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Kosovo, and the Turn to Ethics in International Law Author(S): Martti Koskenniemi Source: the Modern Law Review, Vol 'The Lady Doth Protest Too Much' Kosovo, and the Turn to Ethics in International Law Author(s): Martti Koskenniemi Source: The Modern Law Review, Vol. 65, No. 2 (Mar., 2002), pp. 159-175 Published by: Blackwell Publishing on behalf of the Modern Law Review Stable URL: http://www.jstor.org/stable/1097635 Accessed: 10/05/2010 15:04 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. 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Blackwell Publishing and Modern Law Review are collaborating with JSTOR to digitize, preserve and extend access to The Modern Law Review. http://www.jstor.org THE MODERN LAW REVIEW Volume 65 March 2002 No 2 'The Lady Doth ProtestToo Much' Kosovo, and the Turnto Ethicsin InternationalLaw MarttiKoskenniemi* Most internationallawyers approved of the 1999 bombingof Serbia by the membersof theNorth Atlantic alliance. But most of themalso felt thatit was not compatiblewith a strict readingof the UN Charter.The article describesthe argumentativetechniques through which internationallawyers tried to accommodatetheir moral intuitionswith their professionalcompetence. The urgeto achievethis, the articleargues, arose from a generalturn to ethicsin the professionthat has been evidentsince the end of the Cold War.This has often involveda shallowand dangerousmoralisation which, if generalised,transforms internationallaw into an uncriticalinstrument for theforeign policy choicesof thosewhom power and privilege has put into decision-makingpositions. In a famoustalk nearlyforty years ago ProfessorMartin Wight of the London School of Economicsposed the questionabout why therewas no international theory.One of thereasons he foundis the factthat it wouldhave to be expressedin the languagesof politicaltheory and law. But thesewere languages that had been developedin the thinkingabout the state and aboutthe controlof social life in normalconditions: Political theory and law are maps of experienceor systems of action within the realm of normal relationships and calculable results. They are the theory of the good life. Internationaltheory is the theoryof survival.What for political theoryis the extremecase (as revolutionor civil war) is for internationaltheory the regularcase.l The distinctionbetween the normaland the exceptionalcame to be partof the Realistexplanation for why internationallaw was such a weak structure.In the domesticcontext, situations are routine.Political normality by far outweighsthe incidence of the exception- that is, ultimatelyrevolution. By contrast,the internationalcontext was idiosyncratic,and involved'the ultimateexperience of life anddeath, national existence and national extinction'. It was not the realmof theregularised search for happiness or avoidanceof displeasure:it was strugglefor survival.Political theories would not applyand legal rules would not workbecause the need for survivalfar outweighedthe need for compliance. Lawyersare not, of course,insensitive to the distinctionbetween the normaland the exceptional.'Hard cases makebad law' we say. Few wouldfail to distinguish * Departmentof PublicLaw, Universityof Helsinki,Finland. 1 M. Wight, 'Why is There is no InternationalTheory?' in H. ButterEleldand M. Wight (eds), Diplomatic lnvestigations. Essays in the Theory of lnternational Politics (London:George Allen and Unwin, 1966) 33. t) The ModernLaw Review Limited 2002 (MLR 65:2, March). Published by Blackwell Publishers, 108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 159 TheModern Law Review [Vol. 65 between the law regulating the provision of parkingtickets to diplomats and the law concerning the use of force. In the recent Nuclear Weaponscase (1996) the InternationalCourt of Justice came very close to admitting that no law could govern the case of self-defence when the very existence of the State was at stake.2 During the Cold War, international lawyers largely gave up any attempt to conceive of the balance of power in terms of legal rules or principles. The dark passion of Great Power politics overwhelmed law's rational calculations. Thus many have understoodthe post-1989 transformationas a move from an exceptional situation to a normality where the rules of civilised behaviour would come to govern