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Intervention and Prevention: The Lessons of Kosovo

"Intervention and Prevention: The Lessons of Kosovo," a roundtable discussion, was held on December 12, 2000, on the Brandeis campus. Members of the Independent International Commission on Kosovo joined scholars, journalists, diplomats, and activists for a roundtable discussion on the 1999 war and its implications for the future. The occasion for this forum was the release of the report by The Independent International Commission on Kosovo, a 13-member panel sponsored by the government of Sweden. The Commission was chaired by Judge Richard Goldstone, Justice of the Constitutional Court of South Africa and former prosecutor of the United Nations War Crimes Tribunals for the former Yugoslavia and Rwanda. Its report, presented to U.N. Secretary-General Kofi Annan in October 2000, examines key developments prior to, during, and after the Kosovo war, including systematic violations of human rights in the region.

In its report, the Commission presents a detailed, objective analysis of the options that were available to the international community to cope with the crisis. It focuses on the origins of the Kosovo crisis, the diplomatic efforts to end the conflict, the role of the United Nations, and NATO's decision to intervene militarily. It examines the resulting refugee crisis, including the responses of the international community to resolve the crisis and the effect of the conflict on the region and other states. The Commission assesses the role of humanitarian workers, NGOs, and the media during the Kosovo war. It also identifies the norms of international law and diplomacy brought to the fore by the Kosovo war and considers the adequacy of present norms and institutions in preventing or responding to comparable crises in the future.

The December 12 roundtable featured panels on intervention and prevention, the ideal of the multi-ethnic state, and lessons for the future.

Panel 1: Military Intervention: Politics, Ethics, Law, and Public Opinion
Panel 2: The Status of Kosovo: Challenges to the Ideal of the Multi-Ethnic State
Panel 3: Prevention and Intervention: Lessons for the Future

Panelists

Dejan Anastasijevic, Journalist, Time Magazine, Belgrade
Eileen Babbitt, Assistant Professor of International Politics, Fletcher School of Law and Diplomacy, Tufts University
Seyom Brown, Professor of Politics, Brandeis University
Steven Burg, Professor and Chair of the Department of Politics, Brandeis University
Richard Goldstone, Justice of the Constitutional Court of South Africa, (Commission Chair)
Paula Green, Director and Founder of the Karuna Center for Peacebuilding
Hurst Hannum, Professor of International Law, Fletcher School of Law and Diplomacy, Tufts University
Michael Ignatieff, Writer, Visiting Professor, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University (Commission Member)
Martha Minow, Professor of Law, Harvard Law School, (Commission Member)
Susan Moeller, Director of the Journalism Program, Brandeis University
Joan Pearce, Co-head, Public Utilities Department, UNMIK, Kosovo
Barry Posen, Professor of Political Science, Massachusetts Institute of Technology
George Ross, Director of the Center for German and European Studies, Brandeis University
Joshua Rubenstein, NE Regional Director of Amnesty International USA
Daniel Terris, Director of the International Center for Ethics, Justice, and Public Life, Brandeis University
Danilo Türk, Assistant Secretary General for Political Affairs, United Nations

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Panel 1: Military Intervention: Politics, Ethics, Law, and Public Opinion

Moderator: Daniel Terris, Director of the International Center for Ethics, Justice, and Public Life, Brandeis University

Opening Statement: Daniel Terris

Daniel Terris began the session by explaining that the title of the panel is not meant to restrict but rather to highlight the key principles that the Commission has outlined in its report. The purpose of the event was to encourage panelists to respond to each other, to engage in a discussion, and to take the detailed work of Commission and use it as a foundation to try to establish lines of thinking and actions for scholars and those in public life.

Introduction: Justice Goldstone, Justice of the Constitutional Court of South Africa (Commission Chair)

The Commission's report was initiated by the Swedish Prime Minister to encourage debate and discussion of the events that occurred in Kosovo. He emphasized the importance of the discussion at events such as the Brandeis Kosovo Forum and introduced the topic of the session: military intervention.

