Kosovo: Legality Versus Legitimacy

These issues reached a boiling point over the controversy generated by the 1999 war in Kosovo. Working within a NATO framework, the United States organized a regional response to mounting evidence of a credible threat of ethnic cleansing by Serbia in Kosovo. The governmental sponsors of the invasion avoided seeking approval in the UN Security Council, foreseeing vetoes by Russia and China. This was a clear case of non-defensive force without UN authorization, and thus was in violation of international law. Yet the intervention was urgently needed in Kosovo to avoid reproducing the human tragedy that had occurred a few years earlier in Bosnia. The dilemma between legality and legitimacy was highlighted by the 1995 massacre of several thousand Muslim men at Srebrenica. UN peacekeepers looked on as spectators, grotesquely respecting their pledge of impartiality rather than responding to the elementary dictates of humanity. After the Kosovo War, the Swedish Government appointed the Independent International Commission on Kosovo in consultation with the UN Secretary General to evaluate the precedent that was created. In its report, it concluded that the intervention was “legitimate, but illegal.” It was legitimate because the evidence supported the claim of a humanitarian emergency. The results from the use of force did prudently improve the future prospects of 90 percent or more of the Kosovar population for a peaceful and humane life. It was illegal because there was no way to reconcile such a use of force with international law and the UN Charter. The Commission enumerated a series of guidelines to give support to its sense of legitimacy, including adherence to international humanitarian law governing the conduct of such an operation and reliance on force as a last resort. Although these guidelines were not phrased as such, they can be best understood as a rewriting of just war thinking to fit the beneficial actuality of humanitarian intervention in the contemporary world, while at the same time providing a framework that would restrict the use of force as much as possible.

The Kosovo Commission also acknowledged that this gap between legality and legitimacy was not desirable. Some advocates of the intervention had agreed either with Thomas Franck that it was preferable to violate international law for principled reasons or with Michael Glennon that international law governing the use of force was obsolete beyond repair, given these pressures in favor of humanitarian intervention. Glennon’s widely discussed alternative was to entrust such interventions to “coalitions of the willing,” which would seem to give a green light to the geopolitical powers to use force whenever their interests so decreed. The Commission rejected such proposed adjustments, arguing instead for legal reform to the extent attainable, especially within the setting of the United Nations. The recommended reforms were either a voluntary or mandatory suspension of the veto in humanitarian emergencies, or a UN Security Council or General Assembly directive allowing uses of force to protect human rights in circumstances that involve a humanitarian emergency. However, there remains a distinct break between states favoring this sort of limited interventionary option, both within and outside the United Nations, and those insisting on stricter adherence to the letter of the law.

A second attempt to bridge this chasm between beneficial policy and war prevention resulted from the efforts of a second international initiative, the International Commission on Intervention and State Sovereignty. Its report, The Responsibility to Protect, made a distinct effort to overcome the harshness of the Kosovo debate by substituting the language of “responsibility” for that of “intervention.” In such a shift, the locus of decision-making becomes the international community rather than the state that is the target for intervention under certain conditions. The international community then has a responsibility to protect vulnerable peoples facing tragedy. Making ties between international law and just war thinking, the commission report tried to restrict interventionary uses of force by identifying, as narrowly as possible, “just causes” for military intervention to two broad instances: “large scale loss of life, actual or apprehended, with genocidal intent or not, which is the product of deliberate state action, or state neglect or inability to act, or a failed state situation; or large scale ‘ethnic cleansing,’ actual or apprehended, whether carried out by killing, forced expulsion, acts of terror or rape.” This responsibility approach leaves much room for subjective interpretation of whether a particular case warrants intervention or not. Such discretion is unavoidable, but it makes the credibility of the process depend more heavily on the trustworthiness of the procedures of inquiry, and suggests the importance of minimizing the role of geopolitics.

Just War and Neo-Interventionism

The preoccupations of the 1990s have been superseded by controversial uses of force since September 11, 2001. The relevance or obsolescence of international law has become a matter of intense controversy, and relates to whether the just war framework provides a solution for those who seek to bring principled discussion to the debate. There is no doubt that the central conflict between the Al Qaeda network of political extremists is potentially situated everywhere at the same time without a definitive territorial locus. But the United States, the pre-eminent state that has declared the entire world as a battlefield, makes it difficult to conceive of international law as providing regulatory guidance. A conflict between a transnational network and a global state involves a new kind of war waged between non-territorial actors, whereas international law emerged in the modern world to regulate relations of war and peace among sovereign states. In this setting, the more flexible notion of permissible use of force associated with just war thinking seems attractive, and was relied upon by a group of prominent, conservative intellectuals to express their support for US President George W. Bush’s line of response to September 11, 2001. They sought to place the attack within a broader moral, cultural, and humanistic framework. This endorsement provides an over-generalized mandate for neglecting prior restraints without making a convincing case for principled departures relative to an expanded notion of “defensive necessity” as compared to what is authorized by international law. At first the expansion seemed fully justified in relation to the war in Afghanistan, which merged arguments associated with the need to destroy the Al Qaeda headquarters and training center with the 1990s rationale for humanitarian intervention without an explicit UN mandate. The political language of the twenty-first century emphasized “regime change,” but the justification strongly stressed the abysmal human rights record of the Taliban regime as grounds for disregarding its sovereign status. In this instance, the fact that only three states accorded diplomatic recognition to the Taliban, two of whom broke relations after September 11, added weight to the view that intervention was justified, or in the earlier language, at least “legitimate,” and possibly “legal.” The question of legality revolved around whether international law governing self-defense could be stretched to fit the new circumstances of defensive necessity. There was some incoherence with respect to the rationale, hovering indistinctly between claims associated with security and those arising from humanitarian emergencies.