1980s, resulted in a breakdown of the domestic order, political disintegration, and rising nationalism (1995: 47-57). Proponents, on the other hand, tend to downplay the role of external material factors and prioritize internal nationalism as the main cause of the Balkan conflicts. While Reus-Smit and Christoff acknowledge that external factors were relevant, such as 33 the "harsh demands" of the IMF and Germany's "passive encouragement to the nationalist tendencies in Croatia and Slovenia"2 4, they argue that critics "disregard the central constitutive role of Balkan ultra-nationalism" and that the "leaders and their followers as actors and determinants of the course of the Kosovan war are written out of the script" (1999: 2). This exclusion has the effect of accentuating the role, and thus the moral culpability, of the US. Reus-Smit and Christoff argue that this view is inaccurate and that "Milosevic's rise to pre-eminence in Yugoslav politics by the start of the 1990s was autonomous of Western influence" (1999: 3). To the extent that this empirical depiction is accurate, N A T O member states are portrayed as simply reacting to an ugly and difficult internal conflict and not as guilty parties whose policies and behaviour contributed to the conflict itself. Ethno-Nationalism and the Limits of Neo-Marxist Accounts It is probably the case that a combination of internal and external variables contributed to the conflict in Kosovo and, thus, to the ethical and political conditions under which N A T O would respond. It is true that choosing one type of variable over the other will reflect ontological and theoretical differences in a scholar's perspective. However, this does not necessarily mean that each type of variable was equally salient. Reus-Smit and Christoff are correct that most neo-Marxists have difficulty acknowledging the role of ethno-nationalism. Anthropologist Andrei Simic argues that, 2 4 Germany's legally questionable recognition of Slovenia and Croatia's unilateral declarations of independence limited the subsequent negotiating environment in the Balkans. The issue of minorities was not properly addressed. Nor was an adequate explanation provided as to when and why the international community should prioritize self-determination over territorial integrity, especially if the former may lead to war and if other political alternatives, such as negotiation and compromise, still exist. Granted, the ethno-nationalist environment at the time made it difficult to set criteria for assessing competing claims of difference. 34 while it is true that economic and social chaos, individual political ambitions, the decentralization of administrative power and identity associated with the republics of the former Yugoslavia, and the cynical and self-serving meddling of both local elites and foreign powers all must be recognized as among the immediate causes of the Yugoslav wars of secession, "to minimize the salient role of ethnicity is to ignore what is perhaps the principal energizing force underlying these conflicts" (2000: 104). One of the main reasons neo-Marxists have to deemphasize the role of internal ethno-nationalism in the area, or place it as causally following external material factors, is because their theoretical tools are ill-equipped to account for it. Neo-Marxist scholar Fred Halliday admits that nationalism as a phenomenon "has persistently proved itself superior to class loyalties as a means of mobilizing mass support, amongst oppressed and oppressor alike" (2000: 1202). For all the talk of false consciousness and leadership betrayal, Halliday acknowledges that nationalism presents a theoretical challenge to orthodox Marxist accounts (2000: 1202). Johnstone's explanation of ethno-nationalism seems to ignore Halliday's warnings: As the ability of nation-states to protect the interests of their citizens declines, the importance of citizenship diminishes in turn. The democratic process is unable to provide citizens with the protection they need to earn a decent living, stay healthy, and educate their children. In compensation, group identities of all kinds offer the prospect of mutual assistance, protection, or at least solace to populations struggling to cope with changes beyond their control. People turn to identity groups - national, religious, 'ethnic', etc. - for protection (2002: 7). There are a number of limits to Johnstone's materialist argument. One of the problems with a socio-economic explanation of ethnic identity, ethnic conflict, and nationalism is that it is overly deterministic. Broadly conceived, historical materialism is a holistic explanation of social reality and the mechanisms which drive history. This analytical breadth tends to generalize the specificity of subjects associated with complex 35 conflicts like the one in Kosovo. While it is true that no comprehensive analysis of the Kosovo crisis and the KI is possible without reference to capitalism, it is also true that no account can look only at socio-economic conditions. Reducing everything to economic factors weakens our ability to explain the political, cultural, legal, and moral issues associated with the situation. These issues are arguably governed and constituted by their own rules and tendencies which cannot be reduced solely to socio-economic foundations. Another limitation is that Johnstone has to assume that citizens in the Balkans have "inherent" common and immutable material interests that can either be met properly by the nation-state or improperly by the false promise of group identities. While Johnstone believes that groups turn to these ethno-nationalist identities for protection and assistance, some scholars argue that they fulfill a much more fundamental, ontological function, providing meaning and continuity in a peoples' existence (Simic 2000). Simic argues that "ethnicity (and by extension nationalism) as a folk concept, constitutes an overarching, multi-stranded ideology locating the individual within a historical, cultural, and kinship context, thus answering one of life's most basic questions - who am I?" (2000: 108). And finally, contrary to the idea that groups in the Balkans recently turned to ethno-nationalism in response to the negative effects of economic globalization, Simic argues that ethno-religious identities have been salient in the region for centuries (2000: 109-113). One can argue that ethno-national categories - while admittedly a historical product of contact between local and foreign elements - have not been imposed by the international community or the forces of modern globalization but are a significant part 36 of the internal history of the region itself." In their attempt to depict the Serbian struggle as part of some larger fight for universal emancipation and as a reaction to external material factors, neo-Marxists tend to ignore the internal ethno-religious element of Serbian identity. While in no way a homogenous entity or uniform voice, one can argue that the Serbian position, like the Kosovar Albanian struggle, was also greatly influenced by identity politics and a parochially oriented outlook. Serbian Identity, Empires, and Neo-Marxists It is important to understand that, to a great extent, Serbian identity has historically evolved in resistance to a number of occupying empires and foreign powers in the region. Perhaps this is why neo-Marxists find in the modern Serbian struggle an ideal group that resonates with their theoretical perspective. The final, and perhaps most important, reason that neo-Marxists tend to emphasize the Serbian position is because they can portray it as a resistor of what has, in some popular and academic circles, come to be termed Pax-Americana or the American empire. It is not a coincidence that much of the rhetoric espoused by Serbian officials at the time of the KI resonates with the academic accounts provided by neo-Marxist scholars after the fact. Comments made by Zivadin Jovanovic, Federal Minister of Foreign Affairs for the F R Y at the time of the KI , are telling and worth repeating here in full: It was clear [NATO] would attack because Yugoslavia would not submit to capitulation. Yugoslavia has never capitulated in all her history.. .The Serbs have never accepted capitulation or occupation. In the fourteenth century the Serbs resisted and won. We resisted Austro-Hungary in 1914... Again in 1941-45 Serbia defeated Hitler, and that was not because we were helped by the US or the Russians but simply because we don't know 2 5 Granted, this debate reflects a much larger disagreement between the instrumentalist and primordialst schools of ethnicity and nationalism studies and a comprehensive exploration is beyond the scope of this paper. While primordialism has many shortcomings, it is also true that instrumentalists are unable to adequately explain why local populations participate in elite constructed ethno-nationalist projects. 37 how to do anything else but resist. In 1948 Yugoslavia was surrounded by a steel wall of tanks, but did not submit. In 1968 Yugoslavia rose up against Brezhnev's theory of limited sovereignty. We condemned the occupation of Czechoslovakia. So, today, we don't buy that limited sovereignty idea and we're damn strong in our convictions! (Judah 2002:225). Jovanovic's account shares important similarities with neo-Marxist perspectives. What proponents saw as the necessity to have any political solution to the conflict enforced by a NATO-led military presence, Jovanovic and neo-Marxists saw as the threat of military occupation. While some argue that sovereignty is now conditional and depends on a state fulfilling its most basic responsibilities to its population (ICISS 2001), neo-Marxists and Jovanovic conceive of it in more absolute terms.26 Neo-Marxists are not comfortable with the way the KI represents a weakening of national sovereignty because they consider it to be "the basis of international law" (Johnstone 2002: 10). This view places great importance on formal sovereign equality and the principle of non-intervention. Like Jovanovic, many neo-Marxists are suspicious of the concept of "limited" or "conditional" sovereignty arid view it as a potential cover for Western imperialism or US hegemony. This is a very different view of what the biggest threat to human welfare is in the twenty-first century. It is also the subject of the next section. As Tariq Ali argues, modern "liberal warmongers... think nothing these days of violating national sovereignty" (1999: 69). 38 SECTION 5: THE KI AS US HEGEMONY OR COLLECTIVE IDENTITY? As the preceding sections have suggested, many neo-Marxists believe that the KI needs to be understood within a larger theory of US dominance or hegemony post-Cold War. From this perspective, the KI is portrayed as an extension of US interests into Europe and N A T O is portrayed primarily as an instrument of the US. Other scholars contest this account. They argue that, far from a unilateral expression of US power, the KI was a veritable example of Western intent and N A T O a representation of collective will . Both of these divergent positions are able to empirically substantiate their arguments. While NATO's member states and institutional structures did limit and influence some US behaviour, decisions over the most controversial elements of the KI, such as targeting policies, revealed extensive power asymmetries and US dominance. It is probably the case that the KI was neither simply an expression of US unilateralism and control nor was it a true manifestation of collective identity and multilateral support. Accordingly, there is room for varying interpretations amongst scholars. These disagreements tend to represent substantive differences in their perspectives and values more so than they do empirical details of the situation itself. Most notably, they represent diverging views on the existence, nature, and desirability of larger global trends - such as US hegemony - post-Cold War. The KI as US Dominance and Hegemony While they disagree on the theoretical details of its meaning and extent, most neo-Marxists agree that US hegemony is alive and well. Some even equate it with the larger process of globalization. Placing the US at the centre of a neo-imperialist agenda, Diane 39 Johnstone defines globalization as the "uncontested hegemony of the US model" and the "elimination of any viable alternative model of economic development" (2002: 6, 8). She believes that the KI was a way for the US to secure both of these elements. Her argument is predicated on the assumption that NATO, far from representing a collective will or having its own independent influence, is instead overwhelmingly controlled by the US. The role of its institutional characteristics and multiple member states is, to a great extent, cast aside. As Tariq A l i argues, "American strategists, desperate to retain N A T O as their battering-ram in the new Europe, maneuvered Europe into a war in order to prove that NATO had a permanent function, that it was the ultimate arbiter and could act alone, presenting the rest of the world with a fait accompli" (1999: 66). A l i makes much of perceived divisions in the alliance during the KI, arguing that this represented a behind-the-scenes war over who will ultimately rule Europe. "Kosovo", he opines, "is a neat operation from the Anglo-American point of view to drag the E U behind NATO/US leadership of the world, and to replace the notion that Russian sensibilities should be catered for" (1999: 66). While some might dismiss these arguments as extreme or inaccurate, there are a number of factors which support them. It is hard to deny that the US was the dominant actor in the KI. Most analysts would acknowledge that the US contributed the most political and military resources and exercised the greatest influence over outcomes. NATO's European allies relied heavily on the US for diplomatic leverage and military might before and during the KI (Ikenberry 2000: 141). Thus, whether a scholar concludes that the KI was a unilateral or a multilateral project will depend a great deal on what threshold they consider significant. 