7 UCLA J. Int'l L. & For. Aff.

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Copyright (c) 2002 Regents of the University of California
UCLA Journal of International Law and Foreign Affairs
Spring / Summer, 2002
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ARTICLE: CLOSING
THE
GAP BETWEEN LEGITIMACY
AND
LEGALITY
OF
HUMANITARIAN INTERVENTION: LESSONS FROM EAST TIMOR AND KOSOVO
NAME: Tania

Voon*

BIO: * W.M. Tapp Scholar, Gonville & Caius College, University of Cambridge, U.K.
Solicitor, Australia. LL.M. (Harv.); LL.B. (Hons) (Melb.); B.Sc. (Melb.); A.Mus.A. I
submitted an earlier version of this article as part of my LL.M. studies, in which I was
generously supported by the Australian Federation of University Women (Queensland
and Victorian branches), the Foundation for Young Australians, the International Chapter
P.E.O. Sisterhood, and Mallesons Stephen Jaques. I would like to thank Professor AnneMarie Slaughter for her valuable guidance and support in writing this article.
LEXISNEXIS
SUMMARY:
... ) Security Council reaches a deadlock due to member states' political or financial
interests in the region and refuses to authorize humanitarian intervention. ... The
fact that Australia and the U.N. delayed the intervention until Indonesia consented also
reaffirms the distinction between legitimacy and legality of humanitarian
intervention. ... Inconsistency is therefore likely to reduce thelegitimacy of
a humanitarian intervention significantly only where it confirms existing suspicions
about illegitimate motives of the intervening party to an extent that overrides the
positivehumanitarian effects of the intervention. ... An intervening party's compliance
or non-compliance with international humanitarian law in conducting a humanitarian
intervention may affect the perceived legitimacy of the intervention. ... The
conclusion of a formal agreement or decision-making process between the intervening
party, target and, preferably, the victims of human rights violations, will often bring
symbolic legitimacy and finality to a humanitarian intervention. ... This limited
review of the two instances of humanitarian intervention in Kosovo and East
Timorhas revealed that the most important factor in determining legitimacy of the
decision to intervene is the rights and lives at stake in the target area. ...
TEXT:
[*32]
Introduction
A rogue state slaughters its own people for months, ignoring diplomatic pleas and trade

sanctions. The United Nations (U.N.) Security Council reaches a deadlock due to
member states' political or financial interests in the region and refuses to
authorize humanitarian intervention. While most states [*33] stand by to see what
happens, one state sends in ground troops to stop the killing. Which response is legal?
Which is right? What factors should guide a state in deciding whether or not to
intervene? Given the complexity of real-life interventions, would-be intervening states
and observers may find it extremely difficult to answer these questions. The dramatic
events of 1999 in Kosovo and East Timor highlight a pressing need to reflect on the
academic and popular debate on the practice of humanitarian intervention. The
Independent
International
Commission
on Kosovo (Independent
Commission)
determined
that
the
North
Atlantic
Treaty
Organization's
(NATO)
military intervention in the Federal Republic of Yugoslavia (F.R.Y.) was unlawful
because it involved the use of force in contravention of the U.N. Charter and without
authorization from the U.N. Security Council. 1 However, the Independent Commission
nevertheless considered the intervention to be legitimate for other reasons, and called
for reforms to "address the growing gap betweenlegality and legitimacy that always
arises in cases of humanitarian intervention." 2 This call for reform underscores the
need to examine state practice and public reactions to such practice with a view to
determining what makes humanitarian intervention legitimate even when it is
unlawful,
and
vice
versa. 3
The legitimacy of a given intervention, for the purposes of this article, derives from a
perception among states and their populations that it is justified, regardless of its legal
footing. Of course, it is difficult to achieve consensus on whether humanitarian
intervention is ever legitimate. Lawyers, political scientists, journalists, diplomats and
others
express
views
that
range
from
supportinghumanitarian
intervention everywhere, to rejecting it everywhere, making it almost impossible to
draw common principles from the literature. However, if we accept that in at least some
circumstances humanitarian intervention is legitimate, it becomes necessary to
establish some criteria of legitimacy. By assessing international reactions to
the interventions in Kosovo and East Timor, I attempt to develop a framework for
assessing the [*34] legitimacy of humanitarian interventions, and eventually for
reworking international law to bring legality in line with notions oflegitimacy.
While my analysis is largely restricted to the events in Kosovo and East Timor, it
should nevertheless provide a starting point for defining criteria for evaluating
the legitimacy of humanitarian intervention. The situations in Kosovo and East
Timor represent interesting combinations of the variables that may be present in
any intervention. In East Timor, the intervention was carried out within the U.N.
framework, led by a small country with limited international clout. At least one of the
parties involved consented to the intervention, which focused on a democratic
resolution of the conflict. In Kosovo, by contrast, the invention was conducted without
Security Council authorization by a large country with a dominant role in world political,
commercial and financial affairs, and involved massive and prolonged bombing of a
resistant
state.
I begin this article (see Part 2) by establishing a working definition of "humanitarian
intervention."
I
then
address
some
of
the
legal
issues
surrounding
international humanitarian intervention(see Part 3). I provide a brief history

of humanitarian intervention, to give the reader some context for assessing

the interventions in Kosovo and East Timor (see Part 4). After outlining the basic
circumstances
surrounding
these interventions (see
Part
5),
I
consider
the gap revealed between legitimacy and legality in each case (see Part 6). Finally, I
focus on the various factors that enhanced or diminished the legitimacy of these
interventions at three distinct stages: (a) the original decision to intervene, (b) the
conduct of the intervention, and (c) the outcome of theintervention (see Part 7).
I.

Defining Humanitarian

Intervention

"Humanitarian intervention" has a multiplicity of meanings. Sean Murphy uses the

following working definition of humanitarian
intervention:
"Humanitarian
intervention is the threat or use of force by a state, group of states, or international
organization primarily for the purpose of protecting the nationals of the target state from
widespread
deprivations
of
internationally
recognized
human
rights." 4
In this section I set forth the narrow definition of humanitarian intervention that
forms the basis for this article. The term "intervention," in ordinary language, suggests
an interference in the affairs of another. In the international context, a state could be
regarded as interfering in the affairs of another state by waging war, imposing trade
sanctions, or even delivering [*35] medical or food aid. 5 For the purposes of this
article, the term intervention is restricted to interference in the activities of another
state through military force. Similarly, while the threat of such force could itself
constitute interference, I define intervention to mean actual use of force rather than
threatened use of force. By using the word intervention, I do not intend to suggest
that the action is lawful or unlawful, although as a matter of classical international law
"intervention"
might
imply
unlawful
action. 6
While it might seem counterintuitive that intervention could arise with the consent of
the target state (and many take the view that it cannot), 7 I will posit that consent is not
determinative of whether given actions constitute humanitarian intervention. This is
because the complexities in determining sovereignty and the increasingly active role
played by non-governmental groups often mean that a government purporting to offer
consent does not truly represent all people or groups in the affected area, or lacks the
legal authority to consent to intervention. 8 At the extreme, a "state of complete
anarchy" may render it impossible, or at least impracticable, to seek the consent of any
authoritative body. 9 For example, the complete collapse of governmental order in
Somalia in 1992 made it difficult to determine who might validly authorize
international intervention. 10 In addition, government consent might be given as a
result of collective coercion by other states, or as "a face-saving formality for [a]
government which had failed to maintain within its territory the minimum conditions of
human rights." 11 Accordingly, I regard the issue of consent as relevant to whether or
not a particular instance of humanitarian intervention is lawful or legitimate, but not
relevant to whether it can be called a "humanitarian intervention" in the first place.
[*36] The motivation for a humanitarian intervention, in my definition, is to halt or
prevent severe and sustained human rights violations or violations of humanitarian law
in the target state. 12How can an observer probe the mind of the intervening party to
determine whether this is the motivation? Specifically, one must determine whether the

relevant reasons are those that the intervening state or organization declares, or those
that actually motivate the intervening party, even if not expressed. Frequently, a party
will "market" one or more reasons while leaving others unspoken. The problem is that
national
political,
economic
or
military
interests
may
overshadow
or
distort humanitarian incentives
for
pursuing
military
action. 13
For the purposes of this article, "humanitarian intervention" includes
those interventions whose
immediate
declared
goal
is
to
alleviate
or
prevent humanitarian suffering even though there may be an unrelated underlying
motive for intervening. This approach avoids the difficulties associated with
distinguishing real from declared motives at the definitional stage and allows such issues
to be examined in the analysis of particular instances of humanitarian
intervention. Thus, I use "humanitarian intervention" here as a convenient label
that is not intended to have any normative implications, for example as to whether
the intervention is genuinely humanitarian. On the other hand, the true motives of
the intervening state in a so-called humanitarian intervention are likely to be relevant
in
determining
whether
the intervention was
legitimate.
II. Humanitarian
A.

Intervention Under

Prohibition

on

the

International
Use

of

Law
Force

Article 2, paragraph 4 of the U.N. Charter prohibits members from threatening or using
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the purposes of the U.N.. According to the International
Court of Justice (I.C.J.), this rule has become a part of customary international law and
therefore applies not only to U.N. member states, but also to all other states. 14 The
principal purpose of the U.N., as set out in Article 1 of the Charter, is "to maintain
international [*37] peace and security," such that a breach of the peace through the
use of force against another state may itself be contrary to the purposes of the U.N. On
that view, military intervention constitutes valid conduct under international law only in
three circumstances: action taken or authorized by the U.N. under Articles 39-41;
individual or collective self-defense under Article 51; and action of regional organizations
authorized by the Security Council under Article 53 of the Charter. This prohibition on
the use of force reflects the general principle of state sovereignty, and the corresponding
principle of non-intervention, recognized in Article 2(1) of the Charter. 15
B.
1.

Permissible

Use
U.N.

of

Force
Action

Article 2, paragraph 7 of the U.N. Charter provides that nothing in the Charter
authorizes the U.N. "to intervene in matters which are essentially within the domestic
jurisdiction of any state" subject to Chapter VII. Chapter VII, Article 39 assigns to the
Security Council the role of determining "the existence of any threat to the peace,
breach of the peace, or act of aggression" and recommending or deciding measures to
be taken to "maintain or restore international peace and security." Where non-forceful
means are inadequate, 16 the Security Council may, under Article 42, "take such action
by air, sea, or land forces as may be necessary" to achieve that goal, including

demonstrations, blockade and other operations by the forces of U.N. members. This
provision relies on the limited obligations of member states under Article 43 to make
available their armed forces for the purpose of maintaining international peace and
security. Under Article 40, the Security Council may also call upon the parties concerned
to comply with such provisional measures as it deems necessary or desirable to "prevent
an aggravation of the situation" pending decisions or recommendations under Article 39.
The U.N.'s ability to take enforcement action under Chapter VII is limited in several
respects. First, member states are not required to assist the Security Council in taking
action, unless an agreement negotiated between the Security Council and the member
so specifies. Second, in order for the [*38] U.N. to take forceful measures, the
situation must constitute a "threat to the peace, breach of the peace, or act of
aggression," and the Security Council must determine that the relevant parties cannot
peacefully resolve the situation. This requirement imposes a general threshold for the
use of force under U.N. sanction. Although the threshold is couched in terms of "the
peace" rather than "international peace," it is generally understood that international
rather than domestic peace must be threatened or breached. 17 A broader interpretation
would
run
afoul
of
Article
2,
paragraph
7
of
the
U.N.
Charter.
The Security Council has some flexibility in assessing what constitutes a threat to or
breach of the peace or an act of aggression. Since the inception of the Charter, the
notion of what constitutes a threat to peace has expanded. Human rights violations that
were once regarded as domestic affairs are now more likely to be viewed as threats to
global peace, due in part to post-Cold War experiences with such violations resulting in
domestic strife, regional instability and refugee crises in neighboring states. 18 Apart
from such transboundary effects, the willingness of the U.N. to intervene in
domestic humanitarian crises stems from the development of international human
rights law. 19 The change reflects a new and broader conception of intervention that
focuses less on the international effects of a crisis and more on the human rights
violations themselves. Such violations will not necessarily be accompanied by the
dislocation of peoples or other destabilizing effects that traditionally attend a threat to
international peace. However noble this change may be, an ever-widening gap between
the words of Article 39 and the actions of the Security Council may undermine
the legitimacy of
that
body 20 and
the
U.N.
as
a
whole.
2.

Authorized

Action

by

States

Although the Security Council may not generally order a state to take military action
under Article 39 or 42, it may authorize a state to do so pursuant [*39] to those
Articles. If the Security Council authorizes such action, the target state cannot lawfully
retaliate in self-defense or claim reparations. 21 Authorization of humanitarian action is
subject to the same set of requirements that govern U.N. action. 22
3.

