Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia
Table of Contents
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.
The key incidents and target categories were:
10. On 23 July 1999, each committee member was provided with a binder including all available material. The committee members reviewed material in the binders.
11. In addition to reviewing factual information, the committee has also gathered legal materials and reviewed relevant legal issues, including the legality of the use of depleted uranium projectiles, the legality of the use of cluster munitions, whether or not the bombing campaign had an unlawfully adverse impact on the environment, and legal issues related to target selection.
12. The committee prepared an interim report on the basis of its analysis of the legal and factual material available and this was presented to the Prosecutor on 6 December 1999. At the direction of the Prosecutor, the committee then further updated the incident list and prepared a list of general questions and questions related to specific incidents. A letter enclosing the questionnaire and incident list was sent to NATO on 8 February 2000. A general reply was received on 10 May 2000.
13. It has not been possible for the committee to look at the NATO bombing campaign on a bomb by bomb basis and that was not its task. The committee has, however, reviewed public information concerning several incidents, including all the more well known incidents, with considerable care. It has also endeavored to examine, and has posed questions to NATO, concerning all other incidents in which it appears three or more civilians were killed.
In conducting its review, the committee has focused primarily on incidents in which civilian deaths were alleged and/or confirmed. The committee reviewed certain key incidents in depth for its interim report. These key incidents included 10 incidents in which 10 or more civilians were killed. The review by Human Rights Watch revealed 12 incidents in which 10 or more civilians were killed, all of the incidents identified by the committee plus two additional incidents: a) the attack on the Aleksinak "Deligrad" military barracks on 5/5/99 in which 10 civilians were killed and 30 wounded (a bomb aimed at the barracks fell short), and b) the attack on a military barracks in Novi Pazar on 31/5/99 in which 11 civilians were killed and 23 wounded (5 out of 6 munitions hit the target but one went astray). The committee’s review of incidents in which it is alleged fewer than three civilians were killed has been hampered by a lack of reliable information.
14. The NATO bombing campaign did cause some damage to the environment. For instance, attacks on industrial facilities such as chemical plants and oil installations were reported to have caused the release of pollutants, although the exact extent of this is presently unknown. The basic legal provisions applicable to protection of the environment in armed conflict are Article 35(3) of Additional Protocol I, which states that ‘[i]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’ and Article 55 which states:
Neither the USA nor France has ratified Additional Protocol I. Article
55 may, nevertheless, reflect current customary law (see however the
1996 Advisory Opinion on the Legality of Nuclear Weapons, where
the International Court of Justice appeared to suggest that it does not
(ICJ Rep. (1996), 242, para. 31)). In any case, Articles 35(3)
and 55 have a very high threshold of application. Their conditions for
application are extremely stringent and their scope and contents
imprecise. For instance, it is generally assumed that Articles 35(3) and
55 only cover very significant damage. The adjectives ‘widespread,
long-term, and severe’ used in Additional Protocol I are joined by the
word ‘and’, meaning that it is a triple, cumulative standard that
needs to be fulfilled.
16. The conclusions of the Balkan Task Force (BTF) established by UNEP to look into the Kosovo situation are:
17. The OTP has been hampered in its assessment of the extent of environmental damage in Kosovo by a lack of alternative and corroborated sources regarding the extent of environmental contamination caused by the NATO bombing campaign. Moreover, it is quite possible that, as this campaign occurred only a year ago, the UNEP study may not be a reliable indicator of the long term environmental consequences of the NATO bombing, as accurate assessments regarding the long-term effects of this contamination may not yet be practicable.
It is the opinion of the committee, on the basis of information currently in its possession, that the environmental damage caused during the NATO bombing campaign does not reach the Additional Protocol I threshold. In addition, the UNEP Report also suggests that much of the environmental contamination which is discernible cannot unambiguously be attributed to the NATO bombing.
18. The alleged environmental effects of the NATO bombing campaign flow in many cases from NATO’s striking of legitimate military targets compatible with Article 52 of Additional Protocol I such as stores of fuel, industries of fundamental importance for the conduct of war and for the manufacture of supplies and material of a military character, factories or plant and manufacturing centres of fundamental importance for the conduct of war. Even when targeting admittedly legitimate military objectives, there is a need to avoid excessive long-term damage to the economic infrastructure and natural environment with a consequential adverse effect on the civilian population. Indeed, military objectives should not be targeted if the attack is likely to cause collateral environmental damage which would be excessive in relation to the direct military advantage which the attack is expected to produce (A.P.V. Rogers, "Zero Casualty Warfare," IRRC, March 2000, Vol. 82, pp. 177-8).
19. It is difficult to assess the relative values to be assigned to the military advantage gained and harm to the natural environment, and the application of the principle of proportionality is more easily stated than applied in practice. In applying this principle, it is necessary to assess the importance of the target in relation to the incidental damage expected: if the target is sufficiently important, a greater degree of risk to the environment may be justified.
