ARTICLE: CLOSING THE GAP BETWEEN LEGITIMACY AND LEGALITY OF

HUMANITARIAN INTERVENTION: LESSONS FROM EAST TIMOR AND KOSOVO,

7 UCLA J. Int'l L. & For. Aff. 31
Spring / Summer, 2002
Reporter
7 UCLA J. Int'l L. & For. Aff. 31 *
Length: 35736 words
Author: Tania Voon*
* 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 Anne-Marie
Slaughter for her valuable guidance and support in writing this article.
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 between legality 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 supporting humanitarian 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 of legitimacy.
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 the intervention
(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. 12 How 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 Intervention Under International Law
A. Prohibition on the Use of 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. Permissible Use of Force
1. U.N. 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 (or humanitarian 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 self-defense 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 non-intervention 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 of force." 32
C. Developing a Humanitarian Basis for 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 decision-making, 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. 44 However, 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 1877-78 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 of interventions 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, 72 Rwanda 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 the humanitarian 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 non-intervention 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 Kosovo conflict 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 anti-Albanian 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 Marxist-Leninist-

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 extrajudicial 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 non-

governmental and intergovernmental [*53] organizations recorded persistent human

rights abuses over the years. 115 Fretilin leader Jose "Xanana" Gusmao was captured
and sentenced to 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 selfdetermination. 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 pro-independence 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 military-backed
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 humanitarian operations. 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 and Legitimacy
A. 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] Russian-proposed 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 its legitimacy. 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 in Kosovo. 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 vicepresident 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 legitimacy because 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 international intervention. 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, non-humanitarian
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 intervention may affect its legitimacy, as well as how longerterm 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 Factors
A. Decision to Intervene
1. Rights and Lives 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 of Kosovo 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. Identities of Intervening Party and Target
a. Individual and 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. 198 The 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
Australian-Indonesian 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 Timor and 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 in East 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 self-determination. 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, 243 and 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 Indonesia. 255 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's intervention "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 by the U.N. and other
countries).
c. Hegemony and the West: U.S. as 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 The intervention 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 an intervention 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. 274 Other
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 the intervention, the existence of other interests does not detract
from the legitimacy of the intervention. 284 Similarly, Teson suggests that nonhumanitarian motives will not necessarily destroy the humanitarian 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 military intervention 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 so-called 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: 308 without 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 of intervention 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." 320 In these circumstances, an absolute
insistence on consistency risks creating a consistent platform of non-intervention - 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 of the Intervention
1. Compliance with International Humanitarian Law
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 international humanitarian 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, for humanitarian 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 attacker (or intervening party) under international humanitarian
law include 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 support intervention 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 humanitarian rationale 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 the
legitimacy 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 the intervention. 389 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 in Kosovo 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 into intervention. 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 undermines legitimacy. 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.