L. PRESIDENTIAL WAR-MAKING UNDER THE WAR POWERS ACT (Continued)

4. President Clinton and the War Powers Act (Continued)

d. Intervention into the Ethnic Conflict in Bosnia

Beginning in late February, 1994, once again while President Clinton was trying to disengage from the Somalia quagmire, the U.S.A. and its NATO allies, with Clinton's coaxing, became militarily involved in the ethnic warfare going on in Bosnia (officially, the "Republic of Bosnia and Herzegovina")--a small Balkan country, which, from 1946 to early 1991, was one of six supposedly "autonomous republics" in the multinational "Federal People's Republic of Yugoslavia."

In 1991, Yugoslavia began to undergo political disintegration, with each of its autonomous member-republics (except Serbia and Montenegro), one after another, seceding from the Yugoslav federation and declaring itself to be a fully independent, sovereign state. Slovenia, proclaiming its independence on June 25, 1991, had to withstand an attack by the Serbian-dominated Yugoslav federal army--the socalled "Yugoslav People's Army" (JNA). Croatia, declaring its independence on the same day, had to put an army in the field and militarily defeat an anti-secessionist military force comprised of members of the Serb minority dwelling within the Croatia's borders, but orchestrated and supported by Slobodan Milosevic, leader of Serbia and the Serbian-dominated Yugoslav federal Government.

On October 15, 1991, Bosnia took its first formal step toward independence, when its parliament adopted a declaration of sovereignty. In a referendum held on February 29, 1992, an overwhelming majority of the Bosnian voters participating in the referendum voted in favor of Bosnian independence. On April 7, 1992, the U.S.A. and member-states of the European Union extended diplomatic recognition to Bosnia, enhancing the legitimacy of its claim to international legal status as a completely independent, sovereign state. Subsequently, Bosnia was admitted to membership in the United Nations.

The Bosnian Serbs, who constituted 40 percent of the Bosnian population, did not take these developments lying down. Having opposed holding the February 29 referendum, they were most unhappy about its outcome and subsequent events relevant to the outcome. Egged on and assisted by Serbia's Milosevic, the Bosnian Serbs resorted to violence and terrorism, proclaiming their own separate state and waging war against the Muslims and Croats dwelling in Bosnia. The Bosnian Serb Army slaughtered thousands of Bosnia's Muslim and Croat inhabitants, tortured and starved many others in concentration camps, and carried out programs of "ethnic cleansing," forcing Muslims and Croats to move out of the regions controlled by Bosnian Serbs. The ultimate war aim of the Bosnian Serbs was to drive all non-Serbs out of Bosnia and seize their land and other property. If necessary to attain this end, the Bosnian Serb leaders and their more militant followers were ready and willing to resort to deliberate mass murder and ethnic genocide.

In April, 1992, Sarajevo, the capital of Bosnia, was surrounded by the Bosnian Serb Army and subjected to sustained attack, resulting in the deaths of many of the city's inhabitants. The tide of war continued to run in favor of the Bosnian Serbs. By March, 1993, 70 percent of Bosnia's territory was controlled by the Bosnian Serbs. At that time, Bosnian Croats and Muslims started fighting each other over the 30 percent of Bosnia that remained free of Serb control. In early 1994, the Bosnian Croats and Muslims (together constituting 60 percent of Bosnia's population of more than two and a half million) patched up their differences and formed an alliance directed against the Bosnian Serbs. At mid-year, however, the Serbs still controlled 70 percent of Bosnian territory.

As the armed conflict continued, it became increasingly evident that the Bosnian Serbs' attacks on Bosnian Croats and Muslims were aided, abetted, and orchestrated by Serbia, that Milosevic was the mastermind behind most of the violence perpetrated by the Bosnian Serbs. As a matter of fact, the Bosnian Serb Army was by no means an indigenous militia; it was not a grassroots military organization that had arisen spontaneously among the Bosnian Serbs. The Bosnian Serb Army was a well organized, well trained, and fully equipped military force, created by Milosevic and his generals when they renamed the 80,0000 Yugoslav federal army toops present in Bosnia at the time of that republic's secession from Yugoslavia. In waging war against the Bosnian Croats and Muslims, the Bosnian Serb Army commanders operated in close coordination with Milosevic and Serbia's military establishment.