Authorized

Action

by

Regional

Organizations

Article 53 of the U.N. Charter specifically allows for "regional arrangements or agencies"
to take enforcement action, including military action, with the authorization of the
Security Council. Article 52, paragraph 2, contemplates regional arrangements in the
form of intergovernmental organizations, composed of U.N. member states. Such

organizations may deal with "matters relating to the maintenance of international peace
and security as are appropriate for regional action," provided that they and their
activities are consistent with U.N. purposes and principles. Thus, they must attempt to
resolve local disputes peacefully before referring them to the Security Council. 23 In
addition, regional organizations must inform the Security Council of actions taken or
contemplated for the maintenance of international peace and security. 24 These
provisions would arguably justify humanitarian intervention only in circumstances
where a humanitarian crisis actually threatens international peace and security. This
restricts the ability of regional organizations to engage in humanitarian
intervention under the Charter in a manner similar to the restrictions on Security
Council action. 25 In addition, an originalist view of the U.N. Charter suggests that the
framers did not intend regional organizations to play a major role in maintaining peace
and security (orhumanitarian intervention), since almost all regional organizations
were
established
after
the
adoption
of
the
Charter. 26
4.

Self-Defense

The U.N. Charter recognizes a specific right of self-defense, analogous to the common
provisions in domestic criminal laws for self-defense of individuals. 27 Article 51 of the
U.N. Charter preserves the "inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the U.N., until the Security Council has taken
measures necessary to maintain [*40] international peace and security." 28 Such
measures are subject to certain qualifications: they must be immediately reported to the
Security Council, and they do not affect the authority of the Security Council to take
such action as it deems necessary to maintain or restore international peace and
security. The Article also contains the implicit restrictions that a state can take only
temporary action pending a resolution of the matter by the Security Council, and can do
so only after an armed attack has actually occurred. The boundaries of these restrictions
are debatable. For example, some argue that Article 51 encompasses a right of
preventive or anticipatory self-defense, at least where armed attack is imminent and
diplomatic channels have failed. 29 The I.C.J. has also interpreted the right of selfdefense to be limited to responses that are immediate, necessary and proportional to
the
original
attack. 30
The issue of collective self-defense is particularly relevant to the notion
of humanitarian intervention. It is unclear from the plain words of Article 51 whether
the right of collective self-defense means that U.N. member states may use force to
repel an armed attack against a third member state. Arguably, an action in defense of
another falls outside the principle of self-defense, or is legitimate only at the request of
the attacked state, 31 or at least with that state's consent. Therefore, at least some
cases of humanitarian intervention cannot be justified as collective self-defense.
Moreover, the Charter contemplates armed attacks between states, rather than within
states. Like traditional armed attacks, grave and widespread human rights violations
threaten international peace and security. However, for humanitarian intervention to
be justified under Article 51, the reference to "armed attack" would have to be
interpreted very broadly, and could undermine the principles of sovereignty and nonintervention forming the basis of the prohibition in Article 2(7): "Such an expansive
view of self-defense <elip> might <elip> be used to justify a wide range of coercive
behaviors by states and ultimately eviscerate virtually all normative restraints on the

use
C.

of
Developing

a Humanitarian Basis

force."
for

32

Unilateral Intervention

On a strict reading of the U.N. Charter, the unilateral or multilateral use of force to
prevent or halt human rights violations in a target state without [*41] Security Council
authorization is contrary to international law. 33 However, this is a complex and
controversial issue on which views have evolved over time, corresponding with the
actual practice of humanitarian intervention. It should be noted that humanitarian
intervention involving the consent of the target state is unlikely to constitute using
force in breach of Article 2(4) or intervening in breach of Article 2(7). Where the target
state consents (although this may be difficult to determine), the intervening state or
organization is acting consistently with the target state's political independence, while
respecting its territorial integrity and domestic jurisdiction. Put another way, consent is
likely to bring the intervention within the purposes of the U.N. such that it raises few
problems
of
international
law. 34
An argument could be made that humanitarian intervention in the absence of
consent falls outside Article 2(4) and therefore need not be justified as self-defense or
by U.N. authorization. The argument would be that humanitarian intervention does
not involve the use of force "against the territorial integrity or political independence" of
the target state, but rather the use of force to enhance such integrity and independence
by ensuring respect for human rights. 35 Such a reading might be buttressed by the
reference in the U.N.'s purposes to "human rights and <elip> fundamental freedoms for
all without distinction as to race, sex, language, or religion." 36 In addition, several
provisions in the U.N. Charter require respect for human rights. 37 However, the Charter
contains no express right to enforce these provisions by the use of force. In light of the
prohibitions in Articles 2(4) and 2(7), the argument is difficult to sustain. Indeed, one
commentator suggests that "it is not possible to construct a persuasive argument to
legitimize the [unilateral] use of force for humanitarian purposes while remaining
within the idiom of classical international [*42] law." 38 Nor can one validly claim that
the
Security
Council
provides
implicit
authorization
of humanitarian
intervention through
silence
or
omission. 39
Moral considerations arise in the context of humanitarian intervention quite apart
from the issue of legality. In particular, if a state's claim to sovereignty rests on the will
of its people, that claim may be lost where the state ceases to represent and respect the
human rights of the people. 40 In some circumstances, then, the international
community or individual states may have a moral duty to intervene, and individuals
facing human rights violations as well as individuals in stronger states may condemn a
failure to do so. 41 The most grievous situations, and those where public concern will be
most intense, are where a government, civilian or militia group commits genocide
against a minority group within the same state or engages in systematic violations of
fundamental human rights. The Security Council may be an inappropriate vehicle
for intervention in some such circumstances, for example due to delays in decisionmaking, political barriers or lack of military resources. 42 The difficulty in such situations
lies in determining how bad the violations need to be in order to justify
an intervention, 43 and
in
maintaining
a
consistent
response
to
different humanitarian crises throughout the world. The development of jus cogens

crimes, or universally recognized crimes [*43] against humanity, may be insufficient

to guide would-be intervening parties in overcoming this difficulty, because factors other
than the type and scope of the violations also affect the legitimacy of a
proposed intervention, as
will
be
discussed
in
Part
7(a)
below.
The notion that consensus may be emerging on a norm of justified humanitarian
intervention in internal crises, despite the principle of non-intervention enshrined in
the U.N. Charter, is not new. 44However, a norm of justified humanitarian
intervention has recently begun to resolve itself more clearly. This development may
derive from increased recognition of fundamental human rights under international law,
the attendant conception of individuals as legal persons 45 as well as the specific case
of Kosovo.
III.

History

of Humanitarian

Intervention

To
provide
some
historical
context
in
which
to
examine
the
recent interventions in East Timor and Kosovo, I offer no more than a very brief
overview of humanitarian intervention's historical foundations. In Humanitarian
Intervention: The United Nations in an Evolving World Order, Sean Murphy provides an
in-depth examination of major incidents of humanitarian intervention before, during
and after the Cold War. 46 Before the U.N. Charter was established in 1945, a rather
patchy form of a doctrine of humanitarian intervention developed in the 19th
Century. 47 During this period, a sovereign state had liberty to declare war on another
state, but if it failed to do so, it could attack only on "vaguely defined grounds of
justification." 48 The Russian intervention in Bosnia, Herzegovina and Bulgaria in 187778 49 and the intervention of the United States in Cuba in 1898 50 demonstrate the
difficulties of determining whether the motives of the intervening state are genuinely
and
predominantly humanitarian.
Russia
claimed humanitarian grounds
for
its [*44] intervention in the region, but Britain regarded the intervention as a
"power grab." 51 Similarly, while the U.S. public called for intervention in Cuba
for humanitarian reasons, President McKinley articulated motivations including
concerns for the safety of American citizens, and the preservation of U.S. property,
commerce and national security. 52 In 1919, the League of Nations was formed, offering
the potential for humanitarian intervention to be conducted on a regional or
international level, rather than on a unilateral basis, with appropriate institutional
safeguards to prevent abuse. However, during this period states tended to move away
from the use of force to protect human rights or otherwise, and states purportedly
carrying out interventions for that purpose often had interests in territorial gains. 53
As of 1945, international law permitted states to intervene in another state's affairs for
purposes of self-defense or to protect such state's nationals, but did not appear to
authorize other kinds ofinterventions without prior Security Council authorization. 54 As
such, when the U.N. Charter was drafted it made no specific reference to a right
of humanitarian intervention. 55 Moreover, until the end of the Cold War in 1989, the
U.N. Security Council was virtually powerless to act in enforcing international peace and
security under the U.N. Charter because strong opposition between the permanent
members impeded consensus. 56 Perhaps as a response to this powerlessness,
commentators sometimes saw humanitarian intervention as a collective obligation.
According to this theory, the international community had an ethical obligation to

respond to human rights crises even without prior U.N. authorization or

involvement. 57 Despite such arguments, intervening [*45] states rarely justified
on humanitarian grounds those interventions that did occur, and the international
community frequently criticized military involvement in the affairs of other states. 58
The end of the Cold War in 1989 marked a turning point in the history of humanitarian
intervention. While the fall of the Berlin Wall symbolized the conclusion of East-West
"ideological competition,"59 it also facilitated the release of long-repressed religious and
social tensions. These tensions exploded into humanitarian crises in various locations
throughout the world, posing constant challenges to the traditional principle of nonintervention. 60 At the same time, the international community no longer viewed
widespread civilian persecution by particular states "through the lens of superpower
competition," 61 according to which intervention in one state would likely have
dramatic ramifications depending on that state's alliances with one or the other
superpower. The crises in which states or international organizations intervene are now
more likely to involve intra-state conflicts (for example, as in Somalia, as discussed
below) or the collapse of states, rather than inter-state conflicts. 62 The number and
complexity of conflicts has also increased. 63 In addition, the Security Council members'
greater ability to achieve consensus has meant that the U.N. has begun to play a much
larger
role
in
many interventions. 64
[*46] The most important intervention in terms of development of the doctrine
of humanitarian intervention after the Cold War was probably the deployment of
armed forces into Somalia during 1992-94. 65 The Security Council authorized the initial
U.S. intervention in 1992, although the resolution left the boundaries of
the intervention and the use of armed force unclear. 66 In any case, the
Somalia intervention was widely considered legal, signaling a significant advance in
international acceptance of a right to intervene on humanitarian grounds under the
auspices of the U.N., even in the absence of consent of the target state. 67
The media has come to play an increasingly important role in humanitarian
intervention since the end of the Cold War, both in the initial decision of whether to
intervene and in assessing the conduct of an ongoing intervention. Thus, the
development of international law that occurred with the Somalia intervention tends to
be overshadowed by the horrific images of captured and dead U.S. soldiers following the
Mogadishu battle of October 1993. 68 On one hand, the "CNN effect" might be seen in a
positive light as provoking action where "humanitarian action is languishing." 69 On the
other hand, the media may have an intensely destructive influence, dramatizing and
distorting human rights violations and military responses. It may also exacerbate
inconsistencies of treatment of individual crises by focusing on some more than others
for
irrational
or
hidden
reasons. 70
Commentators contrast the success of U.N. peace-keeping operations in Afghanistan,
Iran-Iraq, Namibia, Angola and Cambodia 71 with its difficult operations in the former
Yugoslavia, Liberia, 72Rwanda and Somalia. 73 U.N. [*47] limitations in such
operations often stem from failures to act decisively, or delays in acting, in
circumstances where the public views immediate and forceful action as an obligation. For
example, in connection with the Bosnian crisis from around 1991 to 1995, the U.N.
Security Council was criticized for taking political rather than humanitarian action or

constructing "humanitarian alibis." 74 Although the Council adopted some 100

resolutions covering a broad range of issues, 75 these resolutions were seen as
ineffective and insufficient to end thehumanitarian crisis - worse, they appeared to be
an attempt to protect the U.N.'s reputation without committing to meaningful action.
To a limited extent, the right of humanitarian intervention that crystallized during the
Somalia intervention developed into a duty when France intervened in Rwanda with
Security Council authorization in 1994. 76 France claimed it had an obligation to
intervene to stop human rights violations, 77 and many others would agree with that
claim, if only in retrospect. 78 At the time, many states, including the U.S., maintained
that there was no legal or moral duty to intervene, and refused to assist France in
the intervention or the U.N. in its peacekeeping operation. 79 However, in subsequent
years numerous individuals from various fields, as well as non-governmental
organizations and international organizations, have expressed horror at the failure of the
international community to take stronger action. 80 The growing sense that in
particularly horrendous cases there is at least a moral duty to intervene, and that nonintervention is immoral, represents a significant change from two or three decades
ago. If international law is to keep up, it must adapt to reflect such developments.
[*48]
IV.