40 What one scholar perceives as an outcome of ideational and multilateral factors another might perceive as evidence of US dominance. Moreover, not only was the US the dominant actor in the KI, it was prepared to act unilaterally. For example, the US flew multiple independent missions over the F R Y outside of NATO's formal structure. Many American bombers based in the US and in Britain, as well as cruise missiles fired from US naval vessels, were not integrated into the rest of the N A T O campaign. As Ivo Daalder and Michael O'Hanlon point out, "Other allies did not even know what the United States would do on a given day with its nonintegrated assets" (2000: 124). As France argued at the time, many "US military assets were not integrated because the United States had the option of not integrating them, given its overwhelmingly important political and military power and the fact that American generals effectively ran the N A T O war" (Daalder and O'Hanlon 2000: 124). This US autonomy supports the argument that the most powerful member works within existing institutions when it is convenient but acts unilaterally when not. A l i is correct that N A T O member states were, in many respects, divided about the KI. Two of the main sources of division were the length of the air campaign and the rapid deterioration of the humanitarian situation associated with it. Air strikes did not have the quick deterrent effect they had had in Bosnia in 1995. In fact, as Nicola Butler argues, "The length of the air campaign had the effect of pushing N A T O cohesion to the limits, putting particular pressure on countries such as Italy and Greece where public opposition to the air strikes was high" (2000: 279). Another source of division was how coercive NATO' s force should be. The allies could not agree whether to use ground troops, whether to board ships in the Adriatic to enforce the maritime blockade, and 41 whether to bomb dual-use civilian-military targets such as TV and radio stations, bridges, power stations, and oil refineries. At various times during the air campaign, Italy, Germany, and Greece called for halts in the bombing in order to pursue diplomacy. Officials from the US and the U K usually held a different view from these states, often pushing for increases in the use of force. As Butler argues, "Such fundamental policy differences between the allies led to a lowest common denominator approach to achieving military objectives" (2000: 280). Far from being an expression of "collective will" , NATO's targeting policy was, as Butler points out, a mixed product of lowest common denominator accommodation, acquiescence by dissenting allies, and military and political "necessity". That the more aggressive use of force policy ultimately won out as the air campaign dragged on and the pressure increased for N A T O to "win" the war and maintain its credibility suggests that the US was ultimately calling the shots by the end of the KI. 1 1 It is also true that the ability of NATO's political institutions to influence or constrain US behaviour was questionable, especially by the end of the air campaign. While the North Atlantic Council (NAC) and Secretary General Javier Solana did exercise some autonomy and influence, especially in the early stages of the Kosovo crisis and at the beginning of the intervention, their roles became increasingly less notable and more informal as the air campaign wore on. For example, as the highest political authority of NATO, the N A C was supposed to approve all escalations of the bombing 77 campaign. However, the N A C never formally approved the most coercive stage, that of 2 7 Phase-1 was aimed at eliminating the air defences and the command and control centres of Serb forces. Phase-2 was aimed at halting the ethnic cleansing and encompassed Serbian military, paramilitary, and police targets in Kosovo and Serbia proper. Phase-3 was aimed at "strategic" targets in the FRY, which in practical terms meant dual-use civilian-military infrastructure. 42 phase-3 dual-use civilian-military targets. Nicholas Wheeler argues that alliance leaders realized that this would have divided NATO's members (2004: 199). Instead, as Daalder and O'Hanlon report from their interviews of alliance officials, phase-2 bombing was "stretched" so that "the rest of the campaign fell into what N A T O called 'phase-2-plus'" (2000: 118). Granted, instead of voting on the matter itself, the N A C granted Solana the authority to approve escalations in targeting.28 However, Solana was required to informally consult with countries that had particular concerns. In practice this meant consultation with - and approval by - the US, U K , and France (Daalder and O'Hanlon 2000: 123). The informalization, at best, or avoidance, at worst, of NATO's primary democratic institutions supports the neo-Marxist hypothesis that some of NATO's actions did not represent a general consensus or collective will. NATO as Collective Identity and the KI as a Western Political Project Many scholars do not agree with the idea that the US simply used N A T O as its "battering ram" into Europe and "maneuvered Europe into a war". They argue that neo-Marxists downplay the role of NATO's collective identity and institutional structures, ignore the support that did exist amongst its numerous member states, and discount the heterogeneous elements of the "US" position with respect to Kosovo. The argument that N A T O was not simply controlled by the US during the KI needs to be understood within the broader context of constructivist literature on NATO's Reviewing NATO's press releases leading up to and during the KI one is hard pressed to find official recognition of the shift in targeting policy, even though most other developments were reported. The 27 March 1999 is the last time Solana officially acknowledges that he authorized an increase in bombing intensity or target choices. By the time 28 April anives Solana claims that "we" decided at the Washington Summit to intensify the air campaign (PR (1999)073). 43 organizational nature. Thomas Risse-Kappen argues that NATO's collective identity29 is a reflection of the liberal democratic norms and decision making procedures of its members (1996: 395). Furthermore, compared to many other international organizations, NATO's political and military institutions are highly developed, such as the N A C , the Secretary General, and the Supreme Allied Commander for Europe (SACEUR). Risse-Kappen argues that this "institutionalization of the community exerts independent effects" on interactions (1996: 397). One tangible manifestation of this community is its commitment to the principle of multilateralism. Risse-Kappen argues that close cooperation among N A T O allies has historically been the rule rather than the exception and that the power asymmetry within N A T O has not translated into US dominance (1996: 362). Chris Reus-Smit and Peter Christoff agree and argue that, while "Washington has always sought to shape N A T O to its own ends", its European allies have still "exerted a strong influence over the alliance" and this influence has only increased with the end of the Cold War (1999: 4). Steve Weber argues that, as a set of principles for an alliance, this multilateralism can have "autonomous causal impact on outcomes" (1992: 635). David Haglund concurs and argues that "the [NATO] Alliance can be conceived as a mechanism for helping to codetermine the American 'national interest,' with the result being that the latter resembles a collective (Western) interest that is constituted from a collective Western 'identity' and set of shared values" (2001: 92). Thus, according to these perspectives, NATO's actions should be viewed not as a unilateral extension of US power but as cooperative Western initiatives. Risse-Kappen cites Alexander Wendt's definition, where collective identity is the "positive identification with the welfare of another, such that the other is seen as a cognitive extension of the Self rather than as independent" (in Lapid and Kratochwil 1997: 52). 44 A scholar's interpretation of why NATO was involved in Kosovo is influenced by whether or not they adopt the aforementioned account of its organizational nature. Portraying the KI partly as a Western political project, John Ikenberrry argues that it is important to remember that N A T O is now less a military alliance based on defence and more "a grouping of like-minded democratic states seeking to preserve and extend the democratic community in Europe and beyond" (2000: 95). Numerous Western leaders declared at the time that one of the long-term goals of the KI was to bring the F R Y "back" into Europe and the community of Western states. However, where advocates of the KI see this as the growth of liberal-democracy and a market-economy, neo-Marxists see it as the extension of US hegemony and the consolidation of global capitalism. Normatively, the former believe this should be celebrated while the latter thinks it should be resisted. Substantively, proponents think this represents new ideational trends post-Cold War while neo-Marxists think it is the "same old" economic story.30 Intriguingly, both critics and proponents agree that the KI was part of a larger agenda to maintain NATO's existence after the Cold War. Not surprisingly, however, , they disagree whether this is a positive trend for the international community. Tariq A l i is not wrong when he argues that the KI was a way "to prove that N A T O had a permanent function". He may oversimplify the situation, though, when he ascribes this all to "American strategists" and a US/UK plot "to drag the E U behind NATO/US leadership of the world". There is extensive scholarly disagreement about both the cause(s) and prudence of NATO's continued existence post-Cold War. Neo-realists (Waltz 2001), neo-liberal institutionalists (McCalla 1996), and constructivists (Risse-3 0 As Johnstone argues, "The economic and institutional factors that animated the Cold War in the United States remained as vigorous as ever after the collapse of the Soviet Union. More so, in fact. The military-industrial complex was intact and triumphant" (2002: 6). 45 Kappen 1996) offer differing accounts. Setting these debates aside, it is sufficient to note that, with the fall of the Soviet Union, most allies perceived the threat environment to have improved but still agreed that N A T O should continue to exist. Generally speaking, there was a belief that, i f N A T O was to survive and thrive in an era of intrastate conflict and non-traditional threats, it would increasingly be called upon to act as a peacekeeping force capable of operating in an environment of complex political and security concerns. The conflict in Kosovo was perceived by many Western leaders as a prime testing ground for this "new" N A T O . Neo-Marxists can argue rightfully that these perceptions were dangerous, misguided, or a manifestation of the military-industrial complex. However, they cannot argue convincingly that it was the US alone who felt this way. Ascribing everything to US dominance discounts the agency and role of NATO's other member states. While the allies reacted to the KI differently and for different reasons (Brawley and Martin 2001: 3-7), there was broad formal support for NATO' s objectives, at least at the elite level. Daalder and O'Hanlon argue that "More than is often appreciated, N A T O allies stuck together through thick and thin during Operation Allied Force" (2000: 121). As David Haglund argues, "Whatever else Kosovo represented, it surely demonstrated the amazing spectacle of centre-left governments given over to a vigorous venting of outraged indignation" (2001: 95). They all seemed to agree that "something" had to be . done but they did not necessarily agree on what that something was or how it should be implemented. Generally speaking, this was the case even for the less powerful member states. With respect to Turkey, Greece, and Italy, all three formally supported the way in which the US handled the Kosovo crisis, although Greece and Italy did express dissent 46 over certain aspects of the actual intervention (Kostakos 2000: 176). However, none of these members ever registered a non-blocking disagreement in N A T O communiques or a blocking negative vote in the N A C (Kostakos 2000: 176). With respect to Portugal, Belgium, Canada, and Spain, David Haglund and Allen Sens argue that, as with the other allies, it was a combination of "membership dues" along with humanitarian concerns that led them to support NATO's involvement in the war against the FRY (2000: 196). "It was both a war for