House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Fourth Report

INTERNATIONAL LAW

Was the campaign conducted lawfully?

1977 PROTOCOL

145. A quite separate,[387] but equally important legal question arises over whether the type of campaign waged by NATO (that is, aerial bombardment from a high altitude which was likely to involve civilian casualties) was lawful. A detailed memorandum concentrating on this point was submitted by Professor Peter Rowe.[388] He drew attention to the fact that this was the first armed conflict in which the United Kingdom had engaged since it ratified in 1998 the 1977 First Additional Protocol to the Geneva Conventions of 1949 ("the 1977 Protocol"). The 1977 Protocol governs what is a military objective and what is permissible as collateral damage. Under the Protocol, military objectives are allowed to include civilian facilities if, by their location or use, they "make an effective contribution to military action."[389] Under the Protocol, collateral damage (that is, damage to civilians resulting from an attack on a military target) is permissible if the attack is not indiscriminate. An indiscriminate attack is one 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 considered as a whole." According to Professor Rowe, as long as action was not indiscriminate, it would not be a breach of international law if a mistake occurred.[390]

146. At one end of the spectrum, Professor Brownlie and Mr Littman did not believe that NATO actions were compatible with the 1977 Protocol or humanitarian principles in general. Professor Brownlie argued that the Yugoslav population was "subjected to inhumane treatment and punishment for political reasons," and that "a blitz with high explosives, which was intended in part to put pressure on the population, and which lasted 78 days, has nothing in common with humanitarian intervention."[391] More tentatively, Professor Chinkin thought it was "arguable that the form of combat, high aerial bombing and the use of cluster bombs, [was] contrary to the basic principles of humanitarian law."[392] With these other jurists, Professor Lowe considered that "NATO acted, or may have acted, in breach of international law in relation to its targeting policies," though he pointed out that this opinion was dependent on an interpretation of the facts rather than any doubt about the law. He identified a "real issue as to the compliance with humanitarian rules."[393] Professor Greenwood took a more sanguine view of the facts, arguing that the rules set down in the 1977 Protocol were "accepted and applied by the United Kingdom in respect of those military operations which involved the United Kingdom, and, so far as I am aware, by the other NATO states" and that, "on the basis of the information so far made public," he believed "that the NATO operation as a whole was conducted within the limits of international law."[394]

147. The organisation Human Rights Watch produced a detailed Report in February 2000 on Civilian Deaths in the NATO Air Campaign.[395] The report analysed 90 incidents involving civilian deaths, and concluded that international humanitarian law was breached in a number of cases when NATO forces used cluster bombs near populated areas, or attacked targets of "questionable military legitimacy." Human Rights Watch also believed that NATO should have taken more adequate precautions to warn civilians of attacks, and to ensure that civilians were not present when military targets were attacked.[396] The organisation also commented adversely on what they described as "almost a complete lack of any public accountability by any of the national NATO Members for missions undertaken in the NATO Alliance's name."[397] Human Rights Watch, however, found no evidence that NATO had been guilty either of war crimes or crimes against humanity.

148. In the British context, Professor Rowe also suggested that there had been little attempt by Ministers to demonstrate to Parliament and public that targets had been chosen in accordance with the 1977 Protocol He argued that it might well have been that the Government was scrupulous about applying the Geneva Conventions, but that it ought to have demonstrated this more clearly. He commented that "in this way, the legal obligations which are intended by these Treaties to set the standard by which the conflict is to be conducted (and by which individuals may be judged) can be brought to the forefront of decision-makers' minds."[398] This is rather an utopian counsel of perfection for ministers while a war is occurring: as Professor Lowe put it, "it may be difficult to justify attacks...without compromising sources of secret intelligence. It may be even harder to explain targeting strategy by publicising intended targets and the reasons for their inclusion on the list without compromising the effectiveness of the military operation."[399] However, we welcome Dr Jones Parry's statement that "all individual bombing actions, either by United Kingdom forces or emanating from the UK, were...the subject of the appropriate procedure to make sure that our Law Officers were content."[400]

ASPECTS OF THE CAMPAIGN

149. A number of different parts of the military campaign have been alleged to contravene the laws of war. We single out four of these for discussion: the use of cluster bombs, the use of depleted uranium, the bombing of broadcasting stations, and the bombing of the Chinese Embassy.

