Coalition Warfare and Differing Legal Obligations of Coalition Members Under International Humanitarian Law

• Author: Torsten Stein
• Pages: 315

Wars were fought by alliances or 'coalitions,' both before and at Waterloo. Indeed, coalition warfare has been a dominant theme of armed conflict in the 19th and 20th centuries and is represented at the end of the last millennium in Operation Allied Force. It is, however, a more recent development that coalition partners do not necessarily operate separately and in clearly distinct segments of the theater or battlefield. Today's coalitions 'inter-operate' so closely that it may be difficult, if not impossible, for adversaries and outsiders, such as the International Committee of the Red Cross (ICRC) that seek to monitor the observance of obligations under international humanitarian law, to identify who did what and to whom.

Admittedly, the coalition partners have (almost) a clear understanding of such matters. Moreover a participating State would, due to the pressure from a public at home which demands answers, either admit to its own wrongdoing, deny responsibility and point out the responsible party, or make a plausible denial of responsibility without putting the blame on any specific State or actor.

If the coalition consists of democracies, that process should make it easier to place the blame within a relatively short period of time. Theoretically, however, one cannot leave out the possibility that the coalition may manage to build a wall of denial or silence.

Increasing the problems further, the various members of a coalition waging war might have differing legal obligations under the law of armed conflict;

obligations which are treaty-based. Some coalitions might be more homogeneous in this respect, others less so. The coalition conducting Operation Allied Force was certainly more homogenous, even if not all participating members were contracting parties to the 1977 Additional Protocol I the 1949

Geneva Conventions, than the coalition which is currently providing troops for the Kosovo International Security Force (KFOR).

At the end of the day Protocol I may not be the biggest problem. What about the 1980 UN Conventional Weapons Convention and its Protocols? Or the 1997 Ottawa Convention on anti-personnel mines? The diversity of respective obligations arising from these conventions might be much greater in a coalition of over 30 States than with regard to Protocol I.

Can there be differing legal standards for various members of a given coalition? Could the commander-in-chief (CINC) of such a coalition ask (or even order) those force-providing States not parties to the restricting treaties to undertake actions which violate those treaties, while all the others live up to their treaty obligations?.Does it make a difference if the coalition is a 'UN force' or at least authorized by the Security Council to use force? Are there other reasons why the strictest legal standard should govern a coalition war because the coalition derives the legality of its use of force from being a regional arrangement, or from its humanitarian purpose? Or because reprisals of the other side would be indiscriminate? And to whom would possible internationally wrongful acts be attributed? To the coalition if it is an international organization, to all members of the coalition or only to the flag State? This paper will discuss all these questions using NATO's Kosovo campaign as an example, which includes the air campaign of Operation Allied Force, as well as KFOR, the ground force authorized by the UN Security Council to use force, if necessary. There can be no doubt that the whole of the law of armed conflicts applies to the air campaign, although NATO spokesmen avoided calling it a 'war' and insisted that it was a 'humanitarian action.' I will attempt to treat the questions under a somewhat broader perspective, because there will be other (and different) coalitions in the future, and the same rules will probably apply to all of them; as would, by the way, customary international law rules emerging out of Operation Allied Force.

The Factual Setting Examples of the diversity of obligations during the Kosovo campaign include: France, the United States and Turkey were not parties to Protocol I;

Turkey is not a party to the UN Conventional Weapons Convention or any of its Protocols; Russia (as was the former Soviet Union) is not a party to Protocols II and IV, nor is Poland; Yugoslavia and all its former Republics are not parties to Protocols II and V with the exception of Bosnia, which is a party to Protocol II; and the United States is not a party to Protocol IV. One could go on naming other force-providing States among the over 30 contributing to KFOR and the various choices they have made with respect to ratifying the Conventional Weapons Convention and its protocols.

It is also a fact that for probably different reasons foreign offices and defense ministries carefully compared armed forces manuals. However, as the second KFOR Commander confirmed,1 while rules of engagement contained numerous restrictions premised on grounds of domestic law, none expressly refer to obligations under international humanitarian law. General Clark, who served as Supreme Allied Commander Europe, reports that while there was resistance among NATO States when he tried to get additional targets approved, the rationale did not include 'we can't do it because some of us are bound by Protocol I.'2 Nonetheless, the legal restraints of Protocol I were observed, even if they found no expression at the CINC-level.

