Kosovo and Legal Issues

[Andrew Jameson]

This discussion of the legality of the present bombing of Serbia seems
so admirably dispassionate and clear that it would be a pity not to
share it with colleagues. It was originally written for the Lancaster
University internal e-zine "Inkytext", Monday 10 May 1999.
With apologies,
Andrew Jameson, ex Lancaster University UK


2. KOSOVO AND LEGAL ISSUES BY PROFESSOR PETER ROWE
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 [NOTE: Professor Rowe, Head of the Law Department, is an international
authority on the laws of war and the Geneva Convention. (Ed.)]

 You invited comment from me on the legal issues relating to the
conduct of the 'war' in Yugoslavia. I have set out some relevant issues
below with a legal analysis. I have deliberately not expressed my view
as to the legality of any particular issue since I believe it unsound
to do so unless the facts are established. During the currency of any
'war' this is often difficult to achieve.

 1. Is this a 'war'?

 'War' has a specific legal meaning. It comes into existence
once war has been declared. This has not been the practice of States
since World War II. It has consequences in international and national
law, which States may be reluctant to bring about. The modern law of
war (or international humanitarian law) comes into existence once
there is an armed conflict between States or a declaration of war or
the occupation of territory (Geneva Conventions 1949).

 It will therefore be noted that once a factual 'armed conflict'
between (or among) States exists all the laws of war come into
operation, whether there has been a declaration of war or not. The term
'war' may be used loosely but it has no legal significance in the
absence of such a declaration. There has been no such declaration in
the present conflict and one is not to be expected.

 2. Is there an 'armed conflict' between States?

 There clearly is an armed conflict occurring in the former Yugoslavia.
The commentary on the Geneva Conventions 1949 ( written by Jean Pictet)
decribes an armed conflict as 'any difference arising between two
States and leading to the intervention of armed forces.'

 In fact there are two armed conflicts (at least). One is an
international armed conflict (NATO against Yugoslavia), the other, a
non-international armed conflict (between Yugoslavia and the KLA).
Different rules apply to each type, of which more below.

 3. Who are the parties to this international armed conflict?

 We hear about NATO action against Yugoslavia. NATO is not, however, a
State. It has legal personality for certain purposes (e.g. hiring local
workers and maintaining its HQ) but in this connection it is acting as
a collective body for its constituent members. There is, in my view,
therefore an armed conflict between each individual member State of
NATO contributing to the air campaign and Yugoslavia. The effect is to
bring into existence the laws of war applicable in an international
armed conflict, i.e. the 4 Geneva Conventions of 1949 and their
Additional Protocol of 1977, along with such treaties as the Geneva Gas
Protocol of 1925 (prohibiting the use in war of 'asphyxiating,
poisonous or other gases and all analogous liquids, materials or
devices').

 4. What law applies to a non-international armed conflict?

 As mentioned above, the armed conflict between Yugoslavia and the KLA
may be considered as a non-international armed conflict (although the
involvement of NATO forces might be argued to convert it into an
international armed conflict).

 In a non-international armed conflict the national law of Yugoslavia
applies. KLA fighters may, in theory, be arrested and charged with a
wide variety of offences against the Yugoslav Penal Code. Added to this
is a very sparse body of international law, principally concerned with
protecting those taking no part in the conflict (Article 3 to the
Geneva Conventions 1949 and Protocol II of 1977, to both of which
Yugoslavia is a High Contracting Party).

 5. Were the 3 US soldiers prisoners of war?

 Yes. Since the Geneva Conventions apply the 3 US soldiers were
entitled to the protection of Geneva Convention III (dealing with
prisoners of war) of 1949. The details of the treatment to which they
were entitled is set out in that Convention. Of particular relevance is
that they were entitled to give only their name, date of birth, rank,
number and to be kept in a place other than a civilian prison. There
was some speculation that:
 (i) they could be placed on trial as spies;
 (ii) they could be tried for criminal offences, such as crossing the
border illegally.

 Neither of these has any legal foundation. A spy is someone who 'acts
clandestinely or on false pretences...to obtain information...with the
intention of communicating it to the hostile party,' (Hague Convention
1907). The soldiers were at all times in uniform (so far as I am aware)
and it could hardly be said that they therefore acted 'clandestinely or
on false pretences'. During an international armed conflict a member of
the armed forces of an enemy State is not subject to the domestic (in
this case, Yugoslavian) law. The 3 soldiers were not therefore subject
to the law of Yugoslavia.