Cluster bombs

150. Cluster bombs are munitions containing up to several hundred sub-munitions which explode immediately or deposit anti-personnel devices over an area the size of several football pitches. Classically they are used for area denial[401] to enemy forces. According to Human Rights Watch, after an incident in Nis on 7 May 1999, when sub-munitions from cluster bombs fell on civilian areas of the city after the bomb container failed to open over the airfield, the White House stopped US forces from using the weapon. British forces, however, continued to use the bombs, though there have been some media suggestions that the USA was content that British bombs should be used.[402] Cluster bombs are regarded by some as, of their nature, indiscriminate weapons whose use ought to be prohibited. Certainly their use in an urban environment where civilians live might well fall foul of the prohibition on indiscriminate weapons under the 1977 Protocol, though the Government has said that the weapons "are not proscribed by any of the international agreements to which the UK is a party."[403] There is no easy solution in attempting to outlaw the weapons. Asked whether cluster bombs should be specifically banned, Professor Lowe told us that "the only result of outlawing a particular species of weapon will be to get people to design around the prohibition."[404] However, Ministers have said that they will examine the proposition that cluster bombs should be banned.[405] We recommend that the British Government consider carefully the experience of the use of cluster bombs in the Kosovo campaign to determine in future conflicts whether they are weapons which pose so great a risk to civilians that they fall foul of the 1977 Protocol and should not be used in areas where civilians live.

Depleted uranium munitions

151. There have also been concerns about the use of depleted uranium munitions in the Kosovo campaign. When asked whether the use in Kosovo of these munitions (and of cluster bombs) was lawful, and authorised under the Geneva Conventions, the Minister of State at the Ministry of Defence replied in the following terms:

"One of the purposes of the first Additional Protocol to the Geneva Convention is to protect the civilian population and civilian objects during armed conflict. This is what we sought to do throughout the air campaign. Furthermore, neither cluster bombs nor depleted uranium ammunition are proscribed by any of the international agreements to which the UK is a party, and the UK did not use any of the latter during the air campaign."[

406

Somewhat surprisingly, this answer does not unequivocally assert that the use of depleted uranium was lawful. Whether or not depleted uranium is lawful, it has potentially deleterious effects on the environment and human health. These have been illustrated by a recent report from the Defence Committee on Gulf Veterans' Illnesses.[407] We note that United Kingdom forces did not use depleted uranium ammunition in the Kosovo campaign, but that, according to the Foreign Secretary, "the Ministry of Defence reserves the right to issue depleted uranium based weapons" if the safety of British troops "requires a capability against modern armour."[408] We recommend that the Government set out their view of the circumstances in which it will be both acceptable and lawful for depleted uranium munitions to be used by the United Kingdom or its allies in conflicts involving British forces.

Broadcasting stations

152. The bombing of broadcasting stations has given rise to particular controversy.[409] No doubt this is partly due to the natural sympathy which Western journalists felt for Serbian colleagues who were killed. But was it lawful to bomb a broadcasting station which clearly had civilian purposes and had civilians working in it? According to Professor Brownlie "some groups of civilians, including television personnel, were deliberately targeted."[410] For him, this rendered the action unlawful. Human Rights Watch argued that, while stopping propaganda which was being broadcast from the stations might demoralise Yugoslavs, there was no concrete military advantage in targeting radio stations, and that the risk associated with attacking urban radio stations (as opposed to transmitters) created unnecessary danger to civilians.[411] Professor Rowe, however, argued that "if it is assumed that some form of military broadcast is made from the TV or radio stations, the issue then becomes whether the neutralisation or destruction of this function would offer a definite military advantage."[412] Professor Greenwood pointed to the examples of Radio Mille Collines in Rwanda which in 1994 had incited ethnic cleansing, and told us that he "would not have the slightest difficulty in justifying an attack on Radio Mille Collines in those circumstances."[413] We do not have evidence either to confirm or deny the proposition that Serbian radio or television stations were being used for military purposes or to incite ethnic cleansing. Had the Chief of Defence Intelligence been permitted to give evidence to us, perhaps we would be in a better position to make a judgement on this important issue. We recommend that the Government set out the reasons for the attacks on broadcasting stations in order to make clear the legal justification.

