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Full text of "Legal and ethical lessons of NATO's Kosovo campaign"

International Law Studies 



Volume 78 



Legal and Ethical Lessons of 
NATO's Kosovo Campaign 



Andru E. Wall 
Editor 




.,**■■ 



Naval War College 
Newport, Rhode Island 

2002 



International Law Studies 



Volume 78 



Library of Congress Cataloging-in-Publication Data 

Legal and ethical lessons of NATO's Kosovo campaign / Andru E. Wall, 
editor. 

p. cm. -- (International law studies ; v. 78) 
Includes index. 

ISBN 1-884733-25-5 (alk. paper) 

1. Kosovo (Serbia) — History — Civil War, 1998 — Law and legislation. 
2. North Atlantic Treaty Organization — Armed Forces — Yugoslavia — Kosovo 
(Serbia) I. Wall, Andru E., 1968- II. Series. 
JX1295.U4vol.78 
[KZ6377.5] 
341s— dc21 
[949.7 

2002153487 



Table of Contents 



Foreword ix 

Introduction xi 

Preface xiii 

PARTI: KEYNOTE ADDRESSES 

Opening Remarks 

Vice Admiral Arthur Cebrowski 3 

Judging Kosovo: The Legal Process, the Law of Armed Conflict, and the 
Commander In Chief 
The Honorable ]ames E.Baker 7 

Operation Allied Force from the Perspective of the NATO Air Commander 
Lieutenant General Michael Short, US AF (Ret) 19 

Discussion 27 

PART II: THE APPLICABILITY OF 
THE LAW OF ARMED CONFLICT 

Introduction 

Scott Silliman 33 

The Applicability of International Humanitarian Law and the Law of 
Neutrality to the Kosovo Campaign 
Christopher Greenwood 35 

Rules of Conduct During Humanitarian Intervention 

Ivan Shearer 71 

Application of the Law of Armed Conflict During Operation Allied Force: 
Maritime Interdiction and Prisoner of War Issues 
George Walker 85 

Commentary 

Judith A. Miller 107 

Commentary 

Natalino Ronzitti 113 

Commentary 

Richard Sorenson 121 



Discussion 

The UN Security Council and the Creation of International Law ... 125 

The Law of Neutrality Under the UN Charter 125 

Peacekeepers or an Occupying Force? 126 

The Legality of Blockade or Visit & Search 127 

Applying the LO AC: A Question of Intent or Act? 130 

Enforcement of the Laws of Armed Conflict and 20/20 Hindsight . . . 131 

Are the Laws of War a Constraint? 133 

PART III: TARGETING 

Introduction 

Robert F. Turner 137 

Legitimate Military Objectives Under the Current Jus In Bello 

Yoram Dinstein 139 

Targeting 

MichaelBothe 173 

Legal Pespective from the EUCOM Targeting Cell 

Tony Montgomery 189 

Commentary 

Harvey Dalton 199 

Commentary 

Wolff H. von Heinegg 203 

Commentary 

Henry Shue 207 

Discussion 

Reasonable Military Commanders and Reasonable Civilians 211 

Legal Advisors and Time-Sensitive Targets 213 

Coalition Approval of Targets 214 

When Civilian Objects Become Military Objectives 214 

Relating the Permissible Mission to the Military Advantage 216 

"Dual-Purpose" Targets 218 

Targeting Regime Elites 220 

PART IV: COLLATERAL DAMAGE 

Introduction 

John Norton Moore 225 

vi 



Some Legal (And A Few Ethical) Dimensions of the Collateral Damage 
Resulting from Nato's Kosovo Campaign 
John F. Murphy 229 

International Humanitarian Law after Kosovo: Is Lex Lata Sufficient? 

Ove Bring 257 

Commentary 

Yves Sandoz 273 

Commentary 

W. Hays Parks 281 

Commentary 

Barry Strauss 293 

Discussion 

Modern Technology: Is There An Obligation to Use It? 297 

Human Shields: Can Abuse of the Law of War Be a Force Multiplier? . 298 
Do We Need An Additional Protocol For Humanitarian Intervention? 300 

Reciprocity in War and the Law of War 302 

Target Priority and Collateral Damage 304 

"No Body Bags" War and the Value of Human Lives 304 

Does Kosovo Provide Lessons for the Future? 306 

Cluster Bombs and Long-Term Collateral Damage 306 

The Principle of Proportionality 308 

Flying At 15,000 Feet 309 

PART V: COALITION OPERATIONS 

Introduction 

Nicholas Rostow 313 

Coalition Warfare and Differing Legal Obligations of Coalition Members 
Under International Humanitarian Law 
Torsten Stein 315 

To What Extent Is Protocol I Customary International Law? 