Recent Interventions in

Focus

A. Kosovo
The F.R.Y. comprises the autonomous provinces of Kosovo and Vojvodina and the
republics of Montenegro and Serbia. The former Socialist Federal Republic of Yugoslavia
also contained Slovenia, Croatia, the Former Yugoslav Republic of Macedonia, and
Bosnia and Herzegovina, all of which became independent in the early 1990s after the
death of President Tito. The history of the Kosovoconflict is complex and
protracted. 81 Ethnic and religious tensions between Serbs and Albanians have existed
since the 14th Century, when the Turks defeated the Serbs at Kosovo, the holy place of
the Serbian nation, in 1389. The origins of the most recent ground conflict are seen in
the "new wave of nationalism" of the 1970s and 1980s, culminating in the Milosevic
government adopting a Serbian nationalist agenda and revoking Kosovo's autonomy in
1990. Kosovar Albanians, who had comprised a solid majority of the population
in Kosovo for decades, 82 mounted a peaceful strategy of resistance against antiAlbanian policies and continued to pursue independence. As Albanians working
in Kosovo were stripped of their jobs, they began developing a "parallel state," running
substantial numbers of private enterprises. The dominant political organization of the
non-violent resistance was the League for a Democratic Kosovo (L.D.K.). 83
In the early 1990s, the wars in Croatia and Bosnia distracted not only Milosevic, but also
the international community, from the mounting tension in Kosovo. Despite repeated
appeals by the L.D.K., neither individual foreign nations nor the international community
as a whole took serious steps to defuse tensions in Kosovo. In November 1995, the
Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of
Yugoslavia initialed the General Framework Agreement for Peace in Bosnia and
Herzegovina (Dayton Agreement), under which the Republic of Bosnia and Herzegovina

became the Bosnian Serb Republic and the Federation of Bosnia. The agreement,
brokered with the involvement of the "Contact Group" [*49] nations (the U.S., Britain,
France,
Germany
and
Russia),
contained
no
reference
to Kosovo. 84
To some extent, the exclusion of Kosovo from the Dayton Agreement marked the end
of the Kosovar Albanians' non-violent route to independence. With the emergence of
the Kosovo Liberation Army (K.L.A.) in the mid 1990s, 85 the situation rapidly became
more violent, with the K.L.A. apparently aiming to provoke the international community
into intervening. According to the Kosovo Report, the K.L.A. "grew out of a MarxistLeninist-Enverist party formed in the Diaspora in the early 1980s called the L.P.K.
(Levizja Popullare e Kosoves)." 86 Within two years, various non-governmental
organizations began reporting increased human rights violations by police, including
torture and extra-judicial killing of suspected K.L.A. members, L.D.K. members and
other ethnic Albanian civilians. The situation intensified into the beginnings of a war
when a K.L.A. member, Adem Jashari, was arrested and his extended family of 58 killed
in February 1998. Human Rights Watch reported a range of human rights violations
committed mainly by Serb forces and authorities but also by the K.L.A., such as killing of
civilians, arbitrary arrests, and forced disappearances. Numerous Albanian militia groups
formed to defend their villages, aligning themselves with the K.L.A. 87
Only in March 1998 did the international community become more active in responding
to the crisis. 88 The International Criminal Tribunal for the Former Yugoslavia (I.C.T.Y.)
asserted its jurisdiction over human rights violations in Kosovo, 89 and the U.N.
Security Council imposed an arms embargo on Yugoslavia. 90 In the following months,
Serb forces were involved in a growing number of human rights violations. Through July
and August, Serb forces shelled villages and attacked civilians, the K.L.A. was involved
in
violent
battles
with
Serb
forces,
and
hundreds
of
thousands
of
Kosovar [*50] Albanians were displaced, possibly as part of a Serbian strategy of
forced expulsion. In September 1998, the U.N. issued Resolution 1199, demanding a
ceasefire and declaring the events to be a threat to regional peace and security. 91 While
the parties did not immediately comply with the Resolution, it led to an October
agreement between Milosevic and U.S. Special Envoy Richard Holbrooke providing for
the withdrawal of F.R.Y. security forces and commencement of monitoring by way of
civilian
observers
and
NATO
overflights. 92
As a result of the Holbrooke agreement, Yugoslav forces withdrew from Kosovo, but
K.L.A. forces moved in to take their place. When the K.L.A. again became militarily
active, Yugoslav forces responded, and in December 1998 resumed positions
bordering Kosovo. In January 1999, the Serb Army re-entered Kosovo, and hundreds
of thousands of new refugees were driven out. In February and March, peace
negotiations arranged by the Contact Group in Rambouillet and Paris failed, 93 with the
Albanian delegation signing an interim agreement but the Serbian delegation refusing to
sign. 94
On March 24, 1999, NATO began its bombing campaign against the F.R.Y. The campaign
continued for eleven weeks, until June 9, 1999. 95 Thirteen of NATO's nineteen members
participated in the campaign, 96 which was conducted in the name of the alliance as a
whole, 97 with the U.S. supplying most of the intelligence and 65-80% of the aircraft and
precision ordnance. 98 NATO wrongly assumed that Milosevic would agree to sign the

Rambouillet agreement after a short bombing campaign, and made no

contingency [*51] plans for refugees. 99 NATO's stated justification for taking such
action was to support "the political aims of the international community: a peaceful,
multi-ethnic and democratic Kosovo in which all its people can live in security and enjoy
universal human rights and freedoms on an equal basis." 100 In other words, according
to certain NATO leaders, it acted primarily to end a humanitarian crisis. 101 However, it
is debatable whether humanitarianism was in fact the prime motivation
for intervention. Certainly, NATO had other reasons for intervening, such as preventing
destabilization in the Balkans, 102 and perhaps also less noble reasons as discussed
further
below. 103
F.R.Y. military and paramilitary forces responded to the bombing by commencing a
campaign of "ethnic cleansing." Ethnic Albanians were expelled from their homes en
masse and over 90% of the Kosovar Albanian population was displaced during the
period of NATO bombing. Around 10,000 people were killed on the ground, most of
whom were Kosovar Albanians killed by F.R.Y. forces, and rape was used as a
widespread means of terror. 104 The F.R.Y. campaign, in turn, gave new impetus to
NATO and fueled public opinion in the West. NATO bombs initially focused on military
targets, but later included other targets such as bridges, highways, media installations
and industrial plants. Particularly as a result of this latter period of bombing
infrastructure,
civilians
suffered.
In June 1999, the Serb Parliament agreed to implement a peace plan proposed by
Russia and the G7 countries, providing for the removal of F.R.Y. military, police and
paramilitary forces, for the deployment of an international force, and for the return of all
refugees. The plan did not determine the present or future juridical status
of Kosovo. 105 On June 10, a U.N. [*52] Security Council Resolution established a
U.N. civil administration and international security presence 106 in Kosovo and NATO
ceased its bombing campaign. 107 In October 2000, Milosevic resigned as President after
losing the election, and in April 2001 Serb authorities arrested him on domestic
charges. 108 The I.C.T.Y. continues to hear cases of human rights violations in
connection with Kosovo, and has indicted Milosevic and several other Serb leaders. 109
B. East

Timor

East Timor was a Portuguese colony from 1702 until 1975. In 1974, the Portuguese
government recognized East Timor's right of self-determination in accordance with
resolutions of the U.N. General Assembly issued more than ten years
earlier. 110 Portugal devised a U.N.-supported plan for transition to a new government
by election, 111 but the plan was never implemented. In August 1975, civil war broke out
in East Timor, and a few months later, the Frente Revolucionaria de Timor-Leste
Independente (Fretilin) declared East Timor an independent state. 112 In December
1975, the Indonesian Army invaded East Timor, and in July 1976, Indonesia purported
to incorporate the territory as an Indonesian province. Indonesia continued to
occupy East Timor for 25 years 113 during which time the Indonesian military engaged
in violent repression of the East Timorese, including the 1991 Dili massacre of 50-270
protestors attending the burial in the Santa Cruz cemetery of a student killed earlier by
Indonesian troops. Hundreds more were injured or simply disappeared. 114 Various nongovernmental and intergovernmental [*53] organizations recorded persistent human

rights abuses over the years.

and
sentenced
to

115

Fretilin leader Jose "Xanana" Gusmao was captured

20
years
in
prison
in
1993. 116

Beginning in 1983, Indonesia and Portugal met annually with the U.N. Secretary-General
in an effort to agree on a solution to the status of East Timor. 117 The U.N. never
recognized Indonesian sovereignty over East Timor, 118 and Australia was the only
Western democracy to offer de jure recognition of Indonesian sovereignty. It did so in
1979, 119 following its de facto recognition of Indonesian sovereignty in
1978. 120 Australian Prime Minister Bob Hawke confirmed the position in
1985. 121 Indeed, the Australian government was apparently aware of the impending
invasion by Indonesia and its desire to incorporate the territory before the 1975 invasion
took
place. 122
Australia's recognition of Indonesian sovereignty over East Timor formed the basis of
its entry into the "Timor Gap Treaty" with Indonesia in 1991, 123 under which the two
countries agreed on seabed boundaries between [*54] Australia and East Timor.
Under the treaty, Australia and Indonesia established a Zone of Cooperation for joint
exploration and exploitation of the oil and gas resources in these waters. 124 Three East
Timorese activists, including Jose Ramos Horta, challenged the legality of the treaty in
Australian courts. 125 Portugal also brought proceedings in the I.C.J. against Australia in
connection with this treaty. In 1995, the I.C.J. held that in order to determine whether
Australia had breached international law in entering the treaty, it would need to assess
Indonesia's rights and obligations and whether, in the circumstances of its occupation, it
was entitled to enter such a treaty concerning East Timorese resources. As Indonesia
had not consented to I.C.J. jurisdiction over this matter, the I.C.J. declined to hear the
case. However, it did affirm East
Timor's right to self-determination. 126
In 1998, economic and political turmoil in Indonesia intensified. President Soeharto was
reappointed in March, but by May he was forced to resign amid student rioting, antiChinese violence and the evaporation of his political backing. Vice-President B.J. Habibie
replaced him and immediately engaged in reforms including release of some political
prisoners, ratification of several international human rights treaties, and the easing of
restrictions on political parties and the media. However, violence continued in
Indonesia. 127 In August, the Indonesian and Portuguese governments agreed in U.N.
talks to work towards autonomy for East Timor. 128 In December, the Australian Prime
Minister, John Howard, wrote to President Habibie proposing a period of autonomy
for East Timor followed by a vote on self-determination. 129 [*55] Shortly thereafter,
on January 5, 1999, Howard announced Australia's recognition of the right of the East
Timorese
to
self-determination. 130
Partly as a result of the dramatic change in Australian policy, President Habibie
announced in January 1999 that the East Timorese would be given the opportunity to
vote for full "independence," or alternatively "autonomy" for East Timor under
Indonesian sovereignty. In the following months, Indonesian forces organized and
trained local militia groups in East Timor, which carried out repeated acts of violence
including massacres at Dili 131 and Liquica. 132 The attacks primarily targeted proindependence groups and individuals in East Timor, and were designed to intimidate its
people into accepting autonomy 133 while giving "the impression that the East Timorese
were fighting among themselves." 134 On May 5, Indonesia and Portugal signed an

agreement requesting the U.N. to conduct a ballot in East Timor enabling the East
Timorese to choose between autonomy and independence. 135 The U.N. was also to
monitor army and police behavior, and it established the U.N. Assistance Mission in East
Timor (U.N.A.M.E.T.) (consisting mainly of Australians) for this purpose. U.N.A.M.E.T.
also conducted local education programs on how to vote and the significance of
voting. 136 The Indonesian government was responsible for security during this
process. 137 The U.N. twice delayed the vote due to security concerns, 138 including
militia
attacks
against
U.N.A.M.E.T.
staff. 139
On August 30, 1999, despite months of violent intimidation by pro-Indonesian militia,
nearly 99% of eligible voters cast a vote, and around 78% [*56] of these people
voted for independence. A systematic "scorched earth" campaign by Indonesian militarybacked militia groups followed, resulting in the killing and forced displacement of many
East Timorese to West Timor, 140 the organized sexual abuse of women, 141 and the
destruction of towns, villages, homes and infrastructure. 142 Unlike the targeted violence
before the vote, the attacks now involved widespread vengeance. 143 Sixty to eighty
percent of public and private property throughout East Timor was damaged, including
school
buildings,
hospitals
and
public
utilities. 144
In September 1999, the Indonesian government released Xanana Gusmao, and
President Habibie consented to international assistance in controlling the
violence. 145 The Security Council then authorized the deployment of an international
force for East Timor (Interfet), led by Australia, to restore peace and security, to
protect and support U.N.A.M.E.T., and to facilitate humanitarianoperations. 146 The
force was deployed on September 20. The Indonesian troops began to withdraw
from East Timor, and rarely clashed with the international force. 147 In October, the
Indonesian Parliament ratified the August ballot, and the U.N. established a Transitional
Administration in East Timor (U.N.T.A.E.T.) with tasks including peacekeeping,
administration, humanitarian relief and development, to be carried out in close
consultation with the East Timorese. 148 The Indonesian Parliament elected a
new [*57] President, Abdurrahman Wahid, in place of Habibie, 149 and Xanana
Gusmao returned to Dili to become President of the National Council of East Timorese
Resistance
(C.N.R.T.). 150
In 2000, work continued on rebuilding the infrastructure of East Timor, led by
U.N.T.A.E.T. and the C.N.R.T. 151 Many East Timorese returned from West Timor, often
subject to abuse for alleged militia links, while various religious and ethnic minorities
were persecuted for suspected links to the Indonesian government. 152 Various bodies
had authority for investigating earlier crimes including crimes against humanity, and in
January the International Commission of Inquiry on East Timor (appointed by the U.N.
High Commissioner for Human Rights in 1999) 153 reported on the abuses of human
rights and international humanitarian law and recommended the establishment of an
international tribunal for their prosecution. 154 Kofi Annan, U.N. Secretary-General, did
not endorse that recommendation, and as of February 2002, the U.N. has not
established such a tribunal (although the Indonesian government has inaugurated its
own human rights court for this purpose). 155 The International Commission of Inquiry
concluded
that:

there were patterns of gross violations of human rights and breaches

of humanitarian law which varied over time and took the form of systematic and
widespread intimidation, humiliation and terror, destruction of property, violence against
women and displacement of people. Patterns were also found relating to the destruction
of evidence and the involvement of the Indonesian Army (TNI) and the militias in the
violations. 156