Chinese Embassy

153. NATO's bombing of the Chinese Embassy in Belgrade raises serious questions about the conduct of the Kosovo campaign. On the night of 7 May, a US aircraft launched a missile attack against the Embassy, killing three Chinese nationals and injuring another twenty people. In a joint statement following the incident, US Defense Secretary William Cohen and CIA Director George Tenet asserted that the attack was an error, the result of "faulty information" which had led to "a mistake in the initial targeting of this facility."[414] The CIA, claiming that it had relied on outdated maps, believed that the target was the Yugoslav Federal Directorate of Supply and Procurement, a military office. It was reported on 10 April 2000 that a CIA officer had been dismissed and six others reprimanded as a result of the error.[415]

154. Critics have charged that NATO bombed the Embassy deliberately. John Sweeney reiterated to us allegations which appeared originally in an article he wrote jointly for The Observer on 17 October.[416] Citing unnamed NATO sources, Mr Sweeney and his associates claimed that the Embassy was targeted by NATO because it was being used to transmit Yugoslav army (VJ) communications to Milosevic's forces in the wake of NATO's destruction of the VJ's own transmitters. In a subsequent article Mr Sweeney challenged the CIA's assertion that it had used outdated maps, maintaining that the correct co-ordinates for the Chinese Embassy were in NATO's air target computer at the Combined Air Operations Centre at Vincenza, Italy.[417] Mr Sweeney pointed to the precision of the air strikes, which he says destroyed only the Embassy's communications facilities, as further evidence in support of his claim. Similar, but more detailed, written evidence was received from a Danish journalist, Mr Jens Holsøe.[418]

155. The British Government has accepted the explanation of the US Government that the Embassy was targeted in error, as the Foreign Secretary made clear to the House .[419] The Foreign Secretary also promised a review as to how the error occured. We have not conducted our own investigation into the matter and therefore are unable either to confirm or to refute the charges. We appreciate the seriousness of the allegations, but we also recognise how risky and irresponsible it would be for NATO intentionally to bomb the diplomatic establishment of state which is a permanent member of the UN Security Council and which possesses nuclear weapons. Expressing doubt about the veracity of the charges, Dame Pauline Neville-Jones told us, "I myself [believe] that they would not do anything so silly¼.[I]t would not serve a good purpose to bomb a diplomatic establishment."[420]

156. On the narrow question of whether it was lawful to bomb the Embassy, Professor Lowe told us that "apart from the theoretical possibility of claiming a right to act in self defence against an attack actually emanating from an Embassy, or a situation in which a plea of force majeure or the like might be raised", he could "think of no circumstances in which the targeting of diplomatic premises could ever be lawful."[421] Professor Greenwood believed that the Embassy could only have been a legitimate target if it was being used for military purposes in support of Yugoslav forces. He pointed out that the USA had paid compensation, though he told us also that no criminal liability arose unless someone who was responsible for ordering the attack had been negligent in identifying the target.[422] On 10 May 1999 the Foreign Secretary told the House:[423] "On Friday night, the Chinese Embassy in Belgrade was destroyed during a NATO attack on sites in the city. It appears that the missiles hit the building on which they had been targeted, but the building had been wrongly identified in the targeting plans as the federal directorate of supply and procurement for the Yugoslav army. The review continues into how the error could have occurred and the procedures that gave rise to it." We recommend that the Foreign Secretary informs the House as to the outcome of the review, and as to whether or not his statement on 10 May 1999 remains wholly correct in the light of any new information, including information from the US Administration and from NATO, that has become available to him since that date.

CONCLUSION

157. During the military campaign, in May 1999, the Foreign Secretary told us that "99.9 per cent recurring" of the bombing sorties had been "successful in avoiding civilian casualties" and that the United Kingdom had recognised its "clear duty" to adopt "procedures that minimise the risk of civilian casualties."[424] Sorties were abandoned and missions aborted at an earlier stage because of concerns at potential civilian casualties.[425] As far as the United Kingdom is concerned, Ministry of Defence officials told the Defence Committee that "United Kingdom attacks, so far as we know, did not result in any collateral damage."[426] Professor Greenwood also pointed out that it was "not enough simply to say after the event, 'look, there were all these people killed'," but that intention was relevant.[427] The 1977 Protocol was designed to minimise casualties among non-combatants. The very fact that NATO's action was conducted for humanitarian purposes made it all the more incumbent upon Ministers to ensure that every targeting decision was taken in full compliance with the Geneva Conventions, and to be able to account for those actions when the military engagement is over. As Professor Greenwood pointed out, every single action in warfare is liable to be analysed to see whether it was or was not lawful.[428] In doing this NATO occupied the moral high ground. On the evidence available to us, we believe that NATO showed considerable care to comply with the 1977 Protocol and avoid civilian casualties.

