Chapter 5 examines the evolving legal context and the practical effectiveness of CoE interactions with the central case study, Kosovo. Kosovo is a sui generis case, distinct from all others, but it is an appropriate case study as it has faced and, in several cases, overcome similar engagement challenges. Over more than two decades, the CoE has innovated and adapted its relationship with Kosovo, and so this chapter seeks to illustrate the pragmatism and creativity which can be employed when the political will to do so is in place. The chapter elaborates the principle of engagement on the basis of ‘functional capacity’ and the practice of monitoring substitution.

In Chapter 2 I propose reconceptualising the ‘CoE system’ from one traditionally seen as a hierarchy of autonomous institutions towards an understanding of a matrix of mutually reinforcing judicial and non-judicial components for which Member States have collective responsibility. I argue that a whole-of-system approach is especially important when faced with systemic problems of such complexity. I then offer a high-level snapshot of current examples which exist in Eastern Europe (Transnistria and currently occupied parts of Ukraine), the South Caucasus (the Karabakh region/Nagorno-Karabakh, Abkhazia and South Ossetia), and the Eastern Mediterranean (Northern Cyprus).

The presence of foreign judges on the Constitutional Courts of Bosnia-Herzegovina and Kosovo is due to the existence of ethnic conflicts and societal divisions which resulted in the internationalisation of their constitutions and centralised constitutional courts. This chapter examines whether and to what extent the presence of foreign judges on these constitutional courts has met the rationale of helping to end or pacify the ethnic conflicts. It compares the influence of foreign judges on adjudication and constitutional law, and their contribution to the legitimacy of the courts in the eyes of the public and political actors. Differences between the working conditions of each court, degree of judicial activism, and the distribution of legitimacy between the court itself and the foreign judges, arise in each context, but the analysis ultimately suggests that the appointment of foreign judges to resolve ethnic conflicts is a ‘mission impossible’.

This chapter examines how the double historical experience with imperialism is incorporated into the collective memory of Ottoman and Post-Ottoman societies and to what end. While collective memory – sociocultural narratives and practices of collectively remembering (and forgetting) specific aspects of the past – and its cultivation reflects to the past it is a product of the respecting present. Using the example of the Battle of Kosovo and the Status of Jerusalem and focussing on the linkages between memory cultures and national identities this chapter highlights how different actors at different points in time have made use of the Ottoman past to shape the Post-Ottoman present according to their respective agenda.

A federalised Serbia was formed after the war, as part of a communist-governed Yugoslav federation. Tito and the Party leadership restored Yugoslavia following four years of occupation and civil war, including a brutal conflict between pro-communist and pro-monarchy Serbs. In the post-war period, Serbia, like the rest of Yugoslavia, experienced modernization and industrialization and it was home to a vibrant arts and cultural scene. Serbia was the only Yugoslav republic that itself was federalized, with the establishment of the provinces of Vojvodina and Kosovo. In the late 1970s, Serbian political leadership and intellectuals objected, from their different positions, to Serbias status in Yugoslavia. In the second half of the 1980s, the Serbian communist leader Slobodan Milošević adopted a nationalist platform which alienated many non-Serbs, undermined pro-democracy forces in Serbia, and destabilized Yugoslavia. Under the guise of the so-called anti-bureaucratic revolution, Milošević pushed his agenda in 1988-1989 to restore Serbia’s sovereignty over the provinces, and to extend his influence in Montenegro, where pro-Serb sentiments were strong.

Kosovo declared independence from Serbia in 2008, after more than thirty years of political limbo, constitutional ambiguity and tension that culminated in the Kosovo War of 1998–1999. The following years witnessed a series of internationally sponsored peace talks, culminating in a Comprehensive Proposal for the Status Settlement in 2007, which Kosovo accepted but Serbia rejected. The Status Settlement proposal served as the basis for Kosovo’s Independence Constitution, which in terms of process, reflects a dynamic interplay between formally internationally-led negotiations on the political status and an informal internationally-supported constitution-making process. In terms of content, it reflects a combination of locally driven choices within internationally imposed guidelines. Therefore, the Kosovo case contributes to the scholarly debate on the legality and legitimacy of internationalized constituting-making processes. While criticism dominates this debate, Kosovo’s experience sheds light on the advantages of such a process in post-conflict contexts. It shows that the internationally influenced constitutional design constraints can also be “enabling” and that the role of external actors can help balance the motivational factors affecting a constitutional design. Furthermore, it reflects how an effectively coordinated partnership between local and external forces can lead to an outcome, which is compatible with the “will of the people”.

