The Kosovo Report

Report
from Independent International Commission on Kosovo
Published on 23 Oct 2000
(published by Oxford University Press)
The Independent International Commission on Kosovo

Press Secretary: Anki Wood Mobile: +46-739-64 84 88
Director: Pia Övelius Mobile: +46-70-543 25 97
E-mail: secretariat@kosovocommission.org

The Kosovo Report was presented to the UN Secretary General Kofi Annan in New York on October 23 at 3:00 pm. In The Kosovo Report the Independent International Commission on Kosovo seeks to answer a number of burning questions concerning the Kosovo crisis.

The Commission recommends a new status for Kosovo, 'conditional independence'. This means an independent and self-governed Kosovo, but within an international framework, covering among other things external security and protection of minority rights. "We are now", the Commission says, "at a critical juncture. A dialogue of reconciliation between an independent Kosovo and a democratic Serbia is essential. The Kosovars must realize that the international community did not intervene to turn Kosovo over to another ethnic majority tyranny. The Serbs must also realize that to insist that Kosovo remain in the Federation is to ask for more conflicts. The leadership on both sides must have the courage to talk to and recognize each other. The international community - the UN, and the EU must act decisively."

The Independent International Commission on Kosovo was the initiative of the Prime Minister of Sweden, Mr Göran Persson, who was concerned by the absence of independent analysis of the conflict in Kosovo and any real attempt to research the lessons to be learned from the conflict. Direct involvement by the Swedish government extended only to the invitation to Justice Richard Goldstone of South Africa and to Mr. Carl Tham, Secretary-General of the Olof Palme International Center in Stockholm, to act as co-chairmen.

Some Main Conclusions of the Report:

The Milosevic government's policy and actions were clearly the fundamental cause of violence in Kosovo during the 1990s. However, the 1999 bomb war might have been averted if the international community had taken decisive preventive action in early 1990. The decision to exclude Kosovo from the Dayton negotiations and the lack of international support for the non-violent resistance led many Kosovo Albanians to conclude that violence was the only way to attract international attention - a strategy that proved to be successful.

In the face of Milosevic's ruthless policy of oppression, the uncompromising demands of the Kosovars (the Kosovo Liberation Army, KLA, and the Democratic League of Kosova, LDK), the confused and mixed signals of the international diplomatic effort and eventually the NATO threat of force, there was at the end little chance to avoid war.

The NATO intervention was, the Commission concludes, illegal but legitimate. It was illegal because it did not receive approval from the UN Security Council but it was legitimate because all diplomatic avenues had been exhausted and there was no other way to stop the killings and atrocities in Kosovo. The Commission has however criticized the way the intervention was conducted in several aspects.

NATO falsely believed that a short bombing campaign would be enough to achieve an agreement and totally underestimated the risk that the Serbian government would attack the Kosovo Albanians. There was very little planning to receive refugees. Air power was incapable of stopping expulsions and murder. NATO had to expand the air campaign to strategic targets in Serbia proper, which increased the risk of civilian casualties. In spite of the fact that NATO made substantial efforts to avoid civilian casualties some serious mistakes were made.

The Commission argues for a new legal convention for military "humanitarian intervention" operations, which should impose more constraints on the use of force than are embodied in the current law of war.

UNSC Resolution 1244 authorized the deployment in Kosovo of a military force, KFOR, and the establishment of a civilian administration, UNMIK. The inability of KFOR to stop a new wave of ethnic cleansing in Kosovo was a major and disturbing failure for the international community.

Although progress has been made under UNMIK rule there are still serious problems - specifically the continuing (but diminishing) ethnic assaults, lack of law and order and the poor economic situation. A major concern is the criminalisation of the economy.

The work of UNMIK has been hampered by among other things the slowness of donors to implement their funding commitments.

The NATO intervention in Kosovo showed the domestic political problems as well as the shortcomings of using military power as a humanitarian instrument. It exposed the limitations of current international law regarding the balance between the rights of citizens and the rights of states, and what has happened after the war demonstrates the immense obstacles to creating multi-ethnic cooperation in societies torn apart by ethnic war.

