APPENDIX 28
Memorandum submitted by Professor Peter
Rowe
1. EXECUTIVE
SUMMARY
International humanitarian law applied between
24 March until the end of the armed conflict in the Federal Republic
of Yugoslavia. In particular, the First Additional Protocol (1977)
to the Geneva Conventions of 1949 became binding upon the United
Kingdom on 28 January 1998 and is the principal treaty governing
targeting during an international armed conflict. This is the
first armed conflict in which the United Kingdom has been engaged
since ratification of the 1977 Protocol. Its provisions govern
what is a "military objectivè, what is collateral
damage and what is an indiscriminate attack (where the injury
to civilians, damage to civilian objects or a combination of both
is excessive in relation to the concrete and direct military advantage
anticipated). These terms are analysed below. In addition, this
Memorandum concludes that mistakes of fact in targeting do not
generally lead to a breach of international humanitarian law.
The liability of superior commanders is shown to be wide under
international law.
The Memorandum also concludes that English law,
although applicable to certain acts committed during an international
armed conflict (Geneva Conventions Act 1957 and the Geneva Conventions
(Amendment) Act 1995), does not normally apply the crimes of murder
or manslaughter to acts committed within the bounds of international
humanitarian law.
Although Government Ministers stated on a number
of occasions in Parliament that the air campaign was being carried
out within the strict confines of the legal obligations owed by
treaty there was little attempt to show how this was the case,
particularly in the grounds for assessing a particular target
as a "military objectivè. Had this been done the legal
obligations, which are intended by the relevant treaties to set
the standard by which the conflict is to be conducted (and by
which individuals may be judged), could have been brought to the
forefront of decision-makers' minds and those in Parliament who
are unfamiliar with the laws governing international armed conflict
might have been appraised of them.
2. INTERNATIONAL
HUMANITARIAN LAW:
THE APPLICABLE
LAW
The Geneva Conventions of 1949 (and the whole
of international humanitarian law) became applicable between the
UK and the Federal Republic of Yugoslavia from the date of the
first attack on targets within that territory, ie on 24 March
1999.[19]
The most relevant treaty[20]
relating to legal controls on targeting is the 1977 First Additional
Protocol to the Geneva Conventions, to which the UK became a High
Contracting Party on 28 January 1998 (subject to a number of reservations).
All other NATO countries taking part in the air campaign were
parties to the 1977 First Additional Protocol, except the USA.
This difference of position is of more theoretical than of practical
significance since the relevant provisions of the Protocol are
generally accepted to reflect customary international law and
therefore are binding upon all States.
Few references were made in Parliament to the
Geneva Conventions and the Additional Protocol in relation to
the air campaign. When they were[21]
the response of the Government was to assert that "action
by our forces is in strict conformity with international humanitarian
law including the 1949 Geneva Conventions and their additional
Protocols of 1977."[22]
No further reasons showing how the forces were acting in conformity
with these instruments was given.
(a) Military objectives
The First Additional Protocol is designed, inter
alia, to protect the civilian population from the effects
of the hostilities engaged in by Parties to an international armed
conflict. To this end, the 'basic rule' is stated to be that the
Parties to the conflict "shall at all times distinguish between
the civilian population and combatants and between civilian objects
and military objectives and accordingly shall direct their operations
against only military objectives."[23]There
can be little argument over the efficacy of this basic norm to
be applied by States when engaged in attacks during an armed conflict.
The key, however, is to define what is meant by a "military
objectivè. The Protocol does this in Art.52(2). It stipulates
that "military objectives are 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." Military objectives would
clearly include air defence facilities, command and control centres,
armoured vehicles, army bases, military aircraft. It would also
include schools, bridges, roads or railway lines if by their location
or use they make an effective contribution to military action
(and satisfy the other requirements of the definition).
