Le Monde Diplomatique: THE KOSOVO CONFLICT ---------------------------------------------------------------------------- ---- Established in 1998, the International Criminal Court is still struggling for life. Many states are reluctant to ratify its statute, when they are not actively opposed to it, like the United States, Russia and China. The International Criminal Tribunal for the Former Yugoslavia, on the other hand, was presented as the precursor of a fairer international order. These double standards may also apply to the assessment of Nato's bombing campaign against Yugoslavia in the spring of 1999. Amnesty International believes that Nato "did not fully comply with the obligation to take all precautions to protect civilians" and that, in at least one case, it attacked a civilian object. by AVNER GIDRON and CLAUDIO CORDONE ---------------------------------------------------------------------------- ---- >From 24 March to 10 June 1999 the North Atlantic Treaty Organisation conducted an air campaign against the Federal Republic of Yugoslavia (FRY), codenamed Operation Allied Force (1). The civilian death tolls given in detailed FRY government accounts range from 400 to 600. NATO has not released official estimates of civilians or FRY combatants killed. No Nato forces were killed in hostile action during the air campaign. Much of the debate about Operation Allied Force has revolved around one question. Was Nato legally or morally justified to intervene military against a sovereign state to stop it from committing human rights violations against its own citizens? This is an important debate, because it raises the issue of what the international community could and should have done preventively, during the years when Amnesty International and others were denouncing the abuses in Kosovo, to avoid reaching crisis point in March 1999. It also raises the issue of whether the catastrophic level of human rights violations in Kosovo by FRY forces which followed the beginning of the Nato bombing could have been predicted and taken into account before starting the offensive. Amnesty International recognises these dilemmas, but does not judge whether recourse to force by anyone is justified or not. It therefore takes no position on whether Nato should have intervened militarily against the FRY, or what the political settlement of Kosovo should now be. The organisation has however looked at the conduct of Nato's military intervention in the light of the rules of international humanitarian law, applying the same standards it has applied to the conduct of FRY forces in Kosovo as it does to parties to other conflicts around the world. Nato's often repeated contention that anything it did wrong in Kosovo should be judged in the light of the humanitarian cause it was pursuing can be seen as a plea for more lenient standards to be applied to Nato than to the FRY. No organisation which strives to be impartial can, however, afford to apply such double standards. Nato has rejected all accusations of violations of international humanitarian law, maintaining that its air campaign against the FRY was the most accurate in history, and that never before were so many precautions taken to protect civilians. That may be correct. But it does not follow that in several instances things went tragically wrong, as Nato itself acknowledges. More important, it does not follow that what went wrong was purely due to unavoidable accidents. Amnesty International has examined several aspects of the campaign, including nine specific attacks in which civilians were killed and where the rules of war were, or may have been, violated. It has not been in a position to look into other attacks, such as those on the Novi Sad bridges, which may also have been unlawful even though no civilians appear to have been killed, or into the overall impact of the bombing campaign on the civilian population. On the basis of available evidence, primarily Nato's own public statements and discussions with high-level Nato officials in Brussels in February, Amnesty International believes that Nato did not always meet its legal obligations in selecting targets and in choosing means and methods of attack. In one instance, the attack on the headquarters of Serbian state radio and television (RTS) in Belgrade, Nato attacked a civilian object and as such committed a war crime (see article on the attack). In other attacks, such as those on the bridges in Grdelica, Lu"ane and Varvarin, Nato forces failed to suspend their attack after it was evident they had struck civilians. In other cases, including the attacks on displaced civilians in Djakovica and Kori_a, insufficient precautions were taken to minimise civilian casualties. These could have been significantly reduced if Nato forces had fully adhered to the laws of war. During Operation Allied Force Nato never made clear exactly which standards of international humanitarian law were being applied by its forces or how it maintained a coherent interpretation of these rules during the campaign. The alliance's members do not share the same treaty obligations. The United States, whose aircraft flew nearly 80% of Nato strike-attack sorties during the campaign (2), have not ratified Protocol I Additional to the Geneva Conventions of 1949 (see box). Neither have France or Turkey. Nato spokesperson Jamie Shea repeated throughout the campaign that alliance forces were respecting the laws of war to an unprecedented extent, but no explicit reference was ever made to Protocol I. Nato officials met by Amnesty International in Brussels insisted that individual Nato member states only have legal obligations. Nato