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Illegal But Legitimate?

Published on April 10, 2017        Author: 

I have always thought that proponents of humanitarian intervention simply cannot make a persuasive case that it is already an existing rule of international law (even if they can make a case that it should be a rule of international law). I have similarly always thought, on the other hand, that the position that an intervention is legally prohibited but that it can nonetheless be politically legitimate or morally justified in exceptional circumstances is conceptually perfectly coherent. (Maybe – well, certainly – my views on this are coloured by my shamelessly comprehensive adoration of Bruno Simma, but there you go.) If we are operating in a positivist framework, even the mildest forms of positivism by definition mean that something that is lawful is not necessarily just. And since we are endowed with free will, we can choose to break the law for higher-order considerations, morality and justice, if we are willing to pay the price of non-compliance.

Whenever people talk about an act being illegal but legitimate I also always remember this scene from Richard Attenborough’s film Gandhi – in the scene Gandhi is tried, in 1922, for fostering disaffection against the British government of India, thereby causing several major outbreaks of violence. And here is what happens:

The film is faithful to what had actually happened at the sedition trial. As one observer put it, the three speeches at the trial were ‘models of moderation, mutual respect, and felicity of expression.’ Here is a part of Gandhi’s:

It is a painful duty with me but I have to discharge that duty knowing the responsibility that rests upon my shoulders, and I wish to endorse all the blame that the learned Advocate-General has thrown on my shoulders in connection with the [violent] occurrences. Thinking over these things deeply and sleeping over them night after night, it is impossible for me to dissociate myself from the diabolical crimes of Chauri Chaura or the mad outrages of Bombay. He is quite right when he says, that as a man of responsibility, a man having received a fair share of education, having had a fair share of experience of this world, I should have known the consequences of every one of my acts. I know them. I knew that I was playing with fire. I ran the risk and if I was set free I would still do the same. I have felt it this morning that I would have failed in my duty, if I did not say what I said here just now.

I wanted to avoid violence. Non-violence is the first article of my faith. It is also the last article of my creed. But I had to make my choice. I had either to submit to a system which I considered had done an irreparable harm to my country, or incur the risk of the mad fury of my people bursting forth when they understood the truth from my lips. I know that my people have sometimes gone mad. I am deeply sorry for it and I am, therefore, here to submit not to a light penalty but to the highest penalty. I do not ask for mercy. I do not plead any [extenuating] act. I am here, therefore, to invite and cheerfully submit to the highest penalty that can be inflicted upon me for what in law is a deliberate crime, and what appears to me to be the highest duty of a citizen. The only course open to you, the Judge, is, as I am going to say in my statement, either to resign your post, or inflict on me the severest penalty if you believe that the system and law you are assisting to administer are good for the people. I do not except that kind of conversion. But by the time I have finished with my statement you will have a glimpse of what is raging within my breast to run this maddest risk which a sane man can run.

Gandhi thus accepted responsibility for breaking the law, while exposing that law as unjust. He did not try to carve out exceptions from the law that would apply to his situation – he admitted he broke it. While he told the Judge that the injustice a conviction would inflict should make him consider resigning his post, Gandhi did not argue that the law was non-law because it was unjust (although he maybe would have done a naturalist lex injusta non est lex if the law in question was, say, Nazi law or some other lex extrema). Crucially, he also accepted responsibility for the immoral acts of others that were a predictable consequence of his own conduct. He ran the risk of evil, and accepted that risk because he felt that the consequence of doing nothing would be even more evil. And the Judge convicted him for breaking the law, while essentially accepting that in applying the law an injustice was being done, at least partially.

So we come back to humanitarian intervention. If I was the US President in 1994, and I had the ability to use force to prevent the genocide in Rwanda which took 800,000 lives, and the UN Security Council would not give me the mandate to do so because of an intransigent permanent member, would I have broken Article 2(4) of the UN Charter to stop that great evil? Yes, and happily so. Indeed, we know from contemporary accounts of Rwanda (e.g. Romeo Dallaire’s) that even a very limited military intervention would almost certainly have stopped the genocide – this is what makes the international community’s failure to do anything so positively atrocious.

