By Michael Ratner, attorney and vice-president of the Center for Constitutional Rights
On March 24, 1999, U.S. Armed Forces, along with military forces from the North Atlantic Treaty Organization (NATO) began massive air strikes against the sovereign nation of the Federal Republic of Yugoslavia. President Clinton asserted that he ordered United States forces into action “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander-in-chief and Chief Executive.” Neither President Clinton nor NATO articulated authority for the bombing under the United Nations Charter. Rather, they claimed NATO had authority itself and, at least, implied, that the war was undertaken for humanitarian purposes to stop ongoing human rights violations.
As is set forth in this chapter, none of the legal justifications claimed by Clinton, NATO or others for the war against Yugoslavia are valid. The war was flatly illegal, contrary to U.S. domestic law, the U.N. Charter and international law. Under U.S. domestic law, war without authorization from Congress, constitutes an impeachable offense; under international law, aggressive war and war in violation of the U.N. Charter is a crime against the peace—a crime defined at Nuremberg as the most serious international law violation. Nor can the illegality of the war be escaped by arguing “humanitarian intervention.” Not only do the facts on the ground not support this argument (as discussed elsewhere in this book), there is no such doctrine in law. History had demonstrated that a rule permitting such intervention would be used as a pretext by countries acting in their own interest. That is precisely what occurred in the war against Yugoslavia.
Unfortunately, few commentators, journalists, human rights groups and international lawyers have addressed the clear illegality of the war. They have failed to understand the seriousness of what the U.S. and NATO did not only to the people of Yugoslavia, but to the post World War II legal order that gave protection against unilateral war making. The U.N. Charter, as will be explained, prohibited war except in self-defense or when authorized by the Security Council. While this is still part of the Charter, it is part, as far as the U.S. is concerned, in name only. It is apparently open season on any country the U.S. chooses to attack and the Charter be damned. The U.S. as the only superpower calls the shots. Similarly, the U.S. Constitution and the War Powers Resolution require that Congress affirmatively consent to war. War should not be made without consent of the people of the United States through their representatives. Congress never gave such authority; in fact, it refused to vote for the war. Yet the President went ahead anyway, shredding both constitution and statute. It is a dangerous time for the peoples of the world; institutions and the legal framework built to protect us all from the scourge of war are in eclipse. There is neither another superpower nor law (that will be obeyed) to hem in the power and aggrandizement of the United States.
Violations of the U.S. Constitution and War Powers Resolution
The analysis begins with the violations of U. S. domestic law: the Constitution and the War Powers Resolution. The U.S. Constitution in Article 1 sec. 8 grants the power to initiate war solely to Congress. That section states that Congress has the power to “declare war.” Only Congress can decide to go to war except where the President acts in an emergency to repel an enemy attack. This means that both the Senate and the House of Representatives must affirmatively approve the initiation of a war.
The framers were opposed to giving one person—the President—the power to initiate war. They were familiar with the abuses of the war power by the monarchy in England and wanted to insure that war would be fought in the national interest and not for the self-aggrandizement of the President. James Madison spoke of war as “among the greatest of national calamities,” while Thomas Jefferson desired and “effectual check to the Dog of War,” and George Mason was “for clogging, rather than facilitating war.” As Congressman, Abraham Lincoln, in opposing U.S. intervention in Mexico, argued that the Constitution’s intent was “that no one man should hold the power of bringing this oppression [war] upon us.” This requirement, that a decision to wage a war requires prior congressional approval, except in response to an enemy attack, has been unanimously reaffirmed by the U.S. courts.(Although, the courts repeatedly state this rule of law in their opinions , they have never yet ordered an end to an illegal war.)
Wars requiring such congressional approval are not only conflagrations on the scale of World War II, but include the commitment of significant numbers of American armed forces to sustained combat against a foreign government. Under this or any other sensible definition of the term “war,” the hostilities against Kosovo were a war that required congressional consent. Professor John Basset Moore, one of the most prominent international law professors of the first half of the 20th century strongly criticized the view that the President could go to war based on what he thought was right and pointed to the dangers of such a belief:
“There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory and killing their soldiers and citizens, all according to his notions of the fitness of things, so long as he refrained from calling his actions war or persisted in calling it peace.”[Of course, even if the war had had congressional consent, this would not have represented a true democratic decision. It is well understood that the current congress does not represent the mass of people of the United States. Millions are disenfranchised and elections are dominated by big wealth. What is interesting is that even with a Congress so skewed by power and money, President Clinton could not get consent to the war against Yugoslavia.]