Members of the armed forces of the Federal Republic
of Yugoslavia would be legitimate combatants and could also be
attacked. Police officers would be classed as civilians (and thus
not subject to attack) unless they were incorporated into the
Yugoslavian armed forces[24]
or (as civilians) they took a direct part in hostilities.[25]
HC Debs, Vol 304, col 305, 26 May 1999 who stated
that "a declared state of war is important to ensure that
our aircrew have the protection of the Geneva convention [sic]
if they are taken prisoner." Once the factual situation exists
to bring these treaties into operation they will apply whatever
the reason for engaging in the armed conflict. Whether the use
of force at all is, or is not, illegal does not affect the application
of this law of armed conflict (or international humanitarian law).
The fact that all members of NATO made a collective decision to
launch the air campaign is irrelevant since the armed forces concerned
were those of each individual State, by whom the treaty obligations
were owed.
In order to determine whether a particular attack
was against a military objective (lawful) or a civilian object
(unlawful) it is essential to assess whether the object could
make an effective contribution to military action[26]
and whether its destruction etc would offer a "definite military
advantage."[27]
The military advantage in any particular attack
to a State that is trying to regain territory from an occupying
army is likely to be quite different from that where the attacking
State's aims are to compel the attacked State to act in a particular
way on its own territory. The Kosovo conflict was atypical. No
NATO ground forces were present in Kosovo; there were only very
limited "hostilities" between the armed forces of FRY
and those of the NATO countries. It was not therefore surprising
to find that there were no NATO casualties during the period of
the conflict. The NATO action was limited by its objectives. These
were stated to be "to stop the killing in Kosovo and the
brutal destruction of human lives and properties; to put an end
to the appalling humanitarian situation that is now unfolding
in Kosovo and create the conditions for the refugees to be able
to return; to create the conditions for a political solution to
the crisis in Kosovo based on the Rambouillet agreement."[28]
These objectives were often stated, in short, to be to "have
a major impact on Belgrade's war machine. . .to degrade its ability
to carry out the current acts of violence in Kosovo. . .to attack,
degrade, disrupt and further diminish the capacity of the Serb
war machine to perpetrate these atrocities against its own people."[29]
It should be noted that the destruction etc
of the military objective must offer a "definitè military
advantage. This adjective requires the attacking State to show
that the military advantage deriving from the attack is "clear
and distinct; not vague."[30]
If the objective of the NATO campaign was, in reality, "systematically"
to "attack, degrade, disrupt and further diminish the capacity
of the Serb war machine to perpetrate these atrocities against
its own peoplè there would be little difficulty in showing
this where the attacks are against the air defence (to protect
the bombing force), command and control systems (to disrupt military
communications, including military radio relay sites), military
bases and vehicles of FRY (to stop reinforcements getting into
Kosovo or in Kosovo itself), airfields and munitions (including
petroleum) storage sites in Kosovo. Many of the fixed targets
were in Serbia but since they could easily be used for the purposes
of exacerbating the humanitarian disaster in Kosovo a causal connection
can be drawn between the destruction of these objects and a definite
military advantage. It may be much more difficult to show the
"definitè military advantage where the target is an
object having a dual function—a military and a civilian
use, such as road and rail bridges or electricity generating stations
or TV stations. In practice, such objects may appear on the "target
list" with a secondary priority and are likely to be attacked
only if the first wave of bombing does not lead to an end to the
conflict. It was, for instance, at the NATO summit in Washington
on 23 April that the decision was made to expand the possible
targets to include the "military-industrial infrastructurè
and "media."[31]
Could the bombing of media outlets, such as the attack
on the TV station on 23 April[32]
or the other AM radio broadcast stations hit on 31 May, or the
bombing of the Dobanovci Presidential villa, or the Belgrade Ministry
of Internal Affairs[33]
be considered as military objectives within the meaning of the
First Additional Protocol? If it is assumed that some form of
military broadcast is made from the TV or radio studios the issue
then becomes whether the neutralisation or destruction of this
function would offer a definite military advantage. If so, it
would need to be "clear and distinct; not vaguè[34]
otherwise the adjective "definitè adds nothing to
the phrase "military advantagè. The attacks on the
Presidential villa and the Interior Ministry (assuming some command
and control activities were carried out in each of these buildings)
need a similar justification since there is a short stop between
a vague military advantage to be gained and virtually no limits
on bombing dual purpose objects[35]
with precision weapons.[36]
Even if these buildings were considered to be military objectives
within the meaning of Article 52(2) of the First Additional Protocol
it is necessary to judge whether the attacks were indiscriminate
under Article 51(5)(b). Those planning the attacks would therefore
be expected to weigh up the concrete and direct military advantage
anticipated and set that against the loss of civilian life.[37]
If the loss of civilian life, injury to civilians or damage to
civilian objects is expected[38]
to be excessive in relation to the concrete and direct military
advantage anticipated the attack should not be carried out (as
to which see the next section).
