The Independent International Commission on Kosovo was the initiative of the Prime Minister of Sweden, Mr Göran Persson. The task of the Commission was to look into what happened before, during and after the NATO intervention in Kosovo. (“Lessons learned”) The Commission was international and totally independent of any country or organisation. It published two reports, The Kosovo Report 2000 (Oxford University Press) and a follow- up 2001 ”Why Conditional Independence?” (Oxford University Press). An important part of the Commission’s first report dealt with the issue of humanitarian intervention and the legality/illegality of the NATO intervention. Co-Chairmen were Justice Richard Goldstone, South Africa and Carl Tham, Secretary General of Olof Palme International Center, Sweden.

Lessons learned
A general note of caution: Every conflict situation is unique. There may be lessons to be learned but one general observation is that “lessons” from earlier conflicts rarely are absorbed or applied in handling new conflicts. On the other side, in a given situation the experience of the recent past has a strong influence and creates the preconditions of the political discourse and actions. The NATO war in Kosovo must be seen in the context and experience of the Balkan wars and the tragic failure of UN and Europe/US to stop this war and its mass killings and massacres. Even more, the lack of international response to stop the Rwandan genocide was also a shameful memory that indirectly influenced the leading actors in the western alliance.

The importance of early diplomatic action
There was no lack of so-called early warning about the situation in Kosovo but Kosovo was not given enough political attention. The non-violent resistance movement got insufficient international support. (1990-97) The decision to exclude the Kosovo question from the Dayton negotiations 1996 gave Milosevic the impression that he had free hands and led many Kosovar Albanians to conclude (and rightly so) that violence was the only way to attract international attention. Earlier and stronger diplomatic action could perhaps have made the war avoidable. There were however many obstacles: the Russian support of the Serbs and the interest not to complicate the Dayton negations. The course of events is just another illustration of the fact that the often repeated demand for early diplomatic action to avoid deterioration of a certain conflict is extremely difficult to fulfil.

Diplomatic efforts
The international diplomatic effort to solve the Kosovocrises, culminating in the Rambouillet negotiations, was in the mind of the Commission characterised by confusion and mixed signals. A basic dilemma was the international experience that the only diplomatic language that could make an impression on Milosevic was that of coercion and threat. It made, at the same time, KLA (the Kosovar resistance movement) less and less interested in negotiations and compromises. It is however difficult to conclude that a diplomatic solution at all was possible to achieve. Even the minimal goals of the Kosovars and of Belgrade were irreconcilable. The credibility of threat must in the final analysis be upheld by the actual use of force.

UN
The main controversy around the NATO war in Kosovo was of course the lack of a Security Council resolution that legitimized the use of force. The Commission concluded that the NATO intervention was illegal but legitimate. It was illegal because it did not receive prior approval from UNSC; it was justified because all diplomatic efforts had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from severe oppression under Serbian rule. The Commission suggested a principled framework, which could be used to guide future responses to imminent humanitarian catastrophes and to narrow the gap between legality and legitimacy. It is today very obvious, however, that there is no international consensus that could create the basis for such a framework.

The commission – as well as the UN Secretary Generals – stressed that a military intervention can only be legitimised if there is an acute human rights crisis, and as a last resort, when all diplomatic efforts have failed. It must be an extraordinary measure, acceptable only if there are extensive abuses of human rights or large scale ethnic cleansing with genocidal intents.

To expand the very restrictive idea of humanitarian intervention to a general licence for war against repressive regimes is very dangerous and even more so the concept of preventive action, which can be used at random as an argument for war.

Post war
On the same day that NATO ceased its air campaign against Serbia (10/6-99) the UNSC passed the resolution 1244. The resolution set out the guidelines that would regulate the UN response to the post-war situation in Kosovo. The UN operation (UNMIK) in Kosovo has been extremely important to normalise the situation and to create a basis for an economic and social development. UNMIK has however been underfinanced. The peacekeeping forces, KFOR has, by and large, done a good job but was however evidently unable, during the early days of its deployment, to avert Albanian acts of revenge. The killing of Serbs under the very noses of armed international soldiers represented a profound failure of the international community to uphold the principles that had been hailed as the driving force behind the war effort. The KFOR troops were not equipped, trained or properly instructed to deal with the situation during these first months. Lessons: early UN presence is very important; troops must be properly trained and equipped for a postwar situation.

The question of the future status of Kosovo is still unsolved. In the opinion of the commission this is a political failure which can undermine the legitimacy of the whole operation. All those who took part in the intervention have a responsibility to ensure that the legitimacy of the NATO intervention is preserved through constructive follow up. The commission suggests that Kosovo should be given “conditional independence”.