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International humanitarian law and the Kosovo crisis

Published online by Cambridge University Press:  27 April 2010

Konstantin Obradović†
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Résumé

Dans sa dernière contribution académique à une matière dont il était un expert reconnu, Konstantin Obradović examine la crise du Kosovo sous l'angle du droit international humanitaire. Se référant d'abord à la situation au Kosovo avant le début des opérations militaires de l'OTAN contre la République fédérate Ae Yugoslavie, il conclut quʼil sʼest agi d'un conflit armé non international au sens du droit humanitaire et non seulement de troubles qui relèvent uniquement du droit interne. L'intervention des forces de l'OTAN en a changé le caractère juridique, et le droit international relatif aux conflits internationaux est devenu applicable. Différents incidents survenus pendant ces opérations sont examinés à la lumière des Conventions de Genève et de ses Protocoles additionnels. L'auteur conclut avec un appel à mieux faire usage des procédures internationales de contrôle de la mise en œuvre du droit international humanitaire.

Cette article a paru d'abord en serbocroate dans Medunarodni Problemi/International Problems, Vol. LI, No. 3–4/1999, pp. 256–294, publie par l'Institut de politique et d'économie internationales, Belgrade. Traduction en anglais par le CICR.

Type
Research Article
Information
International Review of the Red Cross , Volume 82 , Issue 839: Humanitaire action and prevention/Action humanitaire et prévention , September 2000 , pp. 699 - 731
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 There is no doubt that KLA members behaved in certain circumstances as terrorists, and they undoubtedly undertook terrorist activities (e.g., during the period analysed here, about 140 Serbs were abducted and the majority of them were killed, although they were ordinary citizens, Serbian houses were burnt down, etc.). Yet this certainly cannot mean that all members of the organization (or the organization itself) can be treated simply as terrorists or that somebody who really is a terrorist, because he participates in a terrorist act, can be treated as “outside the law” and, for instance, executed on the spot. Thus, even a terrorist who has laid down his arms and wants to surrender has the right to have his life spared, regardless of whether or not the terrorist act was carried out in a situation that is understood as an armed conflict in the sense of the law of armed conflicts. After all, even an ordinary robber caught during an armed robbery cannot be killed by the police if he indicates his wish to surrender. Such an act would be especially prohibited in an armed conflict. This is because such a person has the right to have his life spared, while the court decides upon the nature of his act and his possible responsibility, and metes out a penalty according to the law. Finally, even a regularly constituted and internationally recognized army — the best example is that of the German Wehrmacht during the Second World War — or its individual members may undertake terrorist acts which are otherwise prohibited by the law of armed conflicts, but this does not mean that the army as a whole is of a terrorist nature. I particularly emphasize all this because the reporting by our media could give the impression — and public opinion shares this view to a large extent — that terrorists can be treated as “rabid dogs” and are simply “outside the law”, and that they can therefore simply be killed without any formalities when captured by the authorities.

2 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II): According to Article 1 thereof, internal or non-international armed conflicts are those “which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”. See, in general, Sandoz, Y./Swinarski, C./Zimmermann, B. (eds), Commentary on the Additional Protocol of 8 June to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987, pp. 1, 347 ffGoogle Scholar. (hereinafter: ICRC Commentary).

3 A characteristic of the law of armed conflicts is the unilateral acceptance of obligations, not reciprocal as is normally the case in international law where non-compliance with obligations by one side automatically exempts the other side from having to respect its commitments. The fact that the adversary violates the rules or commits war crimes or crimes against humanity does not allow the other side to respond in the same way; if it did so it would itself be breaking the\ rules and committing a crime.

4 ICRC Commentary, pp. 1,361 ff.

5 Protocol II does not refer to a captured combatant by the usual term “prisoner of war” nor does it give special protection to protecsuch persons, since in a civil war it is difficult to distinguish civilians from soldiers. Article 4 uses the terms “persons who do not take a direct part or who have ceased to take part in hostilities”, giving the same degree of protection to both groups.