values", they argue, "and a war for a seat at the table" (2000: 196). Granted, it must be remembered that support for the KI and unity amongst NATO's member states can be interpreted and explained in different ways. As Nicholas Wheeler acknowledged earlier, the degree to which a scholar believes that an organization is dominated by the US will affect whether they explain another state's support for a US-led initiative as due to fear and coercion, strategic subservience and rational self-interest, or perceptions of legitimacy and moral rectitude (2004: 38). Still, contrary to the argument that the KI was but an expression of US unilateralism, there is evidence that it was, in some respects, constrained by the political pressure for allied unity and the democratic need for consensus in the N A C . Daalder and O'Hanlon emphasize that, even when the US flew missions outside of NATO's formal structure, it would not bomb any target that an ally had vetoed explicitly (2000: 121-124). For example, France's veto of the bombing of bridges on the Danube river was generally respected. Some US military commanders at the time had disagreed with this less aggressive use of force policy and openly advocated for the targeting of bridges.31 3 1 As American Lt. General Michael C. Short, head of NATO's air campaign in Kosovo, recounts: "There were still military and political targets in Belgrade I'd like to have gone after...bridges across the Danube that we would like to have dropped". Interview given to Channel Four's 'War in Europe' series, Frontline. See: http://www.pbs.org/wgbh/pages/frontline/shows/kosovo/interviews/short.html 47 Wheeler argues that this option was prevented by NATO's "political authorities" (2004: 201). Michael Ignatieff argues that, normally, if an ally did not agree with a targeting policy, they simply sat out that particular attack (2000: 199). However, as Wheeler notes, "in the case of the Danube bridges, France opposed any N A T O state targeting them" (2004:202). Part of the reason France's wishes were accommodated is because they resonated with members of the Clinton administration. With respect to NATO' s targeting policies, these US civilian leaders often held views different from their military counterparts. This suggests that the position of the "US" vis-a-vis Kosovo was, to some extent, not a homogenous entity. Most neo-Marxists, however, do not believe that such heterogeneity exists and that US foreign policy has essentially been the same since World War II. As Johnstone argues, "Presidents come and go but the continuity of US policy is ensured by a small elite of policy-makers who remain outside party politics - and often outside public view" (2002: 9). While neo-Marxists often portray the KI as supporting the "continuity of US policy", other scholars believe that this over-simplifies a complex situation. They do not agree that the US was pursuing some grand, unified, or deliberate strategy in Kosovo. Reus-Smit and Christoff argue that the US lacks the coherent foreign policy, or policy-making process, that so many critics attribute to it: Its foreign policy is shaped and driven by contradictory forces - the tug back towards isolationism, a moral repertoire pushing it to be the global policeman, a set of economic influences which encourage the use of its economic, political and military might to improve the climate for US capital and its military-industrial complex, and a large range of almost random, feral factors, such as the quality of its leaders, shifting public opinion, and the historical residues of failed previous interventions (from Vietnam through to Somalia) (1999: 4). It is important to note that, where scholars like Reus-Smit and Christoff see diversity and contradiction in US foreign policy, neo-Marxists see homogeneity and consistency. One 48 of the reasons for this divergence in views is a disagreement about the nature of US power and its relationship to larger global trends. In other words, as will be elaborated^ below, there is a disagreement about the existence and nature of US hegemony post-Cold War and whether the KI should be assessed in this context. Opposing Views of Hegemony , Reus-Smit and Christoff do not think the KI should be assessed as part of a larger theory of US hegemony because they do not believe that US hegemony exists. They argue that, "Despite its global reach, the United States is not a hegemon and hasn't been since the late 1960s" (1999: 4). They do not believe that the US has "the political, economic, or military resources needed unilaterally to define and uphold the rules of the international, let alone global, order" (1999: 4). From this perspective, the post-Cold War international environment is multilateral in character and even the US is constrained and influenced by it. The US must work within this order, not outside of it, in a process of negotiation and bargaining among the major powers, "within a multi-layered complex of multilateral organizations and international legal institutions" (1999: 4). Interestingly, these constructivist scholars come to the same conclusion - albeit for slightly different reasons - as neo-realist John Mearsheimer. He too argues that the US is not a global hegemon because it lacks the capability and resources to impose dominance over the entire globe. A s Mearsheimer argues, "it is almost impossible for any state to achieve global hegemony in the modern world, because it is too hard to project and sustain power around the globe. Even the United States is a regional but not a global hegemon." See: Brzezinksi , Zbigniew, and John Mearsheimer. "Clash o f the Titans", Foreign Policy, Jan/Feb 2005, Issue 146, pp.46-51. 49 The problem with the argument made by Reus-Smit, Christoff, and Mearsheimer is that, by equating hegemony with unilateral domination and material resources (i.e. political, economic, and military might), these scholars miss the significance of a world order based on consent versus coercion and downplay the ideational component of hegemony theory. Putting aside the simple fact that the US now wields historically unprecedented economic and military supremacy, there are additional non-material factors which lead many neo-Marxist scholars to conclude that it leads an emerging hegemonic order and that the KI can be understood within this reality. Robert Cox's analysis of Antonio Gramsci's theory of hegemony offers insights which can be used to assess whether the KI represents an emerging hegemonic order led by the US. According to Cox, Gramsci believed that hegemons propagate a common culture and common identity (2000: 1213-1214). It is these cultural elements which legitimate hegemonic rule. Thus, for example, we are reminded that the F R Y was denounced as deviating from common moral standards and that the KI was often justified with reference to shared norms and identity. Usually, Cox argues, "Hegemony is enough to ensure conformity of behaviour in most people most of the time" (2000: 1210). Conformity of behaviour due to coercion, however, is not hegemony. Hegemony only prevails when "the consensual aspect of power is in the forefront" (2000: 1209). While coercion is always latent, it is only applied in deviant cases and only aimed at enemy classes (2000: 1209). Neo-Marxists often believe that the bombing of the F R Y was one such "deviant case". This action demonstrated the coercive apparatus which props up the authority of the hegemon. Proponents, on the other hand, make much of the fact that 3 3 As Martti Koskenniemi argues, "From this perspective, the bombing of Serbia was the exception that revealed, for a moment, the nature of the international order which lay not in the Charter of the United 50 this coercion - and the authority in whose name it was exercised - was supported - or at least not explicitly denounced - by many members of the international community.34 Thus, by emphasizing the prevalence of consent and by arguing that the US did not unilaterally dominate the KI, proponents offer evidence that the KI demonstrated an emerging hegemonic order of the Gramscian variety. Cox provides important additional insight into what is and what is not hegemony. He argues that "World hegemony is describable as a social structure, an economic structure, and a political structure; and it cannot be simply one of these things but must be all three" (2000: 1217). From this perspective, hegemony should not be confused with imperialism. As Cox argues, to become hegemonic, "a state would have to found and protect a world order which was universal in conception, i.e. not an order in which one state directly exploits others but an order which most other states (or at least those within reach of the hegemony) could find compatible with their interests" (2000: 1217). In other words, hegemony is not simply the dominance of one state over others. In this sense, it is true that showing that the KI was heavily dominated or influenced by the US is not enough to suggest that it was an example of US hegemony. Just as hegemony should not be confused with domination or imperialism, nor should it be equated simply with order among states. Arguing that the KI represents a US-led "new world order" tells us little unless one explains what comprises this order. Hegemonic order, argues Cox, is order "within a world economy with a dominant mode Nations nor in principles of humanitarian ism but in the will and power of a handful of Western civilian and military leaders" (2002: 171). 3 4 The section on "Right Authority" showed that there is scholarly disagreement over the extent (i.e. Western or global?) and cause (i.e. coercion, self-interest, or normative agreement?) of this support. In trying to explain why universal consent and acquiescence is often missing from a hegemonic order, Cox argues that "In the world-hegemonic model, hegemony is more intense and consistent at the core and more laden with contradictions at the periphery" (2000: 1217). 51 of production which penetrates into all countries and links into other subordinate modes of production" (2000: 1277). To the extent that, a) there is now only one economic order and, b) the KI led to the penetration and protection of this mode of production - even if it also contributed to other phenomena - then it is true that the KI represents a form of hegemony. On this point, it is important to remember that there is no inherent normative content to a hegemonic order. Hegemony is not "good" or "bad" in and of itself but it does enforce and legitimize a status quo. Neo-Marxists are correct that the KI protected the current status quo. One of the main reasons scholars are divided about the KI is because they disagree about the values and objectives which animate this current status quo. Neo-Marxists believe that it is dominated by an inherently unfair capitalist economy. Thus, in so far as the KI served to enforce or legitimize this economic order, then it is guilty by association.35 This, however, is more a meta-argument about the normative desirability and substantive content of world order and less a specific moral critique of why the events of the KI were unjust or unfair. Proponents of the KI, even those that agree with neo-Marxist critiques of the capitalist world economy, are not convinced that the only thing N A T O was doing was protecting the global market for US-led capitalist expansion. It is precisely because the reality of the KI entails important non-economic elements that the concept of hegemony seems so appropriate. As Cox argues, hegemony is a "complex of international social relationships which connect the social classes of the different countries" (2000: 1277). It is here that we find similarities between Cox's 3 5 As Martti Koskenniemi argues, "If international law is [now] centrally about the informal management of security crises by diplomatic and military experts, then of course it is not about global redistribution: it is about upholding the status quo and about directing moral sensibility and political engagement to waging that battle" (2002: 172). 