The Honorable FaustoPocar 337 

Commentary 

RudolphDolzer 353 

Commentary 

Leslie C.Green 361 

Commentary 

DavidGraham 377 



vu 



Discussion 

Can a Coalition Member Be Held Responsible for the Actions of 

Other Members? 387 

The United States and Protocol I 388 

The Status of Protocol I As Customary International Law 389 

Reprisals 390 

The Martens Clause and the Margin of Appreciation 391 

The Relationship Between Human Rights Law and the 

Law of Armed Conflict 392 

PART VI: THE ROAD AHEAD 

Introduction 

JoelRosenthal 399 

The Laws of War After Kosovo 

AdamRoberts 401 

Propositions on the Law of War after the Kosovo Campaign 

Ruth Wedgwood 433 

Commentary 

Rein Mullerson 443 

Commentary 

Horace B. Robertson, Jr 457 

Commentary 

Harvey Dalton 463 

Discussion 

Does the US Have a Unilateralist Approach to International Law? . . 467 

Is There a Right of Humanitarian Intervention? 469 

Humanitarian Intervention: Ethically Right, Although Legally Wrong? 469 

Is There a Link Between the jus ad Bellum and the Jus inBellol 474 

Critiquing the Report to the Prosecutor 477 

Applying the Law of Armed Conflict in the Future 477 

Appendix A 

Final Report to the Prosecutor by the Committee 

Established to Review the NATO Bombing Campaign 

Against the Federal Republic of Yugoslavia 483 

Appendix B 

Contributors 533 

Index 547 

viii 



Foreword 



i 



he International Studies "Blue Book" series was initiated by the Naval 
War College in 1901 to publish essays, treatises, and articles that con- 
tribute to the broader understanding of international law. This, the sev- 
enty-eighth volume of the historic series, contains the proceedings from a 
scholarly colloquium entitled Legal and Ethical Lessons of NATO's Kosovo Cam- 
paign, which was hosted here at the Naval War College on 8-10 August 2001. 

The colloquium's mission was to examine the international legal and ethi- 
cal lessons to be learned from NATO's Kosovo conflict from the standpoint of 
the jus in bello, that is, issues relating to the conduct of hostilities, rather than 
the jus ad bellum questions regarding the legal justification for NATO's initia- 
tion of the air operation in Kosovo. Renowned international scholars and 
practitioners, both military and civilian, representing government and aca- 
demic institutions, participated. The colloquium and this Blue Book were 
co-sponsored by the Carnegie Council on Ethics and International Affairs; the 
Center on Law, Ethics and National Security, Duke University School of Law; 
the Center for National Security Law, University of Virginia School of Law; 
and the International Law Department (then the Oceans Law and Policy 
Department) of the Center for Naval Warfare Studies, United States Naval 
War College. 

On behalf of the Secretary of the Navy, the Chief of Naval Operations, and 
the Commandant of the Marine Corps, I thank the co-sponsors and partici- 
pants for their invaluable contributions to this project and to the future un- 
derstanding of the laws of war. 



RODNEY P. REMPT 
Rear Admiral, U.S. Navy 
President, Naval War College 



Introduction 



A 



fter every clash of arms, it is important to review the actual application 
of the laws of armed conflict, especially the jus in hello. The NATO 
campaign in Kosovo is no exception and, as allied forces were accused of hav- 
ing committed various violations of the law of armed conflict, examining what 
happened in Kosovo is particularly valuable. While the Prosecutor for the 
International Criminal Tribunal for the former Yugoslavia conducted a prelim- 
inary inquiry into NATO's actions and concluded that there was insufficient 
evidence to conduct a formal investigation, there remained significant con- 
cerns in the international community over the lawfulness of NATO's actions. 
Moreover, even if NATO did comply with the laws of armed conflict, are 
those laws properly suited for today's high-technology battlefield and do they 
encourage the maintenance of international peace and security? These issues 
warranted examination by scholars in the fields of both ethics and interna- 
tional law. 

For over one hundred years, the United States Naval War College has com- 
mitted itself to combining a scholarly understanding of the laws of war with an 
appreciation for and insight into the perspective of the warfighter — the one 
who must apply those laws to the battlefield. As such, the Naval War College 
was uniquely suited to convene an array of scholars and practitioners to exam- 
ine the legal and ethical lessons of NATO's Kosovo campaign. We are in- 
debted to Lieutenant Andru Wall of the International Law Department 
faculty for the energy and enthusiasm he displayed in organizing our confer- 
ence and in editing this volume of the International Law Studies (Blue Book) 
series. Well done! 

Special thanks also are due to Yoram Dinstein and the Israel Yearbook on 
Human Rights, Joel Rosenthal and the Carnegie Council on Ethics & Interna- 
tional Affairs, John Norton Moore and Bob Turner and the Center for Na- 
tional Security Law at the University of Virginia, and Scott Silliman and the 
Center on Law, Ethics, and National Security at the Duke University School 



Introduction 



of Law. Without their co-sponsorship and invaluable assistance the collo- 
quium and this Blue Book would not have been possible. 

Funding for this book and the colloquium was also provided by Dean 
Alberto R. Coll, Center for Naval Warfare Studies of the Naval War College. 
His leadership and support are key to the Blue Book series. Invaluable contri- 
butions were also made by Captain Ralph Thomas, JAGC, USN (Ret.), who 
volunteered many hours of his personal time in reviewing manuscripts and of- 
fering advice. Further assistance was provided by the rest of the faculty and 
staff of the International Law Department and our associated reserve unit. 

Volume 78 will serve as a standard reference work of case studies in this 
area, continuing the solid, scholarly tradition of the "Blue Books." The series 
is published by the Naval War College and distributed throughout the world 
to academic institutions, libraries, and both U.S. and foreign military 
commands. 



