Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia

• Pages: 483

I Background and Mandate

II Review Criteria

III Work Program

IV Assessment

General Issues

Damage to the Environment

Use of Depleted Uranium Projectiles

Use of Cluster Bombs

Legal Issues Related to Target Selection

Overview of Applicable Law

Linkage Between Law Concerning Recourse to Force and Law Concerning How Force May Be Used

The Military Objective

The Principle of Proportionality

Casualty Figures

General Assessment of the Bombing Campaign

Specific Incidents

The Attack on a Civilian Passenger Train at the Grdelica Gorge on 12/4/99

The Attack on the Djakovica Convoy on 14/4/99

The Attack on the RTS (Serbian Radio and TV Station) in Belgrade on 23/4/99

The Attack on the Chinese Embassyon 7/5/99

The Attack on Korisa Village on 13/5/99

Recommendations

I Background and Mandate

The North Atlantic Treaty Organization (NATO) conducted a bombing campaign against the Federal Republic of Yugoslavia (FRY) from 24 March 1999 to 9 June 1999. During and since that period, the Prosecutor has received numerous requests that she investigate allegations that senior political and military figures from NATO countries committed serious violations of international humanitarian law during the campaign, and that she prepares indictments pursuant to Article 18(1) & (4) of the Statute.

Criticism of the NATO bombing campaign has included allegations of varying weight: a) that, as the resort to force was illegal, all NATO actions were illegal, and b) that the NATO forces deliberately attacked civilian infrastructure targets (and that such attacks were unlawful), deliberately or recklessly attacked the civilian population, and deliberately or recklessly caused excessive civilian casualties in disregard of the rule of proportionality by trying to fight a "zero casualty" war for their own side. Allegations concerning the "zero casualty" war involve suggestions that, for example, NATO aircraft operated at heights which enabled them to avoid attack by Yugoslav defences and, consequently, made it impossible for them to properly distinguish between military or civilian objects on the ground. Certain allegations went so far as to accuse NATO of crimes against humanity and genocide.

Article 18 of the Tribunal's Statute provides:

"The Prosecutor shall initiate investigations ex officio or on the basis of information obtained from any source, particularly from Governments, United Nations organs, intergovernmental and non-governmental organizations. The Prosecutor shall assess the information received or obtained and decide whether there is sufficient basis to proceed".

On 14 May 99 the then Prosecutor established a committee to assess the allegations and material accompanying them, and advise the Prosecutor and Deputy Prosecutor whether or not there is a sufficient basis to proceed with an investigation into some or all the allegations or into other incidents related to the NATO bombing.

In the course of its work, the committee has not addressed in detail the issue of the fundamental legality of the use of force by NATO members against the FRY as, if such activity was unlawful, it could constitute a crime against peace and the ICTY has no jurisdiction over this offence. (See, however, paras 30 – 34 below). It is noted that the legitimacy of the recourse to force by NATO is a subject before the International Court of Justice in a case brought by the FRY against various NATO countries.

II Review Criteria

In the course of its review, the committee has applied the same criteria to NATO activities that the Office of the Prosecutor (OTP) has applied to the activities of other actors in the territory of the former Yugoslavia. The committee paid particular heed to the following questions:

Are the prohibitions alleged sufficiently well-established as violations of international humanitarian law to form the basis of a prosecution, and does the application of the law to the particular facts reasonably suggest that a violation of these prohibitions may have occurred? and

upon the reasoned evaluation of the information by the committee, is the information credible and does it tend to show that crimes within the jurisdiction of the Tribunal may have been committed by individuals during the NATO bombing campaign ?

