Examination of Witnesses (Questions 160
TUESDAY 18 JANUARY 2000
160. And, in response to Sir John's question,
what do you understand to be Operation Horseshoe?
(Mr Sweeney) My understanding of it is, the German
intelligence, the BND, came up with a report, in late October,
that there was a thing called "Operation Horseshoe"
which was to terrify the ethnic Albanians out of Kosovo, and this
aired, I believe, in Time magazine, but all the reports that I
have read of it were after the event. And when some journalists
and I went round Serbian police stations in Kosovo, we found evidence
that there was something like a plan, and something like an organisation,
to do this but it had been put on hold. But let us not forget
Bosnia, let us not forget what happened in Croatia. All the time
the Serbs were saying, "If you, the West, attack us, we will
strike back and the people will strike back at Bosnian Moslems."
So this is what you are doing, in this situation. I am certain
though, it was a very, very difficult thing. Some of my mates
are the OSCE monitors, and they felt dreadful when they had to
go, because they had Albanian staff, Albanian drivers, Albanian
interpreters; they were pushed, they all had to go before the
NATO bombs fell, and they felt ghastly about it, but what else
could they have done.
Sir John Stanley
161. Chairman, I will move on. I think there
is some quite interesting evidence which Robin Cook has already
given to this Committee about prior knowledge of Operation Horseshoe;
if we can find that before the end of this session I may come
back on that, but perhaps we can just leave that for the moment.
Thank you all very much for your very helpful and illuminating
comments in response to that very crucial question about Rambouillet.
And now I would like to ask you what I also think is a very fundamental
question, which is the sensitive issue as to whether there was
or was not any relationship between the extreme intensification
of ethnic violence after the start of the NATO bombing campaign
on the night of March 24/25, the prelude to which immediately
was the withdrawal of the OSCE monitors? And, coming at it from
a wholly independent source, with, I do not believe, any axe to
grind, either on behalf of NATO or on behalf of the Serbian Government,
I would like to start by just reading three sentences from the
very illuminating OSCE Report on Human Rights in Kosovo, and these
are taken from Part III of that very big Report, which is the
section heading, "The Violation of Human Rights in Kosovo."
(Professor Roberts) Is this the report of last December?
Sir Peter Emery: Yes, it is.
Sir John Stanley
162. Yes; there is only one major Report which
has been published by the OSCE on Human Rights in Kosovo. I do
not have the exact date of its publication, but in the last few
weeks, yes. They say, in their Report, first: "The level
of incidents of summary and arbitrary killing escalated dramatically
immediately after the OSCE-KVM withdrew on 20 March." They
go on to say, under a heading "Further Escalation After 24
March 1999": "Summary and arbitrary killing became a
generalised phenomenon throughout Kosovo with the beginning of
the NATO air campaign against the FRY on the night of 24/25 March."
And then they go on also to say, again I quote: "Indiscriminate
attacks on populated areas, sporadic prior to 24 March 1999, became
a widespread occurrence after that date." And what I would
like to ask our witnesses is whether they consider that there
was no relationship at all between the withdrawal of the OSCE
monitors and the commencement of NATO bombing, and the OSCE's
observations that there was this huge escalation of ethnic violence,
or whether you think that the escalation was unrelated to the
withdrawal of the OSCE monitors and the commencement of the NATO
(Professor Roberts) There is no doubt at all in my
mind that there was a connection, and when you create a situation
where either in those days 20 to 24 March, where there is an expectation,
or the likelihood, of an attack and no foreign witnesses, or after
24 March where there is actual bombing, and where the Yugoslav
federal forces were unable to do anything whatever about the bombing,
it is not at all surprising, thought it is deeply shocking, granted
all the history of it, that they took their revenge on the population
of Kosovo. But Jonathan Steele was there, and he can say more
(Mr Steele) That is undoubtedly true, and I have already
mentioned that I was there on the night of the bombing, and later
that following day we were all expelled and we had to go out of
the country; but I had in the few hours that remained a chance
to visit, it turned out to be, the widow of one of the leading
lawyers in Pristina. Her husband had been abducted with one of
their sons during the night and the people who abducted them,
who were Serbs, said, "Go to NATO to find out where your
husband and son are, we're taking them away."