(b) Collateral damage
The First Additional Protocol addresses the issue
of collateral damage by defining an indiscriminate attack as 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
and not only from isolated or particular parts of the attack][39]."
The causing of death or injury to civilians or the damage of civilian
objects as a result of an attack on a military objective may be
styled as collateral damage if it is not indiscriminate. It is
one of the foreseeable hazards of warfare that cannot entirely
be eliminated, despite the use of precision guided weapons. Considerable
precautions were taken to avoid such damage through the rules
of engagement which required the target to be seen and bombs to
be taken home if the cloud cover was too great to enable this
to be done,[40]
the very direct accountability of the individual aircrew involved,[41]
the use of precision weapons[42]
and the decision not to attack a convoy known to consist of military
and civilian vehicles.[43]
It may also be the case that such collateral damage was avoided
through the operational height at which the aircraft flew (above
the range of much ground-based ordinance) and the consequent ability
of the aircrews to be sure of their targets before launching weapons.[44]
It should also be noted that collateral injury
may be caused indirectly to civilians. There may be circumstances
where the destruction, for instance, of all[45]
or most of the electricity generating stations or water pumping
facilities may be "expected to cause incidental loss of civilian
life [or] injury to civilians . . .which would be excessive in
relation to the concrete and direct military advantage anticipated."[46]
If this is the case the attack on the power stations or water
pumping facilities could give rise to a prohibited indiscriminate
attack. In the type of conflict seen in Kosovo this is a real
risk since, as argued above, the military advantage of attacking
such installations may be relatively small given that the FRY
armed forces were not directly engaged against NATO ground forces
and NATO gained air supremacy very quickly after the start of
hostilities.[47]
One possible way of reducing civilian casualties would be to bomb
at night when a building was relatively unoccupied (a method adopted
in this conflict) and to give warning of attack on a particular
building.[48]
Civilians may also suffer indirectly where ordnance
explodes some time after coming to ground. Questions were asked
in the House about cluster bombs and depleted uranium armaments.
The Secretary of State for Defence informed the House that cluster
bombs were being used but that depleted uranium was not being
used.[49]
(c) Mistakes
There were a number of occasions when NATO admitted
that mistakes had been made, with consequent loss of civilian
life. These mistakes were essentially of fact. Thus, the attack
on the railway bridge that led to the destruction of the train
on 12 April, the killing of civilians travelling on a road near
Dakovica on 14 April[50]
and the bombing of the Chinese Embassy on 5 May were examples.
The First Additional Protocol 1977 does not deal with the issue
of a mistake of fact unless it amounts to indiscriminate damage.
In these cases NATO believed it was attacking military objectives[51]
and the individual mistaken beliefs did not convert the action
into an indiscriminate one. In keeping with the legal systems
of most countries an honest mistake of fact will normally not
lead to criminal responsibility.[52]
(d) Liability of superior commanders
The First Additional Protocol imposes liability
not only on those who actually commit breaches of its obligations
but also upon "superiors"[53]
who "knew, or had had information which should have enabled
them to conclude in the circumstances at the time that [a subordinate]
was committing or going to commit such a breach [of the 1949 Geneva
Conventions or of the First Additional Protocol] if they did not
take all feasible measures within their power to prevent or suppress
the breach." The importance to commanders of having access
to legal advice[54]
becomes clear when their individual liability is considered.