Syria, on the other hand, is much more difficult. An intervention capable of ending the Syrian catastrophe would need to be massive, definitely involving large-scale troop deployments on the ground. It carries with it a host of unpredictable risks, including most importantly that of a direct conflict with Russia and the non-trivial possibility of a nuclear escalation. There is no reliable way of estimating the full human and material costs of intervention, but we know for a fact that many people would die as its direct consequence, civilians and combatants alike. And there is no way to be even remotely certain that the intervention would actually work. The past record of intervention in the region does not inspire confidence, to say the least, be it Afghanistan with the ever-resurgent Taliban, the complete shit-show that was Libya (to use President Obama’s own description), or the Iraq disaster, which is directly causally related to much of the current suffering in Syria. It is no wonder therefore that Obama ultimately chose to do nothing, or next to nothing, or that most people in the West can continue to sleep at night even while we’re all collectively doing nothing, or next to nothing. We are, after all, strongly intuitively inclined to believe that inaction is less evil than action that produces the same consequence (e.g. failing to feed a starving child on the street is less evil (yet still evil!) than stealing the child’s food, thereby causing them to starve). And so, while doing nothing was the greater evil for Gandhi, as it was in Rwanda, doing a (military) something may well be the greater evil in Syria as things stand today. The balance of evil is at the very least non-obvious.

What also differentiates humanitarian intervention from Gandhi’s example of civil disobedience is that the underlying norm – the prohibition on the use of force in Article 2(4) of the Charter – is a good norm, not an evil one. It is not only good, but fundamental. If we are to break it because compliance would in these specific circumstances be a greater evil, the moral balance must take into account the significant negative impact that undermining the norm generally would have, as any deliberate act of  non-compliance inherently does. And this norm can inevitably only be broken by states powerful enough to do so, which only further exacerbates the corrosion of Article 2(4), so that we regress to a world in which the strong do what they will, and the weak suffer what they must. It is of course easy to wish for a better world in which the P-5 would not use their veto in the Security Council to block collective decisions on military intervention, but we do not live in that world, nor are the states visiting unilateral interventions upon others – for good motives or bad – willing to relinquish that veto when their own selfish interests are affected.

I hence fully agree with Anthea that breaking the law on the basis that it conflicts with higher-order considerations of justice undermines the authority of the law. I also believe that this should not be done lightly – indeed, the circumstances would need to be truly exceptional. But I still think that ‘illegal but legitimate’ is a coherent position – far more so than the attempts of those who seek to justify humanitarian intervention within the confines of already existing law, by instrumentally poking smaller or bigger holes through that law. Not only are these arguments lacking in formal validity (remember how the number of states openly endorsing a rule permitting humanitarian intervention is in the single digits, while at least 130 have openly rejected it, and the US in particular has until now expressly refused to espouse it), they also open up significant potential for further norm-erosion and abuse. Consider, for example, the position of my friend Jens Ohlin, agreeing with Harold Koh in the result but not in argument, basing his own view on what I can only say is a strained reading of the word ‘inherent’ in Article 51 of the Charter, and concluding that ‘we should interpret the law to make sense.’

Whose sense, exactly, must the law make? Doesn’t it already make sense? Doesn’t it already make sense that a single state should not legally have the right to determine unilaterally whether force should be used against some other state? Yes, the Charter collective security system is not always working as designed – but that doesn’t mean it makes no sense. After all, don’t most domestic legal systems not always work as designed? Would we expressly allow, in any domestic legal system, a Batman, caped crusader-type vigilante to enforce the law because the state’s enforcement machinery is not working in any given instance?

