Commentary: Leslie C. Green

• Author: Leslie C. Green
• Pages: 361

As had been forewarned, the immediate effect of Operation Allied Force, which was in fact directed against targets in Serbia as well as Kosovo province, was an increase in the terror directed against the Muslim Albanian population. While NATO claimed that only military targets were being attacked, it soon became clear that civilians and civilian objects were suffering damage-sometimes because of 'clever' bombs going astray but also, it seems, from NATO's desire to avoid casualties among its own personnel, which led to aircraft flying beyond anti-aircraft range resulting in mistakes in targeting.

Cluster bombs, the range of which is difficult or impossible to control, were among the ordinance dropped rendering civilian casualties virtually inevitable.

While it was claimed that bridges over the Danube, television studios and electricity-generating establishments were legitimate military objectives, questions regarding the rule of proportionality in relation to collateral damage, both under customary law and Protocols I and II, have to be examined.

The Economist Intelligence Unit reported, perhaps in the light of more recent developments with some exaggeration, that the NATO bombing 'inflicted enormous damage on Yugoslavia's economy and infrastructure.... Yugoslavia will sink below Albania and become the poorest country in Europe.'' The Secretary General of the United Nations stated in a press release of April 28, 1999:

The civilian death toll is rising, as is the number of displaced. There is increasing devastation to the country's infrastructure, and huge damage to [its] economy.

For example, Mr. Sommarugua [President of the International Committee of 1. Globe and Mail (Toronto), 23 August 1999.

the Red Cross after visiting Yugoslavia] told me that the destruction of the three bridges in Novi Sad also cut off the fresh water supply to half of that city's population of 90,000 people.2

No fewer than 350 cluster bomb attacks were launched against Serb forces (it was later discovered that NATO claims of destruction of Serb tanks and other military installations were unrealistic) and:

[O]fficially it is acknowledged that between five and ten per cent of the bombs would have failed to detonate, although unofficial estimates put it higher.... Although the civilian casualty toll from incidents involving unexploded munitions has dropped from five a day in the first month after the air campaign ended to the present one or two a day Lt. Col. Flanagan [Australian program manager of the United Nations mine action coordinate center in Pristina] said he needed NATO's help to meet the challenge of making Kosovo safe for the population, especially in rural areas, 'Any help we could get from NATO would be appreciated, but at the moment KFOR [Kosovo Protection Force] is not addressing the problem unless there is an emergency humanitarian or operational reason'. He said 'children were being maimed because the cluster bombs looked like toys and were extremely sensitive. If you pick up a cluster bomb it will explode, it is even more dangerous than a mine. Anything can detonate a cluster bomb'. Colonel Flanagan said NATO had supplied the coordinates for the cluster bomb attacks which had helped his teams to trace some of the unexploded bomblets. However, not all the coordinates had proved accurate.3

Given the nature of this statement, one is inclined to enquire whether it did not embarrass those participants in the NATO campaign which were parties to Protocol II as amended4 of the 1990 Conventional Weapons Convention.5

2. Statement by Secretary-General Kofi Annan on Kosovo Crisis, Press Release SG/SM/6972,

Apr. 28, 1999, available at http://www.globalpolicy.org/security/issues/Kosovo334.htm. For a breakdown of the damage done to Yugoslavia's economy, see Ved Nanda, Legal Implications of NATO's Armed Intervention in Kosovo, in INTERNATIONAL LAW ACROSS THE SPECTRUM OF CONFLICT: ESSAYS IN HONOUR OF PROFESSOR L.C. GREEN ON THE OCCASION OF HIS EIGHTIETH BIRTHDAY 313, 319 (M. Schmitt ed., 2000) (Vol. 75, US Naval War College International Law Studies).

3. Michael Evans, NATO Bombs Still Killing Kosovars, THE TIMES (London), Aug. 16, 1999.

4. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, adopted May 3, 1996,35 INTERNATIONAL LEGAL MATERIALS 1206, 1209 (1996).

5. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excesively Injurious or to Have Indiscriminate Effects, adopted Oct. 10, 1980, 1342 U.N.T.S. 137, reprinted in THE LAWS OF ARMED CONFLICT 179 (D.

Schindler and J. Toman eds., 3d ed. 1988). The unamended Protocol II is at 185.

While NATO certainly did not use booby-traps, Colonel Flanagan's description of cluster bombs as 'toy-like and attractive to children' brings them very close to the definition of such weapons: 'any device or material which is designed, constructed, or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act.'6

Colonel Flanagan also expressed some criticism of NATO's unwillingness to assist in clearing these weapons which again draws attention to the Protocol and its obligation to give notice of a minefield and arrange for its clearance:

1. Without delay after the cessation of active hostilities, all minefields, mined areas, mines, booby-traps and other devices shall be cleared, removed, destroyed....

2. High Contracting Parties and parties to a conflict bear such responsibility with respect to minefields, mined areas, mines, booby-traps and other devices in areas under their control.

3. With respect to minefields, mined areas, mines, booby-traps and other devices laid by a party in areas over which it no longer exercises control, such party shall provide to the party in control of the area... to the extent permitted by such party, technical and material assistance necessary to fulfill such responsibility.7

For the main part, KFOR and those members of NATO contributing thereto remained in control of most of Kosovo and would appear, at least at the time of Colonel Flanagan's remarks, as not being as cooperative as some of them are obligated to be. Finally, it may be asked whether by using weapons coated in depleted uranium there has not been a breach of the basic principle of customary law that weapons likely to cause unnecessary suffering may not be used, while for parties to Protocol I8 there would appear to have been also a breach of Article 35, which forbids 'methods or means of warfare which are intended or may be expected, to cause widespread, long-term and severe damage to the environment' (emphasis added).as such usage must have envisaged.

As has-been pointed out, the bombing campaign was not as successful as NATO might have hoped. It extended over seventy-eight days and at no time 6. Id., art. 2(4).

7. Id., art. 10.

8. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, 16

INTERNATIONAL LEGAL MATERIALS 1391 (1977) [hereinafter Protocol I].

was there any contact between ground troops and no fatalities were suffered by NATO air personnel. Since the aerial campaign was affected by weather conditions as well as the accuracy of the crews, observation of targets was sometimes difficult.9 While the United States was not a party to Protocol I, both Canada and the United Kingdom were. It is therefore necessary as regards these participants to refer to the relevant Articles of that instrument. It should also be noted that in so far as the United States was concerned it was under the customary law obligation to confine its offensive activities to military and not civilian targets. In accordance with Protocol I:

Article 48 - Basic rule [T]he 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.

Article 51 - Protection of the civilian population 1. The...