The constitutional requirements are clear. Congress had to affirmatively and explicitly authorize the war against Yugoslavia. Congressional silence would not be sufficient; approval is necessary. Such approval should have been given before the war began, for once a war starts there is strong pressure on Congress to “rally around the troops.” The President never even tried to obtain such approval from the House of Representatives prior to the war. Presumably, he knew the House would not give its approval to the war. However, once the war began, he did seek such approval and failed to get it. Amazingly, on April 28, 1999, the House of Representatives rejected a resolution that would have authorized the President to conduct military air operations and missile strikes in cooperation with NATO against Yugoslavia. It did so by a tie 213-213 vote, the result of which was in doubt until the very last moment.
The significance of this vote should not be underestimated. This was the first time in U.S. history that a Congress had actually voted to deny a President the authority he requested to fight a war. But the vote made no difference to the President. He continued to fight the war and ignored the action that the House of Representatives had taken. A more unconstitutional and blatantly illegal act is difficult to imagine. During this same period Congress was considering impeachment charges against the President regarding the Monica Lewinsky matter; what it should have been doing was drafting articles of impeachment for his subversion of the Constitution with regard to his unilateral war against Yugoslavia.
The Constitution was not all that was pushed to the side in the war. The War Powers Resolution (WPR) met its final and ignominious end—although it is still supposed to be the law of the land. Despite a clear violation of that statue by the President, Congress did absolutely nothing about it; most members of Congress and the President acted as if the statute did not exist.
The WPR was passed in the wake of the Vietnam War in an effort to insure that no President acting alone could drag the United States into a war. It was passed, over President Nixon’s veto, to prevent war by Presidential fiat and to protect the constitutional power of Congress to declare war.
The statute requires the President to submit a report to Congress in any situation in which United States Armed Forces are introduced into hostilities. The submitting of this report triggers the key provision of the statute—the sixty day rule. Under that rule, all U.S. forces must be withdrawn from hostilities within sixty days unless Congress affirmatively approves of the troop commitment. In other words, if the President does not get congressional approval within sixty days, he must withdraw all U.S. forces. This is known as the automatic termination provision. Congress need do nothing. The burden, as the Constitution requires, is on the President to get the authority from Congress to continue a commitment of U.S. armed forces in combat or war.
In its brief 24 year history, the statute was passed in 1976, the sixty day provision had never been invoked. Either no war or commitment of troops had lasted for more than sixty days or Congress, as it did in the 1991 war against Iraq, had given approval. The war against Yugoslavia was to be the first time since 1976 that a war continued for over sixty days and did not have the approval of Congress.
All of the statutory requirements needed to trigger the automatic termination provision of the WPR were met. On March 26, 1999 the President submitted the report required under the WPR to Congress; he stated that on March 24, “U.S. military forces…began a series of air strikes in the Federal Republic of Yugoslavia.” This report began the running of the sixty day clock after which all hostilities against Yugoslavia would have to cease unless Congress gave its approval. Thus by approximately May 25, 1999 the war should have been over unless Congress gave its specific approval.
Prior to the sixty days expiring Congressman Tom Campbell, a Republican, introduced various resolutions that would require a congressional vote on whether to approve the war. It was his view that the Constitution and WPR had to be complied with and if they were not, all troops had to be withdrawn. As was stated earlier, none of these resolutions passed; the key resolution which would have given the President authority to continue the war past sixty days failed to pass by a tie 213-213 vote. Thus, as the war continued it was clear that the President did not have the constitutional authority to have initiated the war, nor the statutory authority to keep fighting past the sixty day by which the WPR mandated termination.
The sixty day termination date passed almost unnoticed by the press, Congress and the pundits. Only Congressman Tom Campbell, Congressman Dennis Kucinich and a few others brought up the issue and no one paid attention. It was a remarkable moment. Here was a statute, the WPR, which had been written because of the debacle of Viet-Nam; it was meant to keep the U.S. out of wars that did not have congressional approval. One could say the statute was literally written in the blood of the Americans and Vietnamese who died in that war. And now the statute was treated as nought; as if nothing was learned from the Viet Nam war. The bombing of Yugoslavia was continuing; people were being killed and the country was being destroyed; and it was all a clear violation of U.S. law.