Although NATO takes great exception to the term, Justice Goldstone spoke for the Commission when he stated that NATO'S intervention did constitute a war. The situation escalated in Kosovo because the international community did not take necessary steps towards early prevention. A lack of international support led to the failure of nonviolence movements in Kosovo and the consequent rise in violence on part of the Kosovo Liberation Army (KLA). Furthermore, the international community's apathy was clearly illustrated in the 1995 decision to leave Kosovo out of the Dayton agenda. This served as a trigger for increased violence by the KLA, Serbian police officers, and the Serbian paramilitary. Justice Goldstone maintained that the current situation in Kosovo will only get worse if the international community continues to ignore the present conditions.

The Commission is in agreement that the actions of NATO were illegal. However, Commission members have determined that the actions taken by NATO were legitimate and justified based on the ethical and political considerations regarding "ethnic cleansing" by the Milosevic regime. In addition, although steps were taken by NATO to avoid crimes of war, the commission contends that mistakes were made. However, it does not believe that those mistakes constituted criminal action. Justice Goldstone discussed the gap between legality and legitimacy and the need to close it. He presented the possibility of developing a non-binding declaration that would at least serve as a political and moral framework to guide nations as to whether there should be intervention on humanitarian grounds.

Panel Discussion

The following is a representative sampling of questions and issues raised by members of the panel:

The Kosovo Commission's report outlines a series of threshold and contextual principles that its members believe should underlie future humanitarian interventions. Did the situation in Kosovo in 1999 meet the Commission's criteria for intervention?
Did NATO have a set of military strategies and goals appropriate to the situation in Kosovo? If the intervenors' military response is misguided or ineffective, do the unforeseen consequences undermine the validity of the intervention itself?
To what extent was the NATO intervention a response to an escalation of violence by the KLA? Did the 1999 conflict send a signal to other separatist groups that increasing the level of violence will help them receive outside support?
Should outside groups intervene "preventively" in situations where crimes against humanity are deemed likely to occur? Or do politics make it necessary to wait until there is evidence of severe suffering? If so, what are the ethical implications of waiting until disaster has already struck?
Do the United Nations and other international organizations have the military capability to intervene effectively to safeguard human rights? If international organizations do not have this capability, what are the obligations of regional coalitions and individual states with respect to humanitarian catastrophes?
If nations should only engage in war when they "must," what does "must" mean?
Would earlier consideration of a broader range of options have been more appropriate than brute military force?
Are there ways to effectively intervene, prior to war, to reduce these conflicts?
Both intervention and non-intervention have serious consequences.
Did the NATO bombing initiate the "ethnic cleansing"?
Is Kosovo better off now than it was before?

Open Discussion

Audience members questioned:

the appropriateness of non-military intervention
the belief that the intervention was based on humanitarian reasons
the rationale for genocide and its applications to Kosovo.

Conclusion: Justice Goldstone

Justice Goldstone concluded the session with the following points:

Some said NATO had no plan. There was a theory behind NATO's actions, but it was wrong. The plan wasn't to save Albanians; it was to get Milosevic back to the negotiating table after three to four days of bombing, which did not occur.
To consider the "rightness" of the intervention, one needs only to ask the victims. "When I went there, the Kosovo Albanians welcomed the interventions, and they see themselves in a better position than they would have been in were it not for the intervention. Too often, victims are left out of the discussion." Sovereignty is becoming less of a defense for leaders who don't respect the fundamental human rights of their own people. Kosovo is the most important example of this.

Panel 2: The Status of Kosovo: Challenges to the Ideal of the Multi-Ethnic State

Moderator: George Ross, Director, Center for German and European Studies, Brandeis University

Introduction: Martha Minow, Professor of Law, Harvard Law School (Commission Member)

Minow began the discussion on the ideal of a multi-ethnic state by stating "I can't use the word (multi-ethnic) as ideal in relation to Kosovo. A multi-ethnic community doesn't exist in Kosovo at this point." She detailed the current severe situation in Kosovo for not just Serbs but other minority groups as well, and stated that we must make programs that promote coexistence a priority.

Prior to outlining the five options for the future of Kosovo detailed in the Commission's report, she explained that the report was written prior to the elections in Serbia, which now makes the possibility of independence less likely. Also, an understanding of the regional context -- such as the flow of refugees and the economic condition of the whole region -- is critical to understanding these options. The international community must also understand that economic growth is necessary to promote stability, security, protection of minority rights, and the development of independence or self-determination. She invited the panel and audience to share their opinions on the Commission's recommendation of "conditional independence" and to explore the remaining four options for the future status of Kosovo presented, as well as others that were not addressed.