3. APPLICABILITY
OF ENGLISH
LAW
It is trite law that members of the Royal Air
Force take English law with them, wherever they go. Thus, the
English[55]
criminal law applies to their actions over Belgrade as it does
in Belgravia. A bomb discharged from a RAF aircraft that kills
anyone in FRY would appear to amount to murder or manslaughter.
English criminal law, however, recognises the immunity from the
crime of murder of members of the British armed forces who kill
"combatants engaged in combat", or even during the "course
of war".[56]
It is hardly imaginable that an English court would hold a member
of aircrew liable for deaths caused as a result of a properly
carried out air raid over Belgrade.[57]
If the target was not a military objective as defined in Article
52 of the First Additional Protocol or where the attack amounted
to an indiscriminate one[58]
liability under English criminal law would only arise if this
immunity was conditional upon the commission of lawful acts of
war. Logic would suggest that this should be the position under
English law since a member of the armed forces who acts contrary
to international humanitarian law would commit a war crime[59]
and, it might be argued, English and international law should
not diverge on this matter.[60]
Even if the English criminal law of homicide[61]
applied, a mistake of fact leading to the deaths of civilians
would not give rise to liability in the absence of criminal negligence
(when, in theory, it could amount to manslaughter). Thus, had
it been RAF aircraft that attacked the train on 12 April, or the
Chinese Embassy on 5 May no criminal liability would arise.
Under English law a superior could only be liable
for the acts of another if he or she had ordered the act to be
committed or was otherwise a secondary party to the criminal act.
There is nothing comparable, in English law, to the wider liability
of a "superior" for acts committed by his or her "subordinatè
under Additional Protocol I.[62]
There can be little doubt but that the armed conflict
between 24 March and 9 June 1999[63]
over Yugoslavia was governed by the international humanitarian
law applicable in an international armed conflict. Ministers did,
indeed, confirm this.[64]
Yet there was little legal analysis in Parliament or by the Government
as to how, for instance, the air campaign complied with Additional
Protocol I. This could be seen clearly in the attempts to justify
certain targets as "military objectives." An obligation
accepted by any Government in becoming a Party to Additional Protocol
I is to direct military operations within the limits set out in
that Protocol and, in particular, to attack only military objectives,
as defined within that Protocol. It may be that the Government
was scrupulous in applying these legal criteria on the basis of
the facts available[65]
but this does not appear from statements made in Parliament. It
may well be argued that, by accepting the obligations of Additional
Protocol I (on 28 January 1998) the Government should show clearly
how it is carrying out these legal obligations (and others) in
any armed conflict in which it is involved. 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[66]
and those in Parliament, who are unfamiliar with the laws governing
international armed conflict, can be appraised of them.[67]
19 Common Art. 2 to the Geneva Conventions and Art.
1(3) of Additional Protocol I has the effect of applying these
instruments "in all cases of declared war or of any other
'armed conflict which may arise between two or more of the High
Contracting Parties..." It is not therefore necessary to
declare war. Compare Mr Wilkinson, MP, H.C. Debs, Vol. 304, col.
305, 26 May 1999 who stated that "a declared state of war
is important to ensure that our aircrew have the protection of
the Geneva convention [sic] if they are taken prisoner."
