Commentary: Natalino Ronzitti

• Author: Natalino Ronzitti
• Pages: 113

Sn order to assess the relevance of the Hague and Geneva Conventions and LProtocol I to the Kosovo conflict, one has to ascertain, first of all, the nature of the conflict. Without a doubt, the hostilities between NATO countries and the Federal Republic of Yugoslavia (FRY) should be qualified as an international armed conflict.

On the contrary, the qualification of hostilities between the FRY and the Kosovo Liberation Army (KLA) is more controversial. At first glance, it would seem that it should be regarded as an internal conflict, since the conflict took place between the constituted government and an insurgent community within a State. Can the hostilities between the FRY and the KLA be qualified as an international armed conflict, since Article 1(4) of Protocol I applies?1 Article 1(4) refers to peoples under colonial domination or alien occupation and racist regime fighting for the implementation of their right to self-determination. It does not apply to mere secessionist movements. The question, therefore, is whether the Kosovars are a people entitled to selfdetermination, or whether they are simply a minority.

The distinction between people and minority is a moot point and international law, while conferring different categories of rights on peoples and minorities, does not define either peoples or minorities. It is true that UN Security Council Resolution 12442 qualifies the inhabitants of Kosovo as 'people.' 1. Protocol Additional 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, DOCUMENTS ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter Protocol I].

2. S.C. Res. 1244 (June 10, 1999), U.N. Doc. S/RES/1244 (1999).

   However, it does not clarify whether this people enjoys the right of self-determination. It only says that the people of Kosovo should enjoy 'substantial autonomy.' Autonomy fits more with the rights of minorities than with those of people. Be that as it may, the KLA, as a liberation movement representing Kosovo's 'people,' did not address any declaration to the depositary of Protocol I in order to bring into effect both the Geneva Conventions and the Protocol, as required by Article 96(3) of Protocol I.

   The other possibility is to consider the KLA as being so close to NATO countries that the Kosovar militias, under the control of NATO, did not represent an autonomous party to the conflict. The Appeals Chamber of the ICTY, in the Tadic case relied on the control criterion to qualify the conflict, which took place in Bosnia and Herzegovina between the Bosnian Serb Army and Bosnia-Herzegovina, as international.3 Since the Bosnian Serb Army was under the strict control of the FRY, the conflict was in reality between the FRY, on one hand, and Bosnia-Herzegovina on the other. The FRY did not regard the conflict against the KLA as international. NATO countries, on the other hand, did not take any stance on that point. Hence, the dual qualification of the Kosovo conflict (NATO countries-FRY; FRY-KLA) still holds good, unless contradicted by a future judgment of the ICTY.

   I will now turn my attention to the applicability of the relevant instruments of international humanitarian law (IHL). While the Hague Conventions are mostly regarded as declaratory of customary international law, this is only true in part for the Geneva Conventions and in particular for Protocol I. All NATO countries are party to the Geneva Conventions. As for Protocol I, all were party to it at the time of Operation Allied Force except for France, Turkey and the United States.4 All the NATO countries which conducted hostilities against the FRY are parties to Protocol II except the United States, although the United States does consider its provisions to be reflective of customary international law.

   The FRY was admitted to the United Nations in 2000 as a new State. However, during the hostilities the FRY considered itself the continuation of the former Yugoslavia, which was party to the Geneva Conventions and to Protocols I...