Well-meaning minds are inclined to see the current military aggression against Yugoslavia as a decisive step toward an enforcement of human rights on an international basis. Habermas1 adoption of this argument may stand as an example of this view of things.
I consider the arguments proposed to support this view to be utterly misleading, notably so in as far as they embark on legal and law-theoretical constructions. This is dealt with in the first section of this article in which I will discuss the structure of these arguments in some detail.
Above all, however, the massive harm inflicted on the civilian population in Yugoslavia in Serbia, Montenegro, and particularly in Kosovo and the lasting damage of the countrys very basis of life entails an immanent criticism of those seemingly universal arguments in favor of the war against Yugoslavia. This will be discussed in the second part of this article.
Legal arguments to justify the war against Yugoslavia are based, in essence, on a set of arbitrary, dichotomous propositions and the utilitarian belittlement of the war.
According to their value in the political debate for or against the military aggression against Yugoslavia, these dichotomies are stylized into pairs of, apparently antagonistic, opposites in the course of the argument. This becomes evident in the alleged opposition of international law versus human rights and in the distinction between the so-called international community and states that are excluded from this community (in the jargon of this new universal order, the latter have been increasingly referred to as villain states).
Human Rights versus Law of Nations
Norm procedures of conflict management between sovereign nations and the institutionalization of these in the United Nations hamper, the cosmopolitan argument contends, the protection of the human rights of the Kosovarian population in Yugoslavia by the international community. Habermas specifies these human rights as consisting in liberal regulations for an autonomy of Kosovo within Serbia. Establishing those by force against the will of the Serbian government constitutes an interference in the internal affairs of a sovereign nation and hence, according to Habermas, is illegal by standards of classical international law.
The regulations of classical international law, as Habermas calls it, therefore must appear as an impediment to a community of states determined to enforce autonomy for Kosovo. A Western view of this impediment thus results in the war-bound resolution to overcome classical international law under the premises of a human-rights policy.
This bellicose intent on the part of an international community of states legitimizes the Kosovo war as an armed mission. According to Habermas, the war is a landmark on the way to the cosmopolitan law of a universal civil society.
The opposition between classical international law and the law of a universal civil society could not be worked out more clearly. The sovereign power of states, their right against other states and thus also against a community of states is the impediment that is to be overcome in pursuit of the universal civil society. The ban on internal intervention as stipulated by international law thus justifies armed, i. e. violent, incursion.
Committed to the alleged antagonism between international law and human rights, the argumentation to justify the war in Kosovo takes up the prejudice against international politics and its institutions which is traditionally cherished by an isolationist Right in the USA and a populist Right in Europe: the UN, they say, is ineffective; international law is insubstantial as it cannot be implemented etc. However, while the right-wing prejudice is committed to national self-assertion and hence is straightforward in its rejection of any conditioning of certain policies of violence, the argumentation to vindicate the Kosovo war makes the ideological assertion that the release of military violence is tantamount to the entry into the universal civil societys realm of peace.
This overstated antagonism of international law and human rights or the law of the universal civil society, as Habermas calls it is, however, obsolete in legal terms for at least three reasons.
First, the ban imposed on wars of aggression under international law is an emanation of the human right to life, as stipulated in international conventions, e. g. in Article 2 of the European Convention on Human Rights. In this sense, the inadmissibility of intervention into domestic affairs of a state can be regarded as an established part of international law. Because of the nexus of human rights and the ban on war, the obvious violations of the basic rights of the Albanian population by Serbian government(s) have to be judged in the light of the prohibiting of war under international law. The prohibiting of intervention into domestic conflicts (such as civil wars) has been imposed in consideration of the rights involved and provides for sanctions in case of contravention. And up to now, no new aspects have been revealed that would, by historical comparison, indicate a new appraisal of the rights in question.
The ban on the use of force, as laid down in Chapter 2(4) of the UN Charter and further specified by several normative acts2 ever since 1945, prohibits intervention into the domestic affairs of a state, unless by order of the United Nations Security Council in consequence of a violation of UN law
i. e. a violation of the statute law of nations and in accordance with procedural regulations.