The members of the Independent International Commission have participated solely in their personal capacities. They are Richard Goldstone, South Africa; Carl Tham, Sweden; Grâce d'Almedia, Benin; Akiko Domoto, Japan; Richard Falk, USA; Michael Ignatieff, Canada; Mary Kaldor, UK; Martha Minow, USA; Jacques Rupnik, France; Theo Sommer, Germany and Jan Urban, Czech Republic.

The Kosovo Report

EXECUTIVE SUMMARY -- MAIN FINDINGS

PREVENTION
The origins of the crisis have to be understood in terms of a new wave of nationalism that led to the rise of Milosevic and the official adoption of an extreme Serbian nationalist agenda. The revocation of Kosovo's autonomy in 1989 was followed by a Belgrade policy aimed at changing the ethnic composition of Kosovo and creating an apartheid-like society.

From the early 1990s onwards, governments and international institutions were aware of the impending conflict in Kosovo. There were plenty of warnings, and moreover, the Kosovo conflict was part of the unfolding tragedy of the break-up of Yugoslavia. Yet prior to 1998, the international community failed to take sufficient preventative action. There were some diplomatic initiatives especially in 1992ñ3, but they were confused and not backed by sufficient high-level pressure. More importantly, insufficient support was provided to the non-violent resistance movement, which created its own parallel institutions and which managed to prevent large-scale violence in Kosovo up to 1997. The decision to exclude the Kosovo question from the Dayton negotiations, and the lack of results achieved by the strategy of non-violence, led many Kosovar Albanians to conclude that violence was the only way to attract international attention. It was during this period that the KLA groups first made their appearance. Until late 1997 they were small resistance groups who pursued hit and run, low level guerrilla warfare, hoping for international intervention. The Serbian response to the initial KLA attacks was, as expected, brutal and was also directed against civilians. The Serbian massacre of 58 people in Prekazi/Prekaze in February 1998 became a turning point. The internal war escalated.

The general conclusion to be drawn from this experience is that much more effort needs to be devoted to prevention. It is not necessarily a matter of early warning; it is a matter of political will, readiness to expend resources, and having a presence on the ground.

ARMED CONFLICT
This armed conflict between the KLA and the FRY lasted from February 1998 to June 1999 although it escalated after March 1999 when the NATO air campaign supervened. It can be characterized both as an armed insurgency and counter-insurgency, and as a war (against civilians) of ethnic cleansing.

The Commission has collated information from a wide variety of sources in order to assess the extent of atrocities. In the first phase of the conflict from February 1998 to March 1999, casualties were relatively low: around 1,000 civilians were killed up to September although the evidence is uncertain; the number of victims between September and March is unknown but must be lower. More than 400,000 people were driven from their homes during this period, about half of these were internally displaced. Most of these internal refugees returned after the Holbrooke-Milosevic agreement of October 1998. There were also widespread arrests and detentions during this period.

In the period March 24, 1999 to June 19, 1999, the Commission estimates the number of killings in the neighborhood of 10,000, with the vast majority of the victims being Kosovar Albanians killed by FRY forces. Approximately 863,000 civilians sought or were forced into refuge outside Kosovo and an additional 590,000 were internally displaced. There is also evidence of widespread rape and torture, as well as looting, pillaging and extortion.

The pattern of the logistical arrangements made for deportations and the coordination of actions by the Yugoslav army, para-military groups and the police 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.

THE DIPLOMATIC EFFORT
The most promising window of diplomatic opportunity was prior to 1998. At each stage of the conflict, the diplomatic options narrowed. However, the political will to mount a major diplomatic effort could only be mobilized after the conflict escalated into full-scale violence.

The diplomatic effort throughout 1998, culminating in Rambouillet, was characterized by confusion and mixed signals. In the face of Milosevic's ruthless strategy of oppression and the maximalist demands of both the LDK and KLA, there was little chance that diplomacy would prevail. The Holbrooke-Milosevic agreement of October 1998 led to the introduction of unarmed international monitors and did succeed in reducing the level of violence. 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.