52 description and that of Reus-Smit and Christoff s earlier argument that even the US has to work within a "complex of multilateral organizations and international legal institutions". Both perspectives view these socio-legal institutions as highly relevant. The difference is that, whereas Reus-Smit and Christoff believe that they extend deep into global society and reflect the identity and values of large segments of the world's population, Cox thinks that they only represent the interests of a minority ruling class. Under hegemony, though, these socio-legal institutions are expressed in universalistic rhetoric. As Cox argues, "World hegemony.. .is expressed in universal norms, institutions and mechanisms which lay down general rules of behaviour for states and for those forces of civil society that act across national boundaries" (2000: 1218). Thus, another reason the KI is divisive is because it speaks to larger disagreements about the nature and desirability of global civil society and the purportedly universal norms upon which it claims to act. S E C T I O N 6 : T H E K I A S " E M P I R E " The preceding section showed that scholars disagree about what the KI represents with respect to larger global trends post-Cold War. This debate is related to other disagreements regarding the relationship of the KI to issues such as globalization, sovereignty, and international law. In their seminal work, Empire, Michael Hardt and Antonio Negri offer a theoretically nuanced account of all three phenomena. Their work is different from other more conventional neo-Marxists, like Diane Johnstone, who adopt an overwhelmingly materialist perspective, prioritize traditional political sovereignty, and make much of the negative and dominating role of the US. Hardt and Negri problematize 53 these premises. In so doing, they offer a powerful - albeit somewhat teleological -theoretical framework in which to assess the KI and what it means about the source and -nature of legitimacy, sovereignty, and hegemony in today's increasingly globalized world. ' Empire and the Significance of the KI Aware of the limits of dogmatic materialism, Hardt and Negri adopt an interdisciplinary approach. Their "argument aims to be equally philosophical and historical, cultural and economic, political and anthropological" (2000: xvi). This is because their subject of study is equally complex. Similar to Gramsci's concept of. hegemony discussed earlier, Empire encompasses the economic, political, and cultural spheres. These three "increasingly overlap and invest one another", constituting social life itself (Hardt and Negri 2000: xiii). Furthermore, contrary to those who believe that sovereignty has eroded, Hardt and Negri argue that, "the decline in sovereignty of nation-states. . .does not mean that sovereignty as such has declined" (2000: xi). In fact, their main argument is that "sovereignty has taken a new form, composed of a series of national and supranational organisms united under a single logic of rule" (2000: xii). This new global form of imperial sovereignty is what they call Empire. Lastly, while scholars like Johnstone view the US as the supreme authority that rules over globalization and the new world order, Hardt and Negri argue that "the United States does not, and indeed no nation-state can today, form the centre of an imperialist project" (2000: xiv). They believe that imperialism, traditionally understood, is over: "no nation will be world leader in the way modern European nations were" (2000: xiv). 54 Through the concept of Empire, Hardt and Negri seek to redefine the significance of purportedly humanitarian interventions like the one in Kosovo. For multiple reasons, they argue that these "just wars" are but one important indication of the new global sovereignty. One of the main reasons is because just wars are portrayed as exceptions and, in many respects, whoever defines the exception defines the law. Enforcing exceptions, they argue, is really "a right of the police" (2000: 17). The combination of these two elements, defining and enforcing, is significant. "The juridical power to rule over the exception", they argue, "and the capacity to deploy police force" are "two initial coordinates that define the imperial model of authority" (2000: 17). Hardt and Negri are correct that many N A T O member states at the time of the KI defended their action as an exceptional response to extraordinary and specific circumstances. The question of whether to articulate this response, and the conditions which precipitated it, as a formal and genef alizable doctrine of "humanitarian intervention", still divides many international legal scholars. Criticizing Brad Roth for arguing in favour of a codified "humanitarian" exception to the non-intervention norm, . Thomas Franck advances the merits of absolute prohibition tempered with "ad hoc mitigation" (2003: 265-267). The advantage of such an approach, according to Franck, is that humanitarian crises can be evaluated on a case by case basis in the political organs of the international community, based "primarily on extenuating facts rather than on legal exceptions to legal rules" (2003: 266). Franck believes "the world is simply not ready" to let states unilaterally interpret a non-defensive legal exception to the principle of non-intervention (2003: 266). "It is primarily for that reason", he argues, "not because, as / 3 6 As Catherine Guicherd notes, most NATO governments argued "that the military action against the Federal Republic of Yugoslavia is an exception which will not be repeated" (1999: 20). 55 Roth suggests, the United States wanted to keep a free hand for itself, that the United States chose not to follow the Belgian or Dutch examples by arguing that the Kosovo action was lawful humanitarian intervention" (2003: 266). Thus, according to Franck's perspective, by avoiding a formal legal justification of the KI the US was actually acting in the greater interest of the international community. While Franck's legal analysis of the KI is lucid and sophisticated, his conclusion still depends very much on his personal view of US intentions and the nature of the relationship between US power and international law. Similar to Michael Ignatieff and other pro-KI scholars, Franck does not view US hegemony with the suspicion that other legal scholars like Roth and Richard Falk do. The logic of Franck's argument seems to be that, while most of the world's states are not ready to be allowed to unilaterally determine when an intervention is just, the same is not necessarily true for the US and its Western allies. With great power comes great responsibility and sometimes the world hegemon must bend the rules in order to prevent the law - in this case, the absolute ban on the use of non-defensive unilateral force - from falling into self-destructive reductio ad absurdum - in this case, failing to act in the face of what many believed to be ethnic cleansing or genocide. While this is not a morally unreasonable position, especially i f a scholar perceives US hegemony as a benevolent force, other scholars are highly suspicious of the foundations which substantiate it. The inequality and unfairness which underlie the logic of Franck's argument are not lost on critics of the KI, especially neo-Marxists. As Hardt and Negri argue, when a power or force claims to act in the greater interest of the world community, this' is further evidence of imperial sovereignty. 56 "Empire", they argue, "is formed not on the basis of force itself but on the basis of the capacity to present force as being in the service of right and peace. A l l interventions of the imperial armies are solicited by one or more of the parties involved in an already existing conflict" (2000: 15). To the extent that N A T O member states and pro-KI scholars justify the intervention as ultimately in the service of international peace and justice, then Hardt and Negri make an important point. The KI does force us to ask who or what is defining peace, justice, sovereignty, and order in today's world. When a scholar argues that the KI was legitimate they are also making a statement about the source and nature of these four phenomena. Hardt and Negri realize that much turns on the concept of legitimacy. They argue that two distinct elements comprise the concept of just war: "the legitimacy of the military apparatus insofar as it is ethically grounded" and "the effectiveness of military action to achieve the desired order and peace" (2000: 13). Thus, with respect to the KI, its legitimacy is derived from NATO's morality and the effectiveness of the action. We saw in the section on "Right Authority" that many scholars do justify the KI according to its morality and effectiveness. "The synthesis of these two elements", argue Hardt and Negri, "may indeed be a key factor determining the foundation and the new tradition of Empire" (2000: 13). The "moral" criterion, however, is more important than the "effective" element when trying to understand why the KI represents a new global sovereignty. Hardt and Negri acknowledge that they have to explain where Empire's "imperial right" derives its legitimacy, as ascribing this only to "a state of permanent exception and the power of the police.. .reduces right and law to a question of pure effectiveness" (2000: 17). Accordingly, the main source from which Empire derives its 57 legitimacy is its appeal to universal ethics and values. As Hardt and Negri argue, what stands behind interventions like the one in Kosovo "is not just a permanent state of emergency and exception, but a permanent state of emergency and exception justified by the appeal to essential values of justice" (2000: 18). "In other words", they argue, "the right of the police is legitimated by universal values" (2000: 18). It is the appeal to universal moral principles that leads Hardt and Negri to draw so many parallels between the current post-modern condition of Empire and the ancient empire of Rome. Then, like today, there was an organic whole, a totalizing reality which "united juridical categories and universal ethical values" (2000: 10). Then, like today, the single power was given the necessary force and right to conduct just wars at the borders against the barbarians (2000: 10). Then, like today, the Roman empire was said to rule over all space and all time. Of course, in practice, it did not. Europe evolved and numerous important events challenged the logic of empire. The Renaissance announced the triumph of secularism. The treaty of Westphalia gave absolute sovereignty to the princes in order to stop religious wars. The theories of "all space" and "all time" evolved separately from each other as theories of international right and perpetual peace, respectively. The reason Hardt and Negri, as with many critics of the KI, are so weary of NATO's action is because they believe it represents a regression from these historical achievements. For Hardt and Negri, just wars like the KI represent a departure from secular modernity. "There is certainly something troubling", they argue, "in this renewed focus on the concept of helium justum [just war], which modernity, or rather modern secularism, had worked so hard to expunge from the medieval tradition" (2000: 12). Under the current logic of helium justum, war is made to seem banal and normal, an 58 ethical instrument aimed at maintaining peace and moral standards. These ideas, argue Hardt and Negri, have, until very recently, been resolutely refused by "modern political thought and the international community of nation-states" (2000: 12). According to Hardt and Negri, appealing to universal values marks an important paradigm shift in how we conceive of international law and intervention. Under the old international order, individual sovereign states and supranational authorities such as the U N intervened only to enforce international accords to which states had voluntarily agreed, either through treaty or custom. Now, they argue, supranational subjects which "are legitimated not by right but by consensus" intervene "in the name of any type of emergency and superior ethical principles" (2000: 18). The problem with this account is that it ignores the fact that most of the purportedly "humanitarian" interventions of the 1990s were authorized by the U N Security Council, a body whose authority U N member states voluntarily recognize. However, Hardt and Negri are correct that the KI deviates from this principle in a number of ways. The F R Y did not consent to NATO's authority. While some might argue that, as a member of the community of states, the F R Y was still obligated to respect customary norms, such as minimum humanitarian and human rights standards, the F R Y never consented to have these standards enforced militarily. 3 7 Thus, it is apparent that debating the justness of the KI depends a great deal on whether or not a scholar prioritizes the value of state consent. This reflects a larger disagreement between J / This speaks to the larger debate about how the substance and objectives of international humanitarian and human rights law has grown extensively since World War II but the same cannot be said about the means available to enforce these standards, such as preventive coercive measures. As Catherine Guicherd argues, "the combined right of victims to assistance and the right of the Security Council to authorize humanitarian intervention with military means do not amount to a right of humanitarian intervention by states, individually or collectively", thus leading to what some perceive as an unfulfilled promise or "hypocrisy" in international law (1999: 23). 59 those who emphasize the natural and universal moral foundations of international law and legitimacy and those who base it more procedurally on state consent and formal equality. Limits of Empire While Hardt and Negri's work offers numerous insights into the significance of the KI with respect to the changing source and nature of legitimacy, sovereignty, and hegemony, their thesis is also limited in a number of respects. While inter-disciplinary in their approach, Hardt and Negri are still ontologically committed to historical materialism. For example, they argue that juridical concepts always refer to something other than themselves. "Through the evolution and exercise of right", they argue, juridical concepts "point toward the material condition that defines their purchase on social reality" (2000: 22). The problem with this argument is that it ignores the extent to which legal concepts are, on the one hand, manifestations of material power realities and, on the other, ideational constructions and normative promises. Thus, it is not clear that a strictly materialist perspective can account for the complex nature, source, and influence of the current transformations in international law and sovereignty theory that Hardt and Negri identify. Another shortcoming of Hardt and Negri's work is that their concept of Empire is teleological and difficult to falsify. Social reality is "explained" less by postulated cause and more by the goals this entity pursues, such as perpetuating peace, ruling social life, stopping history, and asserting a universal ethic (2000: xiv-xv). By being both malleable and adaptable, and by subsuming both dissent and inconsistencies, this concept is at risk 3 8 For example, Nico Krish argues that the legal concept of sovereign equality is one of international law's "great Utopias" and "great deceptions", historically reflecting both a substantive promise to abolish all unjustified privileges and a material reality of unequal power distributions (2003: 135). 