Chapter

Legality vs Legitimacy: Can Uses of Force be Illegal but Justified? <sup>*</sup> <sup>**</sup>

Anthea Roberts

in Human Rights, Intervention, and the Use of Force

Published in print September 2008 | ISBN: 9780199552719
Published online January 2009 | e-ISBN: 9780191721090 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199552719.003.0005

Series: Collected Courses of the Academy of European Law

 Legality vs Legitimacy: Can Uses of Force be Illegal but Justified?  *     **

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This chapter critiques the notion of use of force being ‘illegal but justified’. It does not focus on whether NATO's intervention was actually illegal or whether it was in fact justified. Instead, it uses Kosovo as a case study for analyzing attempts by scholars and states to simultaneously embrace both conclusions. It argues that while the ‘illegal but justified’ approach provides an intuitively plausible way of reconciling legality and morality, it is ultimately not a sustainable position in international law. If unilateral humanitarian intervention is consistently met with acquiescence, then it will come to be recognized as an exception to the prohibition on the use of force. The ‘illegal but justified’ approach also shifts the focus away from questions of legality and towards questions of legitimacy. Attempting to completely divorce legality and legitimacy can ossify the law and undermine its relevance, which increases the risk of self-serving exceptionalism.

Keywords: NATO; Kosovo crisis; humanitarian intervention; justification; legality; legitimacy

Chapter.  18600 words.  Illustrated.

Subjects: Human Rights and Immigration

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