Kosovo crisis needs a scapegoat

By Hasan Kleib

JAKARTA (JP): More than one month has passed since NATO's first air strike on Yugoslavia on March 24, 1999. Too many missiles have been launched and too many military, and also civilian, buildings have been destroyed. Many innocent people have been unintentionally killed or maimed and frightened civilians have fled the country.

The NATO air strikes, however, continue. Not only aimed at military or government buildings, but last week even the Belgrade residence of Yugoslav President Slobodan Milosevic was also destroyed. The attacks by NATO have not forced Milosevic to give up. On the contrary, they have encouraged the Serbian authorities to increase its policy of pushing out Kosovars, mostly Albanians, to neighboring countries.

Who is to blame for this biggest humanitarian tragedy in Europe since World War II?

The conflict could be categorized as a clear military intervention on humanitarian grounds. However, a search for the troublemaker would inevitably turn up a list of actors, with direct or indirect involvement in this war.

Most of us would agree that the war was caused by the persistent refusal of Milosevic to agree to any political or diplomatic solution before the conflict erupted into an open war. The decision of NATO to first launch air strikes was indeed triggered by the failure to force Serbian authorities to sign the Rambouillet Accord.

The peace agreement was intended to halt the policy of ethnic cleansing perpetrated by the Serbian authorities against Albanian Kosovars. The act has been condemned by various parties, including the United Nations. There was also concern about the potential spill-over of conflicts, between Serbian authorities and the Kosovo Liberation Army (KLA), across Europe.

But there are other actors that cannot completely wash their hands of responsibility for this tragic humanitarian catastrophe. Other actors such as NATO, the UN Security Council (UNSC), the UN secretary-general and the KLA may also have infringed upon the "rules of the game" and internationally accepted principles.

The international community, through the UN Charter and other international agreements, commits itself to settling all disputes through a peaceful process. Political and diplomatic solutions must always first be thoroughly explored. The use of force, at a minimal level, is only a last resort, after all peaceful solutions have failed.

Sovereignty, territorial integrity and political independence of states, and the non-intervention in matters that fall within the ambit of the domestic jurisdiction of states, must be observed, respected and strictly upheld.

NATO might be praised by some as an international hero, defending innocent civilians from the blatant and barbaric acts of ethnic cleansing. But, what is the underlying legal basis in international law that can permit the use of force by NATO against an independent and sovereign state?

Besides stopping the humanitarian tragedy in Kosovo, NATO tends to justify these acts under Chapter VIII of the UN Charter. This chapter indeed allows regional arrangements or agencies, such as NATO, to settle local disputes and matters relating to international peace and security.

But one should not lose sight of the provision of Article 53 (1) of Chapter VIII. This article states that "no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council".

The air attacks by NATO against Yugoslavia were never authorized by the UNSC. The reason was plainly that such authorization would never be granted. One or more permanent members of the Security Council might have blocked the move with its veto powers.

NATO actually acknowledged the relationship between it and the UNSC. Article 5 of the North Atlantic Treaty of 1949 states that any measures relating to the use of force shall immediately be reported to the UNSC, and such actions shall be terminated when the UNSC has taken measures necessary to restore and maintain international peace and security. But again, the power of veto is the sharp sword to cut short any endeavors to bring the issue onto the table at the UNSC chamber.

Concerning the roles and functions of the UNSC itself, the UN Charter clearly gives the UNSC the mandate to deal with any threat to international peace and security. In discharging its duties, the UNSC acts on behalf of the UN member states. So, its 15 members should always be vigilant that they act on behalf of the total of 185 UN member states. This means that the majority of member states have placed their security in the hands of the 15. The UNSC thus has a solemn and heavy responsibility. Every decision should be able and ready to withstand the careful scrutiny of the 170 members on whose behalf the UNSC is expected to act.

But what has the UNSC been doing about the Kosovo crisis. Whether we like it or not, the UNSC has proved to be futile and toothless in discharging its responsibility. The most popular reason given is that the veto powers of some involved permanent members are blocking the path to exercising the UNSC's function. The fact is the UNSC has allowed itself to be circumvented by the world's other powerful organ, NATO.

In trying to avoid an escalation of the crisis, UN Secretary- General Kofi Annan indeed has made untiring efforts. He and his staff were fully and directly involved in all exertions to find a just, peaceful and comprehensive solution. However, as in the commonly agreed wisdom, prevention is always better than cure.

Some action could have been taken before the blow-up of the conflict made it more difficult, if not impossible, to halt or contain the conflict from spreading. Since the beginning, some preventative actions might have minimized widely known potential for open conflict in Kosovo. Preventative diplomacy, or even something similar to the UN Preventive Deployment forces as in Macedonia, may have been a better solution.

Meanwhile, the KLA, without getting a lot of attention, has enjoyed a blessing in disguise. The KLA has effectively utilized the NATO air strikes for its own benefit. The bombardments have encouraged the KLA to redouble its struggle for separation from Yugoslavia. However, as the KLA escalates its armed attacks against the Serbian authorities, so do the Serbian authorities chase and arrest more Kosovars. The more civilians are detained, the more innocent refugees flee across the border to neighboring countries.

With so much discussion of the actors in the Kosovo crisis, a political and diplomatic solution still needs to be explored and intensified. Some steps might lead to an immediate stop to the armed conflicts. First and foremost is an armistice, followed by the ceasing of NATO air strikes. Then, all parties must go back to the negotiating table. Through the UNSC, the UN follows the stated plan of deploying a peacekeeping force in the field to separate the warring parties. The international community must provide security for the return of refugees and displaced persons to their homes. In the long-run, the perpetrators of the ethnic cleansing and all other crimes against humanity must be brought to the international criminal court.

Hasan Kleib, a graduate of Monash University, Australia, works at the Indonesian Ministry of Foreign Affairs. The opinions expressed here are entirely his own.