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Kosovo 1999: The air campaign

Published online by Cambridge University Press:  27 April 2010

Peter Rowe
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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. 147 - 164
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Copyright © International Committee of the Red Cross 2000

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References

1 See also Security Council Resolution 1244 of 10 June 1999.

2 Robertson, Lord, Kosovo: An Account of the Crisis, Ministry of Defence, London, 1999Google Scholar.

3 Brigadier-General Corley at NATO press conference on the Kosovo Strike Assessment, 16 September 1999.

4 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

5 The UK carried out 15.4% of all NATO strike sorties but it released only 4.2% of all air-delivered munitions (author's analysis of figures to be found in op. cit. (note 2)).

6 Secretary-General of NATO at NATO press conference, 1 April 1999. See also the Foreign Secretary, H.C.Debs. Vol. 331, col. 887, 18 May 1999; Vol. 329, col. 665, 19 April 1999; Joint Statement on the Kosovo After Action Review, presented by the Secretary of Defense William S. Cohen and General Henry H. Shelton, Chairman of the Joint Chiefs of Staff, before the United States Senate Armed Forces Committee, 14 October 1999; Shea, Briefing on Kosovo, NATO, 30 April 1999 — none of these statements are identical.

7 General Wesley K. Clarke, Supreme Allied Commander Europe (SACEUR), at NATO press conference, 1 April 1999.

8 Protocol I, Art. 48, combined with the other provisions of Part IV.

9 For a discussion of the history of this concept see Y. Sandoz, C. Swinarski and B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977, ICRC/Martinus Nijhoff, Geneva, 1987, and for an attempt to draw up indicative categories of military objectives see the ICRC Draft Rules for the Limitation of Dangers Incurred by the Civilian Population in Time of War, 1956, Art. 7, reprinted ibid., p. 632. See also Art. 8(1)(a) of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

10 See Fleck, D. (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, 1995, p. 160 (by Oeter, Stefan)Google Scholar.

11 Reservation (i) entered by the UK upon ratification of Protocol I, 28 January 1998, see IRRC, No. 322, March 1998, p. 186 ff., and www.icrc.org/ihl. — The German reservation is identical, see Fleck, op. at. (note 10), p. 162.

12 E.g., the Kosovo Liberation Army (KLA).

13 Protocol I, Art. 43(2).

14 Protocol I, Art. 43(3).

15 Protocol I, Art. 51(3). See de Rover, C., “Police and security forces”, IRRC, No. 835, September 1999, p. 638Google Scholar.

16 For the history of the inclusion of this adjective, see Bothe, M., Partsch, K. J. and Solf, W., New Rules for Victims of Armed Conflicts, Martinus Nijhoff, The Hague/Boston/London, 1982, pp. 325/6.Google Scholar

17 The Oxford English Dictionary defines “definite” as “clear and distinct, not vague”.

18 Note the comment of the Defence Secretary in the House of Commons: “Milosevic set out to create a military machine in which there was an intimacy between his military and every other aspect of society.” H.C. Debs. Vol.304, col. 364, 26 May 1999.

19 Op.cit. (note 10), p. 161.

20 Protocol I, Art 51(5)(b). This should of course be taken into account in planning attacks, see Art. 57(2)(a)(iii).

21 Military forces operating in the field will have their own electricity generating equipment.

22 See the speech of Mrs Mahon, MP, who stated that “In Novi Sad, which was bombed continuously, the sewage works are damaged beyond repair and the drinking water has gone. That will cause health problems for a long time.” H.C. Debs. Vol. 333, col. 610, 17 June 1999.

23 For concern voiced by MPs see the speech of Mr Dalyell, MP, who expressed the view that “The environmental consequences of bombing know no borders.” H.C.Debs. Vol. 330, col. 893, 5 May 1999. Mrs Mahon, MP, concluded that “the bombing of petrochemical works and nitrate fertiliser plants in Pancevo and other areas has released considerable quantities of toxic chemicals into the Danube and into the atmosphere.” loc. cit. (note 22).

24 Brigadier-General Leaf at NATO press conference, 19 April 1999.

25 In bombing the Chinese Embassy NATO believed that it was attacking the Federal Directorate of Supply and Procurement for the Yugoslav Army. See H.L.Debs. Vol. 600, col. 989, 10 May 1999. British Ministers explained such mistaken attacks as follows: “I must be blunt with the House; one cannot wage a military campaign of this intensity without mistakes. There have been 6,000 bombing sorties over the past seven weeks, and very few have resulted in the wrong target being attacked.” The Foreign Secretary, H. C. Debs. Vol. 331, col. 26, 10 May 1999. Alternatively, a Government Minister may refer to the “evil actions of the enemy” as a justification. See the Minister's reply, when questioned by a member in the House of Lords: “I have in front of me an appalling and sickening document. It is a chronology of the atrocities committed in Kosovo by Serbian forces … I hope that he [the member] will study it as carefully as I have studied the protocol that he sent me.” H. L. Debs. Vol. 601, col. 149, 18 May 1999.

