PRESS BRIEFING ON KOSOVO COMMISSION

Press Briefing

PRESS BRIEFING ON KOSOVO COMMISSION

Justice Richard Goldstone (South Africa), Chairman of the Independent International Commission on Kosovo, told correspondents at a United Nations briefing this afternoon that the Commission had been established because the Prime Minister of Sweden, Goran Persson, had become concerned at the absence of independent analysis of the conflict in Kosovo.

[A report from the Commission was presented to Secretary-General Kofi Annan this afternoon. It recommends a new status for Kosovo -– "conditional independence" for an independent and self-governed Kosovo, but within an international framework.]

Judge Goldstone told the correspondents the Swedish Government had put up financial resources to enable the Commission to do its work. The Law School of New York University, the Ford Foundation, the Open Society Fund, other foundations and the Canadian Government had come to its assistance. Judge Goldstone said he and his Co-Chairman, Carl Tham, had selected the members of the Commission, and the Commission itself was allowed to decide on its own mandate.

Describing the report on Kosovo, published by the Commission, and presented to the Secretary-General this afternoon, he said that provided an analysis of the events that led up to the military intervention in Kosovo, the manner in which the intervention came about, and the effect not only on Kosovo, but also on the neighbouring countries. Eleven different countries in Europe, Africa, Asia, and North America had come to a unanimous conclusion, which was provided in the report.

The main conclusions of the report were that the problems in Kosovo could have been avoided by meaningful efforts to support those who were fighting for peaceful change in Kosovo. This was particularly true of the early part of the 1990s, in which the forces fighting so hard for peace were all but ignored by the international community. In the Commission’s view, by the early part of 1998, the options for a peaceful settlement had disappeared.

Regarding military intervention, he said the Commission had unanimously concluded that the NATO military intervention was illegal, and a contravention of international law, because it did not have the consent of the Security Council, which under the United Nations Charter was a sine qua non for military intervention of this kind. The Commission had found, however, that while being illegal, the military intervention by NATO was legitimate, both from a political and from a moral point of view. There was a gap, he noted, between legality on the one hand, and legitimacy on the other. The Commission recommended that that gap should be narrowed sooner rather than later, and it had made recommendations to narrow that gap. In particular, the members had made a list of 11 conditions that should exist in order to justify humanitarian intervention, not only military but also intervention in the form of sanctions and embargoes. Further, the Commission recommended that the General Assembly should consider a declaration

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determining and incorporating the conditions that were necessary before military intervention could be contemplated legitimately. It was the hope of the Commission that that could eventually lead to an amendment of the Charter to ensure that legality and legitimacy in this area coincided sooner rather than later.

The Commission decided that it had no option but to look into and make recommendations in regard to the future status of Kosovo, he said. It was an area that had not been fully grasped or debated. The Commission had concluded that with regard to the terrible human rights violations, it was not realistic or justifiable to expect the Albanians in Kosovo to accept rule from Belgrade. At the same time, they recognized that in order for there to be any peace or legitimacy, the Kosovo Serbs and other minorities had absolute rights to protection, to be able to live peacefully in Kosovo. The Commission had come up with the idea of “conditional independence”, he continued. This meant that Kosovo should become independent, subject to the fulfilment of a number of conditions that may take many years to complete. One of them was that there were good faith negotiations with the neighbours and with the Balkan States generally, on the future independence of Kosovo. It should be conditional on an acceptably democratic constitution, and upon sufficient assurance to ensure that the Serb and Roma and any other minorities in Kosovo could live in absolute safety and that those who had been forced to leave Kosovo could return there with that assurance.

He stressed the hope of the Commission that the report would facilitate more objective discussion in the international community and that the future status of Kosovo would be considered in a more objective and direct fashion. It was hoped that the effects of this report would resonate more quickly than they would have during the Milosevic regime, and that there would be more openness to consider views that would have been rejected out of hand by the Milosevic regime. The timing of the report would therefore be conducive to that sort of debate.