A few courageous members of Congress decided to take the issue of the illegality of the war to the federal courts. The leader of this group was Congressman Tom Campbell and he gathered a dozen or so Republicans to join with him. He asked the Center for Constitutional Rights to bring the litigation on his behalf. [The author, along with Jules Lobel, James Klimaski, Joel Starr, Franklin Siegel and H. Lee Halterman were the attorneys in this lawsuit.] The Center had brought a number of lawsuits previously challenging illegal uses of U.S. military force in Grenada, El Salvador, Nicaragua, Panama, and Iraq. All of these suits had been against Republican presidents and the majority of not all of the congressmen plaintiffs had been Democrats. Now that the shoe was on the other foot, and a Democratic president was unilaterally going to war, Democratic plaintiffs were hard to come by. Many Democrats did not like the war, thought it was illegal, but did not want to buck the President and say so publicly whether by way of speeches or by joining a lawsuit. It was an amazing demonstration of political opportunism. On the issue of should the U.S. go to war, probably the most fundamental and important decision a politician can make, these Democrats sold out. The only two Democrats to join the suit were Dennis Kucinich and March Kaptur.
Even though the illegality or the war was clear both on constitutional and statutory grounds, the attorneys for the members of Congress knew it would be difficult to win. Courts did not like these lawsuits and had developed various legal doctrines so they could avoid dealing with the merits of such controversies. In other words, with regard to the issue of war making the courts have consistently refused to play the role the U.S. Constitution assigned to them—that of determining the proper allocation of power between the President and the Congress. Of course, without the courts as a check on an overreaching President and with Congress silent, there is simply no mechanism to prevent a President from going to war when and how he wishes. The bankruptcy of constitutional system of checks and balances could not be more clear.
While the attorneys knew the case would be difficult, in many ways the legal claims were better than those of any prior litigation. This time there was a violation of the sixty day WPR termination provision and no one was doing anything about it. President Clinton was blatantly violating the law. If the court did not act there was no remedy. Were laws simply meaningless.
The case was argued in the federal district court in Washington, D.C. and eventually in the United States Court of Appeals for the District of Columbia. The members of Congress lost in both courts. They did not lose on the merits; the courts never reached the merits. Instead, the judges found that members of Congress did not have the right to bring the lawsuit, or as the court said they did not have standing. While not unexpected, it was a big blow. Prior to this litigation, the attorneys still believed it was possible to litigate the legality of unilateral presidential war making. That is no longer the case.
From a domestic legal point of view, the country is back to business as usual with regard to presidential war making. Its as if the Viet Nam war never occurred. Checks and balances, if they ever worked, work no longer. The war against Yugoslavia was not the first unilateral Presidential war since Vietnam. Presidents, Democratic and Republican have frequently employed military force without the consent of Congress. To name a few recent examples: the 1998 air strikes against Afghanistan and Sudan; the 1998 air strikes against Iraq, the 1995 air strikes against the Bosnian Serbs, the 1994 military invasion planned against Haiti, the 1989 invasion of Panama, the 1995 air strikes against Libya and the 1983 invasion of Grenada.
But although these wars have been carried out by President, Congress should not be let off the hook. It does have the power to stop Presidential war making, but has failed to do so. It can vote to stop wars, it can cut off funds and finally it can impeach a President. So the problem is not simply one of Presidential overreaching. There is obviously a consensus among most politicians and the elites that such wars are to be fought. Certainly, the President, Congress and the courts cannot be depended upon to keep the U.S., out of war. The future, without a strong anti-war and peace movement in this country and elsewhere is bleak. More Yugoslavia type interventions will be the order of the day.
Violations of the U.N. Charter and International Law
The violations of domestic law were serious, but they pale in comparison to NATO’s violations of the U.N. Charter and international law. By treating as a nullity key provisions of the Charter, the U.S. and NATO have undermined the most important legal restraints on war making. They have effectively nullified legal prohibitions on war, passed in the wake of World War II, that were critical to world peace. Now it is a free for all, where might is right. Any country can choose to follow the path of the United States and make war without the authority of the U.N. Of course, it is the more powerful countries, those that have U.S. approval and NATO, who will use this awful precedent. It is indeed a dangerous time for the peoples of the world. As twenty members of the Greek Council of State (Greece’s Supreme Administrative Court) stated during the war:
“The truth is that NATO’s attack on Yugoslavia inaugurates a period of lawlessness in international relations. We are returning to the era of the Holy Alliance and the Axis, against which humanity, and the Greeks in particular, fought with such great sacrifices.”
The U.N. Charter, a treaty binding on the United States and all of the NATO, countries, states in its stirring preamble that its purpose is “to save succeeding generations from the scourge of war,” and “to bring about by peaceful means…settlement of international disputes…which might lead to a breach of the peace.” Military force was to be relied upon only as an extreme last resort. The Charter clearly prohibits nations from attacking other states for claimed violations of human rights. Article 2(4), the central provision of the Charter, prohibits the “threat or use of force against” another state. There are only two exceptions to this prohibition. Article 51 allows a nation to use force in “self-defense if an armed attack occurs against” it or an allied country. The Charter also authorizes the Security Council to employ force to counter threats to or breaches of international peace. This has been interpreted to allow individual nations to militarily intervene for humanitarian reasons, but only with the explicit authorization of the Council. This occurred in Somalia, Rwanda, Haiti and Bosnia.
