Talmon: At Last! Germany Admits Illegality of the Kosovo Intervention

Stefan A.G. Talmon (Univ. of Bonn - Law) has posted At Last! Germany Admits Illegality of the Kosovo Intervention (German Yearbook of International Law, forthcoming). Here's the abstract:

The 1999 intervention in Kosovo raised the question of whether international law allows for the use of force, beyond the right to self-defence, if the Security Council fails to meet its primary responsibility for the maintenance of international peace and security. At the time, Germany, under the leadership of Chancellor Gerhard Schröder, took the position that “the NATO air operations were permissible in international law.” In March 2014, however, Schröder revealed during a discussion forum that he knew all along that NATO’s bombardment of the Federal Republic of Yugoslavia constituted “a violation of international law.”

This short paper contrasts Schröder’s 2014 statement with the German Government’s official position in 1999 and examines the role statements of former high-ranking government officials can play in the identification of rules of customary international law. It suggests that they may shed light on the State’s opinion on matters of international law, but may not be considered as evidence of a State’s opinion juris unless the government of the day endorses, either expressly or implicitly, the legal opinion enunciated by the former government official. When evaluating such statements, account must be taken of the manner, timing, form and forum in which these statements are made.