The Commission believes that there are important lessons to be learned about the role of unarmed monitors in reducing the level of civilian suffering, if not averting humanitarian catastrophe.

The overall narratives of the international response are inherently inconclusive, and hence without clear "lessons" beyond the prudential observations in favor of early engagement and greater attentiveness to nonviolent options. Certain key conclusions are worth emphasizing.

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.

4. Russia's contribution to the process was ambiguous. Its particular relationship with Serbia enabled crucial diplomatic steps, but its rigid commitment to veto any enforcement action was the major factor forcing NATO into an action without mandate.

THE NATO AIR CAMPAIGN
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.

NATO believed that a relatively short bombing campaign would persuade Milosevic to sign the Rambouillet agreement. That was a major mistake. NATO also underestimated the obvious risk that the Serbian government would attack the Kosovo Albanians. NATO had to expand the air campaign to strategic targets in Serbia proper, which increased the risk of civilian casualties. In spite of the fact that NATO made substantial effort to avoid civilian casualties there were some serious mistakes. Some 500 civilian deaths are documented. The Commission is also critical of the use of cluster bombs, the environmental damage caused by the use of depleted-uranium tipped armor-piercing shells and missiles and by toxic leaks caused by the bombing of industrial and petroleum complexes in several cities, and the attack on Serbian television on April 17, 1999. The Commission accepts the view of the Final Report of the ICTY that there is no basis in the available evidence for charging specific individuals with criminal violations of the Laws of the War during the NATO campaign. Nevertheless some practices do seem vulnerable to the allegation that violations might have occurred and depend, for final assessment, on the availability of further evidence.

The Commission argues for a higher threshold of protective standards in any future undertaking and proposes the negotiation of a "Protocol III" to make this explicit and mandatory.

In conclusion, the NATO war was neither a success nor a failure; it was in fact both. It forced the Serbian government to withdraw its army and police from Kosovo and to sign an agreement closely modeled on the aborted Rambouillet accord. It stopped the systematic oppression of the Kosovar Albanians. However, the intervention failed to achieve its avowed aim of preventing massive ethnic cleansing. Milosevic remained in power. The Serbian people were the main losers. Kosovo was lost. Many Serbs fled or were expelled from the province. Serbia suffered considerable economic losses and destruction of civilian infrastructure. Independent media and NGOs were suppressed and the overall level of repression in Serbia increased.

RESPONSE TO HUMANITARIAN CRISIS
Both governmental and non-governmental agencies were unprepared for the scale of the refugee crises in the neighboring states of Albania and Macedonia. There were obviously no warnings from NATO to either UNHCR or other organizations of a possible refugee flow. The lack of planning can be partly attributed to the underfunding of UNHCR. NATO peacekeeping troops based in Macedonia were brought in by governments to assist with the refugee crisis. Lack of cooperation and competition between the military and the main humanitarian agencies as well as with the numerous NGOs who rushed to the region to help, hindered the humanitarian effort.

Given these initial difficulties, the Commission commends the scale and effectiveness of the humanitarian response and proposes a number of measures, such as the screening of NGOs and more cooperation among military and civilian agencies, to improve planning and coordination in the future. To ensure more even-handed response to humanitarian crises and to promote preparedness and coordination, the international community must provide more funds for UNHCR.

The extraordinary scale of the humanitarian response took place at a time when worldwide aid budgets were dwindling. This compromised the claim of impartiality and universality in the provision of humanitarian assistance and aid.

ROLE OF THE MEDIA
Both NATO and the Belgrade government engaged in a propaganda war and made exaggerated claims. Nevertheless, on the whole, journalists did not allow themselves to be "spun." Even in Belgrade, where the government cracked down on independent media, a few courageous journalists continued to speak out.