DENNIS MANDSAGER 
Professor of Law & Chairman 
International Law Department 



xn 



Preface 



Andru E. Wall 



W: 



hen an international group of military officers, judges, political sci- 
entists, philosophers, historians and lawyers gathered at the United 
States Naval War College in early August 2001 to discuss the legal and ethical 
lessons to be learned from NATO's Kosovo campaign, no one could have 
imagined the horrific attacks that would take place in the United States just 
one month later. Much of the discussion centered on whether Operation 
Allied Force represented a new kind of war — what many term humanitarian 
intervention — or simply an aberration with limited lessons for the future. Some 
suggested that Kosovo was nothing like the battlefields of the future would be, 
and so the lessons to be gleaned would be of limited use. 

There is no question that the global war on terrorism that the United States 
and its allies throughout the world are actively engaged in at the time of this 
writing is dramatically different from Operation Allied Force. Most signifi- 
cantly, the war on terrorism is a conflict fought primarily against non-State 
actors and the States that aid, harbor, or support them, while the war over 
Kosovo was more traditionally fought against a sovereign State. Some scholars 
mused over whether humanitarian intervention wasn't really war at all, yet it 
was, classically stated, a matter of politics by another means. A group of sover- 
eign States (NATO) used military force in order to impose their political will 
(the cessation of the oppression of Kosovar Albanians) on another sovereign 
State (Serbia). 

The goal of the colloquium was to examine how the law of armed conflict 
should be applied in modern warfare — focusing not just on the law, but also 
the crucial operational perspective of the warfighter. As Judge James E. Baker 
pointed out during his keynote luncheon address, the law of armed conflict is 



Preface 

not for the specialist, it is not for the lawyer; it must be capable of application 
at the tactical level by the most junior of military personnel. 1 As Professor 
Dolzer's wisely cautions: "We are living through a period of fundamental 
changes in the laws of armed conflict, and it is important that the implication 
of all these changes are thought through in a broad debate where the require- 
ments of criminal law are discussed, where the realities of military conduct are 
taken into account and where not only the noble humanitarian aspirations in 
an isolated sense are highlighted." 2 

The theme of the colloquium and, thus, this volume, is simply that while 
the politics and the modalities of force employed in Kosovo may have been 
unique, the legal and ethical lessons to be learned are applicable to any inter- 
national armed conflict. So what are the jus in hello lessons to be learned from 
Operation Allied Force? First, the law of armed conflict applies to any clash of 
arms between two or more States. Secondly, only military objectives may be 
lawfully targeted and they are defined within the temporal context of the 
given conflict. Thirdly, the principle of proportionality prohibits excessive col- 
lateral damage, yet the law does not impose absolute rules regarding imple- 
mentation of weapons and tactics. Fourthly, despite the proliferation of 
treaties on the law of armed conflict, customary international law will con- 
tinue to define major elements and interpretations of the law of armed con- 
flict. Thus, it is essential that the development and determination of 
customary international law be properly understood and the continuing rele- 
vance of state practice be fully appreciated. 

The Applicability of the Law of Armed Conflict 

1. The existence of an international armed conflict 

While there was some debate contemporaneous with the Kosovo campaign 
over whether "humanitarian intervention" triggered the applicability of the 
law of armed conflict, Professor Christopher Greenwood abruptly answers the 
question without qualification: while there is no definition of international 
armed conflict in any law of armed conflict treaty, it is agreed to be a factual 
determination based on the existence of actual hostilities between two or 
more States. 3 This is irrespective of a declaration of war and of the justifica- 
tion for the hostilities. An international armed conflict "exists from the first 



1. Baker, infra, at 9. 

2. Dolzer, infra, at 358. 

3. Greenwood, infra, at 39. 

xiv 



Andru E. Wall 



moment after an exchange of fire" between two States. 4 Opinio juris supports 
this, as NATO certainly believed the law of armed conflict was fully applica- 
ble and defined and incorporated the legal limits on the use of force within 
the NATO rules of engagement. 5 

2. The internationalization of an internal armed conflict 

The more challenging question is whether intervention by outside States 
(e.g., NATO) on behalf of an organized armed group within a State (e.g., the 
Kosovo Liberation Army) "internationalizes" the conflict between that group 
and the State it is in conflict with (e.g., Serbia). Professor Greenwood argues 
that it does "only if there is a clear relationship between the non-governmental 
party to the conflict and one of the States party to the international conflict." 6 
In the present case, there was not a sufficient link between the KLA and 
NATO to internationalize the conflict between the KLA and Serbia. 7 As 
such, the members of the KLA were not entitled to combatant immunity nor 
were they entitled to prisoner of war status if captured. 

