Twenty distinguished presenters and commentators discussed the Report of the Independent International Commission on Kosovo at a public conference at Brandeis University on December 12, 2000. Leading questions included: Was the 1999 military intervention justified? What should be the future of Kosovo? What are the lessons for the future about prevention and intervention? Can there be consensus on criteria for intervention?

The Commission, initiated by the Prime Minister of Sweden, Goran Persson, handed its report to UN Secretary-General Kofi Annan on October 23, 2000. It was headed by Judge Richard Goldstone (South Africa), presenting at the conference, and included two other presenters: Martha Minow (US) and Michael Ignatieff (Canada). Other members not present at the Brandeis conference were: Grace d'Almeida (Benin), Carl Tham (Sweden), Akiko Domoto (Japan), Richard Falk (US), Mary Kaldor (UK), Jacques Rupnik (France), Theo Sommer (Germany), and Jan Urban (Czech Republic). The commentators at the Brandeis conference included professors of international law and politics, conflict resolution specialists, officers of human rights organizations, officials of the UN and European Union, and a Serbian journalist.

This article summarizes the main conclusions of the report, drawing on the factual reconstruction presented therein, and the range of opinion among the commentators. The full report was published by Oxford University Press in December 2000 and is available at http://www.kosovocommission.org. All quotes herein (except those attributed to a presenter) are from the Kosovo Report (KR, page number), available on the web at above address.

Background
To begin to judge this, the Commission first established the background which led to the intervention. The Commission traced the origin of the Kosovo conflict to 1989 when the Federal Republic of Yugoslavia (FRY) withdrew autonomy from Kosovo (a part of Serbia) leading to a decade of discrimination and resentment among Albanian Kosovars. The Commission faulted the exclusion of Kosovo from the agenda of negotiations leading to the the 1995 Dayton agreement with the FRY and other governments which ended the war in Bosnia-Herzegovina. It also criticized the lack of international support for the Kosovar nonviolent movement, led by Ibrahim Rugova, which had created parallel institutions during this period. The predominant strategy of nonviolence chosen by Kosovars during the 1990's was challenged by a guerrilla army, the KLA, which gathered ammunition after the meltdown of authority in neighboring Albania in 1997 and garnered support from Kosovars in response to the increasing repression by the FRY. An armed conflict between the KLA and FRY began in February 1998 and escalated in 1999. Yet, although support for the KLA had expanded, "Rugova's Idk party received an overwehelming majority of votes" among Kosovars in March 1998 elections (KR, 70).

Between February 1998 and March 1999, about 400,000 Kosovars had been driven or fled from their homes. The massacre at Drenica in February 1998 in which 58 people were slain by FRY forces prefaced nine months of bombings and burnings of villages, as well as disappearances and massacres of Kosovars civilians by the FRY. Not only did Serbian repression arouse greater sympathy among Kosovars for the KLA, but the violence in Kosovo and attacks on ethnic Serbs there (as well as on FRY police) increased support for Milosevic in the FRY. Milosevic called for a referendum (held on April 24, 1998) on proposed international mediation in Kosovo and elicited 95% support for his position against such mediation.

The Organization for Security and Cooperation in Europe (OSCE), the North Atlantic Treaty Organization (NATO), the United Nations Security Council (UNSC) and the International Tribunal on War Crimes in the Former Yugoslavia (ICTY) considered in 1998 what had occurred and what was to be done. Diplomatic effort by the UN sponsored Contact Group led to an agreement between the US Special Envoy, Richard Holbrooke (representing the Contact Group) and FRY President Milosevic in October 1998 which authorized the introduction of unarmed OSCE monitors and the withdrawal of most of the FRY troops (as called for in UNSC Resoulution 1199 on September 23, 1998). This de-escalation allowed many Kosovars to go home and did reduce the level of violence temporarily. "However, KLA units took advantage of the lull in the fighting to reestablish their control of many positions vacated by the redeployed Serbian troops. Violence escalated again in December 1998 also after Serbian forces reentered the province" (KR, 3).

After unsuccessful negotiations between the FRY and the Kosovo parties (the KLA and Rugova's Idk party) begun by the OSCE at Rambouillet, France in February and March, 1999, the OSCE removed its monitors on March 19. NATO began bombing military targets in March 24 1999, and continued bombing in Serbia and Kosovo for 78 days before a truce was signed in June 1999 and FRY troops pulled out of Kosovo.

Was the Kosovo Intervention Justified?
The Kosovo Commission concluded that western diplomacy had been ineffective, sending mixed signals.

• "1. Multiple and divergent agendas and expectations and mixed signals from the international community impeded effective diplomacy.

• "2. The international community's experience with Milosevic as not amenable to usual negotiations created a dilemma. The only language of diplomacy believed open to negotiators was that of coercion and threat. This lead to legal and diplomatic problems--such threat diplomacy violates the Charter and is hard to reconcile with peaceful settlement. The credibility of the threat must, in the final analysis, be upheld by the actual use of force.

• "3. It is impossible to conclude, however, despite these weaknesses, that a diplomatic solution could have ended the internal struggle over the future of Kosovo. The minimal goals of the Kosovar Albanians and of Belgrade were irreconcilable" (KR, 4).