Obviously, there was, as Adam Roberts has said, a connection.
But the whole point of the military operation was to stop this,
once and for all, and I think when I went back with KFOR, after
June, and spoke to Albanians, I could not find one person who
said, "We are sorry that NATO bombed, because either our
direct relatives have been killed or other people we knew have
been killed," they said, "This was the price we had
to pay for liberation; it was bloodier, much more terrible than
any of us predicted, but it was still worth it."
163. Do you think then that NATO's policy of
bombing was a mistake?
(Mr Steele) Yes; it should have been done with ground
forces, I agree, it is exactly what most of my colleagues, I think,
have said. We should have made it clear not just as a sort of
paper threat that we were thinking of using ground forces, we
should have been preparing to do that, and we should have done
that, and we should have limited it, in my view, to Kosovo. We
should never have got into bombing Belgrade, and certainly not
sending ground forces into Belgrade. The whole operation should
have been limited entirely to Kosovo, bringing in forces rapidly
to protect the Albanians quickly, and the only bombing that might
have been outside the borders, strictly, of Kosovo would have
been on some units that were particularly involved in air defence,
but not bridges, not power stations, and the like.
164. Particularly in answer to John Stanley's
point, do you think that the NATO bombing caused the escalation
of violence in March and that NATO should not have bombed and
should have looked for another way around the issue?
(Mr Steele) No, because I think one could say that
any NATO military action probably would have produced this revenge
response. I do not think it was particularly revenge for bombing,
it was revenge for NATO action.
(Mr Judah) If I could make just one point on this.
I think we have to just look back at the last few weeks. Milosevic
had decided, after Rambouillet, before Paris, he was going to
go for war, it was going to give him an opportunity, he was going
to get rid of as many Albanians as he possibly could; presumably
he thought that after a week, or two weeks, there would be some
sort of deal. And what happened when all those Albanians were
chucked out, they took all the ID cards, which was very important,
because they calculated that throughout the whole of the war to
the rest of Yugoslavia very few refugees had ever come home, he
thought, "Just get rid of as many as we can, as quickly as
we possibly can, because there will be some sort of truce, or
something, after a week or two, and we'll have reduced the Albanian
population of Kosovo by however many we can get rid of in two
weeks." So I think that was the point. It is wrong to say
that the bombing was the cause of it; it was that he wanted to
use that to get rid of them, that was the calculation.
165. If the evidence you have suggested is the
case then those who made the decisions and did not believe that
this was going to be a consequence were either naïve or particularly
stupid. And in the evidence given to us by Mr Jones Parry, the
most senior of the Foreign Office officials, this is what he told
us when we asked him these questions, he said there had been this
pattern of razed crops, destroyed animals, driving people from
homes onto hilltops. And he said: "We were expecting the
same pattern, or what we believed would be the pattern, of driving
people out of towns; what we were not expecting quite was that
atrocities took place by way of expulsion." So are we doing
it with hindsight, or, indeed, if everybody forecast this was
a likely consequence and that it was only Foreign Office officials
and Western diplomats who believed that this would not be the
inevitable consequence of bombing?
(Mr Sweeney) There are two difficulties here. The
first difficulty was, yes, it was the inevitable consequence of
bombing, but what other choice had they got; and let us not forget
the nature of the beast, the man. I do think, actually, it is
right, in some way, to personalise it. Milosevic sent in tanks
against his own Serb students, in his own capital. When the Muslims
of Srebrenica went on a little, nasty piece of revenge killing
and crossed into Serbia they killed about 50 Serbs, many of them
were innocent and wretched victims of these horrible wars, and
the consequence was 7,000 people from Srebrenica and **ep**e were
butchered. So you are looking at a history here of somebody who
revenges in a huge, completely over-the-top way. So it is very
difficult to see how this explosion of violence, how you could
get round it, it was going to happen. Because the Serbs under
Milosevic would not leave Kosovo voluntarily, there was going
to be a horrible, long and endless civil war, in which the Albanians,
because they were the majority, would win; so how could you get
round it. One final point which I want to impress upon your minds,
it was organised. Now the place that I know the most about is
a little village called Little Krusha, where 106 men were killed;
something else, only nine bodies have been found, the rest have
been disposed of, no-one knows where, and that is an important
point that you should bear in mind as regards statistics, nine
skeletons, 106 men and boys missing. Now six men survived, they
were machine-gunned and then the bodies were burnt alive; six
men were missed by the bullets and hid underneath the burning
bodies of their friends and neighbours and sons and brothers.