Extension of status quo — no one thinks this is a good idea, the political will isn't there, and the Kosovars don't want it

Partition — not a plausible alternative

Full independence — has many advocates, yet likelihood is remote

Autonomy within Yugoslavia — questions if Yugoslavia is moving toward democracy and if Milosevic is really off the stage

Conditional independence — a supporting move towards independence, could include development of self-government & protection of minority rights

Minow explained that the recommendation of the Commission is that the stability pact should move beyond political components to economic development and requires participation from the international community as well as participants. She outlined the three anticipated phases in U.N. Resolution 1244 towards multi-ethnic coexistence: 1) administration governed by international government, 2) provisional self-government, and 3) shifting responsibilities to government after transformation of institutions. She concluded by asking: How can international administration strengthen the capacity of people to govern themselves?

Panel Discussion

The following is a representative sampling of questions and issues raised by members of the panel:

Is conditional independence really the best option, and is it even viable?
Isn't a region simply independent or not independent, with no in-between?
Has Serbia lost the moral authority to rule Kosovo, thus making autonomy impossible?
Does the Albanian leadership problem, lack of infrastructure, and unresolved relationships with neighbors make full independence impossible?
Is a partition an option, or will it not lead to further wars in the Balkans?
Can the status quo be maintained, and will the international community have the will to provide the necessary support?
How can one determine if the facts presented are facts or if they are just being presented as if they are the objective truth to support the argument of the people talking?
Is "ethnic cleansing" continuing to happen, in reverse, since the NATO bombing?
Is it unethical to leave the region after the war, when the region is still clearly suffering?
Since the bombing, have there been dramatic changes trecognized by both sides?
How can we address the intense difference in perception between Kosovar Albanians and Serbs on both their current situation and their opinions of Americans?
Is the fact that Kostunica is a nationalist a threat?
Is he willing to begin negotiating with Albanian leaders in Kosovo?
How can the media's power, as a weapon of war, be used to draw attention to the non-violent alternatives that don't make the headlines as do the more graphic events?
Why isn't the international community willing to put the same resources into prevention and restoration that it puts into military action?
Is the first step towards coexistence work to find a safe place to meet, considering that these groups are not even able to travel because of passports, etc.?
What about the minority populations that have been traumatized through rape, death, and violence, since there is very little psychological help or social work available in the region?
Is there a right to self-government? If so, why doesn't it apply to the Serbs?
How can the international community promote the protection of minorities by the majority, and are incentives really needed to achieve this?
What will justice will look like in the future of Kosovo and how will atrocities on both sides be acknowledged and recognized?
Is the international community willing to provide the resources to address the present vicious cycle of stability and unemployment, which promotes violence and hatred?

Panel 3: Prevention and Intervention: Lessons for the Future

Moderator: Steven Burg, Professor and Chair of the Department of Politics, Brandeis University

Introduction: Michael Ignatieff, Writer; Visiting Professor, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University (Commission Member)

Mr. Ignatieff began the discussion by stating that in 1999, the international community should have known that the revocation of Kosovo's autonomy was part of a campaign for a greater Serbia. Yet, nobody saw the consequences as serious. Furthermore, they saw it as an internal matter. Looking back, we can now say that we should have intervened. Northern Ireland served as good example of addressing minority rights violations and can serve as a model of prevention as internationalization. Could Milosevic have done the same thing? He would have had to legitimize his enemy, which helps to ensure that a situation won't get violent. Yet, legitimizing a mortal enemy is difficult and thus always a huge obstacle. How do you promote legitimization and create political conditions in which people can talk before they begin shooting? The Commission exposed the gulf between legality and legitimacy. What do we do when interventions may be ethically legitimate, but are not legal? Where does one go for the criteria to establish legitimacy, to begin to close the gap? He suggested looking to philosophy, just war theory, and Thomas Aquinas where issues such as right authority, right intention, proportionality, and reasonable hope are addressed. From these sources, one can begin to generate a limited frame of justifiable intervention. However, Ignatieff questioned the possibility of closing a gap that is essentially a political question. Powerful countries have a different set of criteria than those with less power. There is a feeling that a "fix" can be achieved using international law, but he questions if that is possible. We are in the midst of a hugely important historical period of state formation and fragmentation. He discussed areas that he referred to as "the most severe crisis zones," such as the middle of Africa or Central Asia, areas experiencing ethnic conflict at its worst and the most severe human rights violations. Some of the parties have nuclear weapons. He expressed his deep concern with the reality that the international community has no coherent policy on how to proceed in these types of situations. These "most severe crisis zones" are not even a priority for many political leaders. In conclusion, Ignatieff asked, how can we create state order in these areas and protect human rights? He suggested the following: 1) early intervention, 2) legitimize all actors, and 3) address the substantive areas where humanitarian intervention needs to occur.

