Armed Intervention and the Case of Kosovo
New Elements for the Construction of a New International Order
Abstract
The passionate debate around the international lawfulness of NATO’s intervention in Kosovo obscured for some time its potential as a case susceptible of contributing towards the reconstruction of International Law. The article begins with an overview of the traditional trend of legal positivism, as opposed to the more recent school sustaining the merger of International Law and International Relations. Whereas the first is criticised for its lack of flexibility and inability to adequately reflect upon innovative or unexpected solutions appearing in the international arena, the second involves the risk of losing sight of the relative autonomy of international legal reasoning. A search for the normative signs of international practise is therefore recommended. The second part addresses the so-called “institutional question” concerning the reshaping of the relationship between the United Nations and Regional organisms, namely NATO, for the purposes of ensuring international peace and security. Even though it acknowledges the difficulties in organising a rigid taxonomy of armed interventions, it proposes and examines 9 types of operations, according to the UN’s degree of involvement, the kind of control exercised by the later upon the operation in the field, the accountability of its agents and the balance of competences with the other protagonists. NATO’s intervention in Kosovo, the article argues, may constitute a new, 10th type, the specificity of which consists in a new balance between the World Organisation and other international entities, possibly more efficient, at least in the first operational moment of the intervention. Finally, the article ends up with a discussion on the substantial issue of humanitarian intervention, in general, identifying a set of legal and de facto conditions for its possible lawful occurrence in International Law. The demand that such pre-requisites be observed finds its justification in the need to preserve the (core of the) cardinal principle of prohibition of the use of force while simultaneously encompassing the new significance it may have acquired in the light of the contemporary concern for a better protection of all human beings.