Has Protocol I Become Customary International Law? Differing treaty obligations of members of a coalition would not pose a problem if a treaty such as Protocol I has become customary international law. No one, however, has thus far maintained that the UN Conventional Weapons Convention and its Protocols, or the 1997 Ottawa Convention, have become binding upon non-parties.3 It is widely accepted in international law that, as Article 38 of the Vienna Convention on the Law of Treaties confirms, treaty obligations and customary law obligations may coincide, because the treaty codifies already existing customary law, or because new customary international law is generated in the aftermath of a treaty.

It is appropriate to dwell for a moment on the process of creating customary international law. As stated in Article 38 (1) (b) of the Statute for the International Court of Justice (ICJ), such law requires both custom and the subjective element of following this custom because one is so obliged by law-opinio iuris.

In this respect, it is interesting to note the practice of the same court in the 1. Personal interview; cf. also GENERAL KLAUS REINHARDT, KFOR - STREITKRAFTE FUR DEN FRIEDEN (2001).

2. WESLEY CLARK, WAGING MODERN WAR 201 (2001).

3. The dubious process of instant customary international law will thus not be investigated here.

   'de-emphasising of material practice as a constitutive element combined with the tendency to 'count' the articulation of a rule twice, so to speak, not only as an expression opinio juris but also as State practice itself.'4

   In the Nicaragua case, the International Court of Justice (ICJ) disregarded the view of some lawyers5 as to the non-relevance of General Assembly resolutions in the process of evolving customary international law, when it referred to non-binding resolutions as evidence of this kind of law.6 The question of who's practice is relevant in the formation of customary law is central in this process. The ICJ stated in its North Sea Continental Shelf case7 that the practice of non-parties is essential in the development of this law.

   With treaties of universal acceptance like the 1949 Geneva Conventions,8 and to a lesser extent the Additional Protocols of 1977,9 there are only a few States left to create this kind of custom and opinio iuris. This Baxter paradox10 has, however, not been seen as blocking the evolution of customary law, as exemplified by the above-mentioned decisions of the Court. The focus has instead shifted to the activities of both the parties and the non-parties, considering a wide range of sources as evidence for both custom and opinio iuris.

   With a distinct unwillingness to focus solely on what the belligerents actually do, which is probably bound up with a policy of enhancing the protection of noncombatants and combatants alike, the ICJ, and lately as well the International Criminal Tribunal for the former Yugoslavia (ICTY),'1 have decided to direct their focus at other sources of 'evidence' for the necessary custom and opinio iuris. Amongst these, the number of ratifications to international treaties and the dictates of military manuals have been referred to in order to 4. Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens and General Principles, 12 AUSTRALIAN YEAR BOOK OF INTERNATIONAL LAW 82, 96 (1992).

5. E.g, Gaetano Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations and the Development of Principles of Friendly Relations, 137 RECUEIL DES COURS 431 (1972).

6. Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 99-100 (June 27) [hereinafter Nicaragua case]. Though, as stated by Wolfke,'[t]he evaluation of the sufficiency of such evidence must, however, always be carried out 'with all due caution,' especially as far as the evidentiary value of non-binding resolutions is concerned.' KarolWolfke, CUSTOM IN PRESENT INTERNATIONAL LAW 152 (2d ed. 1993).

7. North Sea Continental Shelf (F.R.G. v. Den., F.RG. v. Neth.) 1969 I.CJ. 43 (Feb. 20).

8. According to a search of the official ICRC website (http://www.icrc.org) on October 18

   2001, there are 189 Parties to the 1949 Geneva Conventions.

9. There are 159 Parties to AdditionalProtocol Iand 151 Parties to Additional Protocol II. Id.

10. Richard Baxter, Treaties and Custom, 129 RECUEIL DES COURS 27, 73 (1970).

11. Prosecutor v. Tadic, Appeal on Jurisdiction, Case No. IT-94-1-AR72 (Oct. 2, 1995), reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32, 55 (1996).

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