60 of becoming everything and nothing. Arguments such as "The terms of the juridical proposal of Empire are completely indeterminate, even though they are nonetheless concrete" (2000: 20) are indicative. Imperial sovereignty is "real", even if no formal legal treaty recognizes it and no customary consensus supports it. Hardt and Negri argue that, as a "just war", the KI is but one important symptom. This argument is limited in that it disregards the extent to which the KI - and the whole notion of transnational sovereignty more generally - is contested by large segments of the international community. Pre-empting such criticism, Hardt and Negri argue that "the force of the new imperial constitution will not be embodied in a consensus that is articulated in the multitude" (2000: 20). Thus, the absence of consent is not evidence of the absence of Empire. Hardt and Negri seem to sidestep one of Gramsci's most important points. According to Gramsci, the less consent there is the less hegemony exists (Cox 2000: 1209). To the extent that coercion is manifest and dissent is prevalent, Empire is not hegemonic in its rule. SECTION 7: "JUST C A U S E " - JUSTICE VERSUS FAIRNESS Throughout this investigation we have seen critics highlight numerous ethical, legal, and political shortcomings of the KI. Many proponents argue that, irrespective of its dubious legal status and controversial political ramifications, the KI was still justified because N A T O was responding to a severe humanitarian crisis that had the potential to get much worse. This is primarily a deontological argument based on the idea that, while the empirical consequences of the intervention are relevant, what is more important is that NATO had "just cause" to act militarily. However, the moral strength of this 61 argument depends on the empirical details of the humanitarian crisis in Kosovo prior to the bombing and, perhaps more importantly, a scholar's interpretation of said details. Such assessments-are prone to methodological challenges and normative complexities. Much depends on the time period a scholar looks at, the criteria or evidence demanded, the authority or source cited, and the value judgments made with respect to definitions like "large scale" or "conscience shocking". In part because of these differences, proponents and critics offer varying descriptions of the situation in Kosovo prior to the bombing, with genocide (Campbell 2001) on one end of the spectrum and domestic conflict (Johnstone 2002) on the other. As a result, they come to very different conclusions about whether the KI was just. I argue that these disagreements ultimately reflect whether a scholar prioritizes justice or fairness and their definition of each with respect to international affairs. • , Just Cause: A Working Set of Criteria The International Commission on Intervention and State Sovereignty (ICISS) provides a useful set of criteria by which to critically assess scholars' arguments that N A T O had or did not have just cause. The ICISS argues that any military intervention for human protection purposes should be an "exceptional" and "extraordinary" measure in response to "serious and irreparable harm occurring to human beings, or imminently likely to occur" (2001: 32). They propose two such circumstances: Large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product either of deliberate state action, or state neglect or inability to act, or a failed state situation; or While the ICISS report is in no way the accepted authority on the subject o f humanitarian intervention, its policy-oriented approach is advantageous in that it represents a working consensus among its twelve Commissioners "as to what is politically achievable in the world as we know it today" (2001: VIII). 62 Large scale 'ethnic cleansing', actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape (2001: 32). While these two situations might seem of such a dramatic nature as to be obvious, agreement as to when they are and are not occurring is actually one of the largest challenges associated with the issue of "humanitarian" intervention. Because they directly affect assessments of whether or not the KI was just, let us briefly analyze some of the details and qualifications provided by the ICISS. First, the definition prescribes that a situation can either be dire (i.e. "actual") or perceived to be so (i.e. "apprehended"). Many scholars perceived the humanitarian situation in Kosovo to be serious, with a potential to get quite worse. The relationship between perception and "reality", however, is a controversial issue that divides proponents and critics. Second, the first category concerning "large scale loss of life" does not require proof of genocidal intent. This is a key stipulation which lowers the bar of evidence required to justify military intervention for human protection purposes. It is not necessary to prove that Serb forces in Kosovo, or their State authorities in Belgrade, had "intent to destroy, in whole or in part"40, the Kosovar Albanian population. Third, while the ICISS uses the term "large scale" for both categories, they "make no attempt to quantify 'large scale'" (2001: 33). They believe that this should be a political decision that takes account of the diverse contextual factors of each situation. And last, the ICISS defines the second category, that of "ethnic cleansing", broadly. This includes "the systematic killing of members of a particular group in order to diminish or eliminate their presence in a particular area; the systematic physical removal of members of a particular 4 0 See the 1948 "Convention on the Prevention and Punishment of the Crime of Genocide": http://www.unhchr.ch/html/menu3/b/p genoci.htm 63 group from a particular geographical area; acts of terror designed to force people to flee; and the systematic rape for political purposes of women of a particular group" (2001: 33). Proponents and Justice In "Justice and international order: the case of Bosnia and Kosovo", David Campbell argues that N A T O had just cause to intervene militarily in Kosovo. He believes that the situation in Kosovo prior to the bombing was "clearly a humanitarian catastrophe" (2001: 116), one that "amounted] to genocide" (2001: 118). He argues that "direct, authoritarian, and colonial rule from Belgrade created an apartheid-like climate" (2001: 114) and that "a scorched-earth policy" aimed at terrorizing and uprooting the Kosovar Albanian population (2001: 115). According to Campbell, military intervention was just because Milosevic's policies in Kosovo were based on the effacement and suppression of alterity and difference, a politics of identity that must be resisted. Adopting a post-structuralist perspective, Campbell's work helps to expose the power of certain assumptions behind the KI. However, in seeking to demonstrate that left-wing criticisms of the KI are based on a conventional theory of justice which promotes "paralysis in the face of genocide" (2001: 122), Campbell's argument is predicated on a questionable interpretation of the conflict and a dubious analysis of the theoretical foundations which animate neo-Marxist critiques. Campbell defines conventional renderings of justice procedurally and formally, as "the application of rules governed by impartiality" according to the idea that an entity is entitled by right to receive the treatment proper to it (2001: 104). With respect to international relations, he argues that justice has been traditionally understood through its 64 juxtaposition and subservience to the principles of order and sovereignty (2001: 104). , According to Campbell, it is this secondary importance granted to justice that makes conventional arguments about the justness of the KI focus upon exceptional circumstances rather than more comprehensive problematizations of the relationship between order and justice. As was noted earlier, Campbell is correct that legal and ethical justifications of the KI often frame it as an exceptional situation that should not be generalized. This forces us to ask whether the empirical situation was really that exceptional or whether Western powers simply did not want to be held accountable to a generalized concern for human rights and humanitarian crises. Unsatisfied with traditional renderings, Campbell offers an account of justice based on an alternative ontological commitment - one where normative and empirical phenomena are considered to be closely related. He defines justice as "the relationship to the other" and argues that its context is political and "the site of an irreducible responsibility" (2001: 105). "Specifically", he argues, "this is the idea that we should engage in a struggle for - or on behalf of - alterity rather than a struggle to efface, erase, or eradicate alterity" (2001: 109). Importantly, Campbell argues that "this political figuration encourages distinctions between antagonisms, conflicts, pluralities, and multiplicities" (2001: 109). A l l are permitted, he acknowledges, but the problem is that not all permit others to be. "In this sense", he argues, "a principal concerned with struggle for and on behalf of alterity cannot be read as an ethic of tolerance for the intolerable" (2001: 109). In what amounts to a post-structuralist justification for NATO's actions, Campbell argues that "the active affirmation of alterity must involve the desire actively to oppose and resist - perhaps, depending on the circumstances, even violently -65 those forces that efface, erase, or suppress alterity and its centrality to the economy of humanity" (2001: 110). Unfortunately, Campbell does not provide us with a theory or method for assessing what is a conflict and what is a plurality or how we know when the actions of a group are intolerable. Apparently, as members of the "economy of humanity", it should be clear enough to determine when tolerance and diversity are under threat. One such example, according to Campbell, was the conflict in Kosovo. As he argues, "That genocide was taking place in Kosovo should hardly surprise those who have understood the course of the Balkan wars in the last few years" (2001: 119). Arguing according to the logic of "guilt by association", Campbell proposes that because Bosnia fded an application in the International Court of Justice (ICJ) alleging that the F R Y violated the Genocide Convention4 1, the International Criminal Tribunal for the Former Yugoslavia (ICTY) has indicted key Bosnian Serbs for genocide, and because stolen U N equipment from the massacre at Srebrenica was "spotted in the Serbian armory during fighting in Kosovo" (2001: 119), it should "hardly surprise" us that genocide was also happening in Kosovo. While Campbell admits that Belgrade's anti-insurgency campaign was "ostensibly targeted only against the 'terrorist' K L A " the problem was that "civilians were its victims" and "the aim - and effect - was to create a large refugee population" (2001: 115). There is a big difference, however, between aim and effect. Further demonstrating questionable legal reasoning, Campbell argues that the genocidal intent of the Serbian regime, the most crucial component of the charge of genocide, was demonstrated not by orders or documents but by the outcome of events. He argues that 4 1 He argues that "the International Court of Justice in 1993 issued a preliminary finding against the FRY for genocide in Bosnia" (2001: 119) but fails to mention that there has been no final judgment in this case. 66 "Recalling the conflict in 1998 and the refugee population that was deliberately created in the year prior to NATO's bombing demonstrates that forced population transfer was an established part of Serbian policy prior to NATO's air strikes" (2001: 116). Trapped in his own circular logic, Campbell argues that because Serbia's plan was "systematically organized", the formation and execution of this plan itself "demonstrates the chain of command and responsibility for the crimes against humanity" (2001: 119). The point here is not to debate the legally complex and morally difficult question of what does and does not constitute genocide. Perhaps it is telling that, while the ICTY has indeed charged Milosevic with genocide in Bosnia, it has not done so for his role in the Kosovo conflict.4 2 The point is that, by portraying the Kosovo conflict in absolute terms and arguing that moral conclusions are obvious to anyone endowed with a "proper" theory of