3. The interdiction of maritime shipping 

The issue of whether NATO could lawfully intercept and divert neutral 
vessels carrying strategic commodities was a political question more than a le- 
gal one. The "customary law of armed conflict still permits a State engaged in 
an international armed conflict to prevent strategic commodities such as oil 
from reaching its opponent by sea, even if carried by neutral flagged vessels." 8 
The law of neutrality was not abolished by the UN Charter, but belligerent 
rights still permit warring States to interdict shipping — even that from neutral 
States. 9 While not disputing the continuing viability of customary belligerent 
rights, Professors Greenwood and Bring urge caution in applying them in the 
post-UN Charter era. 10 NATO chose not to interdict shipping bound for Ser- 
bia, not because doing so would have been illegal, but because certain political 



4. Shearer, infra, at 76. 

5. Miller, infra, at 109. 

6. Greenwood, infra, at 45. 

7. Greenwood, infra, at 44-6; Ronzitti, infra, at 1 14. 

8. Greenwood, infra, at 56. See also Walker, infra, at 92 and discussion comments by Professor 
Wolff H. Von Heinegg at 127-8. 

9. Ronzitti, infra, at 117-8. 

10. See Discussion, infra, at 127-30. 

XV 



Preface 

leaders within the alliance were "trying to damp down expectations of the 
level of violence" that would be applied. 11 

4. Is it the law of armed conflict or international humanitarian law? 

Professor Stein acknowledges the confusion created by "re-naming the 
'laws of war' or 'law of armed conflict' as 'international humanitarian law' thus 
blurring the distinction between 'humanitarian' and 'human rights' law." 12 For 
Colonel Graham this "renaming" indicates that some people think that ele- 
ments of human rights law are included in the law of armed conflict — a trou- 
bling proposition for those who have to advise military commanders on their 
legal obligations given that human rights law is much less well-defined than 
the law of armed conflict. 13 The US military prefers the term "law of armed 
conflict" as its obligations are better understood and because, as a matter of 
policy, the US military applies the law of armed conflict to all military opera- 
tions regardless of their characterization. 

Professors Bothe and Green, among others, engaged in a lively debate over 
whether humanitarian law, or the law of armed conflict, is lex specialis vis-a-vis 
human rights law. 14 A lex specialis implies the existence of a lex generalis. How- 
ever, because many human rights treaties do not apply during armed conflicts, 
it is incorrect to label human rights law a lex generalis and the law of armed 
conflict a lex specialis. They are two separate bodies of international law with, 
at times and depending on the treaties a State is party to, overlapping 
jurisdiction. 

The drafters of Protocol I and other more recent law of armed conflict treaties 
did draw from the realm of human rights law and incorporated certain human 
rights concepts into the law of armed conflict. What must remain clear is that 
these concepts are then implemented from the standpoint of the law of armed 
conflict. Where there is overlapping jurisdiction and the actions of a military 
commander are subject to review under both human rights law and the law of 
armed conflict, then the greater specificity of the latter must be determinative. 

5. Is there a link between the jits ad bellum and the jits in bellol 

It is a well-established maxim that the law of armed conflict applies equally 
to both sides of a conflict, although some have argued that there may be a rela- 
tionship between the degree of force that may be used and the "purpose for 



1 1. See the comments by Professor Greenwood, infra, at 127. 

12. Stein, infra, at 319. 

13. Graham, infra, at 381. 

14. See Discussion, infra, at 392-6. 



xvi 



Andru E. Wall 



which force is permitted under the jus ad bellum." 15 Professor Bothe agrees that 
the "jus ad bellum and jus in hello have to be kept separate" because the equality 
of the parties is an essential precondition to the objective application of the law 
of armed conflict, however, he proffers the caveat that "[m]ilitary advan- 
tage ... is a contextual notion." 16 This, to Professor Von Heinegg, amounts to 
simply paying "lip service" to the principle that the two bodies of law are sepa- 
rate. 17 He counters that "the overall aim that led one of the parties to an armed 
conflict to resort to the use of armed force is irrelevant when it comes to the 
question whether certain objects effectively contribute to military action of the 
adversary or whether their neutralization offers a definite military advantage." 18 

Professor Greenwood emphatically rejects the "heresy" that NATO's hu- 
manitarian motives entitled it to greater latitude in choosing targets and the 
"rival heresy" that "because the campaign was fought for a humanitarian ob- 
jective, international humanitarian law has to be interpreted as imposing 
upon NATO more extensive restrictions than would otherwise have been the 
case." 19 Both these "heretical" views "involve an unjustified muddling of jus ad 
bellum and jus in bello issues in a way which is contrary to principle and unsup- 
ported by authority." 20 

"The law of armed conflict does not ask for motives, political aims, or the 
legality of the first use of force," Professor Von Heinegg states: "[i]t takes as a 
fact that the jus ad bellum has failed to function properly." 21 Any time consid- 
eration of the jus ad bellum plays a role in the jus in bello, the latter is weak- 
ened. 22 Even if violations of the jus in bello can justify intervention as some 
have argued, that remains a matter of the jus ad bellum and the jus in bello re- 
mains equally binding on both parties in any resulting hostilities. 23 

Nevertheless, Professor Bothe identifies this as the "fundamental issue: 
how far does the context of the military operation have an impact on the no- 
tion of military advantage?" 24 In this regard, Professor Miillerson points out 



15. Greenwood, infra, at 52. 

16. Bothe, infra, at 186. 

17. Von Heinegg, infra, at 205. 

18. Id. 

19. Greenwood, infra, at 48-9. 
20 Greenwood, infra, at 53. 

21. Von Heinegg, infra, at 206. 

22. See comments by Professor Von Heinegg, infra, at 221. 

23. See Robertson, infra, at 457; see also, Roberts, infra, at 409-13. Professor Roberts states: 
"Quite simply, massive violations of jus in bello by a belligerent can help to legitimize certain 
threats and uses of force by outside powers intervening to stop the violations." Id. at 410. 