Chapter 6 presents the second of the three case studies: Protecting the Individual Human Being from Mass Atrocities. The case study offers a critical discussion of the literature and the development of R2P. The chapter then analyses the discourse on Libya and Syria concerning actions to protect civilians and the potential use of force to do so. The analysis focuses mainly on UN Security Council deliberations. Finally, the chapter demonstrates how the individual human being appears in the discourse on protection as innocent civilians or guilty perpetrators or terrorists. As will be demonstrated, this matters for enabling a politics of protection. By analysing the debate on the intervention in Libya in 2011 and dealing with the conflict in Syria, mainly focusing on the years 2011 to 2015, respectively, I demonstrate how these politics of protection play out

Chapter 5 considers evidence that disagreements about the jus ad bellum are linked to disagreements about between ‘pacificist’ and ‘interventionist’ strategic cultures ‘extra-legal’ politico-strategic and ethical principles. The chapter describes extra-legal reasoning, particularly in evaluating facts, in UK government statements and writings by eight legal scholars about the lawfulness of military action in Kosovo (1999), Afghanistan (2001) and Iraq (2003), judges’ opinions in the ICJ cases Nicaragua (1986), Wall (2004), and Congo (2005), and in interviews and a survey with thirty-one UK-based international lawyers. The chapter concludes that lawyers’ extra-legal reasoning and views on lawfulness of force broadly align, on a continuum between pacificists preferring a restrictive jus ad bellum, and interventionists favouring an expansionist approach. But again, there are caveats. Most interventionists accept some legal prohibitions they believe are politically or ethically wrong. Most pacificists accept some justifications they politically or ethically condemn. This suggests most lawyers’ politico-strategic and ethical intuitions act as forms of cognitive biases, shaping but not wholly determining opinions about legal interpretation and the jus ad bellum.

Chapter 4 considers evidence that disagreements about the jus ad bellum are linked to disagreements between ‘formalist’ and ‘dynamist’ legal cultures. The chapter describes legal interpretation techniques identified in analysis of UK government statements and writings by eight legal scholars about the lawfulness of military action in Kosovo (1999), Afghanistan (2001) and Iraq (2003), judges’ opinions in the key ICJ cases Nicaragua (1986), Wall (2004) and Congo (2005), and in interviews and a survey with thirty-one UK-based international lawyers. The analysis suggests the jus ad bellum displays the forms of vagueness already identified: paradigms, supervaluationism, and fuzzy logic. Lawyers’ legal interpretive choices broadly aligned with their views on the lawfulness of force, on a continuum between a formalist legal culture aligning with a restrictive approach to the jus ad bellum, and a dynamist culture aligning with an expansionist approach. But the correlation has caveats: expansionist lawyers sometimes deployed formalist arguments, while restrictivist lawyers sometimes deployed dynamist arguments. Competing interpretation techniques also do not explain lawyers’ differing factual assessments and forecasts about the jus ad bellum.

Chapter 6 considers how insights from legal risk management, international humanitarian law, strategic intelligence analysis and forecasting might help manage uncertainty and extra-legal biases in the jus ad bellum. The chapter proposes a framework drawing on these fields, using legal and extra-legal expertise to describe the legal and factual context, competing legal theories justifying or prohibiting force, multiple possible interpretations of current facts and future consequences of using or not using force and potential risks that any legal theory is challenged or disproven, and recommending whether to accept these risks and use force, take steps to reduce risks, or not to use force where these risks are too severe. The chapter applies this framework to the Kosovo and Afghanistan interventions, showing that the framework as applied by this author recommends more cautious decisions than those actually taken. The chapter considers how such a framework might have affected UK legal advice on the 2003 Iraq intervention. The chapter concludes that the framework may help address uncertainty and extra-legal intuitions, but does not eliminate the need for judgement, and raises significant normative questions.

This chapter chronicles military incursions on behalf of humanity into Somalia, Haiti, and the Balkans twice to feed the starving, restore democracy, and rescue populations from annihilation. These altruistic missions, known as “military operations other than war,” or MOOTW (pronounced as “moot-wah”) were viewed skeptically by the traditionally minded Pentagon brass. They regarded MOOTW as a diversion from real soldiering. But troops died in them. George H. W. Bush committed US forces, under United Nations auspices, to Somalia so as to distribute food to the starving Somalis in their volatile and violent land. This humanitarian mission led to a bloody skirmish in Mogadishu during William J. Clinton’s presidency that politically humiliated America. Also in 1993, a military junta in Haiti ousted the democratically elected Jean-Bertrand Aristide. When desperate Haitians landed on American beaches, Clinton tried sanctions to restore Aristide. Then he militarily invaded the Caribbean nation to put defrocked Catholic priest back in power. Sobered by the “Mog” firefight, Clinton refused to help halt the bloodbath in Rwanda. He could not avoid the raging war in the Balkans to rescue Bosnian Muslims from Serbia in the worst conflict since World War II. In 1995, Washington corralled Britain, France, and other NATO members into bombing the Serbs and then occupying Bosnia to preserve the peace. Next, the tiny Muslim-dominated province of Kosovo erupted against its Serb overlords. A three-month sustained bombing campaign compelled Serbia to surrender.