The International Criminal Tribunal for the Former Yugoslavia

158. An important development in international law was the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTFY) in 1993.[429] Under its statute, the ICTFY has jurisdiction over persons accused of grave breaches of the Geneva Conventions, of violations of the laws and customs of war, of genocide, or of crimes against humanity, committed within the territory of the former Yugoslavia after 1 January 1991.[430] The tribunal has had some success in recent years in securing the arrest and conviction of persons accused of these crimes in Croatia and Bosnia—some of the arrests having been effected by British troops.

159. In the case of Kosovo, NATO in late March 1999 warned Milosevic that he and his military commanders would be held responsible for war crimes committed in Kosovo, and a senior FCO official was appointed as War Crimes Co-ordinator on 16 April 1999. According to Dr James Gow, this last move gave "clear definition" and "a point of focus" to the support to ICTFY offered by the United Kingdom.[431] On 27 May 1999, the ICTFY announced the indictment of Milosevic and of four other senior members of his coterie for crimes against humanity and violations of the laws and customs of war for their actions in Kosovo.[432] (It is noteworthy that Milosevic has been indicted only in respect of Kosovo and not in respect of crimes which may have been committed elsewhere in the former Yugoslavia). The FCO told us that, rather than hardening Milosevic into a "bunker" mentality, the indictment "appears to have added to the psychological pressure on him to strike a deal" and thus to concede.[433] However, they went on to say that "there was and is no prospect of him being given any sort of amnesty." The indictment of Milosevic has created some difficulties for other political leaders in dealing with him.[434] The Foreign Secretary told us that dealings on matters like missing persons would be acceptable, though Serbia could not become a partner in the stabilisation process while the President was an indictee.[435] We endorse the Government's view that there should be no amnesty for Milosevic or any other leaders indicted of war crimes, and that dealings with Serbia must remain limited so long as any indicted war criminal remains within its government.

160. Near Glogovac, in the village of Staro Cikatova, we stood outside a house where a group of Albanian men and boys had been shot by masked gunmen. The bullet holes were still visible on the ruins as the village headman told us what had happened. His brother had been one of those murdered. After the assassination, the bodies had been buried by relatives, but had been dug up and removed. To assist with the recovery and removal of the bodies, a house was destroyed, by the Serbs, with the use of a bulldozer. No-one knew where the bodies now were. Earlier we had passed a house where 47 people, including infants, had been shot before the house was burned. Glogovac contains 16 mass graves, with numbers in each varying from 149 to five. Most of the bodies were unidentified, and we saw the plastic bags of belongings by each grave side to aid eventual identification. These are the sorts of crimes for which the direct perpetrators—and those behind them—must be brought to justice.[436]

161. The United Kingdom has given considerable assistance to the ICTFY in Kosovo, both in practical and financial terms. A British Scenes of Crime Team was the first to arrive in Kosovo in June 1999, and has been engaged in the ghastly work of exhuming bodies and establishing the causes of death. The team has returned again to Kosovo this year. At the beginning of March 2000, 2108 human remains had been found at 195 of the 529 mass grave sites identified by the ICTFY.[437] Other important British assistance has included the provision of information and intelligence to the Tribunal[438]—Dr James Gow suggested that such intelligence was not provided about previous crimes committed in other parts of the former Yugoslavia.[439] The decision to give full intelligence support to the ICTFY is welcome. We regard the support of the ICTFY as an important demonstration that the international community will ensure that those accused of serious war crimes are brought to justice. We recommend that the Government continue, and if possible enhance, its present level of assistance, both material and financial, to the International Criminal Tribunal for the Former Yugoslavia.

162. The indictment of Serbian leaders by the ICTFY should not divert attention from the need to pursue war criminals who acted on a smaller scale at the local level, as at Glogovac. The failure to deal with these "second tier" war criminals was identified to us as a particular problem by KFOR commanders. The Foreign Secretary told us that the Tribunal had "a very clear policy of focussing on those responsible for the oversight, masterminding and initiation of war crimes," and he suggested that local, lower level war criminals should be pursued by the Kosovo authorities once a functioning judicial system is in place.[440] Many of those who have been brought to The Hague so far have been local leaders in Croatia and Bosnia. We anticipate that the painstaking work of the Scenes of Crime Teams in Kosovo, combined with other detective skills, will build up evidence against any who committed war crimes at any level. A clear message must be given that no-one who has a case to answer will be able to sleep soundly in his or her bed. We make recommendations later[441] which should help secure fair trials in Kosovo for those dealt with for war crimes there.