Finally, what I find genuinely astonishing about the humanitarian intervention-type justifications of last week’s US strike in Syria is how these arguments are made even when the facts on the ground manifestly disfavour them. First, what did the strike actually accomplish? We have no way of knowing now what the long-term consequences, good or bad, of the strike will be. But we do know in the short-term that the Syrian airbase which was targeted is apparently still operational and that planes from that very base dropped conventional bombs on the same rebel-held city which was previously attacked chemically. The Assad regime knows very well how to carry its terrorizing message across. Second, the Trump administration appears to have no discernible follow-up strategy to deal with the humanitarian disaster in Syria – from what was both said and done, the purpose of the strike was to deter Assad from using chemical weapons again, not to actually stop the Syrian catastrophe. Third, that leads us to the morally utterly intolerable position that we can intervene at our discretion when children are killed by chemical weapons, but that we can choose not to intervene, and will not intervene, when many more children are killed by bullets or explosives. If this is humanitarian intervention, I at least want nothing to do with it.

And last, but by no means the least, there are the intentions and character of the head of the interventionist government, the single individual making this decision to act, now affectionately known to some as Abu Ivanka al-Amriki. Does anyone actually believe that, with his established record of malevolence tempered only by incompetence, Trump genuinely wants to alleviate the humanitarian plight of the Syrians? That his is a genuinely humanitarian purpose? Have we already forgotten in that regard that his administration recently tried (twice!) to enact a categorical ban on the admission of refugees from Syria? Isn’t his motive for intervention an obviously selfish and pedestrian one, i.e. that he for internal political reasons does not wish to project the same image of inaction that he publicly and repeatedly castigated Obama for (sad!) and will thus now demonstrate his manly decisiveness with some bigly boom-booms and warships on TV?

In sum, whether you believe that the law can be broken for higher causes, or that the law should or already does accommodate humanitarian intervention, this is not where you fight the good fight. This is not Rwanda in 1994. This is not even Serbia and Kosovo in 1999, where – although it was my city being bombed, while I was in it – I can still accept an arguable interventionist case could perhaps have been made. This is as far from a humanitarian intervention on the legal spectrum as Trump is from Gandhi on the human spectrum. This is a clearly, unambiguously illegal use of force. And it may yet become a complete shit-show.

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28 Responses

  1. Terry Washington

    So shall we sit by and idly wring our hands whilst the likes of Bashar Al- Assad, Slobodan Milosevic and Saddam Hussein(with the covert connivance of the likes of Vladimir Putin) gas innocent men, women and children?

  2. Marty Lederman

    In the category of “Damn, I wish I had written that . . . ,” this is right up there. Thanks, Marko.

  3. Geir Ulfstein

    Well spoken, Marko!

  4. Jordan Paust

    Article 2(4) expressly does not prohibit all uses of force. The false first premise is that it does.

  5. Jens Ohlin

    I take your point, but I would also note that under domestic law we do allow “a Batman, caped crusader-type vigilante to enforce the law because the state’s enforcement machinery is not working in any given instance”. It’s called defense of others. The primary responsibility for enforcing law compliance is the police, but if the police do not respond, for whatever reason, individuals are entitled to exercise force on their behalf, and third parties can certainly assist them in exercising defensive force. Common law lawyers call this defense of others and continental lawyers call it legitimate defense.

    I understand that their are limits to this analogy. But if we are talking about caped crusaders, I think it is important to recall that domestic law preserves the ability of individuals to exercise force in the face of governmental inaction. In this case, we are faced with a situation of police inaction due to Russia’s deployment of a SC veto.

  6. Aleexandre Catranis

    Actually I am tired from all those who claim a responsibility of the USA or of the ” West” (what does it mean?) To take measures or to intervene whenever something goes wrong in the world. Who decides what happened and what is wrong. Who invited or authorized the ” usual actors” to intervene? Is there a consensus of the ” international community” that something has happened which is wrong and needs punishment or correction? This reminds me if the old colonial thinking and the ” white man’ s burden”. Furthermore, is everything perfect in Western societies, there is not authoritarianism, surveillance, rendition, poverty and inequality? Where is our legitimacy to teach and punish others? Especially if there is no absolute unanimity about the facts? Or should we accept the doctrine ” it is so because we want it to be so and because it is our interest to view the world from this angle”?