This latter question reflects the earlier approach in relation to Article 18(1) of the Statute taken by the Prosecutor when asserting her right to investigate allegations of crimes committed by Serb forces in Kosovo (Request by the Prosecutor, Pursuant to Rule 7 bis) (B) that the President Notify the Security Council That the Federal Republic of Yugoslavia Has Failed to Comply With Its Obligations Under Article 29, dated 1 February 1999). The threshold test expressed therein by the Prosecutor was that of "credible evidence tending to show that crimes within the jurisdiction of the Tribunal may have been committed in Kosovo". That test was advanced to explain in what situation the Prosecutor would consider, for jurisdiction purposes, that she had a legal entitlement to investigate. (As a corollary, any investigation failing to meet that test could be said to be arbitrary and capricious, and to fall outside the Prosecutor's mandate). Thus formulated, the test represents a negative cut-off point for investigations. The Prosecutor may, in her discretion require that a higher threshold be met before making a positive decision that there is sufficient basis to proceed under Article 18(1). (In fact, in relation to the situation on the ground in Kosovo, the Prosecutor was in possession of a considerable body of evidence pointing to the commission of widespread atrocities by Serb forces.) In practice, before deciding to open an investigation in any case, the Prosecutor will also take into account a number of other factors concerning the prospects for obtaining evidence sufficient to prove that the crime has been committed by an individual who merits prosecution in the international forum.

III Work Program

The committee has reviewed:

documents sent to the OTP by persons or groups wishing the OTP to commence investigations of leading persons from NATO countries,

public documents made available by NATO, the US Department of Defense and the British Ministry of Defence,

documents filed by the FRY before the ICJ, a large number of other FRY documents, and also the two volume compilation of the FRY Ministry of Foreign Affairs entitled NATO Crimes in Yugoslavia (White Book),

various documents submitted by Human Rights Watch including a letter sent to the Secretary General of NATO during the bombing campaign, a paper on NATO's Use of Cluster Munitions, and a report on Civilian Deaths in the NATO Air Campaign,

a UNEP study: The Kosovo Conflict: Consequence for the Environment and Human Settlements,

documents submitted by a Russian Parliamentary Commission,

two studies by a German national, Mr. Ekkehard Wenz, one concerning the bombing of a train at the Grdelica Gorge and the other concerning the bombing of the Djakovica Refugee Convoy,

various newspaper reports and legal articles as they have come to the attention of committee members,

the response to a letter containing a number of questions sent to NATO by the OTP, and

an Amnesty International Report entitled "Collateral Damage" or Unlawful Killings? Violations of the Laws of War by NATO during Operation Allied Force.

It should be noted that the committee did not travel to the FRY and it did not solicit information from the FRY through official channels as no such channels existed during the period when the review was conducted. Most of the material reviewed by the committee was in the public domain. The committee has relied exclusively on documents. The FRY submitted to the Prosecutor a substantial amount of material concerning particular incidents. In attempting to assess what happened on the ground, the committee relied upon the Human Rights Watch Report entitled Civilian Deaths in the NATO Air Campaign and upon the documented accounts in the FRY Ministry of Foreign Affairs volumes entitled NATO Crimes in Yugoslavia. The committee also relied heavily on NATO press statements and on the studies done by Mr. Ekkehard Wenz. The information available was adequate for making a preliminary assessment of incidents in which civilians were killed or injured. Information related to attacks on objects where civilians were not killed or injured was difficult to obtain and very little usable information was obtained.

To assist in the preparation of an Interim Report, a member of the Military Analysis Team reviewed the documents available in the OTP at the time, that is, all those referred to in paragraph 6 above except the FRY volumes entitled NATO Crimes in Yugoslavia, the HRW report on Civilian Deaths in the NATO Air Campaign, the studies by Mr. Wenz, NATO's response to the letter sent by the OTP to NATO, and the Amnesty International Report. The analyst prepared: a) a list of key incidents, b) a list of civilian residential targets, c) a list of civilian facility targets, d) a list of cultural property targets, e) a list of power facility targets, f) a list of targets the destruction of which might significantly affect the environment, and g) a list of communications targets. Very little information was available concerning the targets in lists (b) through (g).

The committee reviewed the above lists and requested the preparation of a file containing all available information on certain particular incidents, and on certain target categories. (It should be noted that the use of the terms "target" or "attack" in this report does not mean that in every case the site in question was deliberately struck by NATO. The terms are convenient shorthand for incidents in which it is alleged that particular locations were damaged in the course of the bombing campaign).

The key incidents and target categories were: the attack on a civilian passenger train at the Grdelica Gorge – 12/4/99 – 10 or more civilians killed...