Since Bosnia was now an internationally recognized sovereign state and a member of the United Nations, maintaining diplomatic relations with the U.S.A. and many other countries, the Serbian-supported and Serbian-directed Bosnian Serb attacks on Bosnian Croats and Muslims constituted, under international law, a clear case of armed aggression by one sovereign state against another--armed aggression by Serbia against Bosnia, with the objective of forcing Bosnia to rejoin the Serbian-dominated Yugoslav federation (by now, comprised only of Serbia and Montenegro). Under international law, as interpreted by the U.S.A. and other civilized societies having at least a modicum of respect for the rule-of-law principle, the conflict in Bosnia was not simply a civil war--a purely internal war between opposing factions within or regions of the same country. The conflict was a case of international aggression.

On this basis, the United Nations as well as the U.S.A. and NATO began efforts to bring the Bosnian conflict to an immediate close, seeking not only to negotiate a ceasefire between Bosnia's warring ethnic factions, but also to pressure Serbia into putting a stop to its aggression and cooperating with the peacemakers.

During June and September of 1992, the U.N. Security Council adopted resolutions which increased the strength of the United Nations Protection Force (UNPROFOR) and expanded its mandate to include duties in Bosnia as well as in Croatia. Under the authority of U.N. Resolution 758 (June 8, 1992), UNPROFOR military observers and related personnel and equipment were deployed to Sarajevo in order to (1) effect the safe and smooth operation of the city's airport, (2) oversee the removal of Bosnian Serb antiaircraft weapons from their positions near the airport, (3) supervise the storage of Bosnian Serb heavy weapons at locations previously agreed on, and (4) ensure uninterrupted delivery of humanitarian aid supplies to Sarajevo and their distribution throughout the city and its environs. Under U.N. Resolution 776 (September 14, 1992), the mandate of UNPROFOR in Bosnia was enlarged to include (1) supporting efforts by the U.N. High Commissioner for Refugees (UNHCR) to deliver humanitarian assistance throughout Bosnia, (2) protecting relief convoys and personnel, at the UNHCR's request, and (3) protecting convoys of released civilian prisoners, at the request of the International Committee of the Red Cross.

On October 9, 1992, the Security Council passed U.N. Resolution 781, establishing a "no-fly zone" (NFZ) over Bosnia. U.N. Resolution 781 prohibited all military flights in Bosnian airspace, exempting from the ban UNFROFOR and other flights in support of U.N. peacekeeping operations and humanitarian aid delivery and distribution. UNPROFOR was assigned responsibility for monitoring compliance and non-compliance with the ban on unauthorized military flights in the NFZ. And member-states of the United Nations were called on to assist UNFROFOR in monitoring violations of the NFZ.

The U.S.A. and its NATO allies responded to Security Council's call for U.N. member-states to provide assistance to UNPROFOR. On October 16, 1992, NATO's "Operation Sky Monitor" commenced. NATO Airborne Early Warning and Control System (AWACS) aircraft, in support of U.N. Resolution 781, began to monitor flights in the airspace of Bosnia. The U.S.A. and its NATO allies were now very very close to direct military involvement in the Bosnian conflict.

In December, 1992, the foreign ministers of the member-states comprising the NATO alliance assembled as the North Atlantic Council (NAC), NATO's highest decisionmaking and policymaking body. At this meeting, the foreign ministers (including U.S. Secretary of State Warren M. Christopher) approved a formal statement indicating the willingness of the alliance members to employ military force, under United Nations authority, to assist UNPROFOR in its peacekeeping operations.

On March 31, 1993, the U.N. Security Council adopted U.N. Resolution 816, which authorized enforcement of the NFZ over Bosnia and broadened the proscription to include flights of all fixed-wing and rotary-wing aircraft, except those sanctioned by UNPROFOR. In addition, the resolution authorized member-states of the United Nations to take all necessary measures to ensure compliance with the ban, "all necessary measures" to include use of military force to deal with future violations of the NFZ.

On April 8, 1993, the North Atlantic Council, responding to U.N. Resolution 816, endorsed NATO's plans for enforcing the NFZ over Bosnia and apprised the U.N. Security Council of NATO's readiness to undertake the enforcement operation. When the NATO enforcement operation--"Operation Deny Flight"--began on April 12, the armed forces of the U.S.A. and its NATO allies became directly involved in the Bosnian conflict.