During the period of the bombing, the Commission estimated that about 863,000 civilians fled and (the great majority) were expelled by FRY-coordinated forces; 590,000 were internally displaced and 10,000 civilians killed, the vast majority (9,500) by FRY forces. "There is also evidence of widespread rape and torture, as well as looting, pillaging and extorion. The pattern of the logistical arrangements...shows that this huge expulsion of Kosovo-Albanians was systematic and deliberately organized. The NATO air campaign did not provoke the attacks on the civilian Kosovar population but the bombing created an environment that made such an operation feasible" (KR, 2-3).

The Kosovo Report cites a report of the American Association for the Advancement of Science (noted in ISG Newsletter #25), "correlating refugee departure information with NATO bombing reports [which] clearly demonstrates that refugee flow patterns did not correlate positively with either NATO bombings or mass killings patterns; the AAAS study concludes that the data does not support the analysis that the refugees 'fled,' but is more consistent with an organized expulsion" (KR, 90).

"The Commission concludes that the NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule" (KR, 4). But the Commission faulted NATO's mistaken expectations of a brief war, strategy and failure to anticipate the risk to Kosovars from the FRY.

At the conference, Judge Goldstone criticized the international community for its failure to prevent the exascerbation of the Kosovo conflict, its lack of support for the nonviolent Kosovar opposition and leaving Kosovo off the 1995 Dayton agenda which effectually told the Kosovars that the international community was not interested in their fate. He faulted western leaders for failing to galvanize their domestic public opinion on the need for earlier action and their unrealistic demand for no casualties which determined military strategy and tactics. Yet, he observed, NATO took remarkable steps to avoid war crimes, being guided by lawyers at every step in assessing permissible targets. The Commission noted "some serious mistakes," and criticized the use of cluster bombs and depleted-uranium tipped armor-piercing shells and missiles which could create environmental damage and specific attacks which led to environmental damage.

Several commentators noted the lack of consideration of other options which could have only been used earlier, the US disinterest in the developing conflict, and lack of interest in prevention.

Barry Posen (MIT) and Hurst Hannum (Tufts University) took strong issue with the Commission's conclusion regarding the justification and legitimacy of the intervention. Posen viewed the KLA as the provocateur, inciting violence by Milosevic in order to trigger an intervention. The military remedy was inconsistent with the diagnosis of the problem and a "blunt instrument" which failed to forsee or stop the ethnic cleansing. Hannum asserted that not only was the war illegal, it was immoral, unethical and politically counterproductive. Although generally an advocate for humanitarian intervention, he concluded that the situation in Kosovo prior to the bombing did not meet criteria for such intervention. Although the ethnic cleansing was not a consequence of the NATO bombing, he believed that it was unlikely Milosevic would have started it without the bombing.

Other commentators agreed that the KLA knowingly provoked atrocities to get the attention of the international community but Milosevic was the perpetrator; he wanted and expected war. Dejan Anastasijevic (a journalist for the Belgrade weekly, Vreme) observed on the number of massacres before the best-known one in Racjak (January 1999) and the humanitarian crisis stemming from the numbers of people fleeing to the woods who could neither be protected or assisted. The bombing, he believed, did not start ethnic cleansing; the Kosovars were hostages.

The Future of Kosovo and the Ideal of the Multi-Ethnic State
What should be the future legal status of Kosovo? How could pre- war minorities--Serbs (about 100,000 of whom have fled), Roma and Turks--be integrated or protected? What is to be the role of the Federal Republic of Yugoslavia (FRY), of the United Nations, international agencies, and states with troops there now?

The successful NATO campaign halted FRY violence but did not stop revenge killings and a Kosovar drive to oust minorities. "After the summer of 1999, Kosovo was characterized by a high level of crime and aggression, much of which was directed against the minority population, especially Serbs. The inability to stop a new wave of ethnic cleansing in Kosovo, in spite of the presence of 40,000 armed soldiers, was a major failure for the international community. More than half of the Serb population left the province together with departing Serbian forces or were later forced to leave. The remaining Serb population is living in enclaves or divide[d] cities" (KR, 7).

Martha Minow outlined the five options considered by the Commission and the political and other problems each presented:

1. The status quo of a UN protectorate could be extended but neither Kosovars nor the UN want this.
   
   
2. Kosovo could be partitioned between Kosovar Albanians and Serbs but nobody wants this either.
   
   
3. Full independence is not politically feasible.
   
   
4. Autonomy within a democratic FRY is not now acceptable to Kosovar Albanians--the majority.
   
   
5. The Commission advocated conditional independence, self-government with full protection of minority rights which would be contingent on observing certain guarantees and reaching certain goals at different stages.

While several commentators agreed that the status quo could not be preserved in the long term, that partition would not work, and that there was considerable resistance among Kosovars to any link with the FRY, there was doubt among them whether conditional independence was possible. Anastasijevic remarked that conditional independence sounds in the Balkans like conditional pregnancy. Hannum observed that there was a conceptual inconsistency within the Commission Report on minority rights and sovereignty: if the Kosovars (an oppressed minority within the FRY) deserved independence, why did not the Kosovo Serbs (an oppressed minority within Kosovo) not also deserve independence?