6 Protocol II, Arts 7–12. Article 10, on the general protection of medical duties, is of particular importance. It stipulates that no person may be punished for having carried out medical activities and services, regardless of the person benefiting therefrom; doctors or nurses may not be compelled to perform acts contrary to the rules of medical ethics; doctors have no obligation to give information to authorities concerning the wounded and the sick, nor may they be penalized in any way for failing to give that information,

7 ICRC Commentary, pp. 1,383 ff.

8 ICRC Commentary, pp. 1,395 ff.

9 During negotiations on Protocol II, States showed great reticence, as well as a certain amount of “inhumanity”, when formulating rules that could in any way be seen to help rebels gain political affirmation or international recognition, or obtain some sort of “equal footing” in relation to State authorities. The majority of delegations present in Geneva were in favour of this approach, even if the price for it was often less protection for victims. Defining the concept of “combatant” and setting the rules on the conduct of hostilities were seen as possibilities for rebels to get automatic recognition as a party to an armed conflict if the Protocol were applied, and for that reason the ICRC proposals to give an exact definition of the prohibited means and methods of warfare were rejected.

10 ICRC Commentary, p. 1,453. Protocol II contains no definition of combatant. Persons who “take a direct part in hostilities”, logically, do not benefit from the protection against dangers arising from military operations. But even such fighters who have laid down their arms may not be attacked, since they are considered to be civilians,

11 ICRC Commentary, 1,471 ff.

12 In an internal conflict there is no war crime, only crimes against humanity, which, in reference to the context of a criminal act, means practically the same. For the reasons behind this distinction, which are of an exclusively political nature, see Vtadan Vasilijeé, “Medunarodni kriviéni tribunal za bivšu Jugoslaviju i kažnjavanje za teške povrede medunarodnog humanitarnog prava” [International Criminal Tribunal for the former Yugoslavia and sanctions for severe violations of international humanitarian law], Humanitarno pravo — savremena teorija i praksa [Humanitarian law — contemporary theory and practice], Belgrade, pp. 380 ff.

13 The four Geneva Conventions contain common provisions for the suppression and prosecution of “grave breaches”, i.e. war crimes or crimes against humanity. See Convention I (Arts 49–54), II (Arts 50–53), III (Arts 129–132) and IV (Arts 146–149). Contracting parties must provide in their legislation for measures to repress such criminal acts and penal sanctions for possible perpetrators. Yugoslavia has defined under Chapter XVI of its Federal Criminal Law these breaches as severe criminal acts which are to be prosecuted ex officio.

14 According to data available to me, but which have not been officially confirmed, about two to three thousand Albanians were deprived of liberty during the period analysed. In cases where indictments were issued, they referred to rebellion, the endangering of the State's territorial integrity, terrorism and similar criminal acts, yet neither war crimes nor crimes against humanity were mentioned.

15 For arguments in favour of this view, see e.g. Avramov, Smilja, “Medunarodno krivično pravo i Povelja UN” (International criminal law and the UN Charter), Archives of Legal and Social Studies, No. 5, 1994, pp. 479 ff.Google Scholar; Milan Bulajič, “Medunarodni sud za krivično gonjenje odgovornih za ratne zločine u bivšoj Jugoslaviji” (International Tribunal for the prosecution of persons responsible for war crimes in former Yugoslavia), Collection of documents, Belgrade, 1993, or Kokolj, M., “Medunarodni sud za krivično gonjenje odgovornih lica za ozbiljne povrede medunarodnog humanitarnog prava” (International Tribunal for the Prosecution of Persons responsible for Serious Violations of International Humanitarian Law), Yugoslav Journal of Criminology and Criminal Law, No. 1–2, pp. 87 ff.Google Scholar

16 See my article, “O pravnoj osnovi konstituisanja ad hoc medunarodnog krivičnog suda za bivšu Jugoslaviju” (On the legal basis for the establishment of the ad hoc International Criminal Tribunal for the former Yugoslavia), Herald of the Bar Association of Vojvodina, Year LXVI, Book 54, No. 110, 1994, where arguments in favour of this position are put forward. Besides, this position is shared by the majority of the world's international law experts and by a number of our own experts. See, for example, Vasilijevié, Vladan, Zločin i odgovornost (Crime and responsibility), Belgrade, 1995, with an extensive bibliography.Google Scholar

17 Since the attack on Yugoslavia was started without a corresponding resolution by the Security Council, which according to Chapter VII of the Charter would authorize the use of force against the FRY in the sense of Art. 42 of the Charter, the governments of the Western Alliance did not clearly indicate their position with respect to the situation they were in, given that they had carried out an armed attack on an independent country. They tried to declare the action a “humanitarian intervention” legally justified by the necessity to protect human rights, and also by Security Council resolutions 1199 and 1203, which indeed mention Chapter VII. In brief, there were obvious efforts to avoid the term “armed conflict”, delicate in this political context, in order to exclude the possibility of being accused of aggression. But, as we shall soon see, the obligation of the parties to apply humanitarian law in armed conflicts remains the same in any case, however the situation is defined,