24. See Discussion, infra, at 216. 



xvn 



Preface 

that the International Court of Justice in its advisory opinion on Nuclear 
Weapons "created a novelty distinguishing between 'an extreme circumstance 
of self-defense, in which the very survival of a State would be at stake' and 
other circumstances." 25 This implies that "a wrong done in light of jus ad 
bellum has an impact on the jus in bello" applicable in the resulting conflict, be- 
cause an aggressor would not be entitled to argue that it was acting under such 
"extreme circumstance of self-defense." 26 

Notwithstanding the ICJ's advisory opinion, "it remains certain that all par- 
ties have to equally abide by the requirements of jus in bello" and in "that sense 
these branches of the law are separate." 27 If there is a "bridge between the two 
branches of international law" it "is the requirement of adequacy" because "an 
act justified by the necessity of humanitarian intervention must be limited by 
that necessity and kept clearly within it." 28 In the final analysis, it is important 
to distinguish between political or moral reasons for applying a "maximum 
standard" of compliance with the law of armed conflict, and a legal obligation 
to do so. 29 

Targeting Military Objectives 

1. Defining military objectives 

Perhaps the most fundamental principle of the law of armed conflict is that 
of distinction. Professor Michael Bothe traces the development of the princi- 
ple of distinction from Jean Jacques Rousseau's conception of the sovereign's 
war. War is between States and their rulers, not their peoples, thus conflict 
should be limited to combatants and military objectives. 30 Article 52(2) of 
Protocol I contains the "binding definition of military objective:" 31 

In so far as objects are concerned, 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 
neutralization, in the circumstances ruling at the time, offers a definite military 
advantage. 



25. Miillerson, infra, at 443. 

26. Miillerson, infra, at 444. 

27. Miillerson, infra, at 445. 

28. Miillerson, infra, at 452-3. 

29. Stein, infra, at 326-7. 

30. Bothe, infra, at 173-4. 

31. Dinstein, infra, at 140. 



xvin 



Andru E. Wall 



While there should "be no doubt" that this definition "corresponds to exist- 
ing principles as reflected in customary law and simply clarifies them," some of 
the clarifications could be "open to different interpretations of the scope of 
the obligations imposed on the attacker" and, thus, "incompatible with a con- 
sideration of the provision as fully reflecting customary international law." 32 
Judge Pocar offers as examples of imprecise clarifications the expressions "ef- 
fective contribution to military action" and "definite military advantage." 33 

"The difficulty of the Article 52(2) definition" of military objective, Profes- 
sor Bothe writes, "is its general character" particularly with respect to 
"dual-use objects." 34 Professor Dinstein is "not enamored" by the phrase "dual 
use" and argues that legally the fact that an object may have both a military 
use and a civilian use does "not alter its singular and unequivocal status as a 
military objective." 35 

Professor Bothe asks how "the general principle of distinction" can be ren- 
dered "more concrete in order to have secure standards for targeting" and 
then agrees that an illustrative list of military objectives could be a possible solu- 
tion. 36 Professor Dinstein proffers that "only a composite definition — combining 
an abstract statement with a non-exhaustive catalogue of illustrations — can 
effectively avoid vagueness, on the one hand, and inability to anticipate future 
scenarios, on the other." 37 The likelihood of States ever reaching agreement 
on such a list, however useful, is doubtful. Given what Professor Dinstein him- 
self identifies as the "temporal framework" within which military objectives 
are defined — what may be legitimately attacked at one time may not be at an- 
other time — a list could include objects which by their "nature" are military 
objectives, but would not likely include the myriad of objects that become mil- 
itary objectives by their location, purpose or use. 38 

2. Presuming civilian purpose 

While the general definition of military objective contained in Article 
52(2) of Protocol I can be considered customary international law, it is doubt- 
ful that the same can be said about the requirement to assume civilian purpose 



32. Pocar, infra, at 348. 

33. Id. 

34. Bothe, infra, at 177. 

35. See comments by Professor Dinstein in the Discussion, infra, at 218-9. 

36. Bothe, infra, at 177. 

37. Dinstein, infra, at 142 (footnote omitted). 

38. Dinstein, infra, at 144; see also Von Heinegg, infra, at 204. 



XIX 



Preface 

contained in Article 52 (3). 39 This was an issue that was much debated during 
the drafting process and some argue that it "may reflect a '[r]efusal to recog- 
nize the realities of combat' in some situations." 40 Professor Dinstein points 
out, however, that the presumption only arises in cases of doubt regarding the 
civilian purpose. "The degree of doubt that has to exist prior to the emergence 
of the (rebuttable) presumption is by no means clear. But surely that doubt 
has to exist in the mind of the attacker, based upon 'the circumstances ruling 
at the time."' 41 

