Examination of Witnesses (Questions 340
- 359)
TUESDAY 8 FEBRUARY 2000
MR MARK
LITTMAN, QC, PROFESSOR
CHRISTOPHER GREENWOOD,
QC AND PROFESSOR
VAUGHAN LOWE
340. Professor Greenwood?
(Professor Greenwood) I cannot comment.
Sir John Stanley
341. We have devoted almost all our time so
far to one of two central legal issues surrounding NATO's involvement
in this war. So far, we have dealt with the issue of the legality
of intervening. I want to turn now to the second issue which is
the legality of the conduct of the intervention. Was this war
conducted by NATO legally or illegally? I am sure each of the
three witnesses would confirm—and I would be grateful if
all three could answer this question—that clearly there
is conduct of war which is wholly legal in international law.
Equally, I am sure you would confirm that there is conduct of
war which would be illegal and therefore would come within the
ambit of war crimes. As our witnesses may be aware, the organisation
Human Rights Watch published their report yesterday entitled,
Civilian Deaths in the NATO Air Campaign. In their report,
they came to the conclusion: "The investigation did conclude
that NATO violated international humanitarian law." They
came to that view in relation to their analysis of the conduct
of the war itself, including a detailed analysis of, for example,
the way in which cluster bombs were used, in which they say, which
is of some interest to us: "After the technical malfunction
of a cluster bomb used in an attack on the urban Nis Airfield
on May 7th . . . the White House quietly issued a directive to
restrict cluster bomb use (at least by US forces)." They
went on to say, "Nevertheless, the British Air Force continued
to drop cluster bombs. (Official chronologies show the use at
least on May 17, May 31, June 3 and June 4), indicating the need
for universal, not national, norms regarding cluster bomb use."
The question that I would like each of you to answer, please,
is where do you consider, in legal terms, the boundary lies between
the legal use of force in a war situation and where it becomes
illegal? Secondly, in your view, was the way in which force was
used by NATO in the Kosovo war legal or illegal?
(Mr Littman) I have not studied this question sufficiently
to want to put my own opinion forward. I have not gone into it
enough. All I would say is that this is a question which is one
of the questions that arises in the current proceedings before
the International Court of Justice. It is also being considered
by the tribunal for the trial of war crimes in Yugoslavia. It
is also the subject of, to my knowledge, no fewer than five major
inquiries and tribunals that have been set up, non-official ones,
in different countries throughout the world.
(Professor Lowe) The proportionate use of force against
military objectives is lawful, "military objective"
in that context being one which by virtue of its objects, nature,
location, purpose or use makes 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. Those are words from one of the 1977 protocols, Article
52, which seems to me to be a perfectly sound, satisfactory statement
of the law. As to the remaining question, it is a question of
fact. I have seen the reports. I can understand that on the basis
of the representation of the facts given in those reports, there
appears to be a real issue as to the compliance with humanitarian
rules. I have no ability to make a judgment on the facts myself
and therefore no ability to make that final, legal judgment either.
Chairman
342. Professor Greenwood, a question of law
or fact?
(Professor Greenwood) It is a bit of both. One of
the important things to keep in mind is that the question whether
the NATO decision to resort to force in the first place is legal
or not has nothing to do with the question whether the conduct
of hostilities thereafter was legal. The fact that, in my opinion,
NATO's action was justified does not in any sense relieve NATO
of the obligation to comply with humanitarian law. My impression
is that NATO applied the correct standards. Those can be summed
up really in two main principles: that only something which is
a military objective, something which makes an effective contribution
to military action, is a legitimate target in its own right; but
that, secondly, in attacking targets of that kind, you have an
obligation to try to minimise incidental, collateral, civilian
casualties and damage. Every statement I have seen and every piece
of evidence I have seen suggests that all the NATO states recognised
that that was the standard they had to comply with. It is very
difficult, without knowing how a particular case was appraised
at the time, to be able to say that this attack was lawful or
that this one was not because, if you are looking at the balance
between military advantage and the risk to the civilian population,
you have actually got to know, first of all, what was the military
advantage they were seeking to achieve from that particular target
and that is not normally information which is disclosed; and,
secondly, what, at the time the attack was ordered, was the appraisal
of the risk to the civilians. It is not enough simply to say after
the event, "Look, there were all these people killed."
343. Therefore, intention is relevant?
(Professor Greenwood) Yes.
344. And not just war principles?
(Professor Greenwood) It is not so much just war principles;
it is more principles enshrined in the Geneva Conventions, the
Geneva Protocols of 1977, and customary law.