Just as the Commission has concluded that the conduct of military operations in humanitarian interventions should be conducted according to especially strict rules of engagement, it also concludes that media operations must be conducted under especially stringent rules of disclosure. The Commission strongly believes that open access to both sides of any humanitarian intervention is critical if military operations, on both sides, are to be kept under effective public scrutiny. The Commission believes there is no case for restricting the ability of journalists to operate in theaters of conflict where humanitarian interventions are taking place. The Commission strongly condemns the attempts by the Serbian government to place restrictions on their own media's coverage of the war and its aftermath, especially the detention of Miroslav Filipovic for his interviews with FRY soldiers who took part in operations in Kosovo, and for his publication of their admission of atrocities and war crimes.

UNMIK RULE
United Nations Resolution 1244 authorized the deployment of military forces, KFOR, to Kosovo and the establishment of a civilian administration, UNMIK. Dr. Bernard Kouchner was appointed by the UN Secretary General to head the mission.

After the summer of 1999, Kosovo was characterized by a high level of crime and agression, 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 cities. In particular, the division of the northern city of Mitrovice/Kosovska Mitrovica represents a focal point for renewed conflict. In addition, those political forces among the Albanian population who had advocated violence were greatly strengthened by the war.

Although the international authorities can claim some achievements in establishing an administration and starting to solve some of the problems of the economy and of law and order, they still face serious challenges. The establishment of UNMIK was slow and its work has been seriously hampered by a number of obstacles, notably the absence of police and of judicial processes, and the slowness of donors to implement their funding commitments. Although KFOR troops did undertake civilian tasks, only some national contingents were ready to undertake police work. Moreover, the contradictory character of 1244 which includes commitments both to "substantial autonomy and meaningful self-administration" for Kosovo and to the sovereignty and territorial integrity of FRY, greatly complicates policy-making on a range of issues such as security, currency, trade etc.

The lessons of UNMIK rule for other UN operations include the need to create an international policing capability, the need to increase funding for post-conflict operations, and the importance of supporting and strengthening moderate democratic political groupings.

EFFECTS ON THE SURROUNDING REGION
The conflict in Kosovo cannot be understood except in the broader regional context. The Kosovo conflict produced shock waves affecting neighboring states as a result of the influx of refugees, the economic damage caused by disruptions to trade and production and the growth of criminality, and the political impact on fragile states such as Albania, Macedonia and Montenegro.

The Commission welcomes the initiative for a Stability Pact, which opens up new opportunities to create a post-conflict zone of stability and cooperation in the Southeast European region as a whole. The Pact has generated high expectations but has achieved relatively little in its first year. The combination of extensive conditionality and Brussels red tape has kept disbursement on a low level. There is a risk of failure or fading into irrelevance if it were to remain essentially a concept imposed on the region from above without adequate input from, and identification within, the region. It will work only if the desire to join Europe prevails over nationalistic agendas and corrupt practices. The destination of the Balkans as a whole must be European integration.

Two important obstacles to regional integration are weak state institutions and widespread criminalization of the economy. It is important to strengthen civil society in the region as a whole and to assist state-building processes. There also needs to be much greater international cooperation in fighting organized crime, including adequate legislation and improved enforcement capacity.

The Commission is deeply concerned about the deteriorating political situation in Serbia and the risk of a new violent conflict between Montenegro and Serbia. It recommends greatly increased political and economic support for Montenegro and an expanded international presence in that country. It also recommends a long-term project of promoting civil society in Serbia, including NGOs, alternative or independent media, municipalities and universities, while maintaining targeted sanctions against the Belgrade regime.

FUTURE STATUS
Resolution 1244 created a unique institutional hybrid, a UN protectorate with unlimited power whose purpose is to prepare the province for autonomy and self-government - but in the framework of FRY. There is also a sharp division in the UN Security Council concerning if and how the resolution should be implemented. It is however very clear that, after what the Kosovo Albanians have experienced at the hands of the FRY authorities, they are absolutely unwilling to accept any meaningful or even symbolic expression of FRY sovereignty on the province.

The Commission has concluded that the best available option for the future of Kosovo is "conditional independence". This means expanding the autonomy and self-government promised by 1244 in order to make Kosovo effectively self-governing outside the FRY, but within an international framework. The international community would take responsibility for an initial security guarantee and for overseeing the protection of minority rights and would also integrate Kosovo into an effective stability pact.

