The Laws of War After Kosovo

• Author: Adam Roberts
• Pages: 401

T he 1999 Kosovo War between NATO members and the Federal Republic of Yugoslavia confirmed the importance of issues relating to the laws of war in contemporary conflicts, especially in coalition operations. It also exposed some problems in that body of law. A central issue in the war was the minimizing of civilian casualties. The NATO leadership recognized from the start that this was of major importance, for two main reasons: because the war was being fought with a stated purpose of protecting the inhabitants of Kosovo and also because international opinion would not have tolerated a war on civilians.1 An underlying question raised by the war is thus the extent to which international legal considerations and institutions can assist in protecting the civilian.

The title of this paper calls for explanation. The terms 'the laws of war' (jus in bello) and 'international humanitarian law' are for most purposes interchangeable. They refer to the same body of law. Both terms are used in this paper. For most purposes I prefer the first of these terms, 'laws of war' being older and simpler, and recognizing as it does that war is the central area of concern. However, the second term, 'international humanitarian law,' sometimes with the suffix 'applicable in armed conflicts,' is increasingly used in international diplomacy. In some usages, this term can also encompass relevant parts of the international law of human rights. The term may be particularly appropriate in reference to a situation (such as applied in Kosovo before March 24, 1999) in which there is no international armed conflict and only a 1. The importance of minimizing civilian casualties is stressed in the memoirs of the Supreme Allied Commander Europe during the period of the Kosovo War. See WESLEY CLARK, WAGING MODERN WAR 438-40 (2001).

small-scale civil war, but there is systematic government repression of part of its own population. Whichever term one uses, the fact remains that the scope of this body of law has significantly expanded in the past sixty years to encompass the law on crimes against humanity and on genocide as well as the laws and customs of international armed conflict; and that in the past decade this body of law has been increasingly viewed as at least partially applicable in conflicts which are partly or completely non-international in character.

Eight questions This survey concentrates on the following eight questions which (a) arose in connection with the Kosovo War, and (b) also touch on matters which are likely to affect the way in which the law is viewed, influences events, and develops further in the future:

1. How did developments in the written laws of war which occurred in the 1990s, and the increasing international concern with implementation of the law, affect the framework' within which international responses to civil wars, including in Kosovo, took place? 2. Is there now a stronger link than before between jus in bello and jus ad bellum? In particular, what are the implications of the fact that sometimes, as in Kosovo, violations of international humanitarian norms by a belligerent in an internal conflict provide part of the rationale for external military intervention? 3. If military action is embarked upon for proclaimed humanitarian purposes by a large alliance or coalition, is there a logic whereby it is carried out by low-risk, remote control methods? In particular, is the oxymoron, humanitarian war, particularly likely to take the form of bombing; and what jus in bello problems arise from reliance on air power? 4. Is there tension between (a) the NATO/US strategic doctrine which aims at putting pressure on the adversary's government, and not just its armed forces, and (b) the implicit assumption of the laws of war that the adversary's armed forces are the main legitimate object of attack? If so, how can this tension be addressed? 5. What lessons are to be learned from the fact that the NATO operations were subject to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY)? In particular, does the consideration of the NATO bombing campaign that was conducted under the auspices of the ICTY Prosecutor suggest that the NATO campaign was conducted largely in accord with member States' obligations under the laws of war? 6. Did the war confirm that there can be many forms of non-belligerence which differ significantly from neutrality as traditionally conceived in the laws of war? 7. Did the war expose deficiencies or omissions in the existing codifications of the laws of war? In particular, is there a need for further codification? And what are the main subject-areas that might require such codification? 8. What, if anything, might need to be done about the paradox that the United States is simultaneously a principal upholder of the obligation of States to observe the laws of war and a non-party to several important agreements on the subject? These questions are certainly not the only important jus in bello ones to arise. A number of specific issues and controversies, such as the naval operations in the Adriatic and the bombing of the TV station in Belgrade, cannot be covered here in the detail they deserve.

   These eight questions have to be seen against a larger background of changes in the conduct of international politics in the 1990s, and increasing international preoccupation with the problem of civil wars and with the implementation of the laws of war. These changes had a significant effect on the fact, and the form, of NATO involvement in Kosovo.

   Changes in the conduct of international politics In the 1990s four factors, none of them entirely new, reinforced the tendency of international bodies and foreign powers to get involved in wars, including particularly civil wars, and also to apply pressure for implementation of the laws of war by belligerents.

   Firstly, most conflict since the end of the Cold War has had the character of civil wars, though often with international involvements on one or more sides.

   Since such wars cause appalling and often highly visible suffering, as well as threatening international stability in the regions in which they occur, there has been an evident need to ensure the application of certain rules of restraint in such wars.

   Secondly, many contemporary wars have a particular tendency to engage the interests of outside powers because they threaten to create huge refugee flows with which our not-very-liberal societies are unwilling to cope. Whether it is northern Iraq, Bosnia, Kosovo or East Timor, an unholy alliance of humanitarianism and illiberalism makes intervention within the State undergoing conflict a possible, even imperiously necessary, option.

   Thirdly, there has been a growing awareness that crimes committed by States have been among the most serious of the twentieth century. The international preoccupation with restitution for a wide range of State misdeeds is evidence of this.

   Fourthly, it is widely accepted that the post-Cold War international order has to be based on values other than, or additional to, mutual respect among sovereign States. Human rights and humanitarian norms are core parts of any such system of values. It is thus very difficult for States to ignore massive violations of fundamental norms.

   The challenge of implementation The main challenge facing the laws of war today is not devising new rules-though some are needed. It is implementation of the rules that exist, and of the underlying idea of moderation in the conduct of armed conflict. Unquestionably, the preoccupation with implementation is widely shared among those who have worked in the field of the laws of war; it has had a profound effect on policy and on treaty-making in this field; and it has been reflected in a number of UN reports and in certain actions of the UN Security Council.

   'Implementation' is taken to encompass (1) the normal measures taken by States, and by international bodies including the International Committee of the Red Cross (ICRC) and the United Nations, to ensure that populations and armed forces are aware of the laws of war and carry out their terms; (2) the actions taken by outside bodies, including States and international organizations, in response to systematic violations of the laws of war. My focus is mainly on this second and more difficult category, which encompasses the enforcement of the laws of war, but is not limited to coercive measures.

   The concern with implementation should not be taken to imply support for the commonly expressed view that existing implementation is lamentable or even non-existent. In the 1999 Kosovo War there was much effective implementation. This was not only on the NATO side, but also in some instances on the Federal Republic of Yugoslavia (FRY) side. For example, in the talks at the conclusion of the war the FRY military provided extensive and accurate information about the location of minefields.2 The central challenge is both to improve patterns of implementation, and to further develop means of coping with gross violations.

   Changes in the Laws of War in the 1990s In the decade before the war on Kosovo, there had been two striking developments in the laws of war: a tendency to make more explicit and detailed the application of the laws of war to conflicts with a partly or wholly non-international character; and a range of specific measures to improve mechanisms of implementation. Both of these developments affected the United States and NATO response to the events in Kosovo. Up to March 24, 1999 the Kosovo problem had largely the character of State repression by the Yugoslav authorities and civil war. It might thus have been perceived as a largely internal problem, about which the rest of the world should not worry. The fact that Kosovo did not escape the attention of outside powers and bodies owes something to the development of the law.

   Changes in the written law In the laws of war, as they...