Mr Illsley
345. Were the bridges over the Danube legitimate
targets or did they become legitimate targets if they were being
used for a military purpose?
(Professor Greenwood) There are two reasons why a
bridge might be a legitimate target. One is if it was being used
to carry military supplies of some kind. Bridges are normally
targeted in warfare for precisely that reason. Secondly, a bridge
might be a legitimate target if by destroying a bridge you could
block the use of the river or the ravine over which it passed.
That might be a reason for attacking it in order to prevent the
enemy from making use of the river as a means of transport.
Mr Rowlands
346. One thing the Human Rights Watch Report
specifically highlights is the attack on the radio station and
it is rather scathing about that representing a legitimate target.
(Professor Greenwood) I have not, I am afraid, read
the Human Rights Report, only the press reports of it. Whether
a radio station or a television station is a legitimate target,
whether it is a military objective, will vary very much from one
case to another. To take the Rwandan example, Radio Mille Collines
spent the first three months of 1994 pumping out not only propaganda
but instructions about how and where to go and attack helpless
people. I would not have the slightest difficulty at all in justifying
an attack on Radio Mille Collines in those circumstances. Whether
the station which was attacked in Yugoslavia was being used for
that purpose, I am afraid I just do not know.
Dr Starkey
347. The other issue in relation to this is
the attacks which were supposedly against military vehicles which
then turned out subsequently to be vehicles being used by refugees
to escape. We have received a memorandum from Professor Rowe,
who is Head of Law at the University of Lancaster, where he explores
this and concludes, "Mistakes of fact in targeting do not
generally lead to a breach of international humanitarian law."
Essentially, how do you decide whether it was a genuine mistake,
and therefore presumably not a breach of international humanitarian
law, or where it might have been reasonable for the military to
have supposed, given the height from which they were bombing and
the difficulty at that time to discriminate between a military
vehicle and a tractor, that there was a pretty high risk they
would blow up the wrong people and therefore a breach of humanitarian
law has occurred?
(Professor Greenwood) It is a very difficult question
to give a general answer to. You have to look, first of all, at
how good the intelligence material which a state has got in ordering
attacks of this kind might have been, what information was available
to those who took the decision, and that of course will not just
be the pilot, that is going to be those who set the limits of
the operation and determine where he is to fly and at what level
and so on. You also have to take into account how important was
it to try and attack military vehicles in that area. If you are
dealing with a situation where you have very serious incidents
of ethnic cleansing, very heavy loss of life going on, then that
would justify a greater risk of injuring the civilians you are
trying to protect in order to go after those who are creating
that threat. You also I think have to take into account the possibility,
which I think from the press reports Human Rights Watch specifically
raises, there were cases where civilians were used as a human
shield to protect the military. All of those are factors which
have to be taken into account but I am afraid I just do not know
whether any given case meets those standards or not.
348. So you would have to argue it out for each
individual case, essentially?
(Professor Greenwood) Yes.
(Professor Lowe) I do not think there is anything
odd about that. It is exactly the same process you go through
in criminal law. It is asking the same questions which were asked
in Private Clegg's case.
349. This is a slight deviation from the line
of questioning but I am anxious to ask this. Most of us have actually
read all the various submissions you have put in, Mr Littman,
and in particular I wanted to take you up on two of the points
you made in your submission of 7th February, Supplementary Memo
No 2. The second point you make is essentially to try and demonstrate
that human rights' abuses were not all that great at the point
before NATO's intervention occurred, and I simply wanted to ask
you whether you think that what you have said in that memo is
consistent with what is in the OSCE Report dealing with the period
from October 1998 to June 1999—
(Mr Littman) Sorry, Madam, which report is that? Is
it the new one?
350. It is the OSCE Kosovo Verification Mission
Report.
(Mr Littman) Of what date?
351. I do not know what date it was published
but it deals with the period from October 1998 to June 1999.
(Mr Littman) Yes.
352. But it actually says, "Other key events
in this regard in the period before 20 March were the killings
of Kosovo Albanians by the police at Rogovo and Rakovina later
in January, the launch of Yugoslav army `winter exercises' involving
the shelling of villages and the forced expulsion of villagers
in Vucitrn/Vushtrri . . . a military and public offensive in Kacanik
. . . a violent police crack-down . . . in Pristina . . ."
and the killings in Racak, ". . . these events reveal patterns
of grave abuses by Yugoslav and Serbian forces against the civilian
population." How do you reconcile that with what you have
put in your memo which seems to imply that not much apart from
Racak—which is a big "apart", I have to say—was
going on and that actually Milosevic was responding to pressure
and reducing his activities?