Carried out during a period of nearly two and a half years (April 12, 1993-December 20, 1995), Operation Deny Flight was a combined airborne reconnaissance and combat air patrol operation, entailing enforcement of the NFZ over Bosnia and air strikes launched in support of UNPROFOR's peacekeeping operations in Bosnia. Operation Deny Flight involved more than 200 fighter, bomber, and reconnaissance aircraft from different member-states of NATO. By December 20, 1995, when the mandate of Operation Deny Flight was terminated, close to 100,000 sorties had been flown by NATO military aircraft. Nearly 50 percent of the sorties were flown by U.S. military aircraft, with the U.S. Air Force's participation in the operation accounting for 30 percent of the total number of sorties flown by NATO aircraft. The fighter and bomber sorties were flown from air bases in Italy and from aircraft carriers positioned in the Adriatic Sea, while the tanker and surveillance sorties were flown from air bases in France and Germany.

Concurrently with NATO's execution of Operation Deny Flight, the United Nations contin- ued its endeavor to bring an end to the war on the ground in Bosnia. As part of this endeav- or, the U.N. Security Council, during April and May of 1993, adopted resolutions declaring six U.N.-protected "safe areas" in Bosnia for its Muslim inhabitants--Sarajevo, Bihac, Girazde, Srebrenica, Tuzla, and Zapa--and calling on the Serbs to refrain from attacking these areas. The first of these resolutions was U.N. Resolution 819, passed by the Security Council on April 16. And the second was U.N. Resolution 824, passed on May 6.

In U.N. Resolution 819, the Security Council--

      Reaffirmed "the sovereignty, territorial
      integrity and political independence of the
      Republic of Bosnia and Herzegovina";

      Expressed its concern over "the pattern of
      hostilities by Bosnian Serb paramilitary
      units against towns and villages in eastern
      Bosnia";

      Declared its deep alarm at "the rapid de-
      terioration of the situation in Srebrenica
      and its surrounding areas, as a result of
      the continued deliberate armed attacks and
      shelling of the innocent civilian population
      by Bosnian Serb paramilitary units";

      Strongly condemned the Bosnian Serb paramil-
      itary units' "deliberate interdiction ... of
      humanitarian assistance convoys" and their
      "actions ... against UNPROFOR, in particular
      their refusal to guarantee the safety and
      freedom of movement of UNPROFOR personnel";

      Demanded--

            "... that all parties [to the Bosnian
            conflict and to previous ceasefire
            agreements relating to the Bosnian
            conflict] and others concerned treat
            Srebrenica and its surroundings as a
            safe area which should be free from
            any armed attack or any other hostile
            act;"

            "... the immediate cessation of armed
            attacks by Bosnian Serb paramilitary
            units against Srebrenica and their
            immediate withdrawal from the areas
            surrounding Srebrenica;"

            "... that the Federal Republic of Yu-
            goslavia (Serbia and Montenegro) im-
            mediately cease the supply of mili-
            tary arms, equipment and services to
            the Bosnian Serb paramilitary units
            in the Republic of Bosnia and Herze-
            govina;"

            "... the unimpeted delivery of hu-
            manitarian assistance to all parts
            of the Republic of Bosnia and Herze-
            govina, in particular to the civil-
            ian population of Srebrenica and
            its surroundings ..." and declared
            that "such impediments to the de-
            livery of humanitarian assistance
            constitute a serious violation of
            international humanitarian law;"

            "... that all parties guarantee the
            safety and full freedom of movement
            of UNPROFOR and of all other United
            Nations personnel as well as members
            of humanitarian organizations;"

      Called on "the Secretary-General, with a
      view to monitoring the humanitarian situ-
      ation in the safe area, to take immediate
      steps to increase the presence of UNPROFOR
      in Srebrenica and its surroundings" and
      demanded "that all parties and others con-
      cerned cooperate fully and promptly with
      UNPROFOR toward that end";

      Reaffirmed "that any taking or acquisi-
      sition of territory by threat or use of
      force, including through the practice of
      'ethnic cleansing', is unlawful and un-
      acceptable...."

In U.N. Resolution 824, the Security Council--

      Again reaffirmed "the sovereignty, terri-
      torial integrity and political independ-
      ence of the Republic of Bosnia and Herze-
      govina";

      Demanded "that any taking of territory by
      force cease immediately";

      Expressed its deep concern over "the con-
      tinuing armed hostilities by Bosnian Serb
      paramilitary units against several towns
      in the Republic of Bosnia and Herzegovina"
      and stated the Council's determination "to
      ensure peace and stability throughout the
      country, most immediately in the towns of
      Sarajevo, Tuzla, Zepa, Gorazde, Bihac, as
      well as Srebrenica";