3. Effects-based targeting 

The target selection and review process in Operational Allied Force was 
premised on "effects based targeting," which articulates a desired objective, 
then seeks to identify "specific links, nodes, or objects" that, if attacked, will 
achieve the objective. 42 Judge Baker warned of "the impending collision 
among the law of armed conflict, the doctrine of effects-based targeting, and a 
shared desire to limit collateral casualties and consequences to the fullest 
extent possible." 43 The focus of the collaborative targeting sessions seems to 
validate Judge Bakers fears, as they "revolved around three issues: 1) the link- 
age to military effects — the key to obtaining legal approval, 2) the collateral 
damage estimate, and 3) the unintended civilian casualty estimate." 44 
"[E]ffects-based targeting and the law of armed conflict may be on a collision 
course" with respect to critical infrastructure, particularly factories owned 
by supporters of regimes that could be quickly converted to military use. 45 
A focus on desired effects could lead military commanders to target certain 
objects for effect, rather than because of their "effective contribution to mili- 
tary action." 

4. Presidential review of targets 

Contrary to popular belief, the president of the United States did not re- 
view and approve all targets, but rather a "smaller subset" of the 200-300 



39. Bring, infra, at 261; Pocar, infra, at 348. 

40. Dinsetin, infra, at 149 quoting W. Hays Parks, Air War and the Laws of War, 32 AIR FORCE 
LAW REVIEW 1, 137 (1990). 

41. Dinsetin, infra, at 150. 

42. Montgomery, infra, at 190. 

43. Baker, infra, at 8. 

44. Montgomery, infra, at 193. 

45. Baker, infra, at 16. 

XX 



Andru E. Wall 



targets that were reviewed by the National Security Council. 46 Traditional 
military objectives were approved in theater, while military industrial, electric 
power grid, critical infrastructure, and targets with a high likelihood of collat- 
eral damage were reviewed by the Pentagon. Of these, maybe ten targets were 
submitted for presidential review every four to five days. 47 

Nevertheless, General Short believes there was too much involvement by 
civilians in the targeting process. He argues that because targets were chosen 
by civilians rather than by military officers, NATO "bombed targets that were 
frankly inappropriate for bringing Milosevic to the table." 48 General Short asks 
"whose responsibility should targeting be?" Answering his own question, he 
asserts that the president should restrict himself to selecting target sets and 
leave it to "professional military officers" to select individual targets in accor- 
dance with the strategic guidance and the law of armed conflict. 49 

5. Targeting the will of the people 

The morale of the population and of the political decision-makers is not a 
contribution to 'military action.' Thus, the advantage of softening the 
adversary's will to resist is not a 'military' one and, thus, cannot be used as a 
legitimation for any targeting decision. If it were otherwise, it would be too easy 
to legitimize military action which uses bombing just as a psychological 
weapon — and there are other words for this. 50 

NATO did not target the will of the civilian population, but neither was it 
so naive as to fail to see that there are valid military objectives that can be tar- 
geted, a peripheral result of which will be to make the civilian population un- 
happy with their leadership for choosing a course of action that allowed this to 
happen. 51 NATO did seek to impose "discomfort" on the civilian population, 
but this was secondary to targeting lawful military objectives. 52 



46. Baker, infra, at 13. 

47. Dalton, infra, at 201. 

48. Short, infra, at 20. 

49. Short, infra, at 20. For more on this "'normal' theory of civil-military relations" and the 
relationship between military leaders and political leaders during times of war, see ELIOT A. 

Cohen, Supreme Command: Soldiers, Statesmen, and Leadership in Wartime (Free 

Press 2002). 

50. Bothe, infra, at 180. 

51. See Short, infra, at 29-30. 

52. Miller, infra, at 1 10. 



XXI 



Preface 

Collateral Damage and the Principle of Proportionality 

1. The principle of proportionality 

The principle of proportionality, while codified for the first time in Article 
51(5) (b) of Protocol I, is one of the core principles of the customary law of 
armed conflict. While the Protocol I formulation of proportionality may have 
included specifications that cannot be found in prior declarations of the prin- 
ciple, these "specifications are aimed at clarifying the scope . . . rather than at 
adding new elements that would lead to the modification of their contents or 
effects." 53 Simply put, the principle of proportionality prohibits attacks that 
cause injury to civilians or damage to civilian objects "which is excessive in re- 
lation to the concrete and direct military advantage anticipated." 54 

The principle of proportionality rests on the presumption that the attacker 
is complying with the principle of distinction, thus implicitly acknowledging 
that some collateral damage is unavoidable. 55 Yet many fail to recognize or 
acknowledge this simple fact. Professor Dinstein agues that they make the 
mistake of confusing extensive with excessive: "injury/damage to noncomba- 
tants can be exceedingly extensive without being excessive, simply because 
the military advantage anticipated is of paramount important." 56 

"[S]ome have used Kosovo to advance a legal view that the law of armed 
conflict virtually prohibits collateral casualties. This is an honorable and worthy 
aspiration, but not the law. Nor should it be the law, or the tyrants of the 
world will operate with impunity." 57 Professor Dinstein reminds us that "[o]ne 
has to constantly bear in mind that war is war; not a chess game. There is al- 
ways a price- tag in human suffering." 58 Rather than focusing on the unrealis- 
tic goal of eliminating civilian casualties, the goal should be on their 
mitigation — understanding their inevitability and the reality of mistakes, "ac- 
cidents and just sheer bad luck." 59 

