kosovo report: conflict, international response, lessons learnedthe independent international...

Kosovo Report: Conflict, International Response, Lessons Learned The IndependentInternational Commission on KosovoReview by: Joe BrinkerHuman Rights Quarterly, Vol. 26, No. 3 (Aug., 2004), pp. 791-794Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/20069756 .

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2004 Book Reviews 791

Richard Pierre Claude is Professor Emeritus of

Government and Politics at the University of

Maryland, College Park. He is the Founding Editor of Human Rights Quarterly and a

member of advisory councils for Physicians for Human Rights, Human Rights Education

Associates, Pennsylvania Studies in Human

Rights, and SUR, the new "South-South" hu

man rights scholarly journal based in Brazil.

Claude's most recent book, Science in the

Service of Human Rights received the 2003

"Best Book Award" of the Human Rights Section of the American Political Science

Association.

Kosovo Report: Conflict, Interna

tional Response, Lessons Learned,

by The Independent International

Commission on Kosovo (New York:

Oxford University Press 2000)

It is important at the outset of this review to emphasize that Kosovo Report: Con

flict, International Response, Lessons

Learned, is the product of an indepen

dent commission of experts. They were

brought together on their own accord

through the initiative of Swedish Prime Minister Goran Persson. Though the Sec

retary General of the United Nations, Kofi Annan, did endorse the project prior to the writing of the report, the

Commission was not appointed by any

governmental or nongovernmental orga

nization. This independence, combined

with their extensive access to informa

tion, is valuable to the credibility of their

findings.

Kosovo Report attempts to address

two related subjects. Most directly, it

comprehensively examines the interna

tional community's response to the Kosovo

crisis, taking a critical look at successes,

failures and remaining dilemmas. Per

haps more importantly, the authors also

look to Kosovo for precedents and les

sons learned that can be applied to simi

lar, future conflicts. In both respects, it is difficult to find much fault with their

conclusions, though it is doubtful that

any of their recommendations can be

seen as profound breakthroughs to the

problems that continue to plague Kosovo.

Regarding their review of Kosovo

specific issues, the commission mem

bers do not shy away from frank and balanced findings. Certainly their two

main overarching declarations capture

the difficult, ambiguous nature of the situation in Kosovo without being wa

tered-down. Regarding questions sur

rounding the justification of NATO mili

tary intervention after diplomacy with the Milosevic Regime failed, the Com

mission concludes that NATO's cam

paign was "illegal but legitimate."1 The Commission argues that it was illegal,

because it did not have prior approval from the UN Security Council, yet it was

legitimate, because it addressed a hu

manitarian emergency that all realistic

diplomatic channels had failed to ad dress. On the broader question of the

ultimate outcome of the intervention,

the Commission found, "the NATO war was neither a success nor a failure; it

was in fact both."2 It succeeded in forc

ing the Serbian government to withdraw

its forces from Kosovo and to sign a

peace agreement that closely approxi

mated the failed Rambouillet accord, both of which ended the oppression of Kosovar Albanians by the state. How

1. The Independent International Commission on Kosovo, Kosovo Report-Conflict, International

Response, Lessons Learned 4 (2000). 2. Id. at 5.

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792 HUMAN RIGHTS QUARTERLY Vol. 26

ever, it failed to prevent systematic op

pression and a counter campaign of

ethnic cleansing against Serbs by Kosovar

Albanians. The intervention also has left Kosovo as an international protectorate

with few clear options readily apparent

that might lead it out of this status limbo. The Commission also should at least

be given a pat on the head for attempt

ing to find a solution to the maddening question of the future status of Kosovo.

To summarize the predicament, the ap

parent Hobson's choice facing the inter

national community is to indefinitely leave Kosovo as an expensive and ineffi

cient protectorate, to at some point grant

the tiny, poor region statehood and put at risk the Serb minority still living there, to return Kosovo to Serbia and Monteneg

ro, which Kosovar Albanians vow never

to accept, or to partition a predomi

nantly ethnic Serb section of Kosovo and

give it to back to Serbia and Montenegro, which would effectively put an interna

tional stamp of approval on ethnic

cleansing. In the face of this dilemma, the Com

mission suggests that Kosovo be granted

"conditional independence." For the Com

mission, "conditional independence" means gradually granting Kosovo inde

pendence but making it conditional on

demonstrating that, "its peoples can live

in peace with each other and with the

neighboring states in the region."3 The

Commission also would envision a long

term international security presence as

the independence process proceeds, and

the plan would rely heavily on improved

regional co-operation throughout the

Balkans.

To its credit, the Commission ac

knowledges that this proposed solution

also brings with it a host of complica tions, not the least of which are the facts that "conditional independence" goes

beyond what Serbia and several mem

bers of the UN Security Council wish to

accept and that such a plan would

essentially give an international commu

nity sanction and precedent to the con

cept that national minorities have a right to secession when they have been sys

tematically abused. Ultimately, while the idea has some promise, it is hard to see

how this proposal has any appreciably greater chance of meeting success than

some other option at any time in the

near future.

Turning towards the Commission's

treatment of wider precedents that can

be taken from the Kosovo experience, its

most useful and pressing assertion fo

cuses on the need to close the above

mentioned gap between legality and

legitimacy. They note:

The intervention laid bare the inad

equate state of international law. The

intervention was not legal

[B]ecause it contravened the Charter pro hibition on the unauthorized use of force.

