Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


Memorandum submitted by Professor Peter Rowe


  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.


  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.


  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, 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

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2000
Prepared 7 June 2000