Once the factual situation exists to bring these treaties into
operation they will apply whatever the reason for engaging in
the armed conflict. Whether the use of force at all is, or is
not, illegal does not affect the application of this law of armed
conflict (or international humanitarian law). The fact that all
members of NATO made a collective decision to launch the air campaign
is irrelevant since the armed forces concerned were those of each
individual State, by whom the treaty obligations were owed. Back
20
See also Arts. 23(g) and 25 of the Regulations, annexed to the
Hague Convention IV, 1907; Arts. 1 and 2, Convention IX, 1907. Back
21
See Lord Jenkins of Putney, HL Debs. Vol 601, col 148, 18 May
1999; Mr Dale Campbell-Savours, MP, HC Deb. Vol 331, col 942,
18 May 1999. Back
22
The Parliamentary Under-Secretary of State, Foreign and Commonwealth
Office, (Baroness Symonds of Vernham Dean), HL Deb. Vol 600, col
1000, 10 May 1999 ("We are obeying the law"); Vol 601,
col 148, 18 May 1999. Back
23
Art 48, Additional Protocol I, 1977 Back
24
Art 43(3) Additional Protocol I, 1977 Back
25
Ibid, Art 51(3). It is not clear whether Serb police officers
who attacked Kosovar Albanians were taking part in "hostilities"
since they were not engaged in combat with armed groups, units
or forces except when engaged against the KLA. Back
26
Wherever this is taking place. For the history of the inclusion
of the adjective, "effectivè see Bothe, Partsch and
Solf, New Rules for Victims of Armed Conflict (1982), pp 325-6. Back
27
At the deposit of the UK ratification of Additional Protocol
I, 28 January 1998, the UK declared that the military advantage
anticipated from an attack has to be "considered as a whole
and not only from isolated or particular parts of the attack,"
para (i). Back
28
See Secretary General NATO press conference, 1 April 1999. See
also the Foreign Secretary, HC Deb., Vol 331, col 887, 18 May
1999; Vol 329, col 665, 19 April 1999; Joint Statement on the
Kosovo After Action Review, prepared by the Secretary of Defense,
for the United States Senate Armed Forces Committee, 14 October
1999, p 3, all of which are slightly different from each other. Back
29
General Wesley K.Clark, SACEUR, press conference, 1 April 1999.
The Defence Secretary told the House on 19 April 1999 that "our
military objectives have been the destruction of Milosovic's repressive
regime and the weakening of his forces. They support the political
objectives. . ." HC Debs. Vol 329, col 665, 19 April 1999. Back
30
Oxford English Dictionary. Back
31
See the Joint Statement, 14 October 1999, note 10 above, p 4. Back
32
The justification for the bombing was stated to be as follows:
"the media has been used to incite racial hatred and to immobilise[sic]
the Serbs. Therefore, where media facilities are relevant to military
operations or the capacity of Milosovic to continue his campaign
of terror, they will be considered as possible targets . . . It
is the propaganda machine that helps to keep the military machine
moving," Baroness Symonds of Vernham Dean, H.L. Debs., Vol.600,
cols.38, 41, 26 April 1999. The Secretary of State for Defence
had, however, told the Defence Select Committee on 17 February
1999, Q.376 that "it is actually almost completely impossible
to control media, especially in the centre of Europe." Back
33
Operation Allied Force Update, 25 May 1999, NATO HQ. Back
34
Art. 52(3) Additional Protocol I presumes that an object normally
dedicated to civilian purposes is not being used to make an effective
contribution to military action. Back
35
See the argument of Mr Campbell-Savours, MP, H.C. Deb., Vol.