This is a troubling fact and one which the

necessity and legitimacy of the action

cannot conjure away. There is a standoff

between incompatible principles, those

safeguarding the territorial integrity of states

and prohibiting the non-defensive use of

force, versus those seeking to protect the

human rights of vulnerable populations within these states.4

What remedies does the Commission recommend to address this disparity? It

urges the presentation to the United Nations of a framework for armed hu

manitarian intervention. It recommends

that some form of their framework be

3. Id. at 274.

4. Id. at 290.

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2004 Book Reviews 793

adopted by the UN General Assembly as a Declaration and that the UN Charter be adapted to this Declaration. While the Commission still believes that cases for armed humanitarian intervention must

first be submitted for approval to the UN

Security Council, it acknowledges that in some cases that body, for political or

other considerations, will not sanction

potentially legitimate interventions. In such cases where authorization fails, the

Commission suggests a framework that

must be satisfied in order for an armed

humanitarian intervention to gain legiti

macy. First, the following three thresh

old principles must be met:

1. There are two valid triggers of hu

manitarian intervention. The first is severe

violations of international human rights or

humanitarian law on a sustained basis.

The second is the subjection of a civilian

society to great suffering and risk due to

the failure of their state, which entails the

breakdown of governance at the level of

the territorial sovereign state.

2. The overriding aim of all phases of

the intervention involving the threat and

the use of force must be the direct protec tion of the victimized population.

3. The method of intervention must be

reasonably calculated to end the humani

tarian catastrophe as rapidly as possible, and must specifically take measures to

protect all civilians, to avoid collateral

damage to civilian society, and to pre clude any secondary punitive or retalia

tory action against the target government.5

The Commission then goes on to lay out

eight contextual principles that measure

the degree of legitimacy associated with a forceful intervention. These contextual

principles could be used prior to an intervention to determine if force should

be used, or after to judge whether a

particular intervention was justifiable.

These eight principles grant more legiti macy to interventions that first exhaust

peaceful sanctions and diplomatic routes,

that face veto blockage in the Security

Council, that have some type of multi

lateral backing, that are tied to a clear humanitarian follow-up mission and that

strictly adhere to the laws of war, among

other considerations.

Such a framework clearly is needed to rectify situations where the principle

of state sovereignty and increasingly rec

ognized principals of human rights con

flict. To start, it could ease and expedite decision making in volatile situations

where delay can cost many lives and

substantially increase suffering. It also

can give states a better picture of what

kind of conduct might result in their

sovereignty being violated by interna

tional intervention, a view that can have

a preventative effect on states that be

have badly on the false presumption that what happens within their borders is no one else's business. Conversely, the

framework could also help to constrain

powerful countries from exploiting the

ambiguity between the aforementioned

principles to justify attacking other coun

tries on dubious human rights pretexts.

Getting such a framework through the UN system would be difficult, but it is a

good first step to get it into the public debate.

Though Kosovo Report was first pub lished in 2000, many of the issues it

addresses still beg for solutions four

years later, while recent events in Af

ghanistan, Iraq and Haiti show that the

precedent questions raised by Kosovo have taken on increased centrality, par

ticularly with regards to nation building

5. Id. at 293.

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794 HUMAN RIGHTS QUARTERLY Vol. 26

and the legitimacy and legality of armed interventions vis-?-vis the United Na

tions and international law. For these

reasons, the report reads as if it is still

very current.

While working in the region for the last few years, the author has seen that

progress in Kosovo has been at best

mixed and that many of the dilemmas

described by the report nearly four years ago remain. The author has seen a no

ticeable improvement in some areas. All

one needs to do is compare experiences

driving in Kosovo now to what it was

like a few years ago. Enforcement of

traffic rules has increased, some road

improvements are evident and in a pos

sibly related phenomenon, it appears local drivers have a higher respect for

safety. For a more serious example, in

the past several months, security forces

also have been scoring some success in

apprehending a handful of notorious criminals.

However, many challenges across a

wide spectrum still seem to be only at

the intermediate stages of being effec

tively addressed. For example, ethnic

Serbs remain isolated in guarded en

claves due to security concerns, while

large portions of the country continue to

experience electricity cuts on a regular

basis. More recently, attempted and suc

cessful attacks on the international ad

ministration have stepped up, mostly

likely due to Kosovar Albanian frustra

tion at continued international domi

nance in their domestic affairs and as a

response to heightened efforts to arrest

Albanian criminals, many of whom are

influential and considered war heroes

by the population. From a wider international perspec

tive, Kosovo Report can be useful both as a primer for lessons learned in inter

national peacekeeping and nation build

ing and as a reference for anyone track

ing the weakening of the principle of state sovereignty. Little did the Commis

sion know that in such a short period of time the world would witness two major

multinational military interventions, Af

ghanistan and Iraq, followed by related, substantial peacekeeping and nation

building operations. In such undertak

ings many of the same lines and distinc

tions are tested regarding justification for armed intervention and many of the

same headaches are felt in the push to

rebuild and administer something new.

To put it simply, this author would recommend Kosovo Report to anyone

with an interest in the region, human

rights, diplomacy, international law and/ or military affairs. It is an independent,

accurate and comprehensive look at the

Kosovo crisis from start to present. It

attempts to offer solutions to the most

vexing questions posed by the situation;

they should be seriously considered.

The work in Kosovo is far from finished, so most of the findings of the report still hold currency today. Finally, recent mili

tary interventions in Afghanistan, Iraq

and even more recently in Haiti show

that the clarity strongly espoused by the Commission regarding the tension be

tween principles of human rights and

state sovereignty is more needed than

ever.

Joe Brinker

Joe Brinker received an M.A. in international

relations from the Johns Hopkins School of

Advanced International Studies (SAIS). He

recently completed a multi-year assignment as the confidence building field coordinator

for the Organization for Security and Coop eration in Europe (OSCE) Spillover Monitor

Mission to Skopje. His areas of expertise include conflict resolution, post-conflict man

agement, and international bargaining and

negotiation. Brinker's opinions expressed in

this review are his own and do not necessar

ily reflect those of the OSCE.

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