  7. Jordan Paust

    “So in everything, do to others what you would have them do to you, for this sums up the Law….”

  8. Rossana Deplano

    A wonderfully passionate portrait of an old recurring pattern in the history of international organization.

  9. Diane Desierto Diane Desierto

    Sharp, profound, and unequivocally right. Arguably among the best pieces of writing in the history of the blog.

  10. Thanks for this, Marko. I will use this post for teaching. I share the feeling of profound helplessness with regard to the situation in Syria (and elsewhere). One thing we can and should do is try to teach the use of force in a sensible way to students who try to square their textbook readings with what they read in the news and maybe their understandable impetus to call for ‘something to be done’.

  11. André de Hoogh André de Hoogh

    Jordan Paust observes, as sometimes others are wont to do, that: “Article 2(4) expressly does not prohibit all uses of force. The false first premise is that it does.”

    However, let me quote here, once again (see response of mine to professor Koh’s argument on Syria on EJIL Talk!: October 14, 2013, 17.57 h.), the originalist and textualist position of the United States of America, made clear during the San Francisco Conference, which in response to the amendment that brought ‘territorial integrity and political independence’ into article 2(4) observed that the intention of the original text had been to “state in the broadest terms an absolute all-inclusive prohibition” and added that the phrase “in any other manner” was “designed to insure that there should be no loopholes” (UNCIO, vol. VI, 335).

    All cross-border uses of armed force are inconsistent with the primary purpose of the UN to maintain international peace and security. Consistency of any particular use of armed force with other purposes does not carve it out from the prohibition and does not negate inconsistency with the primary purpose. As a result, a separate exception to the prohibition must be argued in order to justify any particular use of armed force.

  12. Marko Milanovic Marko Milanovic

    Many thanks to everyone for the kind words.

    Jens, I take your point and fully agree that the analogy is not entirely appropriate. I would only add that (1) in domestic systems there are generally far greater protections against the possible abuse of an exception, which is why the necessity (or similar) exception can be made; (2) this is in part because the balance of power is very different, i.e. it is the state deciding whether an ordinary individual can claim the benefit of the exception; (3) in many domestic systems these necessity claims can’t be made for murder (e.g. Dudley and Stephens, most famously); (4) humanitarian intervention almost inevitably requires the intervenor to kill (innocent) people in order to save more innocent people.

  13. Michael Plachta

    I wish to add my voice to those congratulating Marko for his remarkable post. I will, too, use it in my class.

  14. Tara Van Ho

    Let me also add my congratulations and thanks for a brilliant post and a great teaching tool.

  15. Jordan Paust

    Thank you Andre, that’s a good counterclaim. However, the travaux and the prior view of the US are not determinative. Further, self-determination and human rights are also among primary purposes — not to mention obligations under 55(c) and 56. And how is “security” served, whose “security”? Whose “peace”? Is there security and peace for the people of Syria?

  16. Jakob Cornides Jakob Cornides

    I share the view that the airstrike was illegal – a point that seems fairly straightforward to make. Unfortunately superpower politics isn’t always legal, and legality is not always the only consideration. International law is an attempt to subject international politics to rules and procedures, and that attempt is, alas, not always successful. It should however be noted that this US intervention is not the first or the only illegal act occuring in Syria, and that might at least provide for a partial excuse.

    This is also what explains many reactions to the airstrike that are not quite as condemning as yours. Not intervening would have simply meant to give free hand to Assad and Russia to use gas against civilians. Not a good alternative either.

    Whether the intervention will actually lead to a better or quicker solution of the conflict is yet another matter.