justice, Campbell ignores the complexity of the debate and misrepresents what it is that divides so many scholars about the justness of the KI. By describing the conflict as genocide, Campbell seeks to denounce left-wing criticisms of the KI as ethically bankrupt and based on conventional theories of justice which "appear empty in the face of violence" (2001: 113). These critiques "appear empty" because they rely "on assumptions and logics common to conservative positions" (2001: 120). Both are purportedly based on a theory of justice which affords greater primacy to order and "the spatial imagery of sovereignty" (2001: 120). Campbell is correct that both the far-left and far-right criticize the KI. However, he is wrong about why they do so. A fact confirmed through correspondence with Jan Kralt at the Public Information Services department of the ICTY. With respect to Kosovo, Milosevic is charged with crimes against humanity and violations of the laws or customs of war. See: http://www.un.org/icty/cases/indictindex-e.htm 67 Neo-Marxists and Fairness , Generally speaking, neo-conservatives and neo-realists criticize the KI because it had little to do with the national interest of the Western powers, offered limited material gains, and, as a peripheral and local conflict, posed no threat to the balance of power. As such, Campbell is correct that there is an implicit commitment to the value of order. However, neo-Marxists criticize the KI because they think that the humanitarian goals of the Western powers were, at best, a cover for more traditional material goals, or, at worst, insincere. They do not believe that an ethical idea, whether the liberal concept of a "responsibility to protect" or the post-structuralist notion of an "ethical-relation to the other", can exist abstracted from productive forces and power distributions which are themselves unjust and unfair.43 It is true that neo-Marxists attempt to demonstrate NATO's insincerity using a logic that many find unsatisfactory. Neo-Marxists argue that, if a concern for human rights was really motivating the Western powers in Kosovo, then why do they not respond with equal concern to similar injustices in places like Turkey, Rwanda, Congo, Croatia, Palestine, and Colombia? This argument assumes that all like cases should be treated in a similar manner. Most other scholars do not share the same unyielding commitment to the principle of fairness and believe that numerous other factors are involved when determining the appropriateness of a "humanitarian" intervention. What is important to realize is that, contrary to Campbell's argument, neo-Marxists critique the KI because they grant high priority to fairness and not because they prioritize order and sovereignty in the same way that neo-realists and neo-conservatives do. 4 3 As Fred Halliday argues, "Ideas, institutions, events within a social formation, do not take place in abstract or in isolation from this context of the underlying mode of production, but must rather be seen in relation to the totality and to this material determination" (2000: 1194). 68 Campbell is correct, though, that due to their normative focus on the principle of fairness, neo-Marxists do not prioritize justice to the extent, or in the manner, that he does. In "Chomsky's Problem: Fairness First", sociologist Keith Doubt argues that the distinction between fairness and justice informs much of the intellectual debate on the morality of the KI (2000: 110). Generally speaking, fairness is associated with being unbiased, equitable, and in accordance with the rules. This is a fundamental principle in Western politico-legal philosophy. As Chris Reus-Smit observes, multilateralism is based "on the underlying liberal principle that rules should be equally and reciprocally binding on all legal subjects in all like circumstances" (2004:'31). Justice, on the other hand, is associated with doing what is morally right. Doubt argues that, while "justice is based on an a priori knowledge of what is true or good from a universal rational point of view 4 4, and therefore necessary to the human community" (2000: 109), fairness "rejects the assumption that there is one rational conception of the good" (2000: 120). Instead, fairness provides rules for producing rather than examining ethical maxims through the good of cooperation and dialogue. While Doubt is highly critical that neo-Marxists like Noam Chomsky "abandon" justice vis-a-vis the Kosovo crisis, he acknowledges that Chomsky's commitment to fairness is analytically and normatively powerful. By demonstrating the West's inconsistent humanitarian concern across time and space, Chomsky exposes the hypocrisy and inconsistency with which the West applies its human rights standards and picks its interventions. "The persuasive power of Chomsky's critique", argues Doubt, "is his unconditional commitment to the principle of fairness and his ability to expose 4 4 The problem, from the moral perspective of philosophical liberalism, "is that justice, as a universal rather than a general notion, rests upon 'metaphysical' propositions that are not subject to empirical verification or public agreement" (Doubt 2000: 109). 69 innumerable examples of unfairness throughout the world" (2000: 110). His critiques "highlight the ethical irrationality of the world and the jingoistic character of nation-states that presume to act in the interests of justice" (2000: 110). With respect to the morality and prudence of NATO's use of force in Kosovo, Chomsky argues that it was unfair and irresponsible. The main reason for this is because the extensive bombing campaign did not avert or improve the humanitarian crisis in the area, one of NATO's primary objectives for intervening. In fact, the military action was associated with a dramatic worsening of the situation. The number of people killed by local violence and fighting rose from roughly 2000 prior to the bombing to an estimated 12,000 after the bombing campaign ended.45 The number of civilian deaths directly attributable to NATO's air strikes46 is estimated to be at least 500 (HRW 2001: 437). At the peak of the conflict, the number of refugees rose from 25,000 to nearly 860,00047, reflecting the largest population displacement in Europe since World War II (UNHCR 2000: 6). Granted, there is heated empirical disagreement amongst scholars about whom or what "caused" the rapid deterioration of the humanitarian situation and, thus, whom or 4 5 In "War and Mortality in Kosovo, 1998-1999: An Epidemiological Testimony", Paul B. Spiegel and Peter Salama argue that "the total number, rates, and causes of mortality in Kosovo during the last war remain unclear despite intense international attention" (2000: 2204). Their investigation examined the conflict period from February 1998 through June 1999. They found that "67 (64%) of 105 deaths in the sample population were attributed to war-related trauma, corresponding to [an estimated] 12,000 deaths in the total population". Furthermore, "Mortality rates peaked in April 1999 at 3.25 per 1,000 a month, coinciding with an intensification of the Serbian campaign of 'ethnic cleansing"' (2000: 2204). In The Lancet, vol.355, no.9222, June 24, 2000, pp.2204-2209. Importantly, Spiegel and Salama's findings are consistent with other estimates proposed by Physicians for Human Rights (9269 deaths during a 1-year period) and the US Department of State (at least 10,000 deaths, no exact time period specified). 6 Proponents defend these deaths as unintentional accidents. For a critical examination of how "small massacres of civilian populations are.. .becoming normalized as part of the post-9.11 order of entrepreneurial (pre-emptive) war", see Patricia Owens' "Accidents Don't Just Happen: The Liberal Politics of High-Technology 'Humanitarian' War", Millennium: Journal of International Studies, 32/3, 2003,pp.595-616. 4 7 According to the Yugoslav Red Cross, these figures were in addition to the more than one million displaced within Serbia itself as a direct result of NATO bombing. See: Yugoslav Red Cross, "Report on the Humanitarian Situation," 8 May 1999. 70 what is to be held ethically responsible. Proponents of the KI blame Milosevic and the killings and terrorizing perpetrated by Serbian military and paramilitary forces. Critics blame NATO's bombing campaign. Much of the ethical debate turns on whether or not a scholar believes that N A T O should have predicted that the situation would deteriorate the way it did. As one senior British official at the time of the KI remarked, "We were very conscious that people would be driven from their homes but it was the scale that was unexpected" (Judah 2000: 241). He argues that there was no explicit warning from the intelligence services that bombing would lead to a pre-triggered "master plan" to drive people from their homes (Judah 2000: 240). Usefully, Tim Judah reminds us that, "While there was without doubt a major plan to crush the K L A which would have resulted in large numbers of refugees, until the archives are opened in Belgrade, the real picture will remain unclear" (2000: 241). Chomsky, however, believes that reasonable inferences can - and could - be drawn from the information that was available at the time of the conflict. Even without evidence of genocidal intent or some "final solution", he argues, we can be confident that Serbia had plans for ethnic cleansing (1999: 36). "That Milosevic had plans to drive the Albanian population out of Serbia", he contends, "is vastly more likely in the light of his well-known record, the history of Albanian-Serbian relations in Kosovo, and US threats" (1999: 36). What is fascinating to note is that Chomsky's empirical assessment of the pre-bombing situation is similar to that of most proponents of the KI. As Adam Roberts argues, "In the last months of 1998 and the first months of 1999 it became evident that the bitter war between the Kosovo Liberation Army (KLA) and the Yugoslav army was 71 at risk of developing into wholesale 'ethnic cleansing' of the Kosovar Albanians" (1999: 104). In essence, both Chomsky and Roberts agree that a humanitarian catastrophe was "imminently likely to occur" in the area, one of the cases of "just cause" outlined earlier by the ICISS report. However, while these two scholars start from similar empirical interpretations, they come to very different moral conclusions about how N A T O should have reacted. Citing comments made by NATO's Commanding General Wesley Clark that it was "entirely predictable" that retributive killings and Serbian violence would intensify after air strikes began, Chomsky argues that an "ethic of responsibility" forbade NATO from bombing precisely because it knew full well that this would lead to a severe worsening of the humanitarian crisis (1999: 20). Suffice it to say that Chomsky's interpretation of an "ethic of responsibility" is very different from the one proposed earlier by Campbell. There are two fundamental tenets that inform Chomsky's normative prescription. The first is his commitment to a "Hippocratic oath" that one should do nothing i f what one intends to do will cause more harm than good.4 8 He argues that: A standard argument [re. Kosovo] is "We had to do something: we could not simply stand by as atrocities continued". That is never true. One choice, always, is to follow the Hippocratic principle: "First, do no harm". If you can think of no way to adhere to that elementary principle, then do nothing. There are always ways that can be considered. Diplomacy and negotiations are never at an end.49 4 S Campbell argues that the problem with this ethical maxim is that "there is never a stance which we can be sure will be free of all 'harm', whether it be the unintentional side-effects borne by onlookers, or violence directed solely towards the perpetrators" (2001: 122). 4 9 Chomsky, Noam. "Now It's a Free for All", The Guardian, 17 May 1999, p. 18. As an alternative to bombing, Chomsky argues that a better solution would have been to either do nothing or act in such a way "as to mitigate the atrocities". As an example, he argues that diplomatic options were sill open: "the Serbian parliament passed a resolution on March 23rd, the day before the bombing, in which it said that they would not accept a NATO force.. .but they proposed that there could be a move toward autonomy in Kosovo, and that after that, there should be an international force. Well, is that an acceptable offer? We don't know, because the US wouldn't even pay attention to it. But pursuing that offer, through the mechanisms of world order such as the UN Security Council or neutral countries like India or others would certainly have been better than doing nothing and vastly better than acting to escalate the atrocities" (in Doubt 2000: 119). 