Continuing the discussion, Co-Chairman Carl Tham (Sweden) said the Commission believed the main problems related to humanitarian intervention were political rather than legal; nevertheless, it was still important to have a legal framework. The Commission had an ambitious proposal to link much more firmly the idea of the protection of human rights to the United Nations and the Security Council than was the case right now. They had recommended a framework of principle that should be set up, and a formal adoption of such a framework by the General Assembly and the role of the Charter.

He was aware, he continued, that the importance of diplomacy and other means was paramount. It should be made more difficult for the Security Council and the main Powers to look in the other direction when there were obvious and systematic violations of human rights in a certain region. It should be more of an obligation to act in these sorts of cases. There could also be a framework which made it difficult to use the concept of humanitarian intervention as a disguise for other kinds of political operation, with different objectives than the protection of human rights.

Another member of the Commission, Professor Richard Falk (United States), spoke on the theme of the gap between legitimacy and legality. Part of the reason

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for it, he said, was the role that the veto played in the Security Council. Because Russia and China were resistant to having the Security Council respond to the crisis in Kosovo, it presented the international community with the dilemma of either doing nothing that was legally authorized or doing something that appeared to violate and bypass the Charter. The report tried to argue that this was an unfortunate kind of dilemma, and the Commission hoped that what they had prepared could at least contribute to a debate on how to make the United Nations more effective in relation to a future catastrophe of this sort.

A correspondent asked if, now that President Kostunica was in power in Belgrade, there might be less willingness amongst the international community to antagonize him by pulling Kosovo away from Belgrade than would have been the case if Milosevic had remained there? Judge Goldstone replied that the problems were not going to disappear. What came to mind was the question of the cooperation between President Kostunica and the War Crimes Tribunal in The Hague. He didn’t see how the international community could think of easing pressure on the part of any new Government of Belgrade, or letting it off the hook of legality. By the same token, the facts on the ground in Kosovo were not going to change. The recent past had happened, the victims were there and they weren’t going to forget about it. If it was neglected it would only lead to more problems.

The correspondent observed that the relevant resolution stated that the territorial integrity of Yugoslavia should be maintained and countries like Russia were being vigilant about any sense that Kosovo was going to head down the road to independence. Was there any sense, he asked, that Russia or other members of the international community might take on board the Commission's recommendations? Much would depend on the attitude of the Belgrade Government, Judge Goldstone replied. If governments in the world behaved in the same way as the Milosevic Government then it must be anticipated that it would be unjust to expect people who had been victimized to accept the territorial integrity of the State which caused them that horrific situation. Mr. Tham said that although there was a United Nations protectorate in Kosovo, this would not be sustainable for years upon years. There was a democratic process starting in Kosovo, and if there were elections the Kosovan people would say they would not want their decisions decided by the United Nations. It was a contradiction having a protectorate creating a democracy. Professor Falk said that it should also be realized that it was a compromise. What the Kosovars would like was immediate unconditional independence, which seemed to them the only viable way of moving towards a future that was humane for the people there, and created the possibility of stability in the region.

To a question on how the international community could engage in intervention in a legal, not just legitimate manner and get past the veto, Professor Falk said one way to achieve this would be through the informal development of a practice among the permanent members, in which they would suspend the use of the veto in cases of humanitarian catastrophe. A second way would be to formalize that kind of practice and, in some way, to restrict the use of the veto either quantitatively or in terms of the subject matter for which it was used. Judge Goldstone noted that the recommendation included the General Assembly getting in on the act by agreeing on a declaration that would not have any legally binding effect, but have important consequences in international law.

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In response to another question, Judge Goldstone said he regarded the NATO intervention as legitimate, having regard to the human rights abuses that were taking place. It should be a condition of independence that the exodus from Kosovo be reversed, and that it be conditional on the rights of all Serbs and other minorities to live at peace in Kosovo.

Asked about figures for the total population, and the Serb population from 1948 to 1991, and whether the Commission had figures from the Second World War, “when the Italians occupied Kosovo and drove out Serbs”, Judge Goldstone replied that the Commission had decided that they would start their factual investigation in 1989. In the Balkans, dates had magical effects and couldn’t go back as far as some would have wished.

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