D:\106742333.doc Printed On 2/17/2016: Humanitarian Intervention and International Law in the Case of Kosovo Major General William Moorman On March 24, 1999, without the benefit of a U.N. Security Council resolution expressly authorizing military action, North Atlantic Treaty Organization (NATO)1 began a seventy-eight day air campaign2 over the Former Republic of Yugoslavia (FRY). The air campaign concluded with Slobodan Milosevic3 capitulating to the NATO demands. NATO’s actions also laid the predicates for U.N. Security Counsel Resolution 1244,4 The Judge Advocate General, United States Air Force. 1. The North Atlantic Treaty was signed in Washington, D.C. on 4 April 1949, creating an alliance of twelve independent nations committed to each other’s defense. See North Atlantic Treaty, Apr. 4, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. Four more European nations later acceded to the Treaty between 1952 and 1982. On 12 March 1999, the Czech Republic, Hungary and Poland were welcomed into the Alliance, bringing the total to nineteen members. The North Atlantic Treaty continues to guarantee the security of its members. Further information about NATO is available on its website at <http://www.nato.int/home.htm>. 2. The name of this operation was Operation Allied Force. The operation’s objective was “to degrade and damage the military and security structure that President Milosevic (Yugoslav President) has used to depopulate and destroy the Albanian majority in Kosovo.” Prepared Statement, William S. Cohen, Secretary of Defense, to the Senate Armed Services Committee (Apr. 15, 1999) http://www.defenselink.mil/specials/kosovo/ (last visited Apr. 19, 2002). 3. Slobodan Milosevic was the President of FRY at the time of Operation Allied Force. At the present time, Milosevic is facing the ICTY (International Criminal Tribunal for the Former Yugoslavia). See Indictments and Proceedings, at http://www.un.org/icty/ind-e.htm (last visited Apr. 19, 2002). “Following the transfer of Slobodan Milosevic to the custody of the ICTY on 29 June 2001, the Trial Chamber entered a ‘not guilty’ plea on behalf of the Accused at his Initial Appearance 3 July 2001.” Status of Cases at http://www.un.org/icty/glance/casestatus.htm (last visited March 29, 2002). For general information regarding the Milosevic case and the ICTY, see the United Nations ICTY website at http://www.un.org/icty/ (last visited Apr. 19, 2002). 4. See S.C. Res. 1244, U.N. SCOR, 54th Sess., 4011th mtg., U.N. Doc. S/RES/1244 (1999). According to the official NATO website: 775 D:\106742333.doc 776 Printed On 2/17/2016: NEW ENGLAND LAW REVIEW [Vol. 36:4 adopted June 10, 1999, the day after the halt of NATO air strikes. The conclusion of these NATO operations and adoption of U.N. Security Council Resolution 1244 resulted in the deployment of international security forces in Kosovo. The responsibilities of the forces were, and continue to be, to: (a) deter renewed hostilities; (b) maintain and enforce a cease-fire; (c) ensure the withdrawal of Yugoslav and Serb military, police and paramilitary forces from Kosovo; (d) establish a secure environment for refugees in which displaced persons can return home safely; (e) supervise de-mining; (f) conduct border monitoring; (g) demilitarize the Kosovo Liberation Army 5 and other armed Kosovo Albanian groups; and (h) “[e]nsur[e] the protection and freedom of . . . movement of the international civil presence, and other international organizations” in Kosovo.6 Implementation of these responsibilities through a Military Technical Agreement7 between NATO and FRY put an effective halt to independent On 10 June the UN Security Council passed a resolution (UNSCR 1244) welcoming the acceptance by the Federal Republic of Yugoslavia of the principles on a political solution to the Kosovo crisis, including an immediate end to violence and a rapid withdrawal of its military, police and paramilitary forces. The Resolution, adopted by a vote of 14 in favour and none against, with one abstention (China), announced the Security Council's decision to deploy international civil and security presences in Kosovo, under United Nations auspices. NATO and Kosovo: Historical Overview, available at http://www.nato.int/kosovo/ history.htm (last visited Apr. 2, 2002). 