    What is clearly disturbing in this piece are your rather nasty ad hominem attacks against Trump. Everyone knows you don’t like him – you have written it often enough on suitable and less suitable occasions. But it would probably have strengthened your critique if you had started out with the supposition that Trump actually wants to alleviate the humanitarian plight of the Syrians, and that he actally follows humanitarian purpose?

    The way you write, one could suspect that you are driven by a personal animus. I know you are one of the editors – but maybe you should make no exceptions for yourself: this is a blog on legal issues, not a place to promote your general political views.

  17. Marko Milanovic Marko Milanovic


    My point about Trump is definitely ad hominem. But that doesn’t mean it’s an ad hominem fallacy. When a decision to obey or disobey a legal rule is based on contested moral judgments, especially when they are shrouded by uncertainty, we must of necessity care about the moral character and temperament of the person making this judgment. And in this case it was precisely one single person who made that judgment, and their moral character and temperament are directly relevant. Why on Earth should I assume that Trump acted with good intentions, when all of the evidence we have points to the contrary? As for whether something is appropriate content for this blog, I reiterate that this is exclusively a matter for the editors. If you don’t like it, feel free not to read it (and after all you are reading it for free). Bye now!

  18. Ioana Cismas

    Profoundly beautiful writing. I will also use this for teaching. Thank you.

  19. Robin Bnkel

    Terry. The US doesn’t sit idly by. Hardly ever. Right now, it supports war crimes in Yemen, contributing to the humanitarian catastrophe in the poorest country in the Arab world. So one way to “intervene” for humanitarian purposes would be to stop supporting and participating in atrocities.

    Marko. I very much enjoyed reading your post, agreeing with almost everything. However, though I appreciate your candor, I don’t think even Serbia is an arguable case, considering the way it was motivated and conducted.

  20. Jakob Cornides Jakob Cornides

    “Why on Earth should I assume that Trump acted with good intentions, when all of the evidence we have points to the contrary?”

    As I said: because it definitely would strengthen the argument you ostensibly want to make. That’s quite a good reason, and I am sure – despite your somewhat aggressive reaction to my comment – that you are well aware of this. Learn to be more gracious, it will help you in life.

  21. Marko Milanovic Marko Milanovic

    Thanks for that Jakob. Judging by how you have behaved towards others in the comment threads of this blog, for which you have been repeatedly warned by the editors, and judging by the amount of complaints we have received by email from all kinds of readers about your behaviour, you are literally the very last person who can lecture me or anyone else about graciousness. Oh, scratch that, there’s also Abu Ivanka al-Amriki.

  22. Jakob Cornides Jakob Cornides

    [comment moderated because of non-compliance with commenting policy]

  23. Diane Desierto Diane Desierto

    Dr. Cornides, thank you for participating in the discussion. We fully value the differences in the spectrum of views on international law. However, in regard to your suggestion of some “personal animus” on the part of one of our Editors and the ensuing exchange, may I simply invite your attention to our Editor-in-Chief’s previous notes on our policy:

  24. Jakob Cornides Jakob Cornides

    [comment moderated for non-compliance with the commenting policy]

  25. Roy Blynd

    Most brilliant post ever written. Absolutely incredible.

  26. Liu Haiyang

    Apart from the debate over Jus ad Bellum, in light of the controversy over who is behind chemical weapons attack, could the U.S. rely on itself to make judgments and take it as moral justifications for its use of military force against a sovereign state? This “reliable” intelligence have proved to be less credible in the 2003 invasion of Iraq. To the least extent, the judgment on who was behind the use of chemical weapons against civilians should be based on law and facts and upon UN authorized investigations.

  27. Said Hrelja

    Dear Marko,

    The main point of your post, from my reading of it, is that the recent US intervention in Syria should not be seen as humanitarian intervention. Although I have not read other contributions to the debate, yours seems to be a strong response to those inclined to see this issue through a humanitarian intervention lense. Obviously, you go beyond making that specific point by including references to Gandhi, morality and justice, Rwanda genocide, Kosovo and Serbia in 1999, which I would like to respectfully comment on in the remainder of this response.