During the Cold War, amendments of this law (of nations) were frequently under discussion, particularly so in order to take account of the limited sovereignty of states within the sphere of influence of nuclear powers (member states of military alliances). From the time of the drafting of the UN Charter up until the 1980s, alternatives were recurrently considered, particularly the replacement of the Security Council procedure, which ever so often led to blockades, by a system of defined spheres of influence.3 The circumstances given in connection with the Kosovo war are not at all different from those that, in the past, did not give reason to change valid international law. Until today, the cosmopolitan argumentation has not been able to furnish proof of any new state of affairs which could vindicate a departure from peace-keeping as the key function of international law.
Secondly, those who advocate a move toward a universal civil society, leaving international law behind, fail to pay regard to the fundamental material norm of the todays UN Charter that derived from the experience of World War II and, in its regulations, from the sentences passed by the International Military Tribunal of Nuremberg. In essence, this is the imperative of peace-keeping and, deriving from it, the repudiation of military aggression and the prohibiting of violations of international agreements with military means. It is precisely this material core of international law that is contravened by the parties waging war on Yugoslavia.4
To make war more difficult to start even in the form of an intervention according to Chapter 39 of the UN Charter in cases of a lack of consensus in the Security Council, i. e. a lack of agreement among the states entitled by the General Assembly to a seat in the Security Council seems to me one of the central mechanisms of the peace order established after World War II. This peace order indeed aims for the protection of the most fundamental human right: the right to life. Caution, even reluctance to opt for military intervention even for the sake of peace-keeping is what endows the resolutions for intervention passed in several cases with moral authority.
Peace-keeping can only be effected by an authority that actually opts for intervention only with reluctance against the background of the war potential worldwide and as an exception, given that fact that there will always be conflicting interests.
Thirdly, the parallel drawn in a somewhat strange legitimizing attempt between the war in Bosnia and the current war against Yugoslavia does in fact not exist. The repeated intervention into the Bosnian civil war by neighboring states following Bosnias recognition as an independent state, particularly the intervention by Yugoslavia and Croatia, sufficiently justified the intervention of the United Nations community under international law. In the case of Bosnia, the applicability of international law follows from the violation of Chapter 2(4) of the UN Charter on the part of Yugoslavia and Croatia. The intervention was sanctioned through resolutions to that effect passed by the UN Security Council.
Indubitably, there were no sufficient grounds to justify an intervention of the community of states in the sense of the UN Charter until the beginning of the war. The frequently drawn parallel between events in Bosnia and in Kosovo does not make legal sense. It merely results from the familiar prejudice that the institutions of the constitutional international community of states are inefficient.
International Community Versus Villain States
The ease with which the arguments positing the law of the universal civil society fell in with the prejudice against international organizations points to an underlying intention to alter the central concern of the peace order, which should no longer consist in the wide-extending prohibiting of war, but in the universalization of a particular morality and its material basis.
One constitutive presupposition of any morality, apart from its alleged universality, is offense against it. Hence, aside from the upholders of morality, offenders against it have to be designated as well.
The tenets of this, now universalized, morality more or less amount to notions of Western civilization as they are promulgated on the Cablenet. Elements of this civilization can be found in the Interim Peace Agreement for Kosovo in terms of injunctions laid on the Yugoslavian government not at all unambiguous in formulation and hence to be rejected as regards their normative and legal character such as to ensure human rights or to establish a market economy of Western design.5
The rigor of the morality to be enforced here derives due to its Anglo-American provenance from a more Darwinistic than Hegelian view of history. Its momentary culmination or end, as some would have it is marked by a type of Western civilization that has all the distinctive characteristics of social organization in the United States, as can be read in Samuel P. Huntington, one of the main heralds of this ideology. 6
In this context, merely one aspect of this morality shall be addressed more specifically its universalization by means of war. Whoever remains uninvolved in the workings of morality or even offends against it inevitably turns into an enemy. To fight the enemy by waging war against him thus becomes a moral necessity.
Moralitys engagement of war determines morality itself. The repudiation of conflict settlement by rule of law makes morality free of moral restraint. In Kosovo, the Western democracies, having come into moral power, assume the roles of both prosecutor and justice. In the moral rearmament of the universal civil society, nothing remains of the essential features of democratic legal systems, separation of powers and distribution of roles in legal proceedings.
The use of military force is matched by arbitrary exclusion from the international community of states. Not only is the way Western democracies dealt with present-day villains in the past from Noriega to Sadam Hussein characterized by (moral [?]) arbitrariness, the establishing of moral criteria for example, by the ideologist Huntington to banish such villains is utterly arbitrary as well. So, for instance, the merit of standing on the side of morality in this clash of civilizations is credited to orthodox Christianity only with reservations.