5. The Kosovo Liberation Army (KLA) is an ethnic Albanian insurgent group. For an excellent background on the KLA see in general, Lt. Col. Michael E. Smith, NATO, the Kosovo Liberation Army, and the War for an Independent Kosovo: Unlawful Aggression or Legitimate Exercise of Self-Determination?, Feb 2001, ARMY LAW., at 1. 6. U.N. S.C. Res. 1244, U.N. SCOR 54th Sess., 4011th mtg. ¶ 9(h), U.N. Doc. S/RES/1244 (1999). 7. For a complete copy of the Military Technical Agreement, see http://www.nato.int/kosovo/docu/a990609a.htm (last visited May 9, 2002). According to the official NATO website: On 10 June 1999, after an air campaign lasting seventy-seven days, NATO Secretary General Javier Solana announced that he had instructed General Wesley Clark, Supreme Allied Commander Europe, temporarily to suspend NATO's air operations against Yugoslavia. This decision was taken after consultations with the North Atlantic Council and confirmation from General Clark that the full withdrawal of Yugoslav forces from Kosovo had begun. The withdrawal was in accordance with a Military-Technical Agreement concluded between NATO and the Federal Republic of Yugoslavia on the evening of 9 June. The agreement was signed by Lt. General Sir Michael Jackson, on behalf of NATO, and by Colonel General Svetozar Marjanovic of the Yugoslav Army and Lieutenant General Obrad Stevanovic of the Ministry of Internal Affairs, on behalf of the Governments of the Federal Republic of Yugoslavia and Republic of Serbia. The withdrawal was also consistent with the agreement between the Federal Republic of Yugoslavia and the European Union and Russian special envoys, President Ahtisaari of Finland and Mr. Victor Chernomyrdin, former Prime Minister of Russia, reached on 3 June. The NATO Secretary General announced that he had written to the SecretaryGeneral of the United Nations, Mr. Kofi Annan, and to the President of the United D:\106742333.doc 2002] THE CASE OF KOSOVO Printed On: 2/17/2016 777 NATO operations, but important for the purposes of our discussion, did nothing to resolve lingering issues surrounding the legal basis for NATO’s actions in the first place. In fact, these issues continue to be debated today. It appears that the difficulty does not stem from NATO’s inability to speak with one voice regarding the legal basis of its involvement in Kosovo and Serbia -- although that inability has certainly contributed to the debate. Rather, it seems that the debate is grounded in differing perceptions of the likely long-term implications of the Kosovo intervention as it potentially affects the development of customary international law.8 On one end of the spectrum is the argument that Article 2 of the U.N. Charter9 prohibits intervention in the internal affairs of a sovereign nation Nations Security Council, informing them of these developments. The Secretary General of NATO urged all parties to the conflict to seize the opportunity for peace and called on them to comply with their obligations under the agreements which had now been concluded and under all relevant UN Security Council resolutions. NATO and Kosovo: Historical Overview available at http://www.nato.int/kosovo/ history.htm (last visited Apr. 3, 2000). 8. See generally John J. Merriam, Kosovo and the Law of Humanitarian Intervention, 33 CASE W. RES. J. INT’L L. 111 (2001); Louis Henkin, Comment, NATO’s Kosovo Intervention: Kosovo and the Law of “Humanitarian Intervention,” 93 AM. J. INT’L L. 824 (1999); HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT (2nd ed., 2000); Antonio Cassese, Ex iniuria ius oritur:Are we moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community? 10 EUR.J. INT’L L. 23 (1999); Antonio D’Amato, International Law and Kosovo, 33 UN L. R. 112 (1999); Captain J Blackett, The Legal Basis for the NATO Campaign in Kosovo, in INTERNATIONAL SOCIETY FOR MILITARY LAW AND THE LAW OF WAR XV INTERNATIONAL CONGRESS (Working Session, Lillehammer, June 6-10, 2000); Adam Roberts, Lessons From the 1999 Kosovo War and Other Cases, in INTERNATIONAL SOCIETY FOR MILITARY LAW AND THE LAW OF WAR XV INTERNATIONAL CONGRESS (Working Session, Lillehammer, June 6-10, 2000); Dr. Peter Hilpold, Humanitarian Intervention: Is There a Need for a Legal Reappraisal?, in INTERNATIONAL SOCIETY FOR MILITARY LAW AND THE LAW OF WAR XV INTERNATIONAL CONGRESS (Working Session, Lillehammer, June 6-10, 2000); Simon Chesterman, JUST WAR OR JUST PEACE? HUMANITARIAN INTERVENTION AND INTERNATIONAL LAW (2001); Robert F. Turner, Kosovo: Legal and Policy Considerations, 10 US AIR FORCE ACAD. J. LEG. STUD. 67 (1999-2000); Daniel Lauretano, Operation Allied Force: Was NATO’s Use of Force Lawful and Did NATO Commit War Crimes? War Crimes and Prosecution Seminar Paper, Georgetown University Law Center, (2000) (unpublished paper on file with author); Lt. Col. Michael E. Smith, NATO, the Kosovo Liberation Army, and the War for an Independent Kosovo: Unlawful Aggression or Legitimate Exercise of SelfDetermination? 