Panel Discussion

The following is a representative sampling of questions and issues raised by members of the panel:

What does it take to move a group or country from one of violence to managing difference through a culture of bargaining?
How do we get the international community to pay more attention to situations like Kosovo?
How can we mobilize the international community take more immediate action?
Did military intervention in Kosovo meet the standards set forth in the Commission's report?
Is it possible to be moral and operational? If a moral argument can't be utopian, how can it be integrated into the various theories of intervention?
Regarding the role of the media in drawing attention to humanitarian crises, do you have to wait until after the atrocities start? Historically, after the media presents the public with images from the famines, natural disasters, and wars, then public opinion is galvanized.
How long do we debate the facts before we act? This was played out in Rwanda and it took far too long for the media and others to come to an understanding.
What about the fact that there have been more severe human rights disasters in recent history (e.g. Rwanda, Congo) which did not receive the same international response?
If human rights violations are only the expression of ethnic conflict, how can the root cause be addressed and by whom?
If the debate about humanitarian intervention is too legalistic, could it be that those framing the debate are not opening the discussion wide enough for others to join?
Is just "doing something" a strategy or a way to promote human rights, particularly when it means dropping bombs, destroying a society, and trying to recreate it?
What about the ethics of spending money and lives on trying to get a few people to live together and ignoring many other people's suffering without conflict but with conditions such as AIDS, poverty, and hunger?
How can the use of truth and reconciliation committees, tribunals, and reparations be constructed in a way that doesn't produce new resentments and cleavages?
Can there be recognition without redress and justice?

Open Discussion

Audience members raised the following questions and considerations:

Real intervention means changing our life circumstances of exploitation. Unless we think about the future, we will always be faced with problems of Kosovo. We have to overcome these tendencies, and understand that this world is for all of us.
If military intervention results in changing borders, what would be result of another type of intervention?
The biggest problem with the proposal of Kosovo independence, at this time, is the lack of a broader regional perspective.
Women's leadership, NGOs, Diaspora could and should become involved in the research agenda and development of public policies.
We need to add the concept of activist intervention for justice to the discourse.

Conclusion: Michael Ignatieff

In intervention and prevention, we are always fighting the last war.

Regarding process questions, perhaps the most important thing is to just get a dialogue going. This is crucial and nothing is more important for the future of Kosovo.

The Albanian leadership has to be told that they must talk to talk to the Serbs about what has occurred and continues to occur.

It is a two-track process:

External track, in which you have beginnings of international negotiations between UNMIK and Belgrade; can see trust-building agenda; civil society track. It gets Serbs and Albanians to talk internally and externally.
Internal track, local elections, national elections, constituent assembly, write a constitution. Move toward referendum at some point, with timing determined by international community. It generates institutions for independence.

Roundtable Conclusion

Justice Goldstone noted that in writing the report, no Commission member compromised his or her principles. Views did change, facts changed and even philosophical issues changed, which demonstrates the value of the Commission being independent of government or any particular philosophy. No one member, he said, could have written this report. He was grateful for the opportunity to have this type of forum to discuss the report and learn from its findings. The event served as an opportunity to not only examine the past -- the causes of Kosovo and the steps that were or were not taken -- but to look forward and consider how we can incorporate the lessons of Kosovo into future decisions where intervention on humanitarian grounds is a consideration. The forum raised a great deal of lively conversation, often with disagreement on very substantial points. However, there was one area of consensus: the importance of addressing continued human rights violations and how they played out in Kosovo and continue to do so both there and in other parts of the world. Daniel Terris concluded the forum by emphasizing the responsibility of universities to carry on a mission and sense of engagement; a responsibility to engage and educate our students, not only about Kosovo, but to take seriously these issues around the world.

Sponsored by the International Center for Ethics, Justice and Public Life; the Center for German and European Studies; and the Department of Politics.