What is critical about the Charter and represented a major break with the past is that war or the use of military force was made illegal unless specifically approved by the Security Council under Article 42. These provisions were the cornerstone of efforts to insure that the world would not again be drowned in blood. So important have they become in the fifty plus years since the Charter’s ratification that they have achieved the status of what international law scholars refer to as by the Latin term jus cogens or fundamental customary international law—the highest and most binding form of law. A violation of this law is an international crime against peace.
Prior to the war, the Security Council was dealing with the situation in Yugoslavia. It had passed resolutions in efforts to end the conflict in Kosovo and was actively engaged in attempting to bring peace to the area. But what it has not done and has never done is pass a resolution granting authority to any country to use force against Yugoslavia. The United States and NATO did not even go to the Council to obtain such authority. On their own, and without the sanction of the Security Council, they went to war against Yugoslavia. In doing so, these countries violated the central provisions of the Charter and committed an international crime. There is simply no valid argument that supports the actions of the U.S. and NATO. Fundamental international law required them to obtain authority from the Security Council.
The War Cannot Be Justified By Claims of Humanitarian Intervention
Some scholars, particularly in the United States, have argued that there is a right to humanitarian intervention when genocidal crimes are being committed within a state. But of course, that was not the situation in Kosovo. There has been absolutely no proof that genocide was going on or was planned..
Most countries and scholars, however, have rejected any doctrine of unilateral humanitarian intervention. The purported good that might come from allowing countries to intervene without U.N. authority would be outweighed by the dangers that would arise from weakening the Charter’s restraints on the use force. The proponents of humanitarian intervention assume that great powers such as the U.S. will act with humanity’s interest in mind. History, the current geopolitical context, and the war against Yugoslavia indicate otherwise; they act in their own interest.
The history of humanitarian military intervention is replete with invocations of humanitarian intentions by strong powers or coalitions to conceal their own geopolitical interests. This historical record led the International Court of Justice to conclude in 1949 that a right of forcible intervention in the name of international justice “has, in the past, given rise to most serious abuses . . . [F]rom the nature of things, it would be reserved for the most powerful states.”
The United States often asserted humanitarian reasons to justify military interventions that served its own geopolitical interests. President McKinley’s justified militarily intervention against Spain in the cause of humanity; President Johnson claimed that U.S. intervention in Vietnam and the Dominican Republic were undertaken of humanitarian reasons and President Reagan asserted that the interventions against Nicaragua and Grenada were designed to resort freedom and human rights for those people.
The actual history of so-called humanitarian interventions therefore leaves one deeply suspicious of any doctrine that would allow powerful states or even coalitions of allied nations a right to intervene in the affairs of other states. It is a right that only would be employed against small states. Permitting individual or coalitions of states to attack other nations based upon their own determinations of human rights abuses would eviscerate the international legal restraints against the use of force.
The Kosovo crisis illustrates the danger of bypassing the Security Council and lends credence to those who argue that the intervention was not for humanitarian purposes. The U.S. never went to the Council. Had it done so, it is possible that the final settlement that ended the air war could have been achieved without the use of force. The Council might have insisted on more negotiations, a more flexible approach to the Rambouillet proposal, and altered U.S. insistence that the negotiator be an American. Moreover, the destructiveness of the war and its aftermath (100,000 Roma people and over 200,000 Serbs have been forced to flee Kosovo) undermines the humanitarian claims of the U.S. and reemphasizes the reasons the Charter’s framers chose peace as its central tenet.
The unsanctioned and illegal war against Yugoslavia was a watershed event that is a harbinger of an insecure future for countries and peoples that find themselves in disagreement with the policies and aims of the United States and its NATO allies. Apparently, the United States and NATO now believe international restraints on force and the United Nations can be dispensed with. When and where to use military force will be decided by the United States and NATO. The world can look forward to more killings and devastation, like that in Yugoslavia, all in the name of human rights. It is not a pretty picture and represents a major retreat from the hopes that we could one day grow up in world free from war.
On the domestic front, the retreat from the principle that the people through Congress, should control the use of military force, appears complete. We now face the prospect of war at the behest of one person—the President.
There is an obvious parallel in terms of what has occurred domestically and internationally. Those institutions, the Congress and the Security Council (imperfect as they are), that were required to approve the use of military force have been bypassed. To the extent they made the decision to use force more democratic and more difficult, that is no longer true. We have entered a very dangerous period. Power and might rule.