And these six men escaped and I talked to them for the stories
I have done on the television programmes, for Dispatches. And,
these six, they all say the same thing, that the machine-gunner
came, they were all trooped in, their names were read out and
they waited until the machine-gunner came; and the machine-gunner
was running late, he had been somewhere else. Remember, this little
village is near the Albanian border and, as to organisation there,
we know that, Operation Horseshoe, our information about that
is woolly; what we do know is that they hit the Kosovar villages
close to the Albanian frontier very, very hard, because they wanted
that area cleaned. So that was organised. The machine-gunner came
late, and one of the Serbs, according to the survivors, said to
the machine-gunner, "You're late," and the machine-gunner
said, "Don't worry, I'll finish off this lot in two minutes;
bang, bang, bang." It was organised.
166. Let us get an answer to the question; do
you think this was predictable, because it was quite clear, from
the evidence the Foreign Office official gave us, they did not
think it was predictable?
(Mr Sweeney) In a playground, very simply,
167. I would like to know the answer to the
(Mr Sweeney) The answer to your question, I put to
you in a playground; a teacher, on the outside of the fence, says
to the playground bully, "Stop hitting that small boy,"
and the playground bully says, "No, I wont," and whacks
him really hard. And then it takes a while for the teacher to
jump over the fence and to deal with that playground bully. That
is exactly what it was like. But what do you do; do you let that
oppression continue in a slow-burn way, do you let that continue
and continue and continue. I can see no real way out of this.
168. I think we must move on, but I think Jane
Sharp wanted to come in?
(Ms Sharp) Just to add to that specific question.
I think John Sweeney has a more flamboyant way of saying it but
I agree with what he is saying. I think the way we dealt with
the Kosovo crisis in 1999 was a mess, it was a bungled, ill thought
through mess; and it is the price of not dealing with this in
1991 or 1992. Watching what Milosevic did in Croatia and Bosnia,
the war was always directed at civilians, it was always based
on ethnic cleansing, which in many instances was genocidal, but
it was always pushing out in the most cruel way, killing if necessary
but moving if not. So to pretend that we did not know the modus
operandi of Milosevic is utterly stupid, and I think the Foreign
Office should be chastised for that statement.
Sir Peter Emery
169. We have spent a little while on the surrounds
of the legality of this particular matter. Can I put it to you
that humanitarian intervention really has, apparently, no place
in the United Nations Charter, and really no place in international
law. However, we have received the arguments of Clinton, of Blair,
of NATO, that this was legally justifiable. May I ask each of
you, without any explanation, do you believe it was legally justifiable?
Can I start with Mr Steele; do you, Sir, yes or no?
(Mr Steele) No.
(Ms Sharp) I am not going to give you
a yes or no, because I think
170. You mean, have I stopped beating my wife?
(Ms Sharp) First of all, I think it is wrong to say
that there is no place for humanitarian intervention. We have
the UN Charter, which emphasises territorial integrity, but we
have a body of law, that developed in the late 1940s from the
Nuremburg trials, which very much talks about human rights and
intervention and individual responsibilities for crimes against
humanity; so it is not correct, I believe, to say that. Now, in
the particular incident that we are talking about, I would say
it was legitimate, but, strictly speaking, according to the Charter,
illegal, and I think we made a mistake in not going to the Security
Council, I think it would have been better to act in defiance
of a veto than to ignore the Security Council altogether.
171. But you did say, in the middle of what
you said, that you thought it was legally justifiable?