2001 ARMY LAW. 1 (Feb. 2001); George K. Walker, Principles for Collective Humanitarian Intervention to Succor Other Countries’ Indigenous Nationals, (July 2001) (unpublished manuscript provided, Naval Justice School, Conference on Kosovo War) (on file with author); HUGO GROTIUS, DE IURE BELLI AC PACIS (1625); IAN BROWNLIE, INTERNATIONAL LAW AND THE USE OF FORCE BY STATES (1968); THOMAS BUERGENTHAL, INTERNATIONAL HUMAN RIGHTS IN A NUTSHELL (1995). 9. United Nations Charter Article 2 states; The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles: D:\106742333.doc 778 Printed On 2/17/2016: NEW ENGLAND LAW REVIEW [Vol. 36:4 based on humanitarian imperatives in the absence of express U.N. Security Council authorization. Those who make this argument fear, with some historically-based logic, that any action which creates an exception to the clear meaning of Articles 2(4)10 and 2(7)11 potentially weakens the very basis for the U.N. itself.12 At the other end of the spectrum is the argument that Kosovo epitomizes the case for legitimate humanitarian intervention independent of U.N. authorization.13 Many who articulate this view cite 1. The Organization is based on the principle of the sovereign equality of all its Members. 2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. 5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. 6. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. U.N. CHARTER art. 2, para. 1-7. 10. U.N. CHARTER art. 2, para. 4 states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” Id. 11. U.N. CHARTER art. 2, para. 7 states; Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. Id. 12. See generally CHESTERMAN, supra note 8. In his book, Chesterman argues: [T]hat such unilateral enforcement is not a substitute for but the opposite of collective action. Though often presented as the only alternative to inaction, incorporating a ‘right’ of intervention would lead to more such interventions being undertaken in bad faith, it would be incoherent as a principle, and it would be inimical to the emergence of an international rule of law. Id. at 6. 13. See generally Merriam, supra note 8; see generally Henkin, supra note 8; see generally D’Amato, supra note 8; see generally Turner, supra note 8; see generally Lauretano, supra note 8; see also LT. COL. RICHARD J. ERICKSON, LEGITIMATE USE OF MILITARY FORCE AGAINST STATE-SPONSORED INTERNATIONAL TERRORISM 188 (1989) (“Jurists such as Grotius, Vattel, Wheaton, Heilberg, Woolsey, Bluntschli, Westlake, Stowell, Lawrence, and D:\106742333.doc 2002] THE CASE OF KOSOVO Printed On: 2/17/2016 779 customary international law predating the U.N. Charter. Proponents of this view assert that the right to humanitarian intervention has long existed and must continue to exist notwithstanding the U.N. charter. And so, the debate is framed. The fact that legal scholars find themselves on either side of this argument only serves to illustrate the serious nature of the debate. Each scholar fears the logical or extreme outcome of acceptance of the other’s view. On the one hand, one argument could lead to claims of legitimacy when one sovereign, for its own evil purposes, seeks to exterminate portions of its population without fear of outside interference. On the other hand, the opposing argument could legitimize the actions of a sovereign seeking to insert itself directly into the internal affairs of another state, perhaps cynically citing its right of humanitarian intervention as a cloak with which to disguise its aspirations for regional hegemony. I believe that there is a sensible and legally defensible alternative approach that is consistent with long accepted legal principles. That middle ground is found in a fact-based analysis of the situation.14 While such a fact-based analysis is somewhat dissatisfying because it clearly accepts the continued existence of ambiguity, I believe it leads to an acceptable analysis of the meaning of the Kosovo intervention. Certainly, it is more acceptable than the conclusion, reached by some, that NATO’s intervention was a violation of international law, albeit a necessary violation. By acknowledging the need for a fact-based analysis, we would also accept the fact that the Kosovo example was complicated and, even, exceptional. In the final analysis, any argument for the use of force in the absence of Security Council sanction might benefit from being treated as an exception rather than a rule. I. WHAT MADE KOSOVO EXCEPTIONAL? 