331, cols. 942-3 that he would include as "targets motor
vehicle spare parts depots and major data recording departments
. . . Yugoslavia's identity registration system . . . inland revenue
and national insurance departments, the military pensions departments
and the national police records departments." Back
36
Compare so-called "carpet bombing" in World War II
where ordinary dwellings were attacked to "strike at enemy
morale." Back
37
Some (perhaps, most) of those working in such buildings would
be civilians, who are protected by Art. 51(3) Additional Protocol
I until they take a direct part in hostilities. The italicised
words are defined in the Commmentary on the Additional Protocols
of 8 June 1997 (International Committee of the Red Cross,
1987), para. 1944 as "acts of war which by their nature or
purpose are likely to cause actual harm to the personnel and equipment
of the enemy armed forces." Back
38
This introduces a mental element; liability is not therefore
strict. There is a danger, however, that the military advantage
may be unintentionally exaggerated especially at the start of
any aerial bombing campaign. The Foreign Secretary informed the
Select Committee on Foreign Affairs (Seventh Report, Kosovo:
Interim Report, HC 188, 20 July 1999) on 19 May 1999 that
"We are now making a very real impact on those military assets-432
tanks, armoured personnel carriers, artillery pieces, military
trucks have been struck in recent weeks," Q.241. Compare,
however, the battle damage reported by SACEUR at his NATO Press
Conference on the Kosovo Strike Assessment, 16 September 1999,
p.6. For the UK assessment of damage see Kosovo: an Account
of the Crisis (Ministry of Defence, 7 October 1999). The point
being made here is not the scale of the damage actually inflicted
but the real possibility that the damage anticipated by
an attack may be greater than the reality. This has an effect
on the balancing of the possibility of damage to civilians and
civilian objects. Back
39
The passage in [] refers to statement (i) by the UK on deposit
of its note of ratification, 28 January 1998, see note 9 above. Back
40
An unnamed RAF Wing Commander, Press Conference on the Kosovo
Strike Assessment, NATO, 16 September 1999, p.11. Back
41
Through daily NATO and individual State's press conferences,
along with cockpit videos. Back
42
The Secretary of State for Defence told the Defence Select Committee
on 17 February 1999, that "a tiny number of [the 5000 combat
aircraft] have a capability for night-time bombing or for the
kind of precision bombing which increasingly the legal authorities
expect us to engage in," Q.318. Back
43
Press Conference on the Kosovo Strike Assessment (see note 20)
at p.12. Back
44
Ibid., p.11. "Only about 50 per cent of the strike
days during the conflict were good-weather days," Col. Boyle,
ibid, p.12. Compare the situation when a ground force can
do the actual targeting, SACEUR, ibid, p.2. The decision
to fly at this altitude was "entirely an operational matter
for the military. Politicians would be extremely foolish to override
the military on the height at which our pilots fly," Foreign
Secretary, H.C. Deb., Vol. 331, col. 864, 18 May 1999. Quaere
whether this operational height caused problems of identification
of military from civilian vehicles. For an account of the reduction
in the operational height see Kosovo: an Account of the Crisis
(note 20 above). Back
45
The Foreign Secretary informed the House that "we are not
hitting all the power stations and all the water supply in Yugoslavia,"
H.C. Deb., Vol. 331, col. 864, 18 May 1999. See also the speech
of Mrs Mahon MP, H.C. Deb., Vol. 333, col. 610, 17 June 1999. Back
46
Art 51(5)(b) Additional Protocol I. Back
47
Damage to the environment may also be caused through, for example,
attacks on oil depots and petro-chemical works leading to local
pollution and consequent damage to the health of the civilian
population. Back
48
Art 57(2)(c) of Additional Protocol I includes a warning as a
means of taking precautions in attacks. This may only be possible
where attacking aircraft are relatively safe from ground fire
and possess air supremacy. In these circumstances the trite statement
that "surprise is an essential ingredient of a successful
attack" has little significance. Back
49
The indiscriminate nature of anti-personnel mines led to their
banning by the Ottawa Treaty of 1997 (the Convention on the prohibition
of the use, stockpiling, production and transfer of anti-personnel
mines and on their destruction). The definition of an anti-personnel
mine is in Art.2. Neither anti-personnel cluster bombs
nor depleted uranium weapons were used, Foreign Secretary, Select
Committee on Foreign Affairs (full reference at note 20), 14 April
1999, Q.156; Letter to the Chairman of the Committee from the
Secretary of State for Foreign and Commonwealth Affairs, 26 April
1999, ibid.at p.74. Back
50
See NATO press conference, 19 April 1999 and speech of Brigadier
General Leaf. Back
51
In the case of the attack on the Chinese Embassy, for instance,
NATO believed that it was attacking the Federal Directorate of
Supply and Procurement for the Yugoslav Army, HL Debs, Vol 600,
col 989, 10 May 1999, Baroness Symons of Vernham Dean. Back
52
Nevertheless, NATO went to considerable lengths to determine
the cause of the mistake and to prevent re-occurrances. Back
53
Quaere whether this is wide enough to catch political
leaders who are not members of the armed forces of their State.