18 The rules were evidently made in favour of citizens or members of the adverse side. Yet the rules that ensure basic and minimal protection are applicable to any person in accordance with the general objective of humanitarian law, which is to protect any individual as a human being, whatever his or her nationality. Thus, humanitarian law forbids bombardment of inhabited areas, destruction of the population's food supplies or taking of hostages among civilians. In addition, it equally forbids the brutal, indiscriminate bombardment of a town in occupied territory for some “higher” strategic or tactical reasons, e.g. because the occupant has consolidated his position there. The same applies to destroying food supplies before the advancing enemy so that these do not fall into enemy hands, in spite of the danger of starvation for the occupied territory's population; or to taking hostages among the domestic population because, for instance, the population of a specific area has favoured the enemy.

19 The Yugoslav side has stated that it had shot down about 70 Alliance aircraft, yet, surprisingly, none of the pilots was captured. However, three members of American land forces were captured. They were found, in circumstances that remain unclear, within the territory of the FRY near the Macedonian-Yugoslav border and were going to be prosecuted by the FRY. It also remains unclear on what grounds they could have been brought to court, but the idea was abandoned anyway and the men were released while the conflict was still going on. The Alliance apparently did not have any members of the Yugoslav army in captivity.

20 Not all NATO members who attacked us have ratified Protocol I. However, even those that were not bound by the Protocol, but only by the Hague Regulations of 1907, were obliged to interpret the latter's provisions in the spirit of contemporary positive law, i.e. Protocol I. For more details concerning the relationship between the provisions of the Hague Regulations and the provisions of Protocol I, see ICRC Commentary, pp. 585 ff.

21 It is well known that during the Second World War residential areas of big cities were being bombed (Rotterdam, 1940, to force the Netherlands to capitulate; London and Coventry during the Battle of Britain; Dresden and Leipzig in February 1945), in order to spread terror among the population and thus make the government surrender. These and similar negative experiences led to this prohibition.

22 The law of armed conflicts provides for specially protected zones (undefended localities, open towns, hospital zones, safety zones, etc.) which, provided they fulfil the required conditions, should not be the object of attack, on any grounds whatsoever. See ICRC Commentary, pp. 697 ff.

23 Protocol I, Arts 53'56. See ICRC Commentary, pp. 639 ff.

24 Protocol I, Art. 58. ICRC Commentary, pp. 691, with reference to other provisions.

25 It is generally known, for instance, that in Belgrade soldiers were located in some schools, inside densely populated areas, and that anti-aircraft defence was operational from the town proper, all of which certainly violated the Protocol, because the civilian population was put in danger. It is difficult to judge how widespread this practice was, but there is no doubt that such acts are prohibited.

26 A group of American and Canadian international affairs experts and lawyers have submitted a proposal to the ICTY's Chief Prosecutor to bring charges against named persons (politicians and high-ranking military personnel of NATO countries) for specified violations of humanitarian law during this conflict. The proposal has been expertly prepared, unlike a similar proposal by a professor at the Faculty of Law in Belgrade, and can be found on the Internet. It will be interesting to see the Prosecutor's reaction, as it seems quite difficult to ignore this proposal,

27 It is correct that the ICTY has so-called “precedence” over national courts, i.e. it can ex officio take over any case, provided it establishes during the procedure or even after the final judgment that the trial was not fair, either because it was to the accused person's disadvantage or advantage. However, it is not correct to reduce this precedence to a practically exclusive competence of the Tribunal, as some believe. This would be neither logical nor feasible: assuming that several thousand crimes were committed during the “Yugoslav wars” from 1991 on, and that there may be as many perpetrators, the Tribunal would have to work for several decades to solve only some of these cases.

28 The full name of this body is: International Fact-Finding Commission. See ICRC Commentary, pp. 1,038 ff.

29 Our public opinion seems to confuse two issues: on the one hand, the responsibility of NATO member States for the aggression and, on the other, the responsibility for violations of the law applicable in armed conflicts, In this brief study I do not examine responsibility for the aggression, but only for the second category of acts.

30 In addition to the Yugoslav army, the existing security forces and paramilitary units of the Republic of Serbia would also be covered, because Serbia (not being a subject of international law) cannot be held internationally responsible.