The principle of proportionality was "the guiding principle of paramount 
importance" for US forces during Operation Allied Force. 60 "Concern for col- 
lateral damage drove us to an extraordinary degree," General Short states, 



53. Pocar, infra, at 346. 

54. Protocol I, Article 5 1 (5) (b). 

55. Bring, infra, at 262-3. 

56. See Discussion, infra, at 215. 

57. Baker, infra, at 17. 

58. See Discussion, infra, at 219. 

59. Id. 

60. Miller, infra, at 308-9. 



xxn 



Andru E. Wall 



"and it will drive the next generation of warriors even more so, because 
whereas I see this as an extraordinary failure, the leadership within the NATO 
senior administrations would say this was indeed an extraordinary success." 61 
General Short emphasizes that NATO did its "very, very best to limit collat- 
eral damage" but "[e]very time we failed in that effort, the reaction by political 
leaders was hysterical." 62 The political leadership of NATO could not stand 
collateral damage and "they did not understand war. They thought it was a 
video game, and that no one ever dies. . . . Did you ever see anyone die in the 
films from the Gulf War? I never did. I just saw crosshairs on a target in down- 
town Baghdad, and then it blew up." 63 

2. Responsibility for civilian casualties 

There is a very real danger in misplacing responsibility for civilian casual- 
ties. It is wrong to place "the entire responsibility for civilian casualties on the 
party to the conflict that has the least control over them." 64 As an example, 
Mr Parks argues that civilians "killed within an obvious military objective" 
should not be counted as "collateral civilian casualties." 65 To count them as 
such "would only encourage increased civilian presence in a military objective 
in order to make its attack prohibitive in terms of collateral civilian casual- 
ties." 66 In the same sense, placing too many targets off-limits because of the 
presence of human shields would create the perverse effect of rewarding the 
use of human shields. 

3. The use of precision^guided munitions 

Contrary to the arguments made by some, there is no obligation, in custom- 
ary international law or treaty law, to use precision-guided munitions in at- 
tacks on urban areas. 67 Such a rule would be "dysfunctional" and a far better 
standard would be "to rely on the judgment of the commander." 68 Nowhere in 
the law of armed conflict is there a requirement to use specific weapons, rather 
there is a legal standard of reasonableness that remains constant. A doctor in a 
developing country has the same legal standard of care as a doctor in a 



61. Short, infra, at 24. 

62. Short, infra, at 23. 

63. Id. 

64. Parks, infra, at 288. 

65. Parks, infra, at 291. 

66. Id. 

67. Murphy, infra, 231-43. 

68. Murphy, infra, 241. 

xxiii 



Preface 

developed country, but the doctor in the developed country may be expected 
to perform more tests or expend more resources in order to properly treat his 
patient. Mr Sandoz argues that this is an apt analogy to apply in analyzing the 
reasonableness of a military commander's choice of weapons. 69 Yet one won- 
ders whether this isn't a false analogy. The doctor has no choice in whether to 
treat his patient, yet the military commander always has a choice in whether 
to target a particular military objective. If the commander does not have the 
technological capability to attack the target without causing disproportionate 
damage, then the law of armed conflict prohibits him from attacking it. Thus 
the law simultaneously protects civilians and provides an incentive for the ac- 
quisition of technology that increases the commanders freedom of action. 

4. Flying above 15,000 feet 

Collateral damage concerns must be balanced against "the risk that you are 
asking your pilots to take." 70 Professor Murphy noted that NATO's "decision 
to engage in high-altitude bombing did not by itself constitute a violation of 
the law of armed conflict." 71 Colonel Sorenson is more blunt: it "sells newspa- 
pers, airtime and interviews, but the facts just simply aren't there to suggest 
that by keeping our pilots at 15,000 feet to protect them that we were engag- 
ing in basically carpet bombing." 72 

5. The environment 

For those States that are party to Protocol I without reservation to Articles 
35 and 56, causing damage to the environment is a war crime only if it reaches 
"the triple cumulative threshold" of being "widespread, long-term and se- 
vere." 73 Professor Bothe suggests that a lower threshold could be reached if the 
"collateral environmental damage was excessive in relation to a military ad- 
vantage anticipated." 74 However, Professor Von Heinegg counters that cus- 
tomary international law would still not consider wanton destruction of the 
environment a prosecutable war crime. 75 Judge Pocar agrees noting that the 
provisions have "no clear precedent in customary law." 76 



69. Sandoz, infra, at 278. 

70. Short, infra, at 22. 

71. Murphy, infra, at 249. 

72. See Discussion, infra, at 310. 

73. Bothe, infra, at 181-3. 

74. Id. 

75. Von Heinegg, infra, at 204- 

76. Pocar, infra, at 348-9. 



XXIV 



Andru E. Wall 



6. Collateral damage and future conflicts 

Professor Bring asserts that NATO's "no-body bags policy . . . implies that 
the lives of your own pilots are worth more than the lives of the innocent civil- 
ians on the ground." 77 Yet Professor Adam Roberts cautions that this desire to 
protect one's own servicemen was "entirely understandable" and, looking at 
the speeches made by NATO leaders prior to the start of the air campaign, it 
was not presumed going in to be a "no body bags war." 78 Those who argue that 
NATO should have accepted an increase risk to their military service mem- 
bers lose sight of the goals of democracy to stop democide, genocide, and ag- 
gressive war. "The reality," Professor John Norton Moore points out, is that 
we want to achieve those goals "as rapidly as we possibly can at the lowest cost 
to all involved." 79 By arguing that democracies must be willing to accept 
greater risks to their personnel, proponents of humanitarian goals may in fact 
raise barriers in a manner that would lead to increased suffering. 