In July 2001, U.N.T.A.E.T. issued a resolution providing for the establishment of the
Commission for Reception, Truth and Reconciliation, an independent authority designed
to promote human rights and reconciliation and [*58] to investigate human rights
violations in the context of the Indonesian invasion of and subsequent struggles in East
Timor. 157 Seven National Commissioners were recently sworn in, and the Commission
is commencing its two-year operations. 158 In May 2002, U.N.T.A.E.T.'s mandate is
scheduled
to
end,
and East
Timor will
gain
independence. 159
V. Legality
A.

and

Legitimacy

Identifying

the Gap

An examination of the various responses to the interventions in Kosovo and East

Timor reveals that, on the whole, their perceived legitimacy does not rest heavily on
their legality.
Commentators in academic, popular and journalistic circles suggest that NATO's use of
force against the F.R.Y. was contrary to the U.N. Charter and international law: 160 "all
of the opposition to the war throughout the world focused on NATO's failure to abide by
the letter of the Charter." 161 While this is something of an overstatement, media outlets
worldwide did express alarm at NATO's flouting of international law and bypassing of the
Security Council. 162 Russia, China, Belarus, China, Cuba, India, and Ukraine condemned
the intervention as a violation of international law. 163 However, a [*59] Russianproposed Security Council resolution to that effect failed. 164 The F.R.Y. has brought
several claims in the I.C.J. against various NATO countries alleging, inter alia, that
NATO's resort to force violated international law. 165 However, the I.C.J. dismissed the
F.R.Y.'s claim against the U.S. for want of jurisdiction (because the U.S. had not
consented
to
such
jurisdiction). 166
Many commentators, including the Independent Commission and other key international
players and analysts, acknowledge the technical illegality of NATO's actions while
maintaining that they were "legitimate" 167 or that "mitigating circumstances" should be
taken into account in assessing the actions. 168 For example, Michael Ignatieff
acknowledges that failure to seek Security Council approval detracted from
the legitimacy of NATO's war against the F.R.Y., but appears to endorse the argument
that this failure was justified on the grounds that "urgent necessity over-rode the
requirement of formal consent." 169 Ramesh Thakur concedes that failure to obtain
Security Council authorization might not be fatal to the legitimacy of an instance
of humanitarian intervention. However, he maintains that in Kosovo "the case for

NATO strikes was not made persuasively enough to overcome the presumption of
doubt," and the inconsistencies in the decision to strike weighed against
itslegitimacy. 170 U.N. Secretary-General Kofi Annan also suggests that an absence of
Security Council authorization should not necessarily stand in the way of humanitarian
intervention, even though in Kosovo it may have detracted from the legitimacy of
the
operation:

To those for whom the greatest threat to the future of international order is the use of
force in the absence of a Security Council mandate, one [*60] might say:
leave Kosovo aside for a moment, and think about Rwanda. Imagine for one moment
that, in those dark days and hours leading up to the genocide, there had been a coalition
of states ready and willing to act in defence of the Tutsi population, but the council had
refused or delayed giving the green light. Should such a coalition then have stood idly by
while
the
horror
unfolded? 171

Nevertheless, Annan suggests that it would be far preferable for a unified Security
Council to have authorized and promoted action in Rwanda and Kosovo. 172
No overwhelming consensus emerges as to either the legality or the legitimacy of the
NATO bombing. The indeterminacy of the law feeds into the difficulty of assessing
the legitimacy of the action. However, it is clear that observers tend to separate the
issues of legality and legitimacy. In many cases, the fact that the action can be
labeled unlawful is a convenient boost for an argument against the action on other
grounds. Conversely, the fact that some doctrinal readings of international law may
point to its legality simply provides support for its perceived legitimacy. The common
notion that the intervention was unlawful but nevertheless legitimate provides the
clearest illustration of the gap between legality and legitimacy in this area.
The intervention in East Timor was widely regarded as lawful because the Security
Council authorized the establishment of Interfet and because Indonesia provided its
consent. By some accounts, the intervention was also legitimate. Media reports often
noted that the intervention in East Timor was conducted peacefully and under the
auspices of the U.N., in contrast to NATO's approach inKosovo. 173 However, other
commentators criticized the U.N., Australia, and other members of the international
community for failing to insist on providing security in the period leading up to the
August 1999 ballot, and, more importantly, after the ballot. For example, Scott Burchill
denigrates Australia and the international community for not preventing the atrocities
that were committed between the date of the ballot and the arrival of Interfet some
weeks later - in his view, there was not merely a right but a duty to intervene. 174 One
commentator claims that there [*61] were no calls in mainstream Australian media for
security for the ballot to be taken from the Indonesians, and that if there had been a
public outcry channeled through the media the security problem could have been
averted. 175 However, writing during the period of the ballot, Jose Ramos Horta, 1996
Nobel Peace laureate and vice-president of the C.N.R.T., questioned the wisdom of
leaving
security
in
the
hands
of
the
Indonesian
government:

Our people, terrorized for 23 years, are expected to vote on their future with 'protection'
provided by the very same army and gangs of criminals that have turned the country
into a hell far worse than contemporary Kosovo and apartheid South Africa. 176

Clearly, the devastating aftermath of the ballot was foreseeable, and Western
intelligence may well have revealed its likelihood. 177 Thus, the intervention in East
Timor had
diminished legitimacybecause
it
came
too
late.
The fact that Australia and the U.N. delayed the intervention until Indonesia consented
also reaffirms the distinction between legitimacy and legality of humanitarian
intervention. At least according to the general understanding of the international
community, and the U.N. position, Indonesia had no legal claim to East Timor and
therefore no legal right to authorize internationalintervention. Therefore, the
intervention could have proceeded in accordance with international law without
Indonesia's consent. Despite this, Australia and the U.N. evidently regarded Indonesia's
sovereignty claim as preventing a legitimate intervention, and so intervened only after
obtaining Indonesian consent. In contrast, NATO apparently considered that despite the
F.R.Y.'s
legal
claim
to
sovereignty
in Kosovo it
could
launch
a
legitimate intervention. 178 These examples suggest that the intervening parties
themselves
regarded legality
and
legitimacy as
two
different
things.
[*62]
B. Closing

the

Gap

Since international law alone does not appear to determine the legitimacy of a
particular intervention, it is necessary to examine what other factors might do so. This
is an important exercise, because if law remains distanced from legitimacy this will
undermine the authority of the Security Council and the role of the U.N. more generally
in keeping the peace. This undermining will occur in circumstances where the Security
Council authorizes an intervention that is not widely perceived as legitimate, or vice
versa. The gap between law and legitimacy will also exacerbate the difficulties of
individual states and regional organizations when faced with a decision whether or not to
intervene in a particular conflict. The legal consequences of an intervention are likely
uncertain, and possibly contradictory to moral and ethical judgment. Therefore, the
international
community
should
examine
the
factors
that
make
an intervention legitimate in order to articulate them by consensus and incorporate
them into international law. Such a development would put an end to the temptation to
construe a "threat to the peace" in an ever-broadening manner, and it would reduce the
chances of the international community ignoring compelling cases for humanitarian
intervention because
of
legal
uncertainty. 179
In the following section of this article, I examine various criteria that might bear on
the legitimacy of a given intervention, drawing lessons from East Timor and

Kosovo. My analysis focuses on three broad stages of intervention: (a) the original
decision to intervene; (b) the conduct of the intervention; and (c) the outcome of
the intervention. The division into these stages is important in identifying how different
factors come to play a role in determining legitimacy as the intervention progresses.
Where a state or an international organization contemplates intervening in a particular
conflict, the factors relevant to the first stage are paramount. The would-be intervening
party will also wish to take account of factors relevant to the conduct and conclusion of
the intervention in determining the likelihood of a successful intervention and
whether it can conduct the intervention in an acceptable manner given the constraints
of the particular situation. When it comes to assessing or reevaluating an
ongoing intervention, the intervening party, target, or third party observer may wish to
examine the factors leading to the decision to intervene, but the way in which the
intervening party is actually conducting the intervention will become more important.
At this stage, an initially legitimate intervention could conceivably become illegitimate,
or less legitimate. At the end of the intervention the "outcomes" can be
assessed, [*63] although this process may be ongoing since it may be some time
before all the outcomes become clear. Again, the final outcomes might reflect on
the intervention in such a way that even if most observers initially saw
the intervention as illegitimate or poorly conducted, it gains legitimacy because of its
positive
outcomes.
The
reverse
situation
might
also
possibly
arise.
In 1993, Farer listed four generally accepted substantive criteria of legitimacy of
humanitarian intervention as follows: 1) there are no plausible alternatives for
averting massive violations of fundamental human rights; 2) the violations will cause
irreparable injury; 3) the intervening party uses the minimum force necessary to
address the violations and then withdraws immediately; and 4) the intervention is
calculated to cause less damage to the target society than inaction. 180
In this article, I break down Farer's criteria to enable closer analysis of the responses to
the interventions in East Timor and Kosovo. I address Farer's criterion of irreparable
injury under the heading "Rights and Lives at Stake." I examine this factor first, because
at least from the perspective of the media it seems the most important in determining
whether to intervene in a particular case. I address Farer's criterion of absence of
plausible alternatives under the heading "Last Resort," which exposes the procedural
aspect of legitimacy. Other factors relevant to the decision to intervene relate to the
identity of the intervening party and its relationship to the target; the extraneous, nonhumanitarian interests of the intervening party in intervening; and the consistency of
the intervening party's response in previous similar crises. These factors are all
significant because the public's response to an intervention could depend as much on
what the intervening party does as on who the intervening party is and why they do it.
When the intervention is actually underway, two related factors become relevant
to legitimacy: compliance with international humanitarian law; and protecting
civilians.
As
illustrated
in
particular
by
NATO's
conduct
of
the intervention in Kosovo, these
factors
can
play
a
crucial
role
in
determining legitimacy. Finally, I examine how the humanitarian and military
outcomes of an interventionmay affect its legitimacy, as well as how longer-term
processes may influence these outcomes: resolution of the political situation,
reconciliation between disputing parties, and reconstruction of the devastated

community. Obviously, these are the most difficult factors to assess in the months and
years immediately following the intervention, and they may also turn out to be the
least important to legitimacy, if the public considers that merely halting human rights
violations
is
the
main
goal
of
the intervention.
[*64]
VI.

Legitimating

A.
1.

Decision
Rights

Factors
to

and

Lives

Intervene
at

Stake

Fernando Teson's "moral framework for humanitarian intervention" premises

legitimate intervention on the existence of human rights violations reaching a certain
quantitative and qualitative level; specifically, there must be extensive violations of
basic civil and political rights. 181 In terms of the quality of the rights to be protected,
violations of a peremptory or jus cogens norm are more likely to
justify intervention, regardless of whether the target state has implicitly or explicitly
accepted the norm. 182 Thus, violations of prohibitions on genocide, torture and
slavery 183 more easily trigger international concerns than do less established human
rights
norms.
The international community and individual states may find it difficult to assess
objectively the kind and extent of rights violations in any particular crisis. In practice,
public opinion in a state that could intervene will often mandate intervention. If the
international media exposes and focuses on human rights violations in a particular area,
there is likely to be a public outcry for governments to "do something." The public will
often see a failure to intervene militarily as equivalent to inaction, even if governments
pursue
vigorous
negotiation
or
non-military
tactics.
Various commentators alleged that Serb and Indonesian forces and militia groups
committed genocide in both East Timor and Kosovo. In East Timor, reports suggest
that the Indonesian occupiers committed genocide in contributing to the deaths of at
least a third of the population (200,000 people). 184 In contrast, while many media
reports on Kosovo used the word "genocide," some critics argue that the Serb
treatment of Kosovar Albanians was nothing of the sort. While killings occurred, both
sides were responsible for the violence, which in any case barely amounted to the status
of "atrocity" [*65] compared to ongoing violence in other parts of the
world. 185 Before the bombing began, the records showed "only" around 2,000
casualties. 186 Yet in both cases the public clamored for their governments and the U.N.
to do something to end the violence. This may suggest that where oppressors attack or
kill ordinary people arbitrarily, the mere quality of the human rights violations will be
sufficient to mobilize public support for intervention. The number of dead or injured
may be fairly meaningless or incomprehensible, particularly once it reaches the
thousands. This phenomenon is even more likely to arise where the victims include
women or children, and where the media captures the violations on film and reports
them using words like "genocide" and "ethnic cleansing." Thus, the Dili massacre in East
Timor in 1991 became a turning point for international interest, not because it was