72 The second tenet is Chomsky's commitment to the principle of fairness. As Doubt observes, for Chomsky, the N A T O bombings were unequivocally unfair, "not only to the Serbian nation and its people, given the loss of civilian lives and enormous material damage, but also to the Albanians in Kosovo on whose behalf the bombing, it is claimed, is carried out" (2000: 111). Moreover, "From the viewpoint of fairness, why are the human needs of the Albanians in Kosovo greater than other oppressed groups in the world?" (Doubt 2000: 111). Thus, the disagreements over whether or not N A T O had "just cause" for its intervention - and what the proper response to the Kosovo crisis should have been - ultimately reflect whether a scholar prioritizes fairness or justice and their definition of each with respect to international affairs. CONCLUSION This study has examined the scholarly debate over the KI with a view to better understanding why it generated such fundamental disagreements amongst international relations and international legal scholars who otherwise generally believe in some form of internationalism or universalism, broadly conceived. I have argued that the KI sparked intellectual polarization and controversy because of substantive differences in the meta-views of scholars regarding the source and nature of legitimacy, sovereignty, and hegemony, and the values they ascribe to the international community. Many of the disagreements depend on whether a scholar prioritizes the natural and universal moral foundations of international law and legitimacy or bases these foundations more procedurally on state consent and sovereign equality. This in turn reflects whether they emphasize freedom and justice or equality and fairness. And finally, we saw that 73 scholarly disagreement about the KI reflects differing views on the existence and desirability of larger global trends - such as "imperial sovereignty" and "Empire" - post-Cold War. Thus, it appears that the positions of critics and opponents are, at best, highly incompatible, or, at worst, incommensurable. How are we to make sense of these seemingly irreconcilable scholarly differences? Are we stuck in a post-modern quagmire, where each account is as meritorious as its counterpart? Or, alternatively, is this the normal state of international relations and international legal debate? These are questions to which answers could yield both policy-level and theoretical implications. Policy Implications With respect to policy ramifications, some might wonder whether the multiplicity of arguments over the KI , and the contingency of those arguments, provides any sort of working model or cogent basis for humanitarian intervention in the absence of expressed authorization from the U N Security Council. 5 0 One of the most pressing challenges exposed by the controversy over the KI was what can or should be done when some states perceive a "conscience shocking" situation to be occurring but the Security Council will not authorize the use of force to respond to it. Proponents of the KI worry that a blind commitment to "right authorization" and the letter of the law can lead to inaction in the face of extreme injustice and suffering. Critics worry that, by condoning the use of non-defensive force outside of the UN-system, proponents erode the foundations of international law and risk an increase in anarchy and violence in the world. Choosing which perspective to prioritize when faced with future crises will , to a great extent, depend on whether or not decision-makers value process or ultimate ends. 5 0 Thanks goes to Michael Byers for suggesting this line of inquiry. 74 That being said, though, the question remains whether there are - or should be -alternative sources of legitimacy a state or group of states can call upon to justify a coercive intervention conducted without U N approval. We saw that many proponents justified NATO's actions as ethically necessary. This is not an unreasonable position. Even Martti Koskenniemi, an international legal scholar who is highly critical of the way "our obsessive talk about Kosovo makes invisible the extreme injustice of the system of global distribution of wealth", acknowledges, somewhat uncomfortably, "that in the context of 1999, with the experience of passivity in Kigali and in Srebrenica, Western European officials had to take action" (2002: 172, 170). The problem with a moral justification, however, is that it locates the KI's legitimacy in an ultimately private realm. As Koskenniemi also argues, "Such an understanding celebrates the emotional immediacy of the inner life as the sanctuary of the true meaning of dramatic events that cannot be captured within law's technical structures" (2002: 173). To adopt an ethical framework as the basis for humanitarian intervention in the absence of UN-authorization avoids the challenge of modernity and the post-Enlightenment requirement of justifying one's actions with reference to public, universal, and secular legal principles. Accordingly, some scholars argue that, instead of portraying the KI as a legal exception justified by higher morality, a better solution is to "acknowledge that international law has serious gaps in matters of humanitarian intervention" (Guicherd 1999: 20). From this perspective, formalization of the theory and practice of humanitarian intervention is key to its future legitimacy. An amendment to the U N Charter could reaffirm the emerging principle of "sovereignty as responsibility" or provide a procedural measure - one that goes beyond the current "uniting for peace" 75 option of the General Assembly - that would ensure that other voices are heard when the members of the Security Council cannot agree on how to respond to a humanitarian crisis.5 1 A specific set of criteria could clearly demarcate the evidence and circumstances under which the principle of non-intervention yields to the international "responsibility to protect". Moreover, formal criteria and procedures would help protect against obvious abuses of the Security Council veto. Russia and China would have to explain why a crisis like the one in Kosovo failed to meet the criteria of a "conscience shocking" situation. Equally important, though, these criteria, while acknowledging that moral disagreement does and will continue to exist in the international community, would demarcate the exceptional and extreme conditions upon which there can be no disagreement. The ability to deny powerful states the freedom to call any of their interventions "humanitarian" would be another important benefit of establishing formal criteria. As Brad Roth argues, "The resulting criteria would inevitably be far too limited, and the resulting procedures far too cumbersome, for many advocates of humanitarian intervention, but they would have the merit of denying open-ended legal or political licenses to the great powers" (2003: 234). Instead of elaborating an exception that would reaffirm a commitment to non-intervention in all but the most specific and narrow circumstances, "the United States remains silent as to the scope of the implied license" (Roth 2003: 253). This concern is important as we have recently seen the application of this "implied license" and the idea of the "responsibility to protect" twisted by the administration of US President George W. Bush, in an effort to retroactively justify the 5 1 Although, in the opinion of S. Neil MacFarlane et al, there "is no need for Charter reform to permit Chapter VII humanitarian intervention...because the definition of'international peace and security' has effectively expanded to include humanitarian catastrophes". In "The Responsibility to Protect: is anyone interested in humanitarian intervention?", Third World Quarterly, 25/5, 2004, p. 987. 76 US-led war on Iraq." Instead of pursuing ad hoc justice, where solutions are prescribed according to the private ethical views of those whom history and privilege have placed in positions of power and authority, states need to justify their actions against the shared legal principles and publicly-approved criteria of the international community. The experience and lessons of Kosovo, in Roth's view, require nothing less: "An affirmation of the moral and political rectitude of the Kosovo action without advocacy of a corresponding modification in the legal doctrine governing such actions, has the effect of eroding the sociological foundation of use-force-norms: those with the power to do what is 'necessary and desirable' need no longer provide a legal explanation" (2003: 256). Granted, there are significant challenges associated with trying to formalize the theory and practice of humanitarian intervention in order to increase its future legitimacy. Proponents of this position acknowledge that "attempts to legitimize intervention outside Security Council resolutions should be pursued with great care" and that "unless intervention is regulated by a strict checklist of criteria - the fulfillment of which could be submitted to the jurisdiction of the ICJ - one risks enhancing the danger of confrontation between power blocs and increasing world anarchy" (Guicherd 1999: 24-25). In light of these concerns, formalists usually add numerous qualifications to their argument, such as the need for any future intervention conducted outside of the U N -system to be collective in its composition and just in its intent and execution (Guicherd 1999: 24-25). And perhaps most importantly, it is usually acknowledged that the issue MacFarlane et al argue that "Human protection became the only remaining justification of the US-led war after the failure to find any weapons of mass destruction in Iraq or to establish clear links to Al Qaeda" (2004: 988). 77 must be pursued in deference to larger political challenges, such as the need for democratic reform of the U N Security Council. 5 3 While these qualifications are important, they still ignore what is arguably the biggest challenge faced by the formalist solution - i.e. that there currently exists no international consensus or "publicly-approved criteria" for justified humanitarian intervention. While they are not necessarily comfortable with the ad hoc nature of the KI 5 4 , numerous analysts argue that it is not a good idea to fight for a "humanitarian" exception to Article 2 (4) of the U N Charter, the absolute prohibition on the unilateral use of non-defensive force. Thomas Franck argues that to try now "to define precisely the circumstances in which humanitarian intervention would no longer be considered a violation of Article 2 (4).. .without having previously legalized a process for applying it.. .is to invite a countervailing circling of the wagons in defense of an absolute non-intervention principle" (2003: 267). No matter how "theoretically meritorious", Franck argues, "the fight for a sensible exception to Article 2 (4) cannot be won in present circumstances" and thus "should therefore not be started" (2003: 267). Michael Byers and Simon Chesterman concur, albeit for slightly different reasons. They argue that, "Quite apart from the fact that achieving consensus on rules governing such interventions (unless the manner of creating such rules is radically changed) is likely to prove impossible", trying to defend the legality of unilateral humanitarian intervention "detracts from, and may undermine, the significant advances over the past half century in the fields 5 3 Such amendments would seek to increase the representation of countries from Africa, Asia, and Latin America, and ensure that permanent members could not veto a humanitarian action that was supported by the other members of the Security Council. That being said, though, there is prevalent skepticism as to the feasibility of these reforms. MacFarlane et al opine that "Altering the Security Council is an illusion for well know reasons: the P-5 will not give up their vetoes, and there is no gimmick to finesse the lack of consensus about other permanent seats" (2004: 987). 5 4 As MacFarlane et al observe, the problem with an ad hoc approach is that "Continuing on a case-by-case basis raises the matter of selectivity and arbitrary application, which affects legitimacy" (2004: 979). 