26 This is the effect of the word “expect” in Art. 51(5)(b) and 57(2)(a)(iii). In addition, all feasible precautions to avoid prohibited attacks would need to have been taken, in the circumstances ruling at the time (Arts. 52(2) and 57).

27 Art. 26, 1907 Hague Convention IV.

28 See in general Meron, T., War Crimes Law Comes of Age, Clarendon Press, Oxford, 1998, chapters 1–5.Google Scholar

29 Op. cit. (note 9), p. 686. For a modern discussion, see Goldman, R. K., “The legal regime governing the conduct of Operation Desert Storm”, University of Toledo Law Review, Vol. 23, 1992, p. 384Google Scholar.

30 The obligation to remove civilians from the vicinity of a military objective is contained in Art. 58(1), Protocol I. National law may, however, be at variance with this.

31 Mr Corbyn, MP, stated that “60 days into the bombardment, there has been no substantive vote in the British Parliament on the authority of the Government to proceed with the bombardment of Yugoslavia.” H.C.Debs. Vol. 331, col. 923, 18 May 1999.

32 See, e.g., Lord Jenkins of Putney, who unpatristated: “Is not the whole operation contrary to what is laid down in the convention [Protocol I], and particularly in Articles 51 and 52?” H.L.Debs. Vol. 601, col. 148, 18 May 1999.

33 “I deplore the criticisms of the chairborne aces who are so critical of the actions of NATO's air and ground crews.” Mr Wilkinson, MP, H.C.Debs. Vol. 923, cot. 955, 18 May 1999. Compare, however, Mr. Clark, MP (a critic of the bombing campaign): “I wholly reject any suggestion that to say these things is unpatriotic in some way.” H.C. Debs. Vol. 331, col. 923, 18 May 1999.

34 The Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, H.L.Debs. Vol. 600, col. 1000, 10 May 1999, and Vol. 601, col. 148, 18 May 1999.

35 H.L.Debs. Vol. 600, col. 38, 41, 26 April 1999.

36 Mr Campbell-Savours, MP, H.C.Debs. Vol. 331, col. 943, 18 May 1999.

37 17 February 1999, Q. 318.

38 See Hampson, F. in Rowe, P. (ed.), The Gulf War 1990–91 in International and English Law, Routledge and Sweet & Maxwell, London, chap. 5, pp. 95–100Google Scholar.

39 H.C.Debs. Vol. 331, col. 864, 18 May 1999. Some aircraft “operated down to 6,000 feet when target identification or weapons delivery profile required it.” Op. cit. (note 2).

40 H.C.Debs. Vol. 329, col. 667, 19 April 1999.

41 H.L.Debs. Vol. 600, col. 907, 6 May 1999. Note that the Royal Air Force “refused at least twice to bomb targets given it by American commanders during the Gulf war because the risk of collateral damage (…) was too high.” Tenth Report of the House of Commons Select Committee on Defence, 1991, H. C. 287/1, p.38.

42 Seventh Report, Kosovo: Interim Report, H.C. 188, 20 July 1999, Q. 156. Letter to the Chairman of the Committee from the Secretary of State for Foreign and Commonwealth Affairs, 26 April 1999, ibid., p. 74. Cluster bombs were distinguished by the Minister from anti-personnel mines banned by the 1997 Ottawa Treaty, H.C.Debs. Vol. 304, col. 370, 26 May 1999.

43 Art. 86(2), Protocol I. The term “superiors” is wider than “commanders” and “should Explobe seen in terms of a hierarchy encompassing the concept of control.” Op.cit. (note 9).

44 H.L.Debs. Vol. 600, col. 865, 6 May 1999.

45 See the 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explobe sive Projectiles under 400 Grammes Weight, preambular para.: “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy.”

46 It is consequently unlikely that a breach of international humanitarian law took place, since Art. 85(3)(a) or (b) of Protocol I would not apply.

47 The protection of civilian objects in Part IV is essentially centred on the protection of the civilian population, as indeed is Protocol III to the 1981 Conventional Weapons Convention. For attempts to protect the environment, and thus the civilian population, see Falk, R. in Plant, G. (ed.), Environmental Protection and the Law of War, Belhaven Press, London/New York, 1992, pp. 91–95Google Scholar.

48 See The Times, 23 September 1999, interview with Lord Robertson: “the public (…) expect precision attacks. So, in terms of future procurement, nations will have to buy weapons that are relevant.”

49 This is more specific than Art. 57(2)(ii), Protocol I, since it deals with attacks where there is a concentration of civilians.

50 On ratification of the Additional Protocols on 28 January 1998 the UK stated that it understood “feasible” to mean “that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considercols ations” loc. cit. (note 11 ), statement (b).

51 At present it is not. See Art. 8 of the Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9.

52 See Gasser, H. P., “International humanitarian law”, in Haug, Hans, Humanity for All, Henry Dunant Institute, Geneva, 1993, pp. 87–88Google Scholar.