      Declared "that the capital city of the Re-
      public of Bosnia and Herzegovina, Sarajevo,
      and other such threatened areas, in partic-
      ular the towns of Tuzla, Zepa, Gorazde,
      Bihac, as well as Srebrenica, and their
      surroundings should be treated as safe
      areas by all parties concerned and should
      be free from armed attacks and from any
      other hostile act";

      Further declared "that, in these safe
      areas, the following conditions should be
      observed:

            The immediate cessation of armed
            attacks or any hostile act against
            these safe areas, and the withdraw-
            al of all Bosnian Serb military or
            paramilitary units from these towns
            to a distance wherefrom they cease
            to constitute a menace to their
            security and that of their inhabit-
            ants, to be monitored by United Na-
            tions military observers;

            Full respect by all parties of the
            rights of the United Nations Protec-
            tion Force (UNPROFOR) and the inter-
            national humanitarian agencies to
            free and unimpeded access to all
            safe areas in the Republic of Bosnia
            and Herzegovina and full respect for
            the safety of the personnel engaged
            in these operations";

      Demanded that, toward attainment of the
      foregoing end, "all parties and others con-
      cerned cooperate fully with UNPROFOR and
      take any necessary measures to [guarantee]
      respect [for] these safe areas...."

On June 4, 1993, the Security Council adopted U.N. Resolution 836. Toward the end of ensuring full respect for the safe areas referred to in Resolutions 819 and 824, the Security Council, in Resolution 836, Paragraph 5, extended the mandate of UNPROFOR in order to--

      "... enable it, in the safe areas ... to
      deter attacks against the safe areas, to
      monitor the ceasefire [agreements], to pro-
      mote the withdrawal of military and para-
      military units other than those of the Gov-
      ernment of the Republic of Bosnia and Her-
      zegovina and to occupy some key points on
      the ground, in addition to participating
      in the delivery of humanitarian aid to the
      population...."

In paragraph 9 of Resolution 836, UNPROFOR's mandate was further extended, authorizing the Protection Force--

      "... acting in self-defense, to take the
      necessary measures, including the use of
      force, in reply to bombardments against
      the safe areas by any of the parties or to 
      armed incursion into them or in the event
      of any deliberate obstruction in or around
      those areas of the freedom of movement of
      UNPROFOR or of protected humanitarian con-
      voys...."

Following these enlargements of the UNPROFOR mandate, Resolution 836, Paragraph 10, provided that member-states of the United Nations--

      "... acting nationally or through regional
      organizations or arrangements, may take,
      under the authority of the Security Council
      and subject to close coordination with the
      Secretary-General and UNPRPFOR, all neces-
      sary measures, through the use of air power,
      in and around the safe areas in the Republic
      Bosnia and Herzegovina, to support UNPROFOR
      in the performance of its mandate ..." as
      expanded in Paragraphs 5 and 9 of Resolu-
      tion 836.

In other words, the Security Council, via Resolution 836, Paragraph 10, finally sanctioned the use of NATO air power in (1) protecting UNPROFOR and the U.N.-declared safe areas, (2) retaliating against and severely punishing acts of armed aggression and other violations of international law on the part of Bosnian Serbs in the ground war in Bosnia, and (3) seeking to force the Bosnian Serbs to (a) make peace with the Bosnian Croats and Muslims and (b) honor and abide by the peace agreement.

In response to Paragraph 10 of U.N. Resolution 836, the North Atlantic Council made a number of important decisions during the eight-month period from June 10, 1993, through February 9, 1994. On June 10, 1993, the North Atlantic Council, assembled as a meeting of NATO foreign ministers (including U.S. Secretary of State Christopher), decided to offer protective air power for UNPROFOR in the performance of its overall mandate in Bosnia. The foreign ministers agreed that member-states of NATO (including the U.S.A.) would provide close air support for UNPROFOR military and civilian personnel, if (1) they were attacked and (2) the UNPROFOR Command requested NATO air strikes against the attackers.

At its August 2 and 9, 1993, meetings, the North Atlantic Council, again functioning as an assembly of NATO foreign ministers, made decisions regarding the protection of U.N.-declared safe areas in Bosnia. On August 2, the Council decided to at once begin preparations for taking stronger and more drastic action in Bosnia, including air strikes against Bosnian Serb Forces which persisted in their attempts to bring about strangulation of Sarajevo and other safe areas and in their widespread interference with humanitarian aid convoys. At the August 2 meeting, the Council also assigned NATO Military Authorities the task of drafting, in close collaboration with UNPROFOR, an operational plan for air strikes against appropriate Bosnian Serb targets. On August 9, the Council endorsed the military planning for air strikes and indicated NATO's readiness to execute the plan.