internationallife. The limitation of the scope of law duringthe Cold War had been an anomaly; now it was possible to restartthe project of organisingthe administrationof the internationalsociety by the Rule of Law in the image of the liberal West. Collective enforcementunder the UN Charter'would function in a regular and non-selective manner each time that circumstancesrequired it, thus providingan institutionalguarantee to the broadcore of constitutionalprinciples'.3 Sovereigntywould lose its exceptionalforce as a barrieragainst the enforcementof humanrights, democracyor the requirementsof the global market.The indictment of Pinochet and Milosevic would imply a rejectionof the 'cultureof impunity'that seemed such a violation of normallegal accountability.4The creationof the ad hoc war crimes tribunalson the FormerYugoslavia and Rwandaand the establishment of the InternationalCriminal Court in Rome in 1998 would augur a 'new world orderbased on the rule of internationallaw'5 and continuethe constitutionalisation of the internationalorder, celebrated as a major implication of the new dispute- settlement system underthe World Trade Organisation.6 The completion of the internationallegal orderby bringing 'exceptional' situa- tions within its compass has taken place through an increasing deformalization, accompaniedby a turnto ethics in the profession.To illustratethis, I shall examine the legal argument about the bombing of Serbia by the North Atlantic Treaty Organisation(NATO) in 1999. This enables me to provide a focused genealogy of modern internationallaw as it moves, in a familiar succession of argumentative steps, from formalism to ethics, in order to capturewithin law a great crisis that under the old, 'realistic' view would have fallen beyond its scope. But it also allows me to argue that the obsession to extend the law to such crises, while understandablein historicalperspective, enlists political energies to supportcauses dictatedby the hegemonic powers and is unresponsiveto the violence and injustice that sustainthe global everyday. The 'turnto ethics' is profoundlyconservative in 2 ICJ,Legality of the Threat or Use of Nuclear Weapons, AdvisoryOpinion, Reports 1996, paras 90-97 and 105 E (dispositif). 3 G. Abi-Saab,'Whither the InternationalCommunity' 9 EJIL(1998) 264. 4 Out of the wealthof writingson the mattercf Jill M. Sears, 'Confrontingthe "Cultureof Impunity": Immunityof Heads of Statefrom Nurembergto ex parte Pinochet' 42 GYIL 1999 125-146. 5 A. Cassese, 'On the CurrentTrend towards Criminal Prosecution and Punishmentof Breachesof InternationalHumanitarian Law' 9 EJIL(1998) 8. The establishmentof war crimes tribunalsas an aspectof liberallegalism's projection of domesticideals at the internationallevel is usefullydiscussed in G.J. Bass, Stay the Hand of Vengeance. The Politics of War Crimes Tribunals (PrincetonNJ: PrincetonUniversity Press, 2000) esp 16-36. 6 cf Ernst-UlrichPetersmann, 'The WTO Constitutionand the MillenniumRoad' in MarcoBronkers andReinhard Quick (eds), New Directions in International Economic Law. Essays in Honour of John H. Jackson (The Hague: Kluwer, 2000) 111-133 and id. 'Constitutionalismand International Adjudication:How to Constitutionalizethe UN DisputeSettlement System?' 31 NY. Univ J. of IntlL & Pol (1999) 753-790. Astonishingly,many internationallawyers continue to interpretthe UN Charteras a 'constitutionof mankind',eg Bruno Simma and AndreasPaulus, 'The "International Community"Facing the Challengeof Globalization'9 EJIL(1998) 274. 160 "+The Modern Law Review Limited 2002 March2002] Kosovoand Ethics in InternationalLaw its implications.Many critics have observed the 'ideological' characterof 'Kosovo'.7What I wish to do is to generalisefrom that incidentto the state of the disciplineas it strugglesto find credibilityand critical voice in the conditions of increasinglyimperial politics. The bombingof Yugoslaviain the springof 1999 caused around500 civilian casualties.8From the perspectiveof the WesternAlliance, these deaths were perhapsa tragicbut unavoidable collateral damage. For international lawyers, they arean agonisingpuzzle: humanity's sacrifice for the gift of the Ruleof Lawor the consummationof a blatantbreach of the UN Charter?Part of the agonystems from the difficultyto thinkthat those are the only alternatives.In
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