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Copyright (c) 2001 Georgetown Law Journal
Georgetown Law Journal

NOTE: The Conflict in Kosovo: A Constitutional War?

July, 2001

89 Geo. L.J. 2351


Michael Hahn*



On March 24, 1999, President Clinton ordered air strikes against the Federal Republic of Yugoslavia (FRY) 1 after that nation's repression of Albanian Kosovars reached alarmingly high levels. The immediate catalyst of the U.S.-led North Atlantic Treaty Organization (NATO) mission was Yugoslav President Slobodan Milosevic's refusal to accept Western-backed settlement proposals, as well as his failure to keep Serbian police and paramilitary forces within previously agreed upon limits. 2 The air war lasted until June 10, 1999, at which time President Milosevic agreed to remove his forces from Kosovo and accept a NATO-led peacekeeping operation. 3 The United States obtained a "victory" in Operation Allied Force, but this fact obscures a vital issue: Was the President authorized to conduct an eleven-week air war against the FRY?

In order to answer this question, this Note first examines the constitutional framework relating to war powers. 4 Part I explores whether the Constitution requires congressional approval before the President initiates a military action. This question is debated at length among constitutional scholars and foreign affairs experts. On one hand, pro-Executive scholars generally argue that the President does not need prior approval to initiate hostilities. On the other hand, pro-Congress scholars generally argue that congressional approval is a necessary predicate for offensive military action taken by the executive branch--at least when military action rises to the level of "war." 5 They also contend that the commencement of lower level hostilities must be approved by Congress. Part I concludes that ...
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