    The title of your post “Illegal But Legitimate” suggests fairly clearly that for you humanitarian intervention is by default illegal and as you argue further in your post can only be justified on justice and moral grounds. This is my first point of disagreement because I do not think that humanitarian intervention is, by default, illegal. True, the concept has not been gaining on popularity, especially since Iraq, but that should not temper too much with our view whether the concept as such is legal or not. At the end of your post, you write: “although it was my city being bombed while I was in it – I can still accept an arguable interventionist case could perhaps have been made”, which seems to serve the purpose of strengthening your argument that although you were on the receiving end of this particular intervention you are still generously willing to concede that it might have been justified on justice and moral grounds, but that it was nonetheless still illegal. Here the view of whether humanitarian intervention is or isn’t an existing rule of international law seems to become just a tad personal, which would be equivalent to me saying that because it was my city being bombed for more than three years while I was in it, I believe not only in the justice and morality of the intervention, but also in its legality.

    Then you move on to introduce Gandhi into your discussion. Since it is already a done deal that humanitarian intervention is illegal and that it can only be justified on justice and moral grounds, the reader is invited to look at one of the supreme and universally recognizeable example of actions, though illegal, more than justified on justice and moral grounds. Actually, if there ever was an example of illegal and yet just and morally justified acts in the history of humankind, characterized by “moderation, mutual respect and felicity of expression”, Ghandi’s would probably top that list. I was particuarly struck by the following words of a great man: “cheerfully submit to the highest penalty that can be inflicted upon me” and your comment “He did not try to carve out exceptions from the law that would apply to his situation – he admitted he broke it”. It made me think that had the offending state, including for instance Serbia in Croatia, Bosnia and finally Kosovo acted more in Gandhi-like fashion and admitted it broke the law, perhaps humanitarian intervention, be it legal or not, would not have been needed in the first place. I know you will disagree with me on this one, but both you and I know that we cannot pretend that Serbia did not break the law in any or all of these instances. And that you as an individual defended it in the court of law from these allegations.

    International lawyers are not Gandhis either. One would just need to ask a judge in Seselj case what he thought of Seselj accepting “responsibility for the immoral acts of others that were a predictable consequence of his own conduct”, and the answer would be found on pages of that judgment.

    Next is the issue of the prevention of Rwandan genocide. Here is an example of a case where intervention is not only justified on justice and moral grounds, but it is also legal based on what we know now. I find it interesting the ease with which you write that “even a very limited military intervention would almost certainly have stopped the genocide” whereas you seem to think that such an intervention in Bosnia 1992 would not have had the same effect, even to the extent of such intervention not being needed at all in Kosovo in 1998. I am saying this from a practical point of view of resolving a crisis and preventing genocide and atrocity crimes from even being committed. Then there would be no protracted proceedings and advisory opinions before the ICJ, no debate about the G-word in the ex-Yugoslavia, no work for national or international lawyers in ad-hoc and international tribunals, no requests for revision, no quoting of voices of internal critics such as Refik Hodzic, which is the type of criticism I have not seen in the case of Serbia and Croatia, but please correct me on this one if I am wrong.

    Finally, you have received a lot of praise in the comments for the post and I congratulate you on that. Damn, I wish I had written that, well spoken, sharp, profound and unequivocally right, remarkable post, I will use it in teaching, are just some examples of the praise you received mostly from your colleagues, international lawyers. So, in that sense, a little criticism from me who am not even a lawyer should I think be taken in good faith. The post rides a tad too much on dissatisfaction of readers, international lawyers essentially since they are mainly the target audience, with the recent use of (humanitarian) interventions. Also, the use of Gandhi’s example to indirectly strengthen the argument that humanitarian intervention is by default illegal and that it can only be justified on justice and moral grounds is a bit overly suggestive for my taste, similar to your criticism of Judge Trindade for his not being in line with other judges, which appeared on this blog a couple of years ago.