does not have a mechanism to enforce compliance of a common set of standards, or to ensure a common interpretation of such standards. These remain prerogatives of each state member, leading to inconsistencies in the application of the rules. What rules of engagement? Nato officials explained that, during Operation Allied Force, member states were given bombing assignments by Nato staff but could refuse them if, for example, they believed the attack would violate international law, and possibly their national law. If a target were refused for this reason, Nato officials said they would not reassign the target to another country. It is unclear, however, to what extent this actually happened. In at least one instance - the attack on the RTS headquarters - it seems the attack was carried out despite disagreement among Nato members as to its lawfulness. "We need to understand the limitations that our coalition partners will place upon themselves and upon us" said Lieutenant General Michael Short, Commander of Allied Air Forces, Southern Europe. "There are nations that will not attack targets that my nation will attack. There are nations that do not share with us a definition of what is a valid military target, and we need to know that up front ... You and I need to know that all aircraft based in the United Kingdom are subject to rulings by the United Kingdom government about whether we are about to strike a valid target or not" (3). "All the countries in the Atlantic Alliance acted as part of Nato with full discussion about what to target", French Foreign Minister Hubert V�drine told the BBC. "But the US was also carrying out a separate American operation. They deployed national forces with a national decision-making mechanism commanded from the US. And the European allies did not know about these actions." Nato has denied this allegation (4). On several occasions during the air campaign, Nato stated repeatedly that it was making "every possible effort to avoid collateral damage" and that its pilots operated under "strict rules of engagement", but did not disclose any details of the rules or the principles underlying them. At the Brussels meeting with Nato officials, Amnesty International learned that each member state was entitled to choose what aspects of Nato-proposed rules of engagement it would adopt, but was not able to obtain specific details. Concern about known aspects of Nato's rules of engagement has related particularly to the practice of high-altitude bombing. Initially Nato aircraft were restricted to flying above 5,000 metres to protect pilots from the air defences. This ceiling was relaxed during the second half of the air campaign, with some planes flying as low as 2,000 metres. Nato officials told Amnesty International that an aircrew flying at 5,000 metres would only be able to identify whether the objective was the intended one, but would be unable to tell whether civilians had moved or been moved within its vicinity, for example. This rule effectively made it impossible for Nato aircrew to respect the obligation to suspend an attack once circumstances had changed on the ground rendering the objective no longer legitimate. Following the bombing of civilians in a convoy at Djakovica, the rules of engagement were amended to require visual confirmation that there were no civilians in the target area. General Michael Short, speaking to the BBC on what happened at Djakovica on 14 April 1999, reported the pilots' reaction: "They came back to me and said, 'We need to let the forward air controllers go down to 1,700 metres. We need to let the strikers go down as low as 2,500 metres and in a diving delivery, to ensure that they verify their target, and then right back up again to 5,000 metres. We think that will get it done. We acknowledge that that increases the risk significantly, but none of us want to hit a tractor full of refugees again. We can't stand that'" (5). Unfortunately this additional precaution was not sufficient to stop further civilian deaths. Nor were changes reportedly instituted after the 7 May attack on Ni_ (when the US stopped using cluster bombs) and the 30 May attack on Varvarin Bridge (when Nato decided to avoid attacking some objectives, such as bridges, when many civilians were likely to be in the vicinity). But these changes were basic precautions that should have been adopted from the start of the campaign in order to ensure that Nato's rules of engagement did not allow for breaches of the laws of war. Nato also consistently failed to give "effective advance warning" of attacks which may affect civilians, as required by Protocol I. Nato officials told Amnesty International that as a general policy they chose not to issue warnings, for fear that this might endanger the crew of attacking aircraft. Nato spokesman Jamie Shea said: "There has never been an air campaign in history that has been discriminating against the military but in favour of civilians as this one even if we haven't been able to achieve - nobody can, nobody ever will - 100% perfection." (6) Few would dispute Nato's assertion that it is impossible to achieve 100% perfection in fighting a war. However, with the 5,000 metres rule and the lack of effective warnings, Nato set itself up to commit "mistakes" it then regretted. Accurate intelligence is critical if civilian casualties are to be minimised, especially in the case of a campaign fought from the air at high altitudes and using long-range weapons. Nato appears to have focused on the planning phase, almost as if it assumed that circumstances would not change or that a change in circumstances (for example, civilians coming near