bigger or worse than previous massacres in East Timor, but because a British journalist
captured it on film, and media around the world showed the footage. 187
Would-be intervening parties must temper the public perspective of the rights and lives
at stake with sensitivity to the feelings and views of the victims - those whose rights are
being violated. Ultimately, the victims should have the last word on the gravity and
extent
of
violations
to
their
rights,
and
whether
such
violations
justify intervention. Thus, Teson considers that humanitarian intervention can only
occur if the victims welcome the intervention. 188 In East Timor, the U.N. did not
formally
consult
the
East
Timorese
or
request
their
consent
to
the intervention. However, Teson describes the intervention as being welcome if the
victims are actually willing to revolt against their government, or would be willing to do
so if they were fully autonomous. 189 He states that this cannot be judged "by an opinion
poll among the citizens of the state," 190 because this group is not necessarily
coterminous with the victims. In East Timor, despite decades of persecution, many East
Timorese maintained strong resistance against the Indonesian military and government
up to and including the period of the intervention. While it would be difficult to quantify
how widespread and determined this [*66] resistance was, the result of the August
1999 ballot gives a good indication that, at least, a majority of the East Timorese
opposed
Indonesian
rule.
In general terms, all East Timorese were victims of Indonesian oppression, giving
credence to the outcome of the ballot. In Kosovo, the situation is less clear. Neither
Milosevic nor the population ofKosovo consented to the intervention. While many
Kosovar Albanians were persecuted and displaced, they did not have the opportunity to
vote to establish their views on the intervention or the F.R.Y. government. Moreover,
Kosovar
Albanians
were
not
the
only
victims.
Indeed,
after
the
NATO intervention Kosovar Albanians committed retaliatory attacks against hundreds
of Serbs and Gypsies, driving many of them out of Kosovo. 191 In addition, well before
the NATO intervention the K.L.A. was engaged in deliberate military attacks against
Serbian officials and civilians in order to provoke a response by the Serb forces, and
hence encourage international intervention. 192 This complicates the question of
whether the intervention was welcomed. Nevertheless, it is clear that the views of the
target nation as a whole or the international community cannot determine the question
of whether the violations are sufficiently grave to justify intervention. The international
community must also take into account the views of the persecuted - it is possible that
their perspectives of the situation may disprove the existence of human rights violations
or
the
need
for intervention.
2.
a.

Identities

of

Individual

Intervening
and

Party

and

Target

Collective Intervention

Both members of the public and academic observers are likely to regard
the legitimacy or compelling justification of a particular intervention as strengthened
where "the decision to intervene stems from a multilateral decision-making
process." 193 Although multilateralism or even Security Council authorization does not
guarantee that intervention is the right solution, simply obtaining consensus among
more participants reduces the chances of intervening parties abusing the power

of humanitarian

intervention.

194

[*67]
Since some states may exercise veto rights so as to defeat
the intervention, reliance on Security Council authorization for humanitarian
intervention may result in inaction even though the objecting states would not
challenge intervention by an individual state or group of states. Although they may not
have pressing ideological or humanitarian reasons for opposing the intervention,they
may wish to prevent Security Council authorization so as to avoid establishing "an
institutional precedent that could be used against them within that political setting at
some future point in time."195 This means that a state may stop a
legitimate intervention on formal rather than substantive grounds. In addition, if
victims can only rely on the Security Council, they may find themselves without
assistance
at
a
crucial
time,
or
without
assistance
soon
enough. 196
Regional organizations, or "regio-cops," may provide a welcome compromise between
the well-resourced but reluctant U.S. and the under-resourced but willing U.N. acting as
global police officers. 197 If such organizations or groups of states have the blessing of
the
Security
Council
before
acting,
this
will
lend legitimacy both
to
the intervention and to the Security Council itself as an institution. 198The importance
of U.N. involvement is revealed even in Kosovo: "NATO, the mightiest regio-cop in
history, had to resort to U.N. legitimation to get what it wanted" (i.e. the deployment of
an international civil administration and security force). 199 However, regional
organizations will not necessarily have the political will, resources or experiences to
intervene. 200 Moreover, particular aspects of their relationship to the target state may
affect their suitability for the task. On the one hand, a regional organization of
neighboring states might be suited to intervening because of geographical proximity to
the locus of a conflict. On the other hand, such proximity and historical relationships
may jeopardize the impartiality of the organization and limit its attempts to resolve the
conflict. 201
Although
its
multilateralist
backing
increased
the legitimacy of
NATO's intervention in Kosovo, its legitimacy was decreased by its failure to engage
the U.N. early on and by the leadership role played by the U.S. The exclusion [*68] of
the U.N. probably caused concern more because it reflected poorly on the legality of
the operation than because it evidenced a lack of multilateralism. Similarly, the
perceived dominance of the U.S. within NATO caused difficulties because of the
particular nature and history of the U.S. within the global system rather than because it
suggested that one state alone was calling the shots. In East Timor, since
the intervention was conducted with explicit authority of the Security Council and U.N.
support, commentators complained not about a lack of multilateralism but about other
factors such as delay in intervening. Thus, the unilateral or multilateral nature of the
intervening party or parties may matter less in determining the legitimacy of an
intervention than other factors, such as the rights and lives at stake, the individual
identity of the dominant state or states, and the conduct of the intervention. This
conclusion might differ, of course, if the intervention were conducted purely by a single
state, rather than under the auspices of either a regional organization or the U.N.
b.

Relationship

Between

Intervening

Party

and

Target:

Australia's

About-Face

Australia has had a long and complex relationship with East Timor and Indonesia, not
least because of their geographical proximity to Australia's Northern coast. One needs to
understand this relationship in order to evaluate the response to Australia's role in
Interfet. During a 40 year period at the beginning of the 20th Century, Australia's
government feared that East Timor might fall into the hands of a hostile power, and so
made repeated enquiries about purchasing it from the Portuguese. 202 During World War
II, native East Timorese supported a guerrilla force of 400 Australian and Dutch troops
challenging the 20,000 strong Japanese occupying force in East Timor. 203 As a result
of the guerilla operation, the occupiers persecuted the native population, and 40,000 to
60,000 East Timorese were killed. 204 Accordingly, Australia may be seen as owing a
large debt to the East Timorese. 205 In the years following the war, Australia supported
Indonesia's independence from Dutch rule, leading to a high point in AustralianIndonesian relations, which subsequently [*69] soured over Australia's position in the
decolonization of West New Guinea from the Netherlands and, later, Northern Borneo
from
Britain. 206
In October 1975, five Australian-based journalists were killed at Balibo, on the
East/West Timor border, allegedly as a result of infighting between East Timorese. Later
it emerged that not only were the journalists killed during a covert Indonesian invasion
of East Timor, 207 but that they were murdered by Indonesian troops intent on
preventing international exposure of the operation. 208 Many people, particularly
journalists, strongly believe that the Australian government deliberately withheld
information about the involvement of Indonesian forces in the deaths 209 and did not
take action against the Indonesian government for the killings for fear of jeopardizing
Australia's relations with Indonesia. 210 As recently as September 2000, Australia's
Department of Foreign Affairs and Trade released a sheaf of documents on Australia's
role in the Indonesian invasion, 211 and as a result of additional evidence emerging from
the U.N. operation in East Timor since then, the U.N. opened an investigation of the
Balibo
incident. 212
The media also affected the Australian/Indonesian relationship in less shocking ways.
The Australian media was not subject to the same kind of self-censorship to which the
Indonesian media was subject for decades. 213 Many Indonesians considered that
Australian reporting of turmoil in Indonesia amounted to interference in the internal
affairs of Indonesia. 214 In particular, [*70] the Australian Broadcasting Corporation's
reporting of Indonesian affairs on its Radio Australia program (which broadcasts outside
Australia to countries including Indonesia) placed considerable strain on the relationship
between Jakarta and Canberra. 215 Western media was by no means, however, active in
the cause of the East Timorese. Critics suggest that North American and Australian
media colluded in the "Indonesian Propaganda War against East Timor." 216
More than 1500 outstanding East Timorese refugee claims continue to strain Australia's
relationship with Indonesia. 217 East Timorese lodged some of these claims more than a
decade ago. The dilemma for Australia has always been that if it grants refugee status to
these claimants (the majority of whom are ethnic Chinese), this would amount to an
accusation that the Indonesian government was persecuting the East Timorese. On the
other hand, the claimants have horrific stories of persecution to tell, including tales of
torture by Indonesian forces trained in Australia. The government's solution to the
dilemma has been to argue that the East Timorese have dual nationality - both

Indonesian and Portuguese. 218 This argument is totally at odds with the Australian
position on Indonesian sovereignty, and has the effect of requiring the East Timorese to
establish that they face persecution not only in Indonesia but also in Portugal - a near
impossibility.
Carolyn
Graydon
explains:

The double standards used by the Australian government are manifest: for the purpose
of extracting economic advantage the land of East Timor is Indonesian and certainly
not Portuguese; but for the purpose of denying protection to the casualties of a war in
which Australia acquiesced, the people of East Timor are not just Indonesian but have
mysteriously
become
Portuguese. 219

The government has imposed a freeze on processing these applications, which has
significantly attenuated the application and appeals process. In 2000, the Australian
federal Administrative Appeals Tribunal rejected the
[*71]
government's
position 220 on the basis that the applicant did not have effective protection from
persecution in East Timor, 221 Indonesia 222 or Portugal. 223 The government has not
appealed the decision by the Tribunal, but it has also not applied the reasoning of the
Tribunal
to
other
like
applications.
For many years, the Australian government was involved in a constant balancing act
between appeasing Indonesia and satisfying public opinion at home, 224 often failing in
both respects but more often criticized for ignoring or worsening the plight of the East
Timorese:

Since Indonesia's invasion, Australian governments have routinely put commercial and
defence ties before a concern for human rights, forging closer economic relations with
the Suharto regime and training Indonesian military officers who had appalling human
rights
records
in
the
treatment
of
their
own
people. 225

The last five governments have all placed a high value on Australia's relationship with
Indonesia, to the exclusion of the East Timorese. These governments have been led at
different stages by each of the two major Australian parties (Labor and Liberal), and
include
the
current
conservative
(Liberal)
Howard
government. 226
In 1995, the Australian government concluded a security agreement with Indonesia in
secret, exemplifying the wide gap between public and diplomatic opinions in Australia on
the status of East Timorand the relationship with Indonesia. Although the agreement
contained little in the way of substantive obligation, 227 the government kept its
consideration of the agreement from the Australian public until after it had executed
it. 228 Ironically, it was Indonesia that withdrew from the agreement in September
1999, 229 by which time Australia's role in East Timor had severely strained the

relationship. 230 [*72] In that same month, Australia's leadership of Interfet 231 finally
seemed to tip the balance of Australian policy on East Timor in favor of complying with
the demands of the Australian public, perhaps in a deliberate show of political strength
by the conservative Howard government "after years of Labor Party failure." 232 Support
throughout Australia for the intervention inEast Timor enabled the Australian
government to meet most of the costs of the international mission by imposing a special
income levy on the Australian public. 233 Before the August 1999 vote, a television poll
showed 83% of Australians supporting the East Timorese right of selfdetermination. 234 Public protests and trade union actions in Australia against Indonesia
also
evidenced
the
extent
of
public
support. 235
The Australian change in policy (signaled by its principal role in Interfet, and
foreshadowed by the earlier letter from Howard to Habibie) 236 represented a clear shift
away from the long tradition of giving deference to Indonesia in the name of regional
stability, economic relations and respect for "unique Asian values." 237 This tradition was
part of the broader policy, pursued by the Keating government in particular, of engaging
or "enmeshing" with Asia. 238 Instead, the intervention signaled that the Australian
government, for various reasons, could no longer tolerate violations of universally
recognized human rights in East Timor. Neither cultural explanations for such
violations, nor cultural expectations about Australia's role in the region, could continue
to
determine
the
country's
response. 239
Australia's high profile in the election and intervention process "led to some doubts of
Australia's good faith" given its long recognition of Indonesian sovereignty. 240 It was
difficult for Australia to suggest that the East Timor [*73] situation constituted an
international crisis rather than a purely domestic matter for Indonesia to handle, since
Australia had recognized Indonesian sovereignty for decades. In that context, it was
especially important for Australia that the intervention have multilateral support.
However, it was difficult to extract that support. Just as it may be politically more
acceptable for a country to come to the aid of a nearby persecuted group, it is typically
harder for a country to muster public support for an intervention on
humanitarian grounds where the target country is geographically remote. 241 Thus, the
U.S. showed little desire to participate in armed or unarmed intervention in East
Timor even after the ballot, 242 defining it as a regional concern, 243and leaving
Australia to lead Interfet. 244 The U.S. was also reluctant to intervene because of its
desire
to
support
the
large,
mineral-rich
Indonesia. 245
Like Australia, the U.S. government apparently knew of Indonesia's impending invasion
of East Timor in 1975, but did nothing about it. 246 The U.S. voted against U.N.
resolutions on East Timor from 1975 to 1982, 247 and its position for many years
involved accepting Indonesia's de facto incorporation of East Timor, without
maintaining that the East Timorese had exercised their right of self-determination by
choosing to be so incorporated. 248 The U.S. provided political support, military training
and weapons to the Indonesian regime from before the invasion of East Timor until the
1990s.249 Indeed, the Indonesian military used American-made rifles in the 1991 Dili
massacre, 250 and the international exposure of the massacre generated a change in
U.S.
policy
on
Indonesia
and East
Timor. 251 British 252 and
Australian 253 [*74] governments had also provided military aid, equipment and
training to Indonesia throughout their occupation of East Timor. Britain replaced the

