The Kosovo Intervention: Legal Analysis and a More Persuasive Paradigm

Abstract

NATO’s action within the territory of the Federal Republic of Yugoslavia (FRY) in 1999 continues to pose significant and as yet largely unanswered questions to the international legal community with regard to the normative value of existing international law and institutions governing the area of international use of force. This article examines the actions of NATO against the backdrop of traditionally held and arguably evolving interpretations of international law in this supremely important area and concludes that, while some, including Professor Michael Reisman, have argued to the contrary, NATO’s actions in the FRY in the spring of 1999 were both presently illegal and prudentially unsound as prospective steps in the evolution of customary international law. The article argues that, instead of working towards the creation of a new custom-based legal order to cover such humanitarian necessity interventions, proponents of the same should rather expend greater energy, and endeavour to achieve more substantial commitment of resources, in efforts to work within the established legal order, with the United Nations Security Council as the governing body thereof. It argues further that, with simple and easily accomplished changes to the procedures of the Security Council, such persuasive efforts will be more likely to bear productive fruit than they have hitherto been.