78 of human rights and conflict prevention" (2003: 179). "Moreover", they contend, "any advance in that debate would likely be at the cost of principles fundamental to the development of international law" (2003: 179). Thus, with respect to whether the multiplicity of arguments over the KI provides any sort of compelling basis for unilateral humanitarian intervention, it appears that we are again faced with two very incompatible positions. Is it possible to reconcile these different views or move forward in the debate? Below I suggest that, while it is probably not possible to reconcile differing views, progress requires scholars to stipulate their assumptions more openly, admit that a liberal paradigm dominates the debate, and adopt interdisciplinary approaches to understanding and evaluating the KI. Theoretical Implications In his book, From Apology to Utopia, Martti Koskenniemi argues that post-Enlightenment international legal debate has been fraught with seemingly irreconcilable theoretical disagreements. "Theoretical discourse", he argues, "has repeatedly ended up in a series of opposing positions without finding a way to decide between or overcome them" (1989: xiv). According to Koskenniemi, the way to move beyond these disagreements is not through increased doctrinal analysis of international legal tenets. Thus, with regards to the divergence in scholarly views over the KI , the answer lies not in ever more refined analysis, legal or otherwise, of issues such as whether N A T O had "right authorization", "right intent", or "just cause". This investigation has demonstrated that, not only do scholars disagree about which rules and laws are most relevant for assessing the justness of the KI, they often cannot agree on the empirical details of the 79 event itself in order to apply these rules or laws. A better solution for responding to these kinds of complex disagreements, argues Koskenniemi, is to "explicate the assumptions about the present character of social life among States and on the desirable forms of such life which make it seem that one's doctrinal outcomes are justified even as they remain controversial" (1989: xv). In other words, when assessing the KI , scholars need to be more candid about the assumptions that animate their world view and the normative goals that guide their analysis. We saw a good example of this practice in Chris Reus-Smit and Peter Christoff s argument that the Kosovar Albanian independence movement was a legitimate liberation struggle worthy of support from the international community. Whether scholars, policy-makers, or members of the general public agree or disagree with their assessment is less important than the fact that they can be clear about why they do or do not by assessing the justifiability of Reus-Smit and Christoff s assumptions. Koskenniemi's main thesis is that a liberal theory of politics lies at the heart of international legal debate and influences scholarly assumptions regarding the present character of social life among states and the desirable forms of such life (1989: xvi). This liberal framework, he argues, "controls normative argument within international law" (1989: xvii). I would argue that Koskenniemi's assessment is accurate, particularly when we stop to consider the increasing dominance of the "West" post-Cold War. Thus, with respect to the scholarly debate over the KI, the existence of a dominant liberal paradigm affects the terms of legitimate debate and the rules within which this debate can take place. "What is relevant", Koskenniemi argues, "is not so much what arguments happen to be chosen at some particular time or in some particular dispute but what rules govern 80 the production of arguments and the linking of arguments together in such a familiar and a conventionally acceptable way" (1989: xix). Accordingly, the existence of a dominant liberal paradigm leads to predominately liberal questions, problems, and solutions. Scholars expend vast amounts of energy and resources assessing whether N A T O had "just cause", whether human rights can ever trump territorial sovereignty, and whether there are emerging grounds for unilateral humanitarian intervention. Critics like Koskenniemi wonder why other equally pressing issues, such as world hunger and poverty, seem to arouse comparatively less scholarly attention and fail to warrant the label of humanitarian "crises" or "conscience shocking" situations.55 They do not believe that a liberal paradigm, with its narrow political emphasis on individual rights and its unjust ethical tolerance of material inequity, is the best model from which to pursue the emancipatory promise of modernity. This reflects a fundamental disagreement over what the political, ethical, and legal agenda of the international community should be. Pro-KI scholars believe that critics ignore the challenges of the current agenda and avoid its difficult questions.56 Critics believe that proponents are trapped in the wrong agenda and are asking the wrong questions. It is primarily for this reason that it does not seem possible, at least at this time, to reconcile the differing empirical and normative interpretations of the KI. Future research could 5 5 As Koskenniemi argues, "what about the violence of a global system in which, according to the UNDP report of 2000, more than 30,000 children die every day of malnutrition, and the combined wealth of the 200 richest families in the world was eight times as much as the combined wealth of the 582 million people in all the least developed countries" (2002: 172). 5 6 Reus-Smit and Christoff argue that "The Kosovan crisis raises crucial questions which NATO's recent opponents largely ignore, and which they are poorly equipped to address. For instance, what obligations does the 'international community' have to protect the rights of individuals and groups? Under what circumstances should we override claims to national sovereignty, and who should this 'we' be? At what point, when faced with impending genocide, ethnic cleansing or other massive abuses of human rights, or possible wider wars in future, does pre-emptive intervention become a moral necessity? Is armed intervention ever legitimate - and under what conditions and in what form?" (1999: 1). 81 investigate more comprehensively the range of theoretical implications associated with these seemingly incommensurable disagreements and seek to find a method or theory by which we could determine that one position was more valid than another.57 For now, though, my concluding interpretations of these disagreements and my suggestions for how to progress from them have to remain less ambitious and admittedly brief. Firstly, one can argue that there is epistemological value to the existence of polarized views and priorities vis-a-vis the KI. Adopting the perspective of French deconstructivist theory, Koskenniemi argues that the opposition between two seemingly different concepts or arguments (e.g. order versus justice, sovereignty versus human rights, naturalism versus positivism) is precisely what provides the meaning behind each. "We cannot make a preference between alternative arguments", he argues, "because they are not alternative at all; they rely on the correctness of each other" (1989: xxi). Thus, to the extent that the meaning of the " K I " and knowledge about its significance are created by the existence of diverging scholarly views, it is arguably more useful to study how and why these views exist rather than to try to reconcile them superficially or choose between them hastily. Secondly, some might feel that the aforementioned "solution" to making sense of the differences in scholarly views is overly abstract and avoids the challenge of trying to find, a way to choose between alternative descriptions of - and prescriptions to - real-world conflicts. I would reply that, while it is possible to determine that one position is more valid than another, this requires, somewhat counter-intuitively, a philosophical commitment to indeterminacy and subjectivism that some might find unsatisfying. As Koskenniemi argues, "issues of ad hoc justice are both difficult to solve and can never be 5 7 Thanks goes to Richard Price for suggesting this avenue for future research. 82 solved with the kind of certainty lawyers once hoped to attain" (1989: 497). Moreover, "Answers to the questions about what to do cannot be meaningfully given without taking a stand on what is possible and good to do in the particular circumstances in which the problem arose" (1989: 497). Thus understood, choosing between alternative evaluations of the KI becomes a primarily political project that lacks strict objectivity and acknowledges the absence of consensus on ethical and political values amongst international actors. If this approach "seems question-begging and leaves open the 'method' whereby it should be conducted", argues Koskenniemi, "this is only because no such given 'method' can be outlined in the abstract which would fulfill what is reasonable in some particular circumstance" (1989: 497). And lastly, I would argue that disentangling scholarly disagreements of the KI and proceeding from them requires an interdisciplinary approach that most critics and proponents currently lack. As Koskenniemi argues, such an approach "involves venturing into history, economics and sociology on the one hand, and politics on the other" (1989: 497). The Kosovo crisis and NATO's intervention are multi-contextual phenomena that can be assessed in both broad and specific terms, depending on the research question that a scholar seeks to answer. Hardt and Negri are correct that the events are indicative of larger trends associated with the internationalization of juridical categories, globalization, and the material and cultural dominance of the West post-Cold War. However, proponents are also correct that the humanitarian crisis in Kosovo and the intervention itself need to be understood and evaluated in light of local and specific factors, such as the history of conflict in the area, the growth of ethno-nationalism, and the ethical motivations of Western leaders who sought to avoid another "bloodbath in the 83 Balkans". Granted, pursuing an interdisciplinary lens is difficult. Many analysts of the KI do not have a formal background in ethical philosophy or international law 5 8 , let alone a perspective that could be termed interdisciplinary. And, while a broad inter-contextual approach is a worthy objective, it is inevitable.that some factors will always be bracketed while others are emphasized when evaluating future conflicts. The point is that this is not a neutral process and what a scholar chooses to prioritize in one situation might not be appropriate in another.59 What matters is whether a scholar or decision-maker can justify the variables and assumptions to which they grant primacy and defend these choices in the court of international opinion. The Future of the Debate Let me end by offering some brief remarks about the future of the debate over the KI, particularly in light of US foreign policy under the Bush administration and the so-called "war on terror". Immediately following the KI, the issue of humanitarian intervention enjoyed renewed attention and controversy and was the subject of extensive popular and academic debate. It is hard to deny that, in light of recent events such as the terrorist attacks of 11 September 2001 and the subsequent US-led wars on Afghanistan and Iraq, both the security landscape and the arena of legitimate debate have been altered. Are the theoretical disagreements over the KI still relevant for understanding the i 8 This seems strange considering that these are the two arenas in which so much of the debate takes place. To the extent that an understanding of - and solutions to - the challenges of a post-Cold War world necessitate ethical and legal perspectives, it would seem prudent to formalize and expand the theoretical arena in which academic and policy debate unfolds. 5 9 This position reflects a commitment to philosophical liberalism and not a post-modern notion that there is no "objective" truth or that everything is political and a manifestation of power relations. It is based on the premise that there is riot "one rational conception of the good" but "many conflicting and incommensurable conceptions of the good, each compatible with the full rationality of human persons" (Rawls 1984: 248). 84 challenges of today's world? In what direction is future international relations and international legal debate heading? With respect to the academic community, many scholars are increasingly questioning the premises of humanitarian intervention and reaffirming the importance of non-intervention and sovereignty. One of the consequences of the unilateral war on Iraq was an increased hesitancy amongst scholars to endorse the use of any kind of coercive force in absence of UN-approval, one of the main issues also brought to the fore by the KI. As MacFarlane et al argue, "Many of those who support the idea of humanitarian intervention.. .shy away from the notion of a larger debate in order to avoid in any way appearing to approve the rhetoric and reality of US foreign and military policy since 11 September 2001" (2004: 989). These scholars worry about legitimizing or strengthening the ability of powerful states to intervene in the affairs of weaker states. The "humanitarian" justification provided retroactively for the war on Iraq indicated the potential for abuse of the concept of humanitarian intervention. This potential for abuse is a fear shared by many states as well. They view the Bush administration's doctrine of "pre-emptive" self-defense as a threat and believe that the principle of non-interference should be strengthened in response. Accordingly, MacFarlane et al argue that the desire to return to traditional notions of Westphalian sovereignty will likely increase while support for pursuing criteria for justified humanitarian intervention will decrease (2004: 984). In light of the current trajectory of debate, are the KI and the concept of humanitarian intervention still relevant? While it is true that "the modest space for consensus about the legitimacy of military interventions for specific human protection 85 purposes that had been emerging since the mid-1990s has been undermined and may suffer lasting damage" (MacFarlane et al 2004: 977), I would argue that the debate over the KI will continue to be relevant because it speaks to larger issues that will not go away any time soon. First, the legality and legitimacy of pre-emptive or unilateral force, whether employed in the "war on terror" or a humanitarian intervention, are issues that continue to spark debate because they speak to the heart of the international legal order and the boundaries of our collective norms. Second, as MacFarlane et al argue, the concept of humanitarian intervention still matters in that it expresses "the necessity of taking into account the fate of human beings in the articulation of foreign and security policy, including the use of force" (2004: 990). 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