    Correct me if I am wrong but it seems to me that you praise Ghandi and castigate Trindade for essentailly the same thing, having revolutionary ideas. Again, maybe I do not have sufficient information not coming from your line of work, but it seems to me that Gandhi and Trindade can be compared in the sense of trying to affect the change in Indian politics or contemporary world of international law through means which may appear far-fetched and downright absurd to their peers. In other words, why should anyone be ashamed of advancing the causes of international human right law just because other more conservative traditional lawyers think it is not even a discipline of law. Because of a potential for the abuse of the concept, as if the law has not been abused prior to this concept even coming into existence as a direct result of the abuses of the past…

  28. Marko Milanovic Marko Milanovic

    Dear Said,

    Thank you for the comment. Just a couple of points in response:

    (1) The illegality of unilateral humanitarian intervention (i.e. one decided on by individual states, rather than collectively by the Security Council), is subject to disagreement, but the vast majority of international lawyers (certainly those of the positivist variety) would ascribe to this view. There is no support for HI in any legally binding instrument, an enormous number of states have expressly objected to it (thus precluding the emergence of a customary rule in that regard), and it runs headlong against the prohibition on the use of force in Art 2(4) of the UN Charter. This is why I (like Simma in the EJIL article I cite to) look at the ‘illegal but legitimate’ idea; doing so of course makes sense only if the premise (that an intervention is in principle illegal) is accepted. But as I said among international lawyers this is clearly the (strong) majority opinion – see e.g. Dapo’s post I link to for further discussion.

    (2) To clarify my views on the 1999 NATO intervention re Serbia and Kosovo, I do not at all dispute the extent of the Serbian atrocities in Kosovo, as authoritatively established by the ICTY. I would note however that most of these atrocities happened after the NATO bombing campaign began, and the extent of the humanitarian situation in early 1999 in Kosovo was nowhere near, say, Rwanda, or many other horrible situations on the planet, then or now. There’s a serious factual issue as to whether the NATO intervention, in the grand scheme of things, did more harm than good. This is why I said that an arguable interventionist argument could be made. But I am personally not persuaded by it.

    (3) I never defended the Serbian state from any allegations of criminal wrongdoing, certainly not in the Bosnian or Croatian genocide cases. My only involvement for Serbia was in the Kosovo advisory case, one aspect of which (and as a matter of how the litigation was conducted probably the least important aspect of it) was the remedial self-determination argument of the Kosovo Albanian population, which was based on Serbian atrocities (the extent of which was, as far as I’m able to recall, generally not disputed in the ICJ courtroom). The issue in the case however was the legality of the declaration of independence. My own view is that the Court’s opinion that the DoI was not illegal is generally correct, with one exception (the UNMIK Constitutional Framework issue).

    (4) I fully accept that Serbia broke international law systematically and in numerous ways, including by intervening in neighbouring states and assisting separatists in committing crimes against international law, during the conflicts in the former Yugoslavia. So did Croatia, if to a lesser extent.

    (5) I too would have wished for an international military intervention in Bosnia sooner, and it was in fact that intervention (with UN support) coupled with Serb losses on the ground that led to peace in Bosnia, such as it is. But again in Bosnia we never had the unilateral humanitarian intervention of the type discussed here.

    (6) Finally, on your Gandhi/Trindade comparison – I think it is far more honest, and more powerful, to say that the law is bad/not fit for purpose/should not be obeyed because it is unjust (generally or as applied to a specific instance), than to say that the law is somehow always aligned with one’s own personal moral or philosophical preferences, especially when these preferences are hotly contested by others. I wouldn’t want even Gandhi to decide what the law is for everyone else based solely on his own sense of what was right and what was wrong.

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