1. Kosovo Had a Unique History of U.N. Security Council Scrutiny Beginning in 1998, Kosovo was the subject of a series of U.N. Security Council resolutions. U.N. Security Council Resolution 1160, 15 adopted Borchard claim that customary international law recognizes the doctrine of legal intervention in situations where a state denies its people fundamental human rights in a way that shocks the conscience of mankind.”). 14. For an excellent discussion and analysis of possible conditions for humanitarian intervention, see ERICKSON, supra note 13, at 191-193. 15. U.N. S.C. Res. 1160, U.N. SCOR 53rd Sess., 3868th mtg., UN Doc S/RES/1160 (1998). This resolution was issued pursuant to Chapter VII of the U.N. Charter, authority in light of reports of excessive force by Serbian police against civilians and peaceful demonstrators in Kosovo, and reports of acts of terrorism by the KLA. D:\106742333.doc 780 Printed On 2/17/2016: NEW ENGLAND LAW REVIEW [Vol. 36:4 pursuant to Chapter VII16 on 31 March, took note of reports of use of excessive force by Serbian police against civilians in Kosovo. 17 It called upon the FRY to pursue a political settlement and to open a meaningful dialog with the Kosovar Albanians while recognizing the territorial integrity of FRY. At the same time, it called on the KLA to condemn terrorist actions and to pursue peaceful settlement of its goals. Finally, it clearly indicated the Security Council’s intention to remain seized of the issues and to support the ICTY in gathering evidence of possible crimes. Within six months, on 23 September 1998, the Security Council adopted Resolution 1199.18 That Resolution expressed grave concern over the fighting in Kosovo, particularly citing the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav military. The Security Council demanded of the FRY and the Kosovo Albanians: a cessation of hostilities, immediate action to improve the humanitarian situation to avert a humanitarian catastrophe, and to open a meaningful dialog aimed at political settlement. The Council specifically demanded of the FRY that it: call back its security forces and cease their actions affecting the civilian population; that it facilitate international monitoring; that it facilitate the safe return of refugees; and, that it make rapid progress in negotiations toward a political solution. In addition to other expressions along similar lines, it decided that if concrete measures were not taken to meet the dictates of the two then existing Resolutions, the Council would consider further action and additional measures to maintain peace and stability in the region. Finally, on 24 October 1998, the Security Council adopted Resolution 1203,19 restating many of its prior demands, specifically recognizing that the impending humanitarian catastrophe constituted a threat to continuing peace and stability in the region. It also endorsed the agreements of 15 and 16. U.N. CHARTER, art. 39-51 (“Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression”). 17. For a comprehensive list of human rights abuses in Kosovo and a complete chronology of events, see Kosovo Chronology, available at http://www.state.gov/www/ regions/eur/fs_kosovo_timeline.html (last visited Apr. 19, 2002). 18. U.N. S.C. Res. 1199, U.N. SCOR, 53rd Sess., 3930th mtg., U.N. Doc S/RES/1199 (1998). This resolution was issued pursuant to authority under Chapter VII of the U.N. Charter out of grave concern over the fighting in Kosovo, and in particular the excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army, which resulted in numerous civilian casualties and the displacement of over 230,000 persons. See id. 19. U.N. S.C. Res. 1203, U.N. SCOR, 53rd Sess., 3937th mtg., UN Doc S/RES/1203 (1998). This resolution was issued pursuant to U.N. Security Council authority under Chapter VII of the U.N. Charter in response to the continuing grave humanitarian situation in Kosovo and the then impending humanitarian catastrophe, and in the belief