U.S. in the 1990s as Indonesia's largest supplier of armaments. 254 On 9 September

1999,
President
Clinton
announced
a
suspension
of
military
ties
with
255
Indonesia.
Arguably, the U.S.'s eventual support of the international operation was
borne, not of concern for East Timor, but of the need to support Australia. 256
The irony of the intervention was thus not merely that Australia, a long-time supporter
of Indonesian sovereignty over East Timor, led Interfet, but also that many other
nations involved in or supporting the intervention had facilitated the initial Indonesian
invasion of East Timor, and/or the subsequent persecution of the East
Timorese. 257 The Indonesian government and pro-integrationist East Timorese and
Indonesians nevertheless expressed the greatest resentment against Australia for its
role in the intervention. 258 Various media reports stated that many East Timorese
settlers in Indonesia protested against the Australian-led intervention, while East Java
downgraded trading arrangements with Western Australia. 259 Indonesia's largest daily
newspaper also reported that East Timorese pro-integrationists vowed to fight foreign
troops, claiming that Australia had territorial ambitions in East Timor, 260 and that more
than 200 East Timor refugees burned Australian flags in a rally protesting the
international intervention. 261 Indonesians also protested outside the Australian
Embassy and the United Nations office, with slogans like, "Welcome Australian soldiers.
We have graves prepared for you." 262 Many Indonesians also opposed Australian
involvement in Interfet [*75] because Australia was seen as having backed the
independence
movement
during
the
past
year. 263
It is hard to judge the truth of reports in the Indonesian media of anti-Australian
sentiment in Indonesia and East Timor. Certainly, many Indonesians objected to
Australia's dramatic policy shift and its sudden "interference" with affairs in East Timor.
Although Indonesia had reluctantly agreed to the international force, the fact that it was
Australian-led would have been a particularly bitter pill to swallow given Australia's
previous acquiescence and participation in Indonesia's invasion and occupation of East
Timor. However, it seems equally likely that the majority of East Timorese welcomed
the Australian presence, or at least the international presence, given their support of the
August 1999 ballot and its outcome. Moreover, while some media reports outside
Indonesia labeled Australia'sintervention "ironic" or "hypocritical" given its prior
relations with Indonesia and East Timor, 264 others suggested that Australia had a
moral responsibility to intervene, 265 and that it had done a good job of making up for
past
errors. 266
U.N. members and others have praised Australia for its role in East
Timor, 267 particularly in showing conviction to act in the face of U.S. indecisiveness
on East Timor. 268 Its cooperation with the U.N. has been described as
"exemplary." 269 The international community had good reason to welcome Australia's
willingness to lead the force and bear most of the costs, given that many other countries
were, in a practical sense, equally implicated in the Indonesian treatment of the East
Timorese, and few other countries had any desire to step in now. The largely positive
response to Australia's role suggests that potential intervening parties need not be
overly concerned about losing face should they decide to take action to reverse a human
rights situation in which they were previously accomplices. On the contrary, one of the
few ways to begin to make amends for such conduct is for a state to take [*76] a lead
role in a legitimate and genuinely humanitarian intervention(particularly if it is

supported
c.

Hegemony

by

the
and

U.N.
the

West:

and
U.S.

other
as

countries).
Global

Sheriff

The fact that, in theory, NATO conducted the bombing campaign against the F.R.Y.
should not mask the fact that the public tended to view the campaign as primarily a U.S.
operation. The U.S. provided most of the equipment and personnel: "to all intents and
purposes [it was] an American operation; further, only the Americans can fight like
that." 270 On one view, the only European nations to make worthwhile combat
contributions were the U.K. and Italy, and other airforces were more hindrance than
help, "although they did at least add political legitimacy." 271 This statement is
extremely significant in taking lessons from Kosovo. It suggests that a single state
may effectively take charge of a regionally-initiated intervention without losing public
support, provided that other nations impose nominal restraints on the way
the intervention is conducted, purely by their membership in the relevant regional
organization. However, when that state is the U.S., specific obstacles arise in
achieving legitimacy.
Some commentators believe that although an extreme human rights crisis prompted the
NATO bombing campaign, the paralysis of the Security Council did not legalize NATO's
response. 272 Theintervention without authorization was particularly problematic
because the leading nation in the campaign was the U.S., which reveals the "new world
order" as a "Western hegemon." 273 Perhaps anintervention in the absence of Security
Council authorization would be more legitimate if a group of less powerful states
conducted it, particularly if none or not all of them were western states. 274Other
commentators describe the U.S. involvement as evidencing "a new form of
colonialism." 275 A distinct fear of U.S. imperialism characterized the response [*77] of
many nations to the commencement of NATO bombing: reports in Pakistan, Egypt,
Jordan,
Ukraine
and
India
denounced
the
attacks. 276
The same resentment of imperialism, colonialism and Western superiority characterized
some reactions to Australia's intervention in East Timor. "For all its kow-towing to
Indonesia, Jakarta considers Australia to be a meddling busybody - too white, too
Western, and too Christian by half." 277 Asian nations in particular were insulted and
wary about Australia's self-appointment as the regional deputy to the "U.S. global
policeman." 278 Australia's Prime Minister Howard claimed not to have used any such
words himself. However, Howard was severely criticized (particularly within Australia
and in Asian countries) for failing to dispel media suggestions that this was the role
Australia intended to play, and for expounding what came to be known as the "Howard
doctrine" of foreign affairs. 279 An Indonesian report described the Western policy shift
on East
Timor thus:

The international reaction to problems in East Timor has more or less exposed the truth
about Western governments. Originally they supported the invasion; now it is exactly
the opposite and they criticize us. Previously, there was no end to sending weapons to
use against the East Timorese, now suddenly that has been stopped. 280

These bitter reactions to the two interventions highlight the need for Western
intervening parties in particular to be sensitive to target countries and their neighbors.
Australia went much too far with its long courtship with Indonesia and its policy of
accepting claims that Asian values explained violations of human rights norms.
Nevertheless, particularly where the intervening party is a developed country and the
target a developing country, as may often be the case, the intervening party must keep
in mind the tensions created by the development gap and fears of cultural imperialism.
Where the intervening party is the U.S., these tensions tend to be multiplied. This
means that the intervening party should carefully handle media representations or
negotiations with the target, and it should scrutinize its own motivations and actions
before intervening. Several difficult questions must be answered: what are the reasons
for us intervening; what will this mean for our global strategy and reputation; can
the humanitarian situation be explained [*78] merely by cultural differences? The
Western identity of an intervening party may also increase the importance of acting
within the law in order to establish legitimacy. "The U.S. approach, like that of all
powerful states throughout history, is a simple one: law is invoked where it serves
perceived national interest, and it is ignored or subverted where it does not." 281 As
discussed in the following section, often the reasons for intervening will be manifold.
3.

Non-Humanitarian Interests

A purist might argue that a state or organization should undertake humanitarian

intervention only where its motivations are wholly humanitarian. This kind of rule
would be extremely difficult to enforce, first because of the gap between spoken and
unspoken reasons for intervening, and secondly because of the difficulty of assigning
any single motive to a multipartite body (be it a single government, a regional
organization, or the U.N.). More problematically, it would risk chilling genuine desires to
assist persecuted groups, because of the near impossibility of excluding "strategic policy
considerations." 282 A rule that humanitarian intervention was only lawful or
legitimate where unclouded by any interests beyond a desire to protect human rights
would also be unfairly illogical. It could mean, for example, that the existence of natural
resources of interest to the intervening party would render invalid an otherwise
valid intervention, even though the impact on the persecuted individuals would be
identical
regardless
of
the
existence
of
such
an
interest. 283
Accordingly, Mills suggests that as long as the intervening party's primary interests
in intervention are humanitarian, and that these humanitarian interests do not
simply provide a pretext for theintervention, the existence of other interests does not
detract from the legitimacy of the intervention. 284 Similarly, Teson suggests that
non-humanitarian motives will not necessarily destroy thehumanitarian nature of
the intervention, provided that they do not "impair or reduce the first paramount
human rights objective." 285 These [*79] rather flexible approaches to the motivations
for a legitimate humanitarian intervention are likely to be far more workable,
ultimately,
than
a
rigid
insistence
on
exclusively humanitarian concerns.
Interestingly, it may be impossible to assess the underlying reasons for
an intervention before the event. The extent and range of human rights violations may

not be apparent until foreign troops or international bodies are on the ground, collecting
evidence and witnessing the trauma. Moreover, the way in which the intervening party
conducts the intervention may serve either to reinforce or undermine the stated
justifications for the intervention. 286 Thus, the manner in which NATO conducted the
bombing campaign against the F.R.Y. 287 caused some to speculate about NATO's other
motives for the intervention, such as "keeping NATO alive" or testing new military
weapons. 288 For example, the U.S. administration suggested that the Kosovo
intervention made it "less likely that NATO will be called upon to use force in the
future," confirming that NATO credibility might have been one motive. 289
The inconsistent U.S. position on human rights has also raised concerns about its
motivations - on the one hand, the U.S. declares the inviolability of universally
recognized human rights; on the other, it hinders global attempts to protect such rights
by refusing to ratify the treaty outlawing the use of landmines or the statute to establish
an International Criminal Court. 290 Human rights organizations have also accused the
U.S. of various human rights violations, for example through the use of the death
penalty in several states. 291 This calls into question the sincerity of U.S. concerns to
halt human rights violations in Kosovo. However, the NATO intervention is more often
challenged
on
other
grounds.
[*80] Australia also has a far from spotless human rights record, 292 particularly in
relation to its treatment of indigenous Australians, 293 mandatory sentencing
laws 294 and mandatory detention of asylum seekers. 295 A less than attentive attitude
towards human rights is also suggested by its failure to stop the persecution of East
Timorese for so many years. However, this alone does not justify a denial of
the humanitarian nature of Australia's eventual intervention. In fact, its longstanding
policy of supporting Indonesia suggests that Australia's commercial and strategic
interests primarily favored non-intervention in East Timor. Even if the Australian
government's commitment to the East Timorese was not borne of a consistent will to
promote human rights, it was largely derived from forceful public opinion within
Australia expressing such a will. On that basis, Australia's intervention can be seen as
driven
indirectly
by humanitarian values.
Reactions to the interventions in East Timor and Kosovo tend to suggest that an
intervening party need not have a seamless commitment to human rights in its own or
other
territories
in
order
to
claim
a humanitarian basis
for
a
given intervention. Critics will generally view such claims with a realistic eye - resigned
to the fact that extraneous interests will undoubtedly affect the decision to intervene provided
that
real
concerns
of
a humanitarian nature
demand intervention. Nevertheless, observers tend to remain wary of any subsequent
conduct of the intervening party that suggests such extraneous interests may be playing
a
leading
role. 296
[*81]
4.

