ABSTRACT
The NATO intervention in Kosovo in 1999 constituted a turning point for the evolution of the international system in the post-Cold War period. First, it was the first time in recent years that a number of states decided to launch a military intervention against another state not for self-defense or preemptive purposes, but for humanitarian reasons. The intervention thus posed a direct challenge to the modern principle of sovereignty, and in so doing it prompted renewed calls for a reassessment of the normative underpinnings of the international order. Second, the crisis exerted a pull on all major powers (the United States, the European Union, Russia, and even China), thus raising the stakes of the intervention to dangerous levels. Third, the legitimacy of intervention remained clouded by ambiguity, largely because of the tensions between the legal and the moral aspects of the use of force. This chapter will argue that the legitimacy of the NATO intervention cannot by fully grasped through a legal or moral approach, but only from a deliberative perspective. From a legal angle, the UN Security Council adopted three important resolutions for dealing with the Kosovo situation in accordance with the provisions laid out in Chapter VII of the UN Charter, but none of them authorized the use of force by an outside entity, nor did they include any reference to the threat of using force against the Federal Republic of Yugoslavia (FRY). From a moral perspective, the just war criteria of right intention, likelihood of success, and last resort provide good support for the legitimacy of the intervention, but the validity of the criteria of just cause, legitimate authority, and proportionality is weakened, to varying degrees, by certain ambiguities. A deliberative approach can break the descriptiveprescriptive stalemate between legal and moral legitimacy by focusing on the manner in which the decision to use force against the FRY was taken. Thus, a deliberative analysis concludes that the Kosovo intervention was ultimately decided legitimately since the accuracy of the justifications and the interest in argumentative reasoning of the supporters of the intervention were both strong, while the formal framework of debate was moderately inclusive and transparent. The chapter will be divided into four sections. The first will present a brief historical background of the conflict by examining the specific actions
responsible for the escalation of tensions, both domestically and internationally, in the run-up to the NATO intervention. The second section will apply a just war framework to the case study and discuss the validity of jus ad bellum criteria relative to the NATO decision to use force against the FRY. The third section will assess the legitimacy of the intervention from a legal perspective by examining the legal arguments on the basis of which the UN Security Council debated the matter, as well as the extent to which the legal justifications invoked in support of or against the intervention subscribed to the UN Charter and international customary law. The fourth section will use a deliberative approach to analyze the manner in which the members of the UN Security Council reached their decisions concerning the Kosovo crisis.