that the unresolved situation constituted a continuing threat to peace and security in the region. D:\106742333.doc 2002] Printed On: 2/17/2016 THE CASE OF KOSOVO 781 16 October between the FRY, NATO, and the Organization for Security and Cooperation in Europe (OSCE). This history created a unique environment in which the demands of the U.N. had been clearly articulated, the dangers of the impending crisis had been analyzed, and the Security Council had expressed a willingness to consider further action. However, the threat of a veto from Russia and China precluded the Security Council from taking the next logical step – the authorization of the use of force.20 Finally, following NATO’s aerial campaign, the action eventually taken in U.N. Security Council Resolution 1244, authorized the placement of a U.N. force to ensure actions were taken which met the NATO terms for conflict termination. The Security Council’s actions demonstrated, first, its growing concern over the developing crisis and its belief that the situation posed a risk to regional peace and security. Secondly, the Security Council’s failure to act, demonstrated that it was incapable of addressing the apparent need for international intervention; and by its overt endorsement of the result of the ensuing NATO intervention, expressed post-action approval of that effort. This last point may be critical to any legal analysis. When given the opportunity to, in effect, either decry or implicitly ratify the action taken by NATO, the Security Council clearly chose the latter. 21 2. The Character of the Human Rights Abuses Was Severe and Immediate By its Resolutions, the Security Council evinced a clear understanding of the grave crisis building in Kosovo. On 30 January 1999, the U.N. Secretary General forwarded a report to the Security Council describing the humanitarian situation in Kosovo as “grave” and stressing the need for action to remedy the looming humanitarian disaster.22 This report cited numerous atrocities committed primarily by the FRY army and Kosovo Serbs, including widespread violence against Kosovo Albanians -- rape, torture, large-scale civilian displacements, abductions, unlawful deten- 20. See Merriam, supra note 8, at 144-45. Despite the lack of an official recorded vote, deadlock was readily apparent to all observers even before the crisis broke out. The UN had been increasingly ineffective at averting such tragedies since Somalia, with notable failures in Rwanda and Bosnia. A paralyzed Security Council was unable to act in either case to prevent a horrible humanitarian tragedy. The NATO powers had no reason to expect anything different in regard to Kosovo . . . . Id. 21. See generally U.N. S.C. Res. 1244, U.N. SCOR 54th Sess., 4011th mtg. ¶ 9(h), U.N. Doc. S/RES/1244 (1999). 22. See Report of the Secretary-General Prepared Pursuant to Resolutions 1160 (1998), 1199 (1998), and 1203 (1998) of the Security Council at 1, U.N. Doc. S/1999/99 (1999) available at http://www.un.org/Docs/sc/reports/1999/s199999.htm (last visited Apr. 19, 2002). D:\106742333.doc 782 Printed On 2/17/2016: NEW ENGLAND LAW REVIEW [Vol. 36:4 tions, and massacres of civilians. At least two mass graves had by now been unearthed. Subsequent investigations have only served to confirm the catastrophic nature of the crisis at that time. 23 3. There Was No Realistic, Peaceful Alternative to NATO Intervention in Kosovo For months, diplomatic efforts had been pursued in the hope of resolution of the situation in Kosovo. The United Nations, the OSCE, NATO, the U.S., and the Balkans Contact Group all participated in increasingly urgent diplomatic efforts designed to halt the growing crisis.24 This unique combination of world and regional bodies, coupled with the efforts of individual states, all sought to solve the crisis without negating the Former Republic of Yugoslavia’s sovereignty. The last diplomatic initiative failed with the collapse of the Rambouillet peace talks in February of 1999. 25 Even then, Richard Holbrooke made a last ditch attempt to avoid NATO military action. When that attempt failed, Operation Allied Force commenced. 