 The Yugoslavian officer captured by US forces was, likewise, a
prisoner of war. In this case the US authorities, acting within Geneva
Convention III, permitted the International Committee of the Red Cross
to visit him. So far as I know the Yugoslavian authorities did not
permit such a visit to the 3 US soldiers.

 Normally prisoners of war are released and repatriated at the
'cessation of active hostilities,' (Article 118, Geneva Convention
III). The 3 US prisoners of war were released this week. There are
precedents for doing this in the Falklands war of 1982.

 5. What does the international law of war say about aerial bombing?

 The first important point here is that aerial bombing in WWII is no
longer of legal significance. Additional Protocol I (1977) to the
Geneva Conventions sets out detailed rules about this. All NATO
States and Yugoslavia are parties to this Protocol (except the US).
The non-ratification by the US is not legally significant here since the
important rules reflect customary international law, to which all
States are bound.

 Art. 48 provides that Parties are to direct their atttacks 'only
against military objectives' and Art. 52 goes on to define a military
objective. It is 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
neutralisation, in the circumstances ruling at the time, offers a
definite military advantage.'

 Notice that the definition includes the 'use' of an object. A school
or university could therefore be a military objective if it is used in
such a way as to make an effective contribution to military action.

 6. What about bombing that kills civilians?

 To target civilians as such would be clearly contrary to Additional
Protocol I (arts. 48, 51) and to attack civilian objects (not
'objectives') would contravene art. 52. A civilian object is anything
other than a military objective. To attack a military objective (as
defined above) so that civilians are killed may or may not be contrary
to the Protocol.

 Non-lawyers use the term 'collateral damage' to refer to the
consequence of killing civilians or destroying civilian objects as a
consequence of attacking a military objective. What is prohibited is an
indiscriminate attack. This is defined as 'an attack which may be
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military
advantage anticipated,' art 51(5)(b).

 There are some important concepts contained within this definition,
which attempts to do what many might consider to be extremely
difficult, namely, to weigh up the value of the destruction etc. of a
military objective against the loss of civilian life etc. Where it is
expected that injury to civilians etc. will be excessive the attack, if
carried through, will be indiscriminate and therefore unlawful. In
order to come to a judgment about any of the attacks we need to know
 (i) what was the military objective (as defined above)?
 (ii) what was the 'expected' loss of civilian life?
 (iii) was (ii) excessive in relation to (i)?

 7. What are war crimes?

 These are any breach of the laws of war, whether contained in treaty
or under customary international law. The main categories existing at
the moment are (i) genocide, (ii) grave breaches of the Geneva
Conventions 1949, (iii) crimes against humanity (iv) breaches of the
laws or customs of war.

 Individuals may be liable for such breaches before an international
(or, in some cases) a national court. Each of these terms has a
specific legal meaning. It must do since individuals may be placed on
trial for alleged breaches.

 Genocide is not, for instance, doing something we might deplore
against the civilian population. It involves an act 'with intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group, as such [by] killing members of the group, causing serious
bodily or mental harm...(Genocide Convention 1948). Similarly, crimes
against humanity are defined in the Statute of the Tribunal.

 8. Does any international court currently have jurisdiction to try
alleged war crimes?

 Yes. The International Tribunal for the Former Yugoslavia was
established by a UN Security Council Resolution in 1993. Art. 1 provides
that the Tribunal shall 'have the power to prosecute persons
responsible for serious violations of international humanitarian law
[laws of war] committed in the territory of the former Yugoslavia since
1991.' This clearly includes acts committed in Kosovo. It can try any
of the offences listed in (i) to (iv) above. It is no defence to claim
superior orders or being a head of State or of government (art.7 of the
Statute of the Tribunal).

 One important limitation is that an accused person may not be tried in
his absence (art. 21, although he may be indicted). Ensuring the arrest
of alleged war criminals has often been difficult. Breaches of the law
or customs of war (see point (iv) in the preceding paragraph) may be
committed even in a non-international armed conflict.

 9. Does the International Criminal Court have jurisdiction?

 No, not yet. The ICC was established by the Rome Statute of 1998. It
will not come into existence until 60 States have ratified (or
otherwise have become Parties to) it.