20. The adverse effect of the coalition air campaign in the Gulf war upon the civilian infrastructure prompted concern on the part of some experts regarding the notion of "military objective." This has prompted some experts to argue that where the presumptive effect of hostilities upon the civilian infrastructure (and consequently the civilian population) is grave, the military advantage conferred by the destruction of the military objective would need to be decisive (see below, paras. 40–41). Similar considerations would, in the committee’s view, be warranted where the grave threat to the civilian infrastructure emanated instead from excessive environmental harm resulting from the hostilities. The critical question is what kind of environmental damage can be considered to be excessive. Unfortunately, the customary rule of proportionality does not include any concrete guidelines to this effect.
21. The military worth of the target would need to be considered in relation to the circumstances prevailing at the time. If there is a choice of weapons or methods of attack available, a commander should select those which are most likely to avoid, or at least minimize, incidental damage. In doing so, however, he is entitled to take account of factors such as stocks of different weapons and likely future demands, the timeliness of attack and risks to his own forces (A.P.V. Rogers, ibid, at p. 178). Operational reality is recognized in the Statute of the International Criminal Court, an authoritative indicator of evolving customary international law on this point, where Article 8(b)(iv) makes the infliction of incidental environmental damage an offence only if the attack is launched intentionally in the knowledge that it will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. The use of the word "clearly’ ensures that criminal responsibility would be entailed only in cases where the excessiveness of the incidental damage was obvious.
22. Taken together, this suggests that in order to satisfy the requirement of proportionality, attacks against military targets which are known or can reasonably be assumed to cause grave environmental harm may need to confer a very substantial military advantage in order to be considered legitimate. At a minimum, actions resulting in massive environmental destruction, especially where they do not serve a clear and important military purpose, would be questionable. The targeting by NATO of Serbian petro-chemical industries may well have served a clear and important military purpose.
23. The above considerations also suggest that the requisite mens rea on the part of a commander would be actual or constructive knowledge as to the grave environmental effects of a military attack; a standard which would be difficult to establish for the purposes of prosecution and which may provide an insufficient basis to prosecute military commanders inflicting environmental harm in the (mistaken) belief that such conduct was warranted by military necessity. (In the Hostages case before the Nuremberg Military Tribunals, for instance, the German General Rendulic was acquitted of the charge of wanton devastation on the grounds that although Rendulic may have erred in believing that there was military necessity for the widespread environmental destruction entailed by his use of a ‘scorched earth’ policy in the Norwegian province of Finnmark, he was not guilty of a criminal act (11 Trials of War Criminals, (1950), 1296)). In addition, the notion of ‘excessive’ environmental destruction is imprecise and the actual environmental impact, both present and long term, of the NATO bombing campaign is at present unknown and difficult to measure.
24. In order to fully evaluate such matters, it would be necessary to know the extent of the knowledge possessed by NATO as to the nature of Serbian military-industrial targets (and thus, the likelihood of environmental damage flowing from their destruction), the extent to which NATO could reasonably have anticipated such environmental damage (for instance, could NATO have reasonably expected that toxic chemicals of the sort allegedly released into the environment by the bombing campaign would be stored alongside that military target?) and whether NATO could reasonably have resorted to other (and less environmentally damaging) methods for achieving its military objective of disabling the Serbian military-industrial infrastructure.
25. It is therefore the opinion of the committee, based on information currently available to it, that the OTP should not commence an investigation into the collateral environmental damage caused by the NATO bombing campaign.
26. There is evidence of use of depleted uranium (DU) projectiles by NATO aircraft during the bombing campaign. There is no specific treaty ban on the use of DU projectiles. There is a developing scientific debate and concern expressed regarding the impact of the use of such projectiles and it is possible that, in future, there will be a consensus view in international legal circles that use of such projectiles violate general principles of the law applicable to use of weapons in armed conflict. No such consensus exists at present. Indeed, even in the case of nuclear warheads and other weapons of mass-destruction – those which are universally acknowledged to have the most deleterious environmental consequences – it is difficult to argue that the prohibition of their use is in all cases absolute. (Legality of Nuclear Weapons, ICJ Rep. (1996), 242). In view of the uncertain state of development of the legal standards governing this area, it should be emphasised that the use of depleted uranium or other potentially hazardous substance by any adversary to conflicts within the former Yugoslavia since 1991 has not formed the basis of any charge laid by the Prosecutor. It is acknowledged that the underlying principles of the law of armed conflict such as proportionality are applicable also in this context; however, it is the committee’s view that analysis undertaken above (paras. 14-25) with regard to environmental damage would apply, mutatis mutandis, to the use of depleted uranium projectiles by NATO. It is therefore the opinion of the committee, based on information available at present, that the OTP should not commence an investigation into use of depleted uranium projectiles by NATO.
