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International humanitarian law and the Kosovo crisis: Lessons learned or to be learned

Published online by Cambridge University Press:  27 April 2010

James A. Burger
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Type
Research Article
Information
International Review of the Red Cross , Volume 82 , Issue 837: The Kosovo crisis and international humanitarian law/La crise du Kosovo et le driot international humanitaire , March 2000 , pp. 129 - 145
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 Acting under Chapter VII of the UN Charter the UN Security Council called in its Resolution 1199 of 23 September 1998 for the withdrawal of Serbian security forces from Kosovo. It decided that there was “a threat to peace and security in the region”, and called upon the participants to improve the situation and initiate negotiations to bring this about.

2 NATO Secretary General Javier Solana stated that Resolution 1199 gave the Alliance the right to use force: “We have the legitimacy to act to stop a humanitarian catastrophe”. Financial Times, 10/8/98. See also Solana, , “NATO's success in Kosovo”, Foreign Affairs, Vol. 78, November/December 1999, pp. 114–120CrossRefGoogle Scholar.

3 The question of the use of force in the Kosovo air campaign was submitted to the International Court of Justice by the Federal Republic of Yugoslavia, which complained about attacks against civilians, civilian objects, protected objects, etc. The Court declined to make a decision on jurisdictional grounds. See “Legality of use of force”, Yugoslavia v. United States of America, ICJ Press Communique 99/33 of 2 June 1999. The same decision has been taken in the cases brought against other NATO nations involved in the air campaign.

4 Protocol I additional to the Geneva Conventions of 12 August 1949, Art. 48 (Basic rule): “Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

5 Protocol I, Art. 52.2.

6 Protocol I, Art. 57.2(a)(ii): Those who plan or decide upon an attack must “take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.”

7 Protocoll, Art. 57.2(a)(iii).

8 For a description of law of war issues in the 1991 Coalition effort to liberate Kuwait, see U.S. Department of Defense, Final Report to Congress: Conduct of the Persian GulfWar, April 1992, pp. 605–632.

9 Protocol I, Art. 51.4, provides: “Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocolhellip;”

10 Embassies must be protected as civilian objects.

11 Protocol l, Art. 57.2OO and (iii), and definition given in the declaration made by Italy on ratification of the 1977 Protocol I additional to the Geneva Conventions of 1949. This definition was subsequently incorporated into Article 1.5 of the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons.

12 The rule is that civilian objects are protected, but if, “by their nature, location, purpose or use” in the circumstances ruling at the time, they meet the definition of a military objective, they lose their status as civilian objects and become legitimate targets. See Protocol I, Art. 52, paras 1 and 2.

13 Protocol l, Art. 51. 7.

14 Note that this is not a question here of works or installations containing dangerous forces which are protected under Protocol I, Art. 56. The latter, e.g. dams and nuclear power plants, are objects the destruction of which could release dangerous forces and cause widespread injury among civilians.

15 The standards for review are clearly set out in Protocol l, Art. 57.2 (i), (ii) and (iii): Precautions in attack.

16 Today's laws of armed conflict clearly require a legal review of military actions, There must be legal advisors, and commanders must take legal rules into consideration. Protocol I, Art. 82.

17 Protocol l, Art. 53: Protection of cultural objects and places of worship.

18 Loc. cit. (note 6).

19 1949 Geneva Convention relative to the Treatment of Prisoners of War, Art. 4.A(1). Members of the armed forces of a party to an international armed conflict who fall into the power of the enemy are prisoners of war. There is no distinction made as to where or how they are taken prisoner.

20 Ibid., Art. 118. The release must take place “without delay” after active hostilities have ended.

21 Art. 3 common to each of the four 1949 Geneva Conventions provides basic protection for non-international armed conflicts. Protocol II provides more detailed protection, including protection under Art. 5 thereof, for detained persons.

22 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Conflicts (Protocol II).

23 UN Security Council Resolution 1244 of 10 June 1999.

24 Ibid.

25 Art. 6 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 provides that application of its provisions ceases upon the close of military activities, but that they may continue to apply during a regime of occupation.

26 In the Dayton Peace Agreement the parties specifically agreed to observe the International Covenant on Civil and Political Rights, the Covenant on Economic, Social and Cultural Rights, etc. See Annex I to the Dayton General Framework Agreement of December 1995.

27 Observance by United Nations forces of international humanitarian law, UN Secretary-General's Bulletin of 6 August 1999, ST/SGB/1999/13. See also IRRC, No. 836, December 1999, pp. 812–817.

28 For example, the U.S. Chairman of the Joint Chiefs of Staff Instruction 5810.01 (12 August 1966), which preceded the Secretary-General's Bulletin, declares as a matter of policy (para. 4a): “The Armed Forces of the United States will comply with the law of war during the conduct of all military of operations and related activities in armed conflict, however such conflicts are characterized, and unless otherwise directed by competent authorities, will apply law of war principles during all operations that are characterized as Military Operations Other Than War.”

29 See, e. g., loc. cit. (note 25).

30 Protocol l, Art. 69, provides for basic needs in occupied territories to be met, such as food, shelter and medical relief, and Art. 75 provides for fundamental guarantees for persons “in the power” of a party to a conflict.

31 “Report to Congress”, New York Times, 10 December 1999, p. 12.

32 Besides President Milosevic, also indicted were Milan Milutinovic (President of Serbia), Nikola Sainovic (Deputy Prime Minister, FRY), Dragoljub Ojdanic (Chief of Staff of the FRY Army) and Vlajko Stojiljkovic (Minister of Internal Affairs of Serbia). See ICTY press release JL/PIU/403-E, 27 May 1999.

33 AP press release, 28 December 1999, and “UN Tribunal Plays Down Scrutiny of NATO Acts”, New York Times, 30 December 1999.

34 ICTY press statement, 30 December 1999.

35 The authority of ICTY is based on the UN Security Council resolution under which it was set up, and applies to all of former Yugoslavia.

36 “Rules of Engagement for open publication”, reprinted in Appendix 5 to the KFOR ROE, a NATO document dated 7 June 1999.

37 Protocol I, Art. 82 requires that parties to that treaty “ensure that legal advisers are available, when necessary, to advise military commanders”.