The Secretary of State for Defence alluded to this when he stated
that, "I have to have a legal base before I can order the
bomber in or I am personally liable in that capacity," Select
Committee on Defence, 17 February 1999, Q 302. It is assumed that
he meant that he would be answerable to the House for his decisions. Back
54
As required by Article 82 Additional Protocol I. Back
55
Under the Naval Discipline Act 1957, the Army Act 1955 and the
Air Force Act 1955, only English law applies. Back
56
Hale, Pleas of the Crown, vol 1, p 433; R v Page
[1953] 2 All ER 1355, 1357; R v Howe [1987] AC 417, 428.
The formulation of this "defencè is not identical
in each authority. Clause 48 of the Law Commission's Working Paper,
No 143, Codification of the Criminal Law (1985) would have
declared (had it not been deleted at a later stage) that a person
would not commit an offence if his actions were "authorised
by . . . the lawful conduct of war". Back
57
Baroness Symons of Vernham Dean referred to Lord Jenkins of Putney's
"accusation of NATO having committed what he termed `murder'
[and went on to say that] accusations of that type really are
way over the top," HL Debs, Vol 600, col 907, 6 May 1999.
Lord Jenkins' statement is at col 865. Back
58
As defined in Article 51 Additional Protocol I. Back
59
The air campaign against FRY was unique in the sense that an
international tribunal for the trial of serious violations of
international humanitarian law committed in the territory of the
former Yugoslavia was in existence at the time of the air operations,
see the Statute of the International Tribunal for the Prosecution
of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia
Since 1991, annex. To S.C.Resol. 808 (1993) Back
60
A person who commits a grave breach of the Geneva Conventions
1949 or of Additional Protocol I of 1977 would also commit an
offence against English law, Geneva Conventions Act 1957 and Geneva
Conventions (Amendment) Act 1995. It is hardly imaginable that
any attack by Royal Air Force crews would have involved "wilfully,
in violation of the relevant provisions of this Protocol...launching
an indiscriminate attack affecting the civilian population or
civilian objects in the knowledge that such attack will
cause excessive loss of life, injury to civilians or damage to
civilian objects as defined in Article 57(2)(a)(iii) [precautions
in attack]. Compare Lord Jenkins of Putney, who referred to the
1995 Act and alleged that it was" being totally ignored in
this operation,' H.L.Debs., Vol.600, col.999, 10 May 1999. Back
61
The criminalisation under English law of the grave breach provisions
of the Geneva Conventions and Additional Protocol I by the 1957
and 1995 Acts clearly would apply. Back
62
Art.86(2).4. CONCLUSION Back
63
The date of the Military Technical Agreement between the International
Security Force ("KFOR") and the Governments of the Federal
Republic of Yugoslavia and the Republic of Serbia. Back
64
See note 22 above for references. Back
65
Particularly relevant here is the issues of who chose the targets
to attack. The Secretary of State for Defence told the House that,
"I personally approve some of the targets, but for most,
I have now delegated the decisions tot he operational commanders.
That allows them to make decisions quickly and to respond to changing
requirements. However, I retain the ultimate authority and responsibility
for those decisions," HC.Debs., Vol. 329, col. 667, 19 April
1999. Baroness Symons of Vernham Dean stated, however, that "all
targets are selected and approved at the highest levels in NATO
and that rigorous criteria are used to assess the suitability
of any target, including its military utility and the risk of
environmental damage or civilian casualties," H.L.Debs.,
Vol.600, col.907, 6 May 1999. Back
66
Where it is alleged that a military campaign is being conducted
not in accordance with international humanitarian law a State
may face legal proceedings in the International Court of Justice,
see Case Concerning Legality of Use of Force (Yugoslavia v.
United Kingdom): Request for the Indication of Provisional Measures.
On 2 June 1999 the Court rejected the application since it decided
that it "lacked prima facie jurisdiction to entertain Yugoslavia's
Application." Back
67
Errors of international humanitarian law may then be avoided. Back
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