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YUGOSLAVIA: International Humanitarian Law Under the Spotlight
Analysis by Milo Branic
THE HAGUE (IPS) - One year after the North Atlantic Treaty Organisation, NATO, intervention against the Federal Republic of Yugoslavia (FRY) over Kosovo, human rights activists are still debating whether the move was in violation of international humanitarian law. Two recently released reports, by Amnesty International and the Yugoslav War Crimes Tribunal, have conflicting views surrounding the legalities of the air raids. The civilian death tolls of NATO's intervention are estimated at between 400 and 600 by the FRY government. Human Rights Watch, an international human rights organisation, has documented some 500 civilian deaths in 90 separate incidents. NATO has admitted responsibility for the majority of incidents where civilians were killed, but has described them as collateral damage.
However, human rights activists, NGOs and experts in international humanitarian law have slammed this argument. Amnesty International's 65-page report "Collateral Damage or Unlawful Killings?" was published earlier this month. It argues that "NATO forces did commit serious violations of the laws of war leading, in a number of cases, to the unlawful killings of civilians".
Recently, the International War Crimes Tribunal for the Former Yugoslavia published a 45-page report, compiled by the Prosecutor's Committee Established to Review the NATO Bombing Campaign against FRY. Based on the examination of general legal issues and five specific incidents during the bombing, the report concluded that there was no basis for the Tribunal's Prosecutor to commence a criminal investigation against NATO. This is the first time that Tribunal has established a special Committee tasked to decide whether to open investigations in a particular case or not.
"I decided to make this report public to show that the decision in this case is based exclusively on the facts and law, and not on political motivation," the Tribunal's Chief Prosecutor, Carla Del Ponte, explained.
Del Ponte has already announced that she did not plan to open an investigation against NATO. In her address to the UN Security Council earlier this month she said that she was "satisfied that there was no deliberate targeting of civilians or unlawful military targets by NATO during the campaign". The Tribunal's Committee focused its report on allegations received from various sources. These included damage to the environment, use of depleted uranium, use of cluster bombs and selection of targets during the campaign. This report did not discuss the legality of the NATO air campaign nor the fact that the UN Security Council had not authorised the intervention. It focused only on the possible violations of international humanitarian law, as they are specified in the Tribunal's Statute. The report acknowledges that NATO's bombing of chemical plants and oil installations did cause some damage to the environment. However, it claims that this damage has not been "wide-spread, long-term and severe", which is the criteria in existing international humanitarian law to establish violation.
Regarding the depleted uranium and cluster bombs, the Committee confirmed that NATO had used both. But, since there is no specific treaty provision or general legal consensus that this type of armament is not acceptable, the Committee concluded that their use by NATO is not sufficient basis to open the investigation. However, the Committee felt obliged to make a distinction between the use of cluster bombs by NATO and by Milan Martic, the former leader of the self-proclaimed Serbian Republic in Croatia. Martic is indicted because he launched the cluster bomb against the city of Zagreb during the war in Croatia.
According to the report, Martic's bomb was launched not to "hit military targets but to terrorise the civilians of Zagreb", while "there is no indication that cluster bombs have been used in such fashion by NATO". The longest part of the report is devoted to the legal issues related to the target selection. In this area the two reports reflect totally opposing views and interpretations of the existing international humanitarian law or laws of war. The key principle of this law is the distinction between civilian objects and military objectives, since military operation should be directed only against the latter. However, there are no clear guidelines to say which objectives are of a military nature. For instance, for Amnesty, the attack on the headquarters of the Serbian Radio and Television on April 23 last year, when 16 civilians were killed, was a direct attack on a civilian object. "Such an attack was a war crime," the AI report states. On the other hand, the Tribunal's report argues that the "strategic target of this attack was the Yugoslav command and control network". This is why bombing of the Serbian television was a legitimate military action, according to the Prosecutor's team.
Another important element of international humanitarian law is the need to take all precautionary measures when targeting military objectives to avoid affecting civilians. First Protocol to the Geneva conventions, the most relevant international document in this respect, has established obligation that states should "do everything feasible" to verify that the objectives to be attacked are neither civilians, nor civilian objects. Both reports scrutinised several well known incidents - bombing convoy of Albanian refugees near Djakovica, displaced persons in Korisa, railroad bridge in Grdelica, Serbian Television and Chinese embassy in Belgrade. Amnesty believes that there is not enough evidence to conclude that NATO failed to take sufficient precautions to minimise civilian deaths.
Amnesty claims that NATO's internal "Rules of engagements", specifically the requirement that planes should fly above five kilometers from the ground, "made full adherence to international humanitarian law virtually impossible", since at such a high altitude, pilots are incapable of distinguishing civilian from military objects. According to AI, it was obvious that the safety of the aircraft had a higher priority over the protection of civilians. The fact that NATO had introduced some changes in its rules of engagement after several mistakes in the middle of the campaign, Amnesty says, was an indication that previous rules were not in accordance with the modern laws of war. The Tribunal's report, on the other hand, maintains that obligation "to do everything feasible" to distinguish between civilian and military objectives is "high, but not absolute". Although the Prosecutor's team admitted that "precise facts concerning several incidents are difficult to determine", it still gave the "benefit of doubt" to NATO pilots and its commanders.
However, in its final part, the Tribunal's report indicated that when NATO was requested "to answer specific questions about specific incidents, the NATO reply was couched in general terms and failed to address the specific question". Amnesty has already reacted to the Tribunal's report by expressing regret at the "lack of full cooperation by NATO in responding to the Tribunal's inquiries". It also stressed the fact that the Prosecutor has decided not to open a criminal investigation against NATO should not lead NATO to ignore the detailed content of the Tribunal's report, or dismiss recommendations made by Amnesty and other organisations. Amnesty called on all NATO member states to ratify Protocol I of the Geneva Conventions - the USA, France and Turkey have not done so yet - to reflect the standards in NATO's Rules of engagement and to conduct their own investigation into reported breaches of the laws of war.
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