International Humanitarian Law after Kosovo: Is Lex Lata Sufficient?

• Author: Ove Bring
• Pages: 257

This presentation will build on the earlier discussion of relevant international humanitarian law principles as they relate to what happened in Kosovo. My approach will be a functional one: did the generally recognized combat rules of international humanitarian law function during the conflict? Were they complied with? Did they prove to be adequate for the Kosovo intervention type of armed conflict? Is there a need for a de lege ferenda discussion on rules protecting the civilian population in interventionist types of conflicts? These are the issues I would like to address.

The Additional Protocol I of 19771 has codified three somewhat overlapping principles of customary law in the field of targeting and the protection of civilians: the principle of distinction, the principle of proportionality and the principle of feasible precautions. The principle of distinction is closely linked to the definition of military objectives. In fact, the principle would be meaningless if it were not substantiated by a set of norms clearly indicating where the line should be drawn between protected civilian lives and objects on the one hand, and legitimate military objectives on the other. This issue should be addressed first since much of the criticism directed against NATO's methods of warfare in Kosovo was based on the perception that many of the attacks 1. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3,

DOCUMENTS ON THE LAWS OF WAR 422 (A. Roberts and R. Guelff eds., 3d. ed. 2000) [hereinafter Protocol I].

were directed against people, houses and materiel that were protected under international humanitarian law.

Another focal point of criticism, both during and after the conflict, was the extent of damage caused incidentally by attacks against military objectives-the issue of collateral damage. This issue, as an element of the overarching principles of proportionality and feasible precautions, will be discussed later in this paper.

Distinction The principle that a distinction shall always be made in military operations between protected and non-protected values is found in Article 48 of Protocol I. It includes the following language: 'In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish... and accordingly shall direct their operations only against military objectives.' During the Kosovo air campaign,

NATO complied with this principle in the sense that it attempted to attack only objectives that it perceived to be of a military nature. In other words,

NATO tried to distinguish.

Basically, a violation of the principle of distinction implies action mala fide, an intentional disregard for civilian values (e.g., attacks of terror against civilians) or a reckless disregard for such values (e.g., attacks of a nature to strike military objectives and civilians without distinction). The latter aspect-the prohibition against indiscriminate attacks-is covered by Article 51(4) of Protocol I. This prohibition flows from the principle of distinction and could include both intentional violations and reckless behavior. The Gulf War offers some examples on mala fide behavior in this respect. Saddam Hussein was not sensitive to the prohibition of Article 51(4), outlawing, inter alia, attacks 'which employ a method or means of combat which cannot be directed at a specific military objective.' Iraq fired SCUD missiles into Saudi Arabian and Israeli territory, well knowing that these missiles could hit military targets only through sheer luck. Clearly, NATO did not act in this way during the Kosovo conflict. Nevertheless, the media reporting that came out of Belgrade gave the impression that NATO was not in compliance with the prohibition against indiscriminate attacks. The alleged compliance or collateral damage problems that were at issue were not linked to the principle of distinction as such, but rather to the definition of military objectives.

Definition of Military Objectives As has been stated already, the definition of military objectives is a corollary to the principle of distinction. Article 52(2) of Protocol I states that:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.2

Thus, the requirements of 'effective contribution' and 'definite military advantage' are of crucial importance. As the ICRC Commentary to Protocol I points out: 'Whenever these two elements are simultaneously present, there is a military objective in the sense of the Protocol.'3 Together the two elements seem to produce quite a strict rule. However, the current interpretation of the rule is not so strict. It includes the right to attack objectives that have a potential of being militarily useful at some point in the future. This does not explicitly follow from the text, although the ICRC Commentary has indicated that the phrase 'objects which by their nature, location, purpose or use' should be given the following interpretation: 'The criterion of purpose is concerned with the intended future use of an object, while that of use is concerned with its present function.'4 This may be true, but even so the quoted phrase is subordinate to the proviso that the objects so defined shall 'make' (in the present tense) 'an effective contribution to military action,' and it is further required that their destruction 'offers' (in the present tense) 'a definite military advantage.' The Protocol's definition of military objectives has often been perceived as a codification of traditional customary law applied during World War II and earlier.

This perception is probably correct, but it brings with it this flexible and future-oriented interpretation of legitimate military targets that does not explicitly follow from the text of Article 52(2).

2. Emphasis added.

3. COMMENTARY ON THE ADDITIONAL PROTOCOLS of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 635 (Y. Sandoz, C. Swinarski and B. Zimmerman eds., 1987) [hereinafter ICRC COMMENTARY].

4. Id. at 636, ~ 2022. See also Anthony Rogers who accepts the ICRC view that 'purpose' means future intended use of an object. He adds, however, '[i]t is hard to think of an example or a case where 'purpose' will be the deciding factor, especially given the limitation of 'in the circumstances ruling at the time'.' A.P.V. ROGERS, LAW ON THE BATTLEFIELD 35-36 (1996).

The future-oriented approach was clearly manifested during the Kosovo crisis. At a NATO press conference on March 26, 1999, it was said that the armed attacks were directed against the adversary's 'ability to coordinate his military forces in the field, his ability to attack innocent civilians' and 'his ability to command and control his military forces.'5 This liberal view on what constitutes legitimate military objectives was as typical for the NATO air campaign as it was typical for World War II. In Kosovo it tended to include a large number of dual-use targets, i.e., objects which besides their ordinary civilian use had a military potential. A few of these targets were controversial as to their military potential and it was sometimes argued that they were not to be considered as legitimate military objectives.

The requirements of 'effective contribution' and 'definite military advantage' have to be met no less with regard to attacks against dual-use or dual-purpose objects. Typical dual-use objects are transportation systems like roads, bridges and railway lines, oil and other power installations, and communication installations like radio, television, telephone and telegraph stations.

Although it is clear thaf broadcasting facilities could have a military function,

NATO's bombing on April 23, 1999 of the Serb Radio and Television Station (RTS) in Belgrade seems difficult to justify under the circumstances ruling at the time. The Serb media was hardly-to quote from the Report to the ICTY Prosecutor-'the nerve system that keeps a war-monger in power and thus perpetuates the war effort' nor was it 'used to incite crimes, as in Rwanda.'6

Any or both of...