27. Cluster bombs were used by NATO forces during the bombing campaign. There is no specific treaty provision which prohibits or restricts the use of cluster bombs although, of course, cluster bombs must be used in compliance with the general principles applicable to the use of all weapons. Human Rights Watch has condemned the use of cluster bombs alleging that the high "dud" or failure rate of the submunitions (bomblets) contained inside cluster bombs converts these submunitions into antipersonnel landmines which, it asserts, are now prohibited under customary international law. Whether antipersonnel landmines are prohibited under current customary law is debatable, although there is a strong trend in that direction. There is, however, no general legal consensus that cluster bombs are, in legal terms, equivalent to antipersonnel landmines. It should be noted that the use of cluster bombs was an issue of sorts in the Martić Rule 61 Hearing Decision of Trial Chamber I on 8 March 1996. In that decision the Chamber stated there was no formal provision forbidding the use of cluster bombs as such (para. 18 of judgment) but it regarded the use of the Orkan rocket with a cluster bomb warhead in that particular case as evidence of the intent of the accused to deliberately attack the civilian population because the rocket was inaccurate, it landed in an area with no military objectives nearby, it was used as an antipersonnel weapon launched against the city of Zagreb and the accused indicated he intended to attack the city as such (paras. 23-31 of judgment). The Chamber concluded that "the use of the Orkan rocket in this case was not designed to hit military targets but to terrorise the civilians of Zagreb" (para. 31 of judgment). There is no indication cluster bombs were used in such a fashion by NATO. It is the opinion of the committee, based on information presently available, that the OTP should not commence an investigation into use of cluster bombs as such by NATO.
28. In brief, in combat military commanders are required: a) to direct their operations against military objectives, and b) when directing their operations against military objectives, to ensure that the losses to the civilian population and the damage to civilian property are not disproportionate to the concrete and direct military advantage anticipated. Attacks which are not directed against military objectives (particularly attacks directed against the civilian population) and attacks which cause disproportionate civilian casualties or civilian property damage may constitute the actus reus for the offence of unlawful attack under Article 3 of the ICTY Statute. The mens rea for the offence is intention or recklessness, not simple negligence. In determining whether or not the mens rea requirement has been met, it should be borne in mind that commanders deciding on an attack have duties:
29. One of the principles underlying international humanitarian law is the principle of distinction, which obligates military commanders to distinguish between military objectives and civilian persons or objects. The practical application of this principle is effectively encapsulated in Article 57 of Additional Protocol which, in part, obligates those who plan or decide upon an attack to "do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects". The obligation to do everything feasible is high but not absolute. A military commander must set up an effective intelligence gathering system to collect and evaluate information concerning potential targets. The commander must also direct his forces to use available technical means to properly identify targets during operations. Both the commander and the aircrew actually engaged in operations must have some range of discretion to determine which available resources shall be used and how they shall be used. Further, a determination that inadequate efforts have been made to distinguish between military objectives and civilians or civilian objects should not necessarily focus exclusively on a specific incident. If precautionary measures have worked adequately in a very high percentage of cases then the fact they have not worked well in a small number of cases does not necessarily mean they are generally inadequate.
30. Allegations have been made that, as NATO’s resort to force was not authorized by the Security Council or in self-defence, that the resort to force was illegal and, consequently, all forceful measures taken by NATO were unlawful. These allegations justify a brief discussion of the jus ad bellum. In brief, the jus ad bellum regulates when states may use force and is, for the most part, enshrined in the UN Charter. In general, states may use force in self defence (individual or collective) and for very few other purposes. In particular, the legitimacy of the presumed basis for the NATO bombing campaign, humanitarian intervention without prior Security Council authorization, is hotly debated. That being said, as noted in paragraph 4 above, the crime related to an unlawful decision to use force is the crime against peace or aggression. While a person convicted of a crime against peace may, potentially, be held criminally responsible for all of the activities causing death, injury or destruction during a conflict, the ICTY does not have jurisdiction over crimes against peace.
31. The jus in bello regulates how states may use force. The ICTY has jurisdiction over serious violations of international humanitarian law as specified in Articles 2-5 of the Statute. These are jus in bello offences.
32. The precise linkage between jus ad bellum and jus in bello is not completely resolved. There were suggestions by the prosecution before the International Military Tribunal at Nuremberg and in some other post World War II war crimes cases that all of the killing and destruction caused by German forces were war crimes because the Germans were conducting an aggressive war. The courts were unreceptive to these arguments. Similarly, in the 1950’s there was a debate concerning whether UN authorized forces were required to comply with the jus in bello as they represented the good side in a battle between good an evil. This debate died out as the participants realized that a certain crude reciprocity was essential if the law was to have any positive impact. An argument that the "bad" side had to comply with the law while the "good" side could violate it at will would be most unlikely to reduce human suffering in conflict.
33. More recently, a refined approach to the linkage issue has been advocated by certain law of war scholars. Using their approach, assuming that the only lawful basis for recourse to force is self defence, each use of force during a conflict must be measured by whether or not it complies with the jus in bello and by whether or not it complies with the necessity and proportionality requirements of self defence. The difficulty with this approach is that it does not adequately address what should be done when it is unclear who is acting in self defence and it does not clarify the obligations of the "bad" side.
34. As a matter of practice, which we consider to be in accord with the most widely accepted and reputable legal opinion, we in the OTP have deliberately refrained from assessing jus ad bellum issues in our work and focused exclusively on whether or not individuals have committed serious violations of international humanitarian law as assessed within the confines of the jus in bello.
ESS Home Page
Kosovo Index Page
Holocaust Index Page
Genocide Index Page