(Mr Littman) The reason I ventured to enquire about
the date is because there has been a second report from this body
in November, December, which was the subject of a debate in the
House of Lords a few days ago on a question by Lord Skidelsky
in which he and two members of the House of Lords on the Labour
side supported the view that that report really justified what
I have been saying, that certainly there were abuses of civil
rights in that period, in the period of two to three months prior
to the bombing, of which Racak seems to have been a bad example,
but that the level of violence there was not sufficient to justify
the dropping of 24,000 bombs on Yugoslavia. Even on the earlier
report, if you examine the appendix in which I give a verbatim
quotation from that report at some length, Appendix 5, you will
see their view of that situation at that time.
353. That is the view of?
(Mr Littman) The report of the Secretary General of
the United Nations, dated 17th March 1999, which is a contemporary
report referring to the situation in Kosovo from 1st January 1999
to 24th March 1999, page 47 of my pamphlet. What it describes
in paragraph 33 is a quotation from OSCE, "According to OSCE,
the current security environment in Kosovo is characterised by
the disproportionate use of force, including mortar and tank fire,
by the Yugoslav authorities in response to persistent attacks
and provocations by the Kosovo Albanian paramilitaries."
So, of course, they were reporting that the Serbs were wrong in
being disproportionate, and of course Racak was a bad example
of that. But if you look at page 48, you will see a large quotation
from a letter dated 23rd March 1999 from the Secretary General
of NATO to the Secretary General of the United Nations, where
you will see a day-by-day report from NATO itself on the incidents
which have taken place. Perhaps you will take it from me—and
I have been through this—that apart from Racak the total
number of Albanians which were killed in that period was four.
354. The other point I wanted to make was in
relation to the third paragraph of that memo where you dwell in
great detail on the consequences of NATO—
(Mr Littman) Sorry, which one?
355. Not in your pink document but in Supplementary
Memo No 2. Here you concentrate on the consequences of the NATO
bombing but you do not bring out at all the point raised by one
of the other people on the panel—I cannot recollect at the
moment which one—which is that you also have to bear in
mind what would have happened if there had been no intervention.
I would draw your attention to past experience of the Serbian
regime in Bosnia where constant negotiation and agreement actually
led to an escalation of terror, finally leading to Srebrenica.
(Mr Littman) Well, that is what you may have read
in the newspapers but, as the Chairman said, you do not always
have to believe it.
356. No, that is what I have read in a report
of the UN Secretary General where he said very clearly that part
of the problem in Bosnia was that Milosevic was seen as a solution
when in fact he was the problem, and that the UN was wrong to
negotiate with someone who was responsible for the terror and
the deaths.
(Mr Littman) May I tell you my understanding of what
actually happened? There had, of course, been a lot of trouble,
and no doubt the Serbs did many wrong things, before October 1998,
but in October 1998 there was the so-called Holbrooke Agreement
in which it was agreed there would be a cease-fire, that the Serbs
would reduce their forces to a certain level before the insurrection
began and comply with Security Council Resolution 1199. Now within
a very short period it was reported by the United Nations' spokesman,
including Madeleine Albright, that the Serbs had complied with
1199.
Chairman
357. But not by November or December with the
massing of Serbian troops on the borders of Kosovo.
(Mr Littman) It is very important not to get one's
dates muddled up.
358. By the end of the year.
(Mr Littman) I am dealing with it by stages.
(Professor Greenwood) Chairman, I wonder if I might
intervene?
(Mr Littman) Might I be allowed to complete my answer
to this?
359. Yes, complete the answer if you would and
then Professor Greenwood will comment.
(Mr Littman) What happened then was, and it is reported
in my original paper in Appendix 5 in some detail, that although
there was then a period of peace and Madeleine Albright reported
that there were only a few hundred displaced persons, hostilities
began again in January. What happened then was that there was,
as described in the passage I have just read, provocation, repeated
provocation, continued provocation, by the KLA which was met by
disproportionate responses from the Serbs, including this very
bad incident at Racak. What I pointed out is that although the
violence was going on, the level of it has to be compared with
the violence that NATO deployed, and I pointed out the total number
of Albanians who had been killed in Kosovo according to these
reports, apart from the Racak incident, was four.
Chairman: On that point of fact, Dr Starkey
do you accept the four?
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