163. It is important to note that the ICTFY has jurisdiction over individual personnel in NATO states in respect of charges relating to the conduct of the military campaign, though, as Professor Greenwood stressed, the Tribunal has no jurisdiction to decide whether the intervention was itself lawful.[442] Professor Lowe pointed out that the Prosecutor had said that her staff were examining allegations made against NATO, though there was no formal inquiry into NATO actions. He told us that he believed it was desirable for all within the territorial jurisdiction of the ICTFY to be equally subject to its jurisdiction: "if it were otherwise, the impartiality and credibility of the Tribunal would be severely compromised."[443] We agree. Though we have no doubt by whom war crimes in Kosovo were overwhelmingly perpetrated, any allegations against the KLA, other Kosovan groups or indeed NATO must be properly investigated by the ICTFY. We recommend that the Government co-operate with any investigation which the International Criminal Tribunal for the Former Yugoslavia may mount, irrespective of the identity of the individual investigated.

164. The ICTFY is an example of the internationalisation of justice in the areas of war crimes and crimes against humanity. A more significant step forward will be taken when the International Criminal Court is established. We have praised the FCO's commitment to this court in previous reports, but we have urged the Government to hasten the introduction of the Bill which will allow the United Kingdom to ratify the Statute of the Court.[444] In their most recent response, the Government has again promised that the legislation will be published in draft this parliamentary session, so helping to "ensure that the Bill enjoys maximum possible consensus when it is introduced, which is as soon as Parliamentary time is available."[445] The draft Bill has still not been published, and this almost certainly means that the legislation cannot be passed in this Session. We urge the Government to ensure that the legislation to allow ratification of the Statute of the International Criminal Court is one of the first Government Bills introduced in Session 2000-2001.

Parliamentary aspects

165. There is also an aspect of constitutional law which is thrown into focus by the Kosovo campaign. Our inquiry has been part of a wide ranging involvement of the House of Commons and its Committees on Kosovo. As we mentioned earlier, the Defence Committee is at present undertaking an inquiry into The Lessons of Kosovo, and the International Development Committee reported in May 1999 on Kosovo: The Humanitarian Crisis.[446] During the period January to June 1999, the Prime Minister made five statements to the House on Kosovo, the Deputy Prime Minister one, the Foreign Secretary five, the Defence Secretary four and the International Development Secretary one. Kosovo was also raised frequently in question time, and was the subject of backbench adjournment debates. There were four whole day debates initiated by the Government—on 23 March, 19 April, 18 May and 17 June. Kosovo was also debated and the subject of statements in the House of Lords. Parliament thus had considerable opportunities to probe the Government on its conduct of the conflict, both on the floor of the House and in Committee.

166. Parliaments in other NATO states had a specific opportunity to approve the decision of their governments to engage in hostilities over Kosovo.[447] However, the British Government commits our armed forces to any conflict by exercise of the Royal Prerogative. For that reason, it has become normal for Governments to rely on motions for the adjournment to debate the United Kingdom's involvement in a conflict. These procedural motions are unamendable. This is a traditional means of preventing an alternative proposition to that of the Government being offered to the House.[448] Governments have not always shied away from substantive motions. The Korean War and the Suez intervention were both approved by substantive resolution of the House. The Falklands War was, however, only debated on the adjournment, and the Gulf War was also debated on the adjournment on four occasions before a substantive motion was moved. All the debates on the Kosovo conflict were held on the adjournment. We recognise, of course, the danger that even a small minority vote might be exploited by the adversary as evidence of division and hence weakness, but in a modern democracy it should be possible for Members to be able to demonstrate their support, or otherwise, with greater precision than can be afforded by an adjournment motion. In our view, in any comparable future conflict, an opportunity should be found at the earliest practicable moment, for the House to express its view by voting on a precise substantive motion to which it would be possible for Members to table amendments. This will bring the United Kingdom in line with other states, and give extra democratic legitimacy to military action. We recommend that the Government should table a substantive motion in the House of Commons at the earliest opportunity after the commitment of troops to armed conflict allowing the House to express its view, and allowing Members to table amendments.

387 QC342. Back

388 Ev. pp. 354ff. Back

389 Article 52.2. Back

390 Ev. p. 357. Back

391 Ev. p. 233. Back

392 Ev. p. 287. Back

393 Ev. p. 153; QC341. Back

394 Ev. p. 141. Back

395 http://www.hrw.org/hrw/reports/2000/nato/. Back

396 op. cit. p. 3. Back

397 op. cit .p. 8. Back

398 Ev. p. 359. Back