The status of "conditional independence" would have to be reached through an "internal agreement" between representatives of the international community in Kosovo and the Kosovo majority, as well as representatives of ethnic minorities, and an "external agreement" negotiated with Kosovo's neighbors. Eventually, this will also have to include the Serbian government but a refusal of the Serbian government to engage in dialogue should not constitute a veto on this process.

THE FUTURE OF HUMANITARIAN INTERVENTION
Experience from the NATO intervention in Kosovo suggests the need to close the gap between legality and legitimacy. The Commission believes that the time is now ripe for the presentation of a principled framework for humanitarian intervention which could be used to guide future responses to imminent humanitarian catastrophes and which could be used to assess claims for humanitarian intervention. It is our hope that the UN General Assembly could adopt such a framework in some modified form as a Declaration and that the UN Charter be adapted to this Declaration either by appropriate amendments or by a case-by-case approach in the UN Security Council. We also suggest a strengthening of the level of human rights protection contained in the UN Charter - aware of course of the political problems of implementing such a change.

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 implication of our framework is that governments and international institutions also need to possess the appropriate means for carrying out this kind of operation. This means expanding the international peacekeeping capacity to protect civilians on the ground.

The Commission is aware that in many countries of the world there is a much stronger commitment to the protection of their sovereignty than currently exists in the West. Given the dual history of colonialism and the Cold War, there is widespread concern about Western interventionism. The growing global power of NATO creates a feeling of vulnerability in other parts of the world, especially in a case such as Kosovo where NATO claims a right to bypass the United Nations Security Council.

The Commission, composed as it was of citizens of many non-European, non-Western societies, puts great emphasis on the continued importance of the United Nations. It advocates increased funding and the need to consider ways to reform the main bodies of the United Nations, especially the Security Council, so that they are better suited to the post-Cold War environment.

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. In the case of Kosovo, far more attention and money was spent on Kosovo during the intervention than before or after.

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.

Finally, the Commission is acutely aware that the world has not given the same priority to humanitarian catastrophes outside Europe as it gave to Kosovo. It is the Commission's hope that, after the Kosovo experience, it will be impossible to ignore tragedies such as the genocide in Rwanda in other parts of the world, and that the lessons of the Kosovo conflict will help us to develop a more effective response to future humanitarian catastrophes wherever they occur.

ADDRESS BY FORMER PRESIDENT NELSON MANDELA
Delivered at the Independent International Commission on Kosovo's final seminar, University of the Witwatersrand, South Africa, August 25, 2000

In his opening address to the General Assembly in September 1999 Secretary-General Kofi Annan made a plea for United Nations intervention in cases of gross violations of human rights. We know that few states endorsed the remarks of the Secretary-General, and even fewer supported the Swedish position that "the collective conscience of mankind demands action."

The reluctance on the part of states is perhaps understandable due to a wariness of intervention too readily initiated; but we must all admire the determination of Secretary-General Annan and Sweden to end the conflicts which continue to plague so many regions of our world. It is hardly surprising that both had given their support to the Independent International Commission on Kosovo -- a commission established to examine the events in Kosovo. Both Prime Minister Persson and Secretary-General Annan believe that to end conflict we must better understand it.

We must say to Secretary-General Annan that, at a time when the quest for peace demands greater accountability on the part of states and international organisations for their actions, we are fortunate to have a man like him at the helm of the United Nations Organisation. In Africa we take particular pride in him.

The quest for peace has created a need for even more dialogue on the international plane. The report of the Kosovo Commission will provide an independent assessment of conflict and intervention that can assist in advancing dialogue amongst all leaders, scholars and interested parties. It is vitally important that we engage in this discourse and discussion. The century behind us was one of great wars and conflicts. As we start this one, we need to understand the lessons of those conflicts and learn from them for our future.

We find it most fitting that the Kosovo Commission has decided to host its final meeting and seminar here in South Africa. It is equally fitting that it chose as its focus for this seminar the lessons to be learnt from Kosovo for dealing with conflicts in regions like Africa and Asia. While we are