Legality and Legitimacy in International Order

Legality and Legitimacy in International Order T  NATO armed intervention over Kosovo was illegal under international law, but widely regarded as legitimate. Th e 2003 US invasion of Iraq was both illegal and illegitimate, though unilateral attempts were made to legitimize it, using the Kosovo precedent. Th e sanctions against Iraq, preceding the 2003 invasion, were legal, but seen by many as illegitimate. Th ese examples are symptomatic of a wider disconnect between legality and legitimacy which aff ects many areas of international life. Legality is not the only criteria for determining acceptable state behaviour. Other criteria—humanitarian, ethical and political—play a signifi cant role in modern international relations. Ignorance of international law has serious negative consequences, but so has the blind reliance on international law, detached from human aspirations and actual circumstances. When laws serve only themselves, there is a lack of legitimacy. Legitimacy watches over laws, ensuring that they serve their fundamental purpose—to improve the lives of those they govern. Existing international law may fail to respond eff ectively to pressing global needs, particularly those arising from humanitarian emergencies. Th is failure triggers the need for a corrective, or even for an alternative act. Legitimacy serves to support and, when necessary, to correct legality. When international law would prevent the international community from intervening to help large groups of people at serious risk, the gap between law and legitimacy is clearly manifested. In other situations legally impeccable decisions— such as UN-authorised trade embargoes—have indirectly produced serious civilian suff ering and their legitimacy has been rightly questioned. Human history shows that law can be challenged—the Nuremburg Tribunal is a prime example—when emergencies demand action which the existing law at the time is unable to explicitly permit. Such actions can be seen as legitimate, even if unauthorized by law. Laws can soon develop—as the Geneva Conventions and the Genocide Convention did after Nuremburg—to ‘catch up’ with transformative challenges. In the early 1960s the UN Security Council (UNSC) condemned Israel’s violation of Argentinean territory to arrest a war criminal, Adolf Eichmann, and bring him to justice. Th irty years later the same Council established international tribunals for Yugoslavia and Rwanda, demanding that states arrest war criminals and bring them to justice. Overview