At the Alliance summit meeting held in January, 1994, the heads of governments of NATO member-states (including President Clinton) confirmed all previous decisions of the North Atlantic Council relating to Bosnia and reaffirmed NATO's commitment to launch airstrikes against Bosnian Serb forces in order to prevent their strangulation of the threatened areas of Bosnia, including Sarajevo and the other U.N.-proclaimed safe areas.

On February 6, 1994, a Bosnian Serb mortar shell landed and exploded in Sarajevo's central market, killing 68 people. Three days later, the North Atlantic Council met and made several decisions, which, in effect, constituted a final warning to the Serbs. The Council proclaimed a 20-kilometer exclusion zone around Sarajevo and declared that the Bosnian Serb forces, no later than February 20, 1994, must have withdrawn their mortars and other heavy weapons from the exclusion zone or transferred of them to UNPROFOR. The Council announced that any such weapons not removed from the exclusion zone or placed under UNPROFOR control by the deadline date would be subject to NATO air strikes. In addition, the Council authorized the Commander-in-Chief, Allied Forces Southern Europe (NATO's southern European command), to initiate air strikes, at the United Nations' request, against mortar and artillery positions in and around Sarajevo-- mortar and artillery positions which, according to UNPROFOR's official findings, were responsible for attacks against civilian targets in the city.

The first instance of NATO's involvement in armed combat in or over Bosnia occurred on February 28, 1994, when four Bosnian Serb military aircraft, operating out of Banja Luca, violated the No-Fly Zone and were engaged and shot down by NATO warplanes--four U.S. Air Force F-16s. On August 5, after Bosnian Serb Army units defied UNPROFOR and illegally appropriated a number of heavy weapons from the Ilidza weapons collection site in the Sarajevo exclusion zone, an M18 Tankbuster operating in the exclusion zone was attacked by two U.S. A-10 aircraft, resulting in the Bosnian Serbs returning the heavy weapons they had seized. When Bosnian Serbs attacked an UNPROFOR vehicle with rocket-propelled grenades on September 22, NATO aircraft responded by striking a Serb tank inside the Sarajevo exclusion zone. In response to attacks on the Bihac safe area by Serb fighters from the Ubdina airfield in the Serb-held Krajina region of Croatia, NATO aircraft, on November 21, conducted air strikes against that airfield. In retaliation for surface-to-air missile attacks on Alliance aircraft, NATO warplanes, on November 23, carried our air strikes against Serb surface-to-air missile sites around Bosanka Krupa and Otoka in north-western Bosnia and in the vicinity of Dvor, a town near Bihac, also in northwestern Bosnia.

In spite of the NATO airstrikes and their success in significantly damaging Bosnian Serb forces and, on occasion, inducing them to back down, the Bosnian Serb Army continued to (1) target for attack NATO aircraft as well as UNPROFOR vehicles and personnel, (2) interdict humanitarian assistance convoys, and (3) violate the U.N. resolutions relating to safe areas and heavy weapons exclusion zones. Moreover, the Bosnian Serbs, during late 1994 and early 1995, greatly escalated the war they were waging against the Bosnian Croats and Muslims.

In the meantime, the foregoing developments were prompting and shaping further NATO military decisionmaking and planning, as regards application of NATO air power in the Bosnian conflict. At meetings of the North Atlantic Council held during October, November, and December of 1994, the Council arrived at decisions which increased the authority of NATO forces to deal with Serb threats to Alliance aircraft as well as with their attacks on U.N. safe areas. On the basis of these decisions, two operational plans were formulated--"Operation Dead Eye" and "Operation Deliberate Force."

NATO's Operation Dead Eye was a plan to destroy the Soviet-style air defense network the Serbian military had developed for Bosnian Serb use. The plan was designed to reduce the risk to NATO aircraft flying in Bosnian airspace. Bosnian Serb positions and facilities targeted by Operation Dead Eye were (1) principal air defense communications links, (2) air defense command and control installations, (3) early warning radar placements, and (4) surface-to-air missile positions and support facilities.

NATO's Operation Deliberate Force was an air attack plan designed to diminish the ability of the Bosnian Serb Army to threaten or attack UNPROFOR and the safe areas. The plan targeted (1) forces in the field and their heavy weapons, (2) command and control installations, (3) key military support systems and structures, and (4) communications lines and other infrastructure supporting and facilitating military operations.