Last

Resort

Falk criticizes both NATO's resort to force in Kosovo and the conduct of
the intervention: "it was justifiable to act, but not in the manner undertaken." 297 He

argues that the lead up to the militaryintervention was impaired by a failure to engage
in flexible diplomacy, for example by excluding Russia and China from attempts to
negotiate a diplomatic solution with the F.R.Y. 298 Thus, force was used in defiance of
the "legal, moral and political commitment to make recourse to war a last
resort." 299 Other commentators have also suggested that NATO failed to explore fully
the possibility of reaching a resolution at the initial negotiation stage. For example, in
the negotiations at Rambouillet and Paris, the F.R.Y. rejected a key provision allowing
NATO troops to operate anywhere throughout the F.R.Y. This has been described as a
massive incursion on state sovereignty and a "killer clause," almost guaranteeing the
failure
of
the
negotiations. 300
If NATO intended the negotiations to fail, its motive for conducting them might simply
have been to elicit a signature from the Kosovars in order to allow NATO to carry out its
threat of bombing the F.R.Y. 301 Indeed, the official Yugoslav position on NATO's
reasoning was along these lines. 302 However, NATO was not necessarily responsible for
the failure of the negotiations. For example, while the Albanian delegation consisted of
numerous important Kosovar politicians, the Serbian delegation did not include Milosevic
or anyone else who had real authority to make decisions. 303 The make-up of the
delegation suggested that Milosevic was more interested in appearing ready to negotiate
than in actually doing so. In addition, NATO might have been willing to negotiate the socalled killer clause - it was not actually ever negotiated because the Serbs "refused to
discuss the principle of a NATO-led implementation force" in any form. 304
This debate emphasizes the importance of the would-be intervening party making
genuine attempts to reach a peaceful resolution to the conflict before launching a
military intervention. However, in the context of diplomatic [*82] negotiations,
different stakeholders will always hold differing views as to who blocked the resolution
and who acted more reasonably. If the intervening party does not explore diplomacy at
all, or attacks without seeking any alternative, non-violent means of resolution,
observers are likely to doubt the intervention's legitimacy, even if it ultimately works
out well. If it does not work out well, the failure to exhaust other options will likely
increase in significance. Thus, in the case of Kosovo, the prolonged bombing and
civilian casualties tended to support arguments that NATO moved too hastily and
without adequate preparation or strategy. On the other hand, where, as in East Timor,
the intervention seems to work smoothly, with few casualties on either side,
commentators may tend to suggest in retrospect that it should have taken place more
quickly.
Critics frequently disparage Australia and the U.N. for not intervening in East
Timor prior to obtaining Indonesian consent - either before, during or immediately after
the August 1999 ballot. The American Journal of International Law attributes the failure
to intervene earlier to several factors: "The apparent reasons for this reluctance were
that Indonesia possessed a strong military, that such an intervention was likely to be
strongly opposed by nearby China, and that concerned states believed that Indonesia's
consent to a multinational force would, in any case, soon be forthcoming." 305 In a way,
awaiting Indonesian consent entailed pursuing a diplomatic resolution before moving to
the
last
resort
of
military intervention.
The Australian government responds to these criticisms by stating that it had to await

the outcome of the ballot before intervening in order to make a proper decision about
whether to intervene. For example, Australia's Foreign Minister Alexander Downer
suggested prior to the ballot that considerations such as determining a clear and
achievable mandate for the operation, measuring the likely risks and costs involved, and
assessing the other likely resources that would be available for the operation, could not
be answered until the ballot was complete. 306 Although Australia would need to
examine a wide range of factors before committing to any humanitarian
intervention, particularly without the consent of the state purporting to govern the
target, this explanation is unconvincing. The Australian government could easily have
conducted this examination prior to the ballot, even though the relevant factors were
likely to change by the time the ballot was complete. Thus, before the ballot the goal
would have been to maintain security within East [*83] Timor in order to enable the
people to cast their votes in a fair manner, free from intimidation. After the ballot, the
goal would change depending on the outcome and the reactions to that outcome of the
various
parties.
Some commentators provide more convincing arguments for their concurrence with the
Australian government's position on this issue. They argue, for example, that the
consent of the Indonesian government was a practical necessity to enable Interfet to
fulfill its mandate. 307 Particularly given the absence of consent by East Timorese militia,
the Indonesian military and militia groups might have received Interfet in a much more
hostile fashion, resulting in further deaths and injury, if Indonesia had not consented.
The close ties binding the militia to the military support this suggestion: 308without those
ties, the militia might have resisted Interfet much more strongly despite the prior
Indonesian consent; 309 with them, an absence of Indonesian consent might have
caused a bloody battlefield in East Timor between Interfet on one side and East
Timorese militia groups and the Indonesian military on the other. Indeed, if Australia
had unilaterally intervened without the support of the U.N. or the consent of the
Indonesian government, Australia would have been going to war with
Indonesia. 310 Moreover, some suggest that Australia would not have had the ability to
mount such a military exercise, precisely because of its "softly-softly" approach to the
Indonesian government over decades of foreign policy. 311 Finally, many Asian nations
opposed the intervention of an international force without the consent of Indonesia. 312
In some circumstances, diplomacy cannot resolve a humanitarian crisis. In the case
of East Timor, without minimal U.S. support, Australia and the U.N. would have had
little bargaining power in convincing Indonesia to agree to an international force being
responsible for security during the ballot or thereafter. Ironically, despite Australia's
decades of attempting to appease Indonesia and strengthen cultural and trade ties with
that country, it had little diplomatic influence when it came to dealing with sensitive
issues like East [*84] Timor. 313 In these circumstances, the would-be intervening
party must strike a balance between intervening quickly to save the lives of the
persecuted, and waiting for a diplomatic breakthrough to prevent an unnecessary war.
Clearly, in the final result the intervention is likely to be judged not on how this
decision is made but on the actual outcome, in terms described below. 314
5.

Consistency

Consistency - a two-pronged principle that can be summarized as treating like cases

alike, and treating unlike cases differently - is a key determinant of legitimacy in the
context of humanitarian intervention. 315 The coin of consistency has two sides:
ensuring that intervention takes place in every case where it is justified; and ensuring
that it does not take place in any case where it is not justified.
Characterizing humanitarian intervention as a right rather than a duty is significant in
the context of consistency. If states have a right, rather than a duty, to intervene, they
have discretion in determining whether or not to intervene in a particular case. If it is
not only a moral but also a legal duty, then a state or organization that fails to intervene
in a case worthy ofintervention impairs consistency and violates international
law. 316 In comparing treatment by a state or regional organization of various cases
of humanitarian crisis or ethnic conflict, it is necessary to consider not only whether
the state or organization itself intervenes with military force, but also whether it arms
either side of the conflict or provides humanitarian aid to the victims. 317
Economic or political interests could create a danger of unjustified intervention, 318 but
in practice states and the international community have more often failed to intervene or
pay attention to particular humanitarian crises at all, or until it is too
late. 319 Uncertainty exacerbates this tendency because [*85] "any lack of clarity
about when intervention is proper will result in inaction." 320In these circumstances, an
absolute insistence on consistency risks creating a consistent platform of nonintervention - a state can then justify its failure to intervene in one worthy case by its
failure to intervene in another such case. Surely an erratic response by the international
community to domestic human rights violations is preferable to no response at all. The
international community should therefore focus not on ensuring consistency per se, but
on encouraging intervention in all appropriate cases and being attentive to the
emergence of humanitarian emergencies in their early stages. Nevertheless, when
states exhibit a discernible pattern of selectivity, such as a greater sensitivity for human
rights abuses and a greater willingness to intervene when the victims are European
rather than African, the international community should carefully scrutinize such
conduct. 321
The issue of consistency arose specifically in the context of Kosovo and East Timor.
Several U.S. media commentators highlighted the dramatic difference in the U.S.
response to the two cases, despite the similar nature of the human rights at
stake 322 and the fact that the violations in East Timor appeared to be on a far greater
scale, 323 at least before NATO began bombing. Noam Chomsky points out that:

The air force that was able to carry out pin-point destruction of civilian targets in Novi
Sad, Belgrade, and Pancevo a few months before lacked the capacity to drop food to
hundreds of thousands of people [in East Timor] facing starvation in the mountains to
which they had been driven by the TNI forces armed and trained by the United States,
and
its
no
less
cynical
allies. 324

Nevertheless, particularly within the U.S., it is generally recognized that a state cannot
stand up for human rights throughout the world, especially where this requires

military intervention.Inconsistency is therefore likely to reduce the legitimacy of

a humanitarian intervention significantly only where it confirms existing suspicions
about illegitimate motives of the intervening party to an extent that overrides the
positive humanitarian effects of the intervention. [*86]
Further, where the
intervening party is a state or states lacking overwhelming power or resources (e.g.
Australia, as opposed to the U.S.), the bite of inconsistency will not be as harsh,
particularly where the target country is geographically or historically related to the
intervening party. Thus, critics rarely targeted Australia for inconsistency in failing to
lead interventions to address human rights violations in countries outside East Timor.
B.

Conduct

1.

Compliance

the Intervention

of

International Humanitarian Law

with

Jus ad bellum refers to the rules governing the use of force (i.e. when resort to armed
conflict is allowed), while jus in bello refers to the rules governing the actual conduct of
armed conflict (i.e. what behavior is allowed within a war, also known as the law of
armed conflict, the laws of war, or international humanitarian law). 325 The
international community generally recognizes internationalhumanitarian law as
applying regardless of whether the conflict itself is lawful or unlawful. 326 In the context
of humanitarian intervention, this means that a state or multilateral organization
intervening
in
another
state
on humanitarian grounds
must
conduct
the intervention in accordance with international humanitarian law, regardless of
whether the intervention itself is valid under international law. If anything, the
intervenor has an obligation to apply humanitarian standards even more carefully if it
claims
that
the
attack
is
warranted
on humanitarian grounds. 327 Thus,
forhumanitarian intervention to occur, not only must the goal be to stop human
rights violations, but "the means used must always be rights-inspired." 328
The
obligations
on
an
international humanitarian law

attacker

(or

intervening
include

party)

under
to:

(a) distinguish between the civilian population and combatants, and between civilian
objects and military objectives, and to direct operations against the latter only; 329
[*87]

(b)

take

precautions

to

avoid

incidental

injury

to

civilians;

330

(c) refrain from engaging in indiscriminate attacks (being attacks of a nature to strike
military objectives and civilians or civilian objects without distinction); 331 and
(d) attempt to ensure that any incidental damage caused to civilians by an attack is
proportionate
to
the
military
advantage
to
be
attained. 332
An
intervening
party's
compliance
or
non-compliance
with
international humanitarian law in conducting a humanitarian intervention may
affect the perceived legitimacy of the intervention.Various bodies and individuals
have claimed that NATO failed to comply with international humanitarian law
in Kosovo in that it: failed to draw a proper distinction between civilians and civilian
objects on the one hand, and military objectives on the other; took insufficient

precautions to prevent incidental injury to civilians; engaged in indiscriminate attacks;

and failed to ensure that any incidental damage to civilians from an attack was
proportionate to the military advantage to be obtained. 333 The I.C.T.Y. decided in June
2000 not to investigate complaints about NATO's conduct of the campaign against the
F.R.Y. 334 and has issued no indictments in this regard. In October 2000, the
Independent Commission released its report accepting the I.C.T.Y.'s decision. However,
the Independent Commission noted that the I.C.T.Y.'s concern was the narrow question
of whether there was a basis for charging particular individuals with crimes, 335 and
asserted that aspects of the campaign "seem vulnerable to the [*88] allegation that
violations [of the laws of war] might have occurred and depend, for final assessment, on
the
availability
of
further
evidence." 336
2.

Protecting

Civilians

NATO's

Mistakes

The moral obligation to protect civilians in a humanitarian intervention creates

something of a paradox. If the intervening party fails to protect civilians, particularly if
such failure is graphically exhibited by the mass media worldwide, it is likely to damage
the legitimacy of the intervention in the public eye. Yet, at the same time, at least
some subsets of the public are likely to supportintervention only if it results in minimal
losses
to
the
intervening
party.
Thus:

[in Somalia, as with] Vietnam, the American anguish [over the Mogadishu firefight] was
not occasioned by the reality of many hundreds of Somali casualties <elip> For the
United States - government and public alike - the response to any foreign involvement is
conditioned
solely
by
the
volume
of
American
casualties
<elip> 337

The experiences of Western dominance in battle in Iraq in 1991, Bosnia in 1995, and in
continuing enforcement of no-fly zones in the Middle East 338 help to generate public
expectations in the West of the low level of losses that it should tolerate.
NATO's Kosovo intervention underscored the tensions in trying to protect both military
and civilian lives. NATO members (especially the U.S. and Germany) 339 felt constrained
to limit the means of attack so as to protect their troops. 340 Since minimizing NATO
casualties increased the risks to civilians in the target areas, NATO's "zero casualty war"
(reflected in its decision to conduct high-altitude bombing, to avoid a ground
war, 341 and in the actual result of zero NATO casualties) 342 was heavily criticized. While
NATO airplanes did sometimes fly below 15,000 feet, 343 the rules of engagement set
this as the minimum height, at least in the first half of the campaign. 344 [*89] This
restricted their ability to confirm targets visually. Despite the use of a sophisticated
computerized system for target development and review, 345 approximately 500
confirmed civilian deaths resulted from NATO's bombing campaign, 346 and around
6,000 civilians were wounded. 347 Many of the civilian casualties arose in embarrassing
circumstances, such as the bombing of the Chinese Embassy in Belgrade 348 and the
attack on a passenger train at Grdelica Gorge. 349 In addition, NATO's choice of weapons
and bombing techniques severely damaged the environment in the F.R.Y. 350

Human rights organizations such as Human Rights Watch and Amnesty International
condemn the NATO conduct of the campaign on moral and legal grounds, particularly in
relation to civilian casualties and the choice of certain weapons (e.g. depleted uranium
and cluster bombs). 351 Commentators also criticize NATO's apparent undervaluing of
civilian lives and livelihoods. 352 Some even accuse NATO of engaging in "unauthorized
reprisals against the civilian population" for the failed negotiations with the F.R.Y.
government. 353 Michael Walzer argues that NATO's intolerance of NATO casualties was
not a moral position: "You can't kill unless you are prepared to die." 354
Falk argues that the manner in which NATO conducted the intervention (for example,
with high-level air strikes and a refusal to commit ground troops) calls into question the
declared humanitarianrationale for the operation. 355 Put starkly, "NATO's choice of
military means - air power - did not match the strategic end sought - the safety of the
Albanian [*90] Kosovars." 356 The Independent Commission also considered that the
"high-altitude tactic <elip> weakens the claim of humanitarianism to the extent that it
appears to value the lives of the NATO combatants more than those of the civilian
population in Kosovo and Serbia." 357 These statements demonstrate that a legitimate
decision to intervene might later lose legitimacy due to the manner in which
the intervention is conducted. Although on one view, ground troops would not
necessarily have reduced the amount of civilian damage, the number of civilian
casualties, or the duration of the war, 358 public perception typically regarded ground
troops as necessary to vindicate NATO's humanitarian motive. For example, public
opinion polls in Britain revealed increasing support for ground troops as the war wore
on.359
Some critics suggest that NATO's public responses to accidents and instances of civilian
casualties are inconsistent with its declared commitment to end human rights violations.
For instance, Amnesty International cites one report that NATO had adopted a policy of
deliberately withholding information on the precise causes of military mistakes involving
civilians until two weeks after the incident, in order to manipulate public
opinion. 360 Furthermore, Chomsky accuses the U.S./NATO propaganda machine of
fueling media reports of genocide and war crimes committed by Milosevic and Serbs in
order
to
provide
retrospective
justification
for
its
resort
to
force. 361
C.