(Ms Sharp) I thought it was legitimate, but I did
not think it was legal.
(Professor Roberts) There is a lot on this in my evidence,
I will just summarise it. There is no general text that anybody
can point to that provides a watertight, legal justification for
humanitarian intervention not authorised by the Security Council
of the United Nations. On the other hand, there is a great deal
of international law that concerns itself with what happens within
states, especially in the field of human rights and humanitarian
norms, and when that law is openly violated, when that law has
been recognised by the UN Security Council as being violated,
and also, of course, when cease-fires have been called for by
the UN Security Council and not been observed, we have a situation
of legal ambiguity, where international law wills certain ends
and the UN Security Council wills certain ends but has not explicitly
willed the means. And that leaves open the question of whether
a regional organisation has any authority to take action absent
the capacity of the UN to do so. And I think the simplest answer
to your question, although it is not one with which one can be
satisfied, is that the NATO action, in strict terms of black letter,
international law, was not, demonstrably and beyond any doubt,
legal, but, equally, was not illegal. And the failure of Russia
to get the Security Council to support the illegalisation of it,
in the debate in the Security Council on 26 March of last year,
when 12 to 3 voted down the Russian proposal, suggests that an
attempt to clearly declare this action illegal failed utterly.
So I think that, in the present state of international law, it
is in an uncomfortable limbo. And my own view is that, in this
particular case, reluctantly I supported the action, but I did
so knowing that it was not one that could command universal assent
and that there were bound to be states that took a very dim view
indeed of this action, as indeed many did.
172. Can I just summarise what Professor Roberts
has said. You are really saying to me, whilst it cannot be proved
to be legal, you think it was justifiable?
(Professor Roberts) And cannot be proved to be illegal,
173. Yes, thank you. Mr Judah?
(Mr Judah) I am not an international lawyer, but it
seems to me quite clear that we are at a stage in international
law where there are two bodies of opinion, one which says it is
legal and one which says it is not legal, and international law
is in a constant state of development and we have no parliament
to declare "This is the law." So we have two legitimate
174. I am asking you for your opinion?
(Mr Judah) I think it was justifiable. I want to add
one other thing about the Security Council, which nobody has mentioned,
which is that the Americans were dead set against going to the
Security Council, I do not understand why nobody has mentioned
175. That was not what I was asking you. Mr
(Mr Sweeney) Professor Roberts taught me at LSE, and
I cannot do anything better than he did, which was
(Professor Roberts) I disclaim all responsibility.
(Mr Sweeney) And he taught me to be flamboyant at
Committees. There was a magnificent letter by another Prof., from
Sussex University, in the New Statesman, when this was going on,
or shortly after this, which said that the kind of thinking which
said you cannot intervene because it is illegal, because you are
interfering with the internal affairs of a country, that kind
of talk, went out with the holocaust, and I believe that to be
so. I believe this to be moral, but, in the strict letter of the
law, it did not look terribly legal to me, no.
176. Can I then go on from that. In many people's
view, it did not go back to the United Nations because of the
fear of veto.
(Mr Sweeney) The fear of veto by China and Russia,
who were in systems which, any of you chaps, you would not be
free under them.
Mr Mackinlay: But you could have gone to the
General Assembly of the United Nations, could you not?
Sir Peter Emery
177. Can I finish my question, if you do not
mind. What I was saying to you was that there were many who argued
that it could not go back to the United Nations because of the
fear of the veto. Do you therefore believe that the veto at the
United Nations is something which is now a considerable drawback
to positive action, and therefore perhaps it is out of date, or
ought in some way to be altered? Professor Roberts, what is your
view on that?
