The Independent International Commission for Kosovo (“the Commission”), tasked with investigating the aftermath of NATO’s 1999 bombing campaign in Kosovo, produced a report titled “The Kosovo Report”, and concluded the intervention was “illegal, but legitimate”. (“The Commission concludes that the NATO military intervention was illegal but legitimate.”) [at 5] However, while acknowledging the campaign did have a diplomatic impact, the Commission also conceded that the campaign failed to achieve its ultimate goal: to stop the large-scale ethnic cleaning of Kosovar Albanians:

“[T]he 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.” [at 5].

The Commission’s remarks about the future potential of humanitarian intervention becoming a norm in international law seemed to suggest the Commission was in favour of developing such a norm in the future in order to make such interventions not only legitimate but also legal. [However, it should be noted, there is a persuasive argument that no such norm has of yet developed in international law]. The Commission stated 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.” [at 11]. The Commission went on to articulate potential criteria that could be used to make a determination regarding whether such interventions would be considered legal under customary international law in the future. However there is a scarcity of public statements by the international community endorsing the Commission’s suggested criteria.

In conclusion, the Commission’s findings on the legitimacy of the 1999 NATO intervention should be seen as a stand-alone case. The Commission seemed compelled to reach this argument based on the fact that “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.” [at 1] [Note: the last sentence may be a reference to the Srebrenica massacre which was still fresh in recent memory of the ongoing conflict]. The Kosovo Commission’s findings should not be viewed as evidence of a developing right to a humanitarian intervention in customary international law given the lack of public endorsement of the suggested criteria articulated by the Commission (thus failing to pass either the subjective or objective test required for a rule to transform into a norm in customary international law).