4. An Identifiable, Internationally Recognized, Threat to Peace and Security in the Region Existed The Kosovo situation resulted in hundreds of thousands of refugees who flooded across its borders into neighboring states. These states lacked any realistic ability to accommodate the refugees’ needs. This, in turn, threatened to increase the instability of those surrounding states while creating additional pressure on NATO allies Greece and Turkey. This was more than a mere NATO perception. The threat was specifically recognized by the U.N. Security Council as one which threatened regional peace and stability.26 5. Recent History had Demonstrated a Willingness by the Fry Leadership to Promote Regional Instability and Human Suffering in Apparent Preference to Political Settlement For a period of years, the collection of states constituting Yugoslavia 23. See generally Situation in Kosovo, available at http://www.state.gov/www/ regions/eur/kosovo_more.html (last visited Apr. 19, 2002). 24. See Merriam, supra note 8, at 143. 25. For an excellent overview of the Rambouillet peace talks, see DEPARTMENT OF STATE TRAVELS WITH THE SECRETARY, available at http://secretary.state.gov/www/travels/ 1999/990219trip_remarks.html (last visited Apr. 19, 2002). 26. See U.N. S.C. Res. 1199, U.N. SCOR, 53rd Sess., 3930th mtg., U.N. Doc S/RES/1199 (1998). D:\106742333.doc 2002] Printed On: 2/17/2016 THE CASE OF KOSOVO 783 had been sliding into political disintegration and humanitarian disaster. NATO, acting under U.N. auspices, had been deeply engaged in Bosnia in an effort to quell the fighting and incredible brutality, which had been visited on the peoples of that region. The FRY and Serbia, in particular, had been a ready and apparent ally in the hostilities that threatened to consume that collection of states and would-be states. There was no reason to believe that a Milosevic-led government would pursue its objectives in Kosovo with less brutality if left unconstrained. II. WHAT DOES THIS THEN MEAN? First, taken together, this unique collection of factors led to a compelling need for international intervention to prevent a more serious and disastrous outcome. On the eve of conflict, Sandy Berger, then the President’s National Security Advisor, wrote to the Congressional leadership this explanation for then likely NATO intervention: NATO would be acting to deter unlawful violence in Kosovo that endangers the fragile stability of the Balkans and threatens a wider conflict in Europe, to uphold the will of the international community as expressed in various U.N. Security Council Resolutions, as well as to prevent another humanitarian crisis, which itself could undermine stability and threaten neighboring countries.27 What is now certain is that modern states (and their international law advisers), will not allow themselves to be paralyzed into inaction whenever they confront a situation which does not neatly fit fully developed international law, particularly when faced with state-sponsored slaughter of innocents. They will, and should, adopt flexible but legitimate legal analyses to deal with emerging or emerged evils. Secondly, and flowing from my first point, there is unfinished work ahead. Legal scholars and practitioners face the challenge of correctly describing what Kosovo means to international law. They must work on refining the set of criteria for conferring legitimacy on this kind of operation. Some of the Kosovo-specific facts I have talked about earlier might well be the basis for such criteria. If there are to be solid boundaries for such interventions, then these boundaries must not only be reasonable, but must also be acceptable to the community of sovereign states. Already there are multiple views and opinions circulating, and it is doubtful that any of the experts will give up their positions easily. However, this is a scholarly debate that should not be avoided. Finally, the Kosovo operation was further evidence that this generation 27. Letter from Samuel R. Berger, Assistant to the President for National Security Affairs to The Honorable Trent Lott, (Mar. 23, 1999) (on file with author). D:\106742333.doc 784 Printed On 2/17/2016: NEW ENGLAND LAW REVIEW [Vol. 36:4 of public international lawyers is privileged to be examining international legal issues during a time when international law is so dynamic, and so interwoven with the political, diplomatic, humanitarian, and military dimensions of the 21st Century world order. Kosovo, and events since, including the tragedy of September 11th, have presented unique legal issues and challenges, and it will require continued special attention to emerging circumstances to navigate what may be rough and uncharted waters ahead.