Further, Hannum said, the proposal demanded conditions or obligations from the proposed state one would not ask of other sovereign states. It presumed that multi-ethnic states were an end in themselves but there was no evidence of this: many mono- ethnic states were democratic. Several commentators stressed that multi-ethnic cooperation was a very long-term goal, hard to develop, one which would demand both economic development and conscious policies designed to require cooperation.

Others thought there were alternative possibilities with or within the FRY under its new leadership, including a Czech solution--amicable separation between its component entities.

Michael Ignatieff, defending the Commission Report, said that offering conditional independence in the only way to "incentivize" local actors to cooperate, punish and reduce hate crimes, and take initiatives in their own communities. It also gives NATO and other international actors under the "1244 regime" (UN mandate) an exit strategy. Albanians have not adjusted to the need and obligation of majorities to protect minorities, Danilo Turk (United Nations) said. Ignatieff reiterated that only Kosovars could protect other Kosovars.

Several commentators underlined the source of difficulties in the status quo. There are real problems in the structure of the international protectorate and the lack of economic development leading to mass unemployment which is related to the doubt about Kosovo's long-term status; this, in turn, intensifies crime, corruption, and ethnic hatred. The international governing force under UNMIK is composed of representatives of the United Nations, the Organization for Security and Cooperation in Europe, the European Union and the United Nations High Commissioner for Refugees, each with overlapping and competing mandates. KFOR, the security force-- composed of troops from France, Germany, Italy, Russia, the United Kingdom and the United States-- neither shares intelligence nor has an integrated command authority.

Kosovo has developed an effective and integrated (in terms both of ethnicity and gender) local police force which, Joan Pearce (European Union) asserted, was irreversible. But Pearce and others observed that the problem inhibiting any self-government now was Albanians killing other Albanians, provoked by the KLA and reinforced by the tradition or norm of blood-revenge. Some felt the status quo was the least bad alternative in terms of securing public safety at this stage.

Several commentators who had worked in Kosovo lately reported how exhausting the experience was and the difficulty of sorting facts from ethnic fictions and legends. There was denial of collective and personal responsibility for atrocities on all sides.

Lessons for the Future: Prevention and Intervention
Several commentators remarked that the (now) conventional wisdom that prevention was always better, more effective and cheaper was largely ignored in pracice. Reasons included not only the lack of "political will" --a shibboleth, Samantha Power noted in the 1998 ISG "Ever Again" conference reported in ISG Newsletter #22-- and the lack of foresight but the lack of incentives to recognize and solve new external problems. Steps that could have been taken in Kosovo in earlier stages included supporting the nonviolent movement led by Rugova with western recognition and assistance, introducing human rights monitors, and offering mediation services. The US role in the Northern Ireland peace process was considered a case of successful prevention of escalation and conflict-resolution.

But there are deterrents to such involvement. Democratic governments have no interest in prevention, Steven Burg (Brandeis University) said, because the dividend is invisible and policy- makers don't get credit for what is not observable. Further, Ignatieff noted, many of the regions where human rights crises are in gestation are ranked lowest in priority by US policy- makers, regarded as "black holes."

For domestic actors, there is a major problem in admitting foreign intervenors for mediation or human-rights monitoring, Ignatieff observed. A government leader would have to legitimate his opponent; in this case, Milosevic would have had to legitimate the Kosovar leader, Ibrahim Rugova.

Several commentators asserted that humanitarian intervention demanded a commitment to longer-term reconstruction and assistance. Who was responsible and allowed to intervene was debatable: while some would say that only the United Nations Security Council could do so, others would admit a "coalition of the willing" or a neighboring country which had grievances against the perpetrator guilty of genocide and gross violations of human rights, such as India in East Pakistan (1971), Vietnam in Cambodia (1979), Tanzania in Uganda (1979). Regardless of how intervention was justified or who led it and legitimated it, there was general agreement that strong states would not be subject to intervention.

The Commission did suggest criteria for intervention which are based on just-war theory. This starts with the "need to close the gap between legality and legitimacy...

"Our proposed principled framework includes three threshold principles, which must be satisfied in any legitimate claim to humanitarian intervention. These principles include the suffering of civilians owing to severe patterns of human rights violations or the breakdown of government, the overriding commitment to the direct protection of the civilian population, and the calculation that the intervention has a reasonable chance of ending the humanitarian catastrophe. In addition, the framework includes a further eight contextual principles which can be used to assess the degree of legitimacy possessed by the actual use of force....

"The proposal for a new framework for humanitarian intervention should not detract from the need to prevent humanitarian catastrophes in the future. The Commission takes the view that much more political effort and economic resources need to be devoted both to pre-conflict and post-conflict situations....The Commission also advocates greater emphasis on the gender dimension of humanitarian intervention. In Kosovo, insufficient attention has been paid to the impact of the conflict on women, in particular, the use of rape as a weapon of war, and the rise of trafficking in the post-conflict period. Moreover, women have a crucial role to play in post-conflict reconciliation and reconstruction" (KR, 10-11).