(Professor Roberts) The veto was clearly a drawback
to getting agreement in the Security Council on this issue. I
am not in doubt at all that Russia and China would happily have
vetoed any Resolution favouring the use of force over Kosovo,
absolutely no doubt, it was as clear as could be. And, therefore,
to me, it seems a very fine question whether or not the Western
powers should have gone back to the Security Council to try for
a last time, or whether by so doing they would have actually made
their position more difficult. I do not think that is of any great
importance either way. On your question, the fundamental one of
the veto, I do not think there is any chance of getting the veto
abolished, because in order to abolish the veto you would have
to get those very veto-holding countries to agree, and there seems
no chance of that at all. What is just conceivable is a developing
agreement that states will only use the veto when their own basic
fundamental interests are concerned; but, even there, there are
Sir David Madel
178. If we had gone to the Security Council,
as you say, there would have been a veto, but in November 1956
Britain and France used a veto and the matter went to the General
Assembly of the United Nations, which said, "Britain and
France must get out of the Suez Canal, they must have a cease-fire
and the United Nations troops must go in." Now should not
the Government, somebody, have tried to go to the General Assembly,
where I think you would have got a majority for saying, "Unless
Milosevic stops, force must be used"?
(Professor Roberts) The `Uniting for Peace' procedure,
which you are referring to, which originates in November 1950,
would have, theoretically, opened the possibility for the Western
powers to have gone to the General Assembly, which would have
had to be a special session, in early 1999, and attempted to get
a two-thirds majority there. I actually raised that issue in a
meeting at Chatham House on the day Rambouillet initially failed,
in February of 1999, and I suggested that might be one possible
way out of the Security Council's obvious paralysis on the question
of Kosovo. At that time, the Foreign Office took the view that
this was very ill advised, and I was told that really it was not
very helpful of me to have talked about this. Because I think
they clearly took the view (a) that it was uncertain that they
would get anything like the two-thirds majority which I believe
is what is required under `Uniting for Peace', and (b) that the
General Assembly is a somewhat cumbersome instrument, in that
it does not meet continuously, it cannot continuously develop
its policy, once you have got an agreement in the General Assembly
you will be absolutely stuck with whatever that agreement is,
and it is not the kind of flexible instrument that the Security
Council is. Those, I think, were the arguments against going that
route, I am not saying they were right, I think there was a serious
case for trying that route, but that was the opinion at the time
and the reason why it was not done.
179. Just on the question of the legality, you
all seem to have said the same thing, that technically it was
illegal but, on the other hand, it was justifiable, and you all
said the same thing, with varying degrees of emphasis. Now I can
understand that it was justifiable, I can even see that you can
construct from some of the legal writing the right of humanitarian
intervention; what I balk at a little is the agency of that humanitarian
intervention, NATO. The idea that NATO can pick and choose what
humanitarian situations it intervenes in, with no reference to
any framework of law, I find highly problematic; not to say this
intervention was not justifiable, but where does it end. And I
wanted to ask in particular Jonathan Steele, who had quite an
interesting section in his evidence about maybe it would have
been better if there had been another, maybe a coalition of the
willing, was your phrase, I wanted to ask you to expand on that?
(Mr Steele) Yes, I mentioned that a little bit earlier,
more in the context of the stresses and strains within NATO and
trying to bring members on board, like Greece and Germany and
Italy, that were unhappy with it. But the other reason for that
argument that you have drawn attention to in my memorandum is
the question of Russia, and I think somebody also mentioned that
a bit earlier, too. I think it would have been easier for the
Russians, I am not saying they would necessarily have accepted
it and not vetoed it, but I think it would have been easier for
the Russians to contemplate accepting an operation to use force
in Yugoslavia had it not been under NATO aegis, had it been a
coalition of the willing, had it been done by the OSCE, for example,
under their political umbrella, of which, of course, the Russians
are full members. Because I think this is one of the key things
in understanding why Russia was concerned; it is not, as some
of the colleagues agreed, anything to do with particular Slavic
identity between Russia and the Serbs, and so on, that is used
as an argument of convenience, I think. The Russians are very
concerned about NATO expansion, and they saw the Kosovo operation
as a geographical expansion, we were not taking in yet more members,
that has already happened with the other three, and there are
plans for further ones, obviously, but this was a geographical
expansion, so-called `out of area' operations, and the Russians
did not want to give a carte blanche to NATO to do that.
And I think we should have tried to find some ways of accommodating
28 Note by witness: Their bodies were discovered
a few days later. Back
Note by witness: If you insist on a one-word answer. Back