Outcome

of

the Intervention

1. Humanitarian Outcomes
Success in achieving the stated goal of halting or preventing human rights violations
obviously
adds
to
the legitimacy of
a
particular humanitarian
intervention. In Kosovo, many
of
the
violations
did
not
begin
until
after [*91] the intervention started and the NATO campaign accelerated, intensified
or even triggered ethnic cleansing and creation of refugees in Kosovo. 362 The U.S.
relied on this turn of events to vindicate its intervention. In many accounts, as a result
of these developments, NATO's goals simply changed from preventing persecution of
Kosovar Albanians to halting ethnic cleansing and returning the many refugees to their
homes. If one accepts these new goals, the operation can be described as a limited
success, 363 and a victory for the U.S. and for international law and human rights

principles. 364 At the end of the campaign, the refugees began slowly to return, 365 and
Milosevic's regime was substantially weakened, so that they were returning "to a
homeland
now
relatively
free
from
oppression." 366
However, if one questions NATO's role in creating refugees and ethnic cleansing, the
operation becomes "an unmitigated disaster" 367 and "one of the biggest strategic
and humanitarian stuff-ups in Europe since the Second World War." 368 At a minimum,
the intervening party has an obligation not to exacerbate the situation. 369 Therefore, it
is unacceptable for the intervention to create additional human rights violations,
refugees, and civilian casualties. By arguing that the flood of refugees justified
the intervention, the U.S. makes "the ultimate bootstrap argument: NATO intervenes,
sparking a violent Serbian crackdown, which in turn causes humanitarian chaos, which
then justifies NATO intervention." 370 Moreover, the value of returning refugees to
destroyed homes is also questionable, 371 particularly where NATO caused the
destruction either directly (through bombs) or indirectly (through Serbian retaliation for
NATO bombs). The fact that NATO's success in repatriating refugees has not been more
widely scorned is consistent with the public calls for intervention. As discussed above,
the existence, but not necessarily the quantity, of gross human rights violations is a
crucial legitimating [*92] factor at the stage of deciding to intervene. Similarly, when
the public assesses the humanitarian outcomes of an intervention as a component of
assessing thelegitimacy of the intervention as a whole, it tends to focus on
whether humanitarian problems have been overcome, rather than what created the
problems.
In East Timor, the main perceived failing of the intervention appeared to be not in
preventing human rights violations during or after the intervention (although violence
did continue), 372 but in preventing violations in the period between the ballot and the
arrival of Interfet. Commentators continue to reflect on the humanitarian costs of the
delay. In addition, scores of East Timorese refugees emerged from the crisis leading up
to the intervention, and Australia typically granted these people only temporary
refuge. 373 Nevertheless, the Australian public and the broader international community
have generally regarded the work of Interfet on the ground, and that of the Australian
troops, as a success. 374 The efforts of the international force almost entirely stopped
violence by the Indonesian military and militia groups against East Timorese, at least in
the geographical area of its operation. Moreover, the clearest victory for the East Timor
intervention has been the ballot, 375 which provided the possibility of attaining
additional humanitarian benefits
in
the
medium
to
long
term.
2.

Military

Outcomes

From a purely military perspective, NATO's Kosovo campaign has been an "unqualified
success," in that it forced Serbian forces to abandon Kosovo. 376 However, while the
NATO
bombing
clearly
encouraged
Milosevic
to
withdraw
F.R.Y.
forces
from Kosovo, other factors suggest that the NATO air campaign was not the sole cause
of the withdrawal. 377 For example, the withdrawal was prompted in part by Russia's
withdrawal of support to Belgrade, 378 the success of K.L.A. forces, 379 and suggestions
that [*93] NATO might use ground troops. 380 In addition, NATO suffered some major
embarrassments during the war, including the revelation that a relatively large number
of targets turned out to be decoys. 381 Serb forces also dispersed and concealed

themselves, making it difficult even for NATO's precision air munitions to destroy
them. 382 NATO's success in targeting Serb forces increased over the duration of the
campaign, largely through the activity of the K.L.A. in flushing them out. 383
NATO's insistence on withholding ground troops, coupled with its demonstration of
superior airpower, is likely to encourage non-Western states to invest further in weapons
of mass destruction, hence threatening future world stability. 384 The business press
concluded that the real winners of the NATO war are members of the Western military
industry, 385 due to the rearming of developing nations. NATO's war also dramatically
injured neighboring economies in countries like Albania, Macedonia and Bulgaria by
creating a flood of refugees, destroying physical trade routes, and blocking access to the
F.R.Y. market as a result of the bombing and sanctions. 386 In addition, it significantly
damaged U.S. relationships with Russia and China, not least because of the bombing of
the Chinese Embassy.387 All of these effects are detrimental to world security and
stability, and hence reduce the legitimacy of the intervention in terms of outcomes.
Australia's relations with Indonesia have undeniably suffered as a result of Australia's
role in the East Timor intervention. Years of diplomatic groundwork have been quickly
undone, and Australia is being forced to rethink [*94] its regional defense strategy
and military outlook. 388 However, while this factor is sometimes cited as evidence
against the wisdom of Australia's intervention in East Timor, it also substantiates
Australia's claim of intervention on purely humanitarian grounds. From a military
perspective, the intervention was also regarded as a success due to the very few
casualties in clashes between Interfet, the military and militia, and the speed with which
military and militia groups departed East Timor after the arrival of Interfet. In addition,
Australia's leading role, despite its limited military capacity (compared, say, to that of
the U.S.) demonstrated that even smaller countries can head an international or regional
effort to end human rights violations. Similarly, Australia's use of a public levy to fund a
large part of the military effort showed that the public may be willing to pay to
support humanitarian
intervention in
the
right
circumstances.
3.

Resolution,

Reconciliation

and

Reconstruction

The conclusion of a formal agreement or decision-making process between the

intervening party, target and, preferably, the victims of human rights violations, will
often bring symbolic legitimacy and finality to a humanitarian intervention. In East
Timor, the high turnout at the August 1999 ballot and the decisive vote for
independence
were
key
measures
of
the
success
of
389
the intervention.
In Kosovo, the final peace plans accepted by the F.R.Y. in June
1999 provided a symbolic and formal resolution to the war. However, the key provisions
of the Contact Group proposals at Rambouillet that Milosevic refused to accept did not
appear in the final peace plans, raising the question of the point of the war. 390 Thus,
even at the final resolution of conflict, the terms of any settlement may reflect on
the legitimacy of the initial decision to intervene, and influence whether the public
accepts
that
the
intervening
party
used
force
as
a
last
resort.
Resolution of a humanitarian intervention also involves notions of justice and
reconciliation. There was a stark contrast between the treatment of the perpetrators of
human rights violations inKosovo and in East Timor. The I.C.T.Y. became quickly and

intensely involved in examining human rights violations in Kosovo (with its role
beginning even during the NATO bombing campaign). Conversely, in East Timor the
international community conducted a leisurely discussion about whether to establish a
tribunal, gave [*95] extreme deference to the sensibilities of the Indonesians in this
regard, and failed to take adequate steps to prevent the destruction and loss of evidence
crucial to achieving justice. Chomsky explains this discrepancy by stating that
in Kosovo, the U.S. was intent on exposing human rights violations in order to
legitimize NATO's actions. Conversely, in East Timor the U.S. was reluctant to promote
investigation and exposure of such violations, as this would likely reveal U.S. support
through
military
aid
and
training
over
the
years. 391
The intervening party also has a responsibility to assist in reconstructing the target
community following the intervention. In Kosovo, NATO bombs and deliberate
destruction by F.R.Y. forces created the need for reconstruction. In East Timor, the
havoc wreaked by the Indonesian military and militia groups after the ballot created
such a need. The international media provided extensive coverage of the brutal military
reaction to the ballot, but lost interest with the arrival of the peacekeeping force, despite
the intense difficulties of reconstruction and reconciliation still facing the East Timorese
people. 392 However, some commentators do recognize the importance of the long
rebuilding phase in both East Timor and Kosovo. For example, Chomsky criticizes the
U.S.'s failure to provide funds for Interfet and its limited financial support for
reconstruction in East Timor. 393 Similarly, he notes that the ready U.S. funds for the
massive costs of bombing became hard to extract for the relatively minor costs of the
U.N.'s civilian operation in Kosovo. 394 Some commentators insist that the international
community will not be able to judge the NATO campaign for many years - NATO's
measure of success will depend on the establishment of a new local government and
lasting peace. 395 The same long-term view also qualifies the success of
the intervention in East
Timor.
Conclusion
NATO's intervention in Kosovo was illegal, at least according to a purely textual
reading of the U.N. Charter, yet many saw the decision to intervene as legitimate. In
contrast, the Australian-led force did not intervene in East Timor until the Security
Council had authorized and Indonesia had consented to the intervention, yet some
aspects of the intervention are questioned on other grounds. Clearly, a gap exists
between
the legitimacy
and
[*96]
legality
of
any
humanitarian
intervention. This
limited
review
of
the
two
instances
of humanitarian
intervention in Kosovo and East Timor has revealed that the most important factor
in determining legitimacy of the decision to intervene is the rights and lives at stake in
the target area. If basic human rights are being violated, particularly if they involve
persecution of a particular ethnic or religious group that may be classified as genocide,
the public is likely to make a strong demand for action, typically translating
intointervention. Moreover, if media reports of the violations are widespread and
particularly graphic, this will fuel the demand for intervention. In those circumstances,
the
actual
number
of
victims
involved
may
make
little
difference.
If the rights and lives at stake are sufficiently compelling, certain other factors will assist
in
validating
the intervention. These
include
multilateralism
(a

multilateral intervention force or decision-making body will increase legitimacy), U.N.

support, and genuine prior attempts at reaching a peaceful resolution to the conflict. The
existence of certain other "negative" factors will not necessarily preclude a
legitimate intervention. For example, if the intervening party has a history of a
contradictory relationship with the target, even to the extent of providing financial or
military support to the current persecutors, this may justify, rather than
preclude, intervention on humanitarian grounds. Similarly, if the would-be
intervening party has non-humanitarian reasons for intervening or an inconsistent
pattern of intervention in the past or in other regions, the intervention will not
necessarily thereby become illegitimate. However, this depends in part on how the
intervening
party
conducts
the intervention.
If
the
intervening
party
conducts
the intervention in
a
manner
that
promotes humanitarian interests above all else, this reinforces the legitimacy of the
intervention. If not, this undermineslegitimacy. The conduct of the intervention is
therefore crucially important to both the legality and the legitimacy of the
intervention. A previously valid intervention may become illegitimate if the
intervening party acts in disregard for civilians, contrary to legal and moral obligations.
The legitimacy of the outcome of the intervention also depends on its impact on
human rights - whether the intervening party has actually stopped the violations leading
to the intervention (and any subsequent violations). Halting such violations appears
more important, even, than success in the longer term of restructuring and ensuring
peace
and
reconciliation
within
and
beyond
the
target.
Two contrasting proposals to close the gap between legitimacy and legality would be
to codify the norms of intervention in an international treaty, or to allow the
jurisprudence surrounding the U.N. Charter in connection with "threats to the peace" to
develop without amendment to the text, in [*97] much the same way as concepts like
due process have developed complex common law meanings under the U.S.
Constitution. 396 The better view is that the law should be reformed to ensure a clear
and consistent response to humanitarian crises, according to agreed principles. This
would diminish present uncertainties about the legality of humanitarian
intervention, bring the law closer in line with accepted factors of legitimacy (using
those identified in this article as a starting point), and restore integrity to the text of the
U.N. Charter and the institution of the U.N. itself. A parallel development could be the
creation of a standing U.N. force to act, inter alia, in cases where the interests of other
states and organizations is insufficient to mount an intervention despite the compelling
need for one. 397 Until reforms of this kind are effected, states or organizations
considering intervening in another state on humanitarian grounds should act quickly
but forcefully, taking into account the factors described here, in addition to established
doctrines
of
international
law.