the target) were of secondary importance. But serious mistakes were made even in the planning phase with lethal consequences, as apparently was the case in the attacks on Kosovar Albanian civilians in Kori_a and the attack on the Chinese Embassy in Belgrade. Despite its assurances, Nato was unable, in some instances, to assess whether it was attacking genuine military targets. Some of its own assessments of battle damage were erroneous. In such a context, the risk of impact on civilians is all the greater, and the need for more effective safeguards in any future campaign is all the more important. Amnesty International wrote to Nato during Operation Allied Force and asked that it investigate several attacks already mentioned in this article. It was told that internal investigations of several attacks had been pursued. The Nato officials added that they did not, however, consider it "useful" to disclose their findings or release details of the forces involved. They specified that no criminal or disciplinary measures were taken against those involved in the attacks that were investigated. The US Central Intelligence Agency subsequently disclosed this April that several CIA officials were disciplined for their role in misidentifying the location of the Chinese Embassy in Belgrade. Nato has stated that it does not have access to Serbia and has not, therefore, been able to conduct reviews of civilian casualties caused by the bombings. But this has not stopped other reviews of the effects of the bombing, such as the US Department of Defence's Kosovo After Action Report (7). And it does not explain why investigations akin to that conducted into the bombing of the Chinese Embassy in Belgrade were apparently not conducted into other, less politically sensitive instances of civilian deaths caused by Nato attacks. On 13 June, in a welcome display of transparency by the International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor Carla Del Ponte made public a report by an internal committee in her Office assessing the Nato bombing campaign (8). The prosecutor accepted the conclusion of the report that no criminal investigation against Nato should start, on the grounds that "either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences" (paragraph 90). Amnesty International respects the discretion of ICTY's prosecutor in deciding whether or not to open criminal investigations. However, the report of the ICTY assessment indicates (paragraph 90) that when Nato was requested "to answer specific questions about specific incidents, the Nato reply was couched in general terms and failed to address the specific incidents." The report also points out that the "committee has not spoken to those involved in directing or carrying out the bombing campaign". These facts must have contributed to the information gaps that the committee itself acknowledges in its report. In addition, the report does not explain what difficulties are envisaged by the Office of the Prosecutor in gathering sufficient evidence against any Nato or a Nato member state official. Nato's lack of full cooperation in responding to ICTY's inquiries is regrettable. The fact that its prosecutor has decided not to open a criminal investigation should not lead Nato to ignore the detailed and nuanced contents of the ICTY report, or dismiss the recommendations made by Amnesty International and other organisations, including Human Rights Watch in a report published in February (9). Nato should draw lessons from Operation Allied Force on how to maximise the protection of civilians, as required by international humanitarian law. The most powerful military alliance in the world cannot afford but to set the highest standard of protection in this regard. ---------------------------------------------------------------------------- ---- * Respectively Research and Mandate Policy Adviser and Director of the Research and Mandate Program at the International Secretariat of Amnesty International in London. (1) In a report published in June 2000, Collateral damage or unlawful killings?, Violations of the laws of war by Nato during Operation Allied Force, Amnesty International examines several aspects of the campaign, including the rules of engagement and other operational aspects, in light of international humanitarian law, Amnesty International, London, AI Index: EUR 70/18/00; http://www.amnesty.org (2) Military Readiness Subcommittee of House Armed Services Committee, Hearing on the Readiness Impact of Operations in Kosovo, Washington, 25 October 1999. (3) Remarks by Lieutenant General Michael C. Short at the Air Force Association's Air Warfare Symposium, Orlando, Florida, 25 February 2000. (4) "Moral Combat - Nato at War", broadcast on BBC2 on 12 March 2000. On the same television programme General Wesley Clark, Nato's Supreme Allied Commander, Europe (Saceur), denied the French allegation of a separate American operation: "That's incorrect ... I commanded all assets". (5) "Moral Combat - Nato at War", op.cit. (6) Press Conference, Jamie Shea and Major General Walter Jertz, Brussels, 3 May 1999 (7) http://www.defenselink.mil/pubs/kaar02072000.pdf (8) Final Report to the Prosecutor by the Committee Established to Review the Nato Bombing Campaign Against the Federal Republic of Yugoslavia, in http://un.org/icty/ (9) Human Rights Watch, Civilian Deaths in the NATO Air Campaign, New York, February 2000, http://www.hrw.org/reports/2000/nato _______________________________________________ Crashlist resources: http://website.lineone.net/~resource_base To change your options or unsubscribe go to: http://lists.wwpublish.com/mailman/listinfo/crashlist