Thus war becomes moralitys support and instrument, and this is what is behind the effort to make war seem limitable and controllable. Utterly committed to morality, this effort culminates in the allegation that the war machinery can be reduced to technology; a technology that is highly developed and sophisticated and hence precise and producing predictable results, in brief: intelligent.
Claiming that the intelligent war only causes minor damage, comparatively, is constitutive for the moral war. The intent, this implies, is no longer complete annihilation as in the just wars known in history.
Such self-restraint is a necessity in the face of objections made on grounds of human rights and international law. An emergency operation on the part of the international community can only be maintained, as long as the values attacked and those defended the latter being, in the case of the Kosovo war, liberal regulations for an autonomy of Kosovo within Serbia (Habermas) are in conceivable relation. The talk of intelligent weapons and surgical strikes a priori suggests adequacy. Intelligent war therefore is the only instrument that is commensurate to cosmopolitan morality. What a pity that we cannot, already today, view the finesse of modern weapons with the eyes of the future.
The moral war of the cosmopolitans thus is a landmark of instrumental reason working its way up to the culmination point of history. The utilitarianism of this reason lies in morality itself, and vice versa.
The adequacy of means also is the point where the logic of cosmopolitan war evidently becomes obsolete. For the arrival of developments as predicted is a measure contrived by morality itself for the correctness of cosmopolitan moral action. Above all, however, following the cosmopolitan argument, one should always bear in mind the relation between the evil to be averted and the side effects of averting it.
Given the obvious untenability of moral contentions of the adequacy of military means it is already admitted that the fighters for the cosmopolitan cause are about to run out of intelligent armament and hence have to fall back on conventional weapons the use of which greatly increases the collateral damage , war shows once again in the guise of an older morality. It is true, until now we have not been asked if we want total war, though Mr. Clarke seems prepared to anticipate the answer. However, the assurances given that the ranks of the belligerent Western democracies are serried as seem no longer to concur with the view of those committed to a universal civil society.
With every new attack against Yugoslavia, the annihilating intent comes out more clearly. It is the inadequacy of the means used that the illegitimacy of this war results from.
The price to be paid for the enforcement of a particular morality is war becoming a normalcy, the overruling of international law and the promotion of the Supreme Commander in Belgrade to a cosmopolitan with a say in moral matters.
1 Jürgen Habermas, Bestialität und Humanität, Die Zeit, vol. 60, no. 18 of April 29, 1999.
2 e. g. Declaration on the Inadmissibility of Intervention into the Domestic Affairs of States, General Assembly Resolution 2131(XX) (1965); Resolution on the Definition of Aggression, G. A. Res. 3314(XXIX) (1974)
3 Hedley Bull, ed., Intervention in World Politics, Clarendon Press, Oxford 1984, pp. 186f: We may also imagine a world in which, in place of a rule of non-intervention, there was a rule confining intervention to a limited number of great powers, each of which would be licensed to play the role of policeman in a particular part of the world: such a conception of international order, based on an understanding among a small number of regionally dominant great powers (the United States, the Soviet Union, Britain, China, India) briefly attracted the attention of planners of the post-war world during the Second World War, as an alternative to the United Nations system more in tune with the realities which then prevailed; in this kind of system the rule of non-intervention would play a role only in relations amongst the great powers.
This concept which was repeatedly taken up during the Cold War was eventually discarded on grounds that Bull describes as follows: The consensus behind the rule that states have rights of sovereignty extends to its corollary, that they have the duty of non-intervention. ( ) If there is a way forward now, it lies not in seeking to replace the rule of non-intervention with some other rule, but rather in considering how it should be modified and adapted to meet the particular circumstances and needs of the present time.
4 Cf. the sentence passed by the International Military Tribunal on September 30, 1946; see the full text in 41 A.J.I.L. 186218 (1946); here only a short passage: The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent states alone, but affect the whole world.
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. ( )
The Charter [of the International Military Tribunal] defines as a crime the planning or waging of war that is a war of aggression or a war in violation of international treaties.
5 Interim Agreement for Peace and Self-Government in Kosovo, Chapter 4a (Economic Issues), Article 1, published in Le Monde, May 2, 1999.
6 Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order, Simon & Schuster, New York 1996, pp. 6672.