Professor Murphy closes his paper on collateral damage with the prescient 
observation that future wars will increasingly see a "'happy congruence' be- 
tween the needs of military efficiency and the avoidance of unnecessary injury 
to civilian persons or property"; however, "the protections the law of armed 
conflict affords to civilian persons and property are likely to be less and less ef- 
fective in practice. This is because the technologically weaker States, as well 
as terrorists or other non-governmental actors, may increasingly conclude 
that they must attack the civilian population of the enemy State to offset the 
latter's great advantage in firepower." 80 

Customary International Law and the Law of Armed Conflict 

1 . The Martens Clause 

The Martens Clause, which was codified in the 1899 and 1907 Hague con- 
ventions as well as the 1977 Additional Protocol I, recognizes the importance 
of customary international law to the law of armed conflict. It reads: 

Until a more complete code of the laws of war is issued, the high contracting 
parties think it right to declare that in cases not included in the Regulations 
adopted by them, populations and belligerents remain under the protection and 
empire of the principles of international law, as they result from the usages 



77. Bring, infra, at 266. 

78. Discussion, infra, at 304-5. 

79. Discussion, infra, at 303. 

80. Murphy, infra, at 254-5. 



xxv 



Preface 

established between civilized nations, from the laws of humanity and the 
requirements of the public conscience. 81 

"The Martens Clause," Professor Shearer writes, "is a powerful reminder 
that in situations of armed conflict, of whatever kind, there is never a total gap 
in the law, never a situation in which there cannot be an appeal to law in order 
to mitigate the horror and the suffering." 82 The powerful rhetoric invoking the 
dictates of the public conscience should not be misunderstood as creating a 
new source of customary international law, but rather as a safeguard thereof. 
Anytime one discusses the application of the laws of armed conflict to new, or 
perceived new, types of conflicts, it must never be forgotten that there is at the 
very least customary law that regulates the application of military force. 

Professor Dolzer notes that much of the "humanitarian law community" 
emphasizes the "principles of humanity and . . . dictates of public conscience" 
aspect of the Martens Clause, while the military tends to be primarily con- 
cerned with the customary practice provision. 83 This is understandable as cus- 
tomary practice tends to be more easily defined, which is of primary 
importance when potential criminal liability is at stake. The two approaches 
should converge, however, upon the realization that the Martens Clause 
encourages the view that customary international law is based not just on bat' 
tlefield practice, but rather on opinio juris — battlefield practice combined with 
a concurrent belief that it is lawful. It is upon the State's subjective belief in 
the legality of its actions that "the principles of humanity and dictates of pub- 
lie conscience" weigh most heavily. In any event, no tribunal has ever 
trumped customary law by resting an opinion on the "dictates of the public 
conscience." 

2. The formulation of customary international law 

Following the North Sea Continental Shelf case and the Nicaragua case, 
"there is no doubt that for a rule to exist as a norm of customary international 
law both its recognition as a legal obligation by States and the latter's conduct 
which is consistent with the rule are required." 84 The "cannon of principles 
laid down in Article 38 of the Statute of the International Court of Justice" are 
as applicable to the law of armed conflict as they are to other areas of public 



81. Preamble, Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 
1899, U.S.T.S. 403, 32 Stat. 1803, 1 Bevans 247. 

82. Shearer, infra, at 72. 

83. Dolzer, infra, at 356. 

84- Pocar, infra, at 340 (footnote omitted). 



xxvi 



Andru E. Wall 



international law. 85 Thus, "[widespread practice and corresponding opinio 
juris will be required for the formulation of customary law, with or without par- 
allel treaty law." 86 

The importance of State practice cannot be overstated as this is the first of 
the three components of customary law listed in the Martens Clause. 87 How- 
ever, equally important is the corresponding opinio juris. On this point it must 
be noted that many of the steps taken by the United States during Operation 
Allied Force to limit collateral damage were taken because they could be 
taken, not because there was any sense of a legal obligation to do so. Thus, 
these actions provide little in the way of clarifying customary international 
law. 88 The "positivist approach" taken by the Permanent Court of Interna- 
tional Justice in the Lotus case, which argues that "restrictions on the practice 
of States cannot be presumed," may be "particularly well-suited to issues of the 
law of armed conflict, which, by their very nature, implicate the vital interests 
of States." 89 

Professor Stein observes that the International Court of Justice and the In- 
ternational Criminal Tribunal for the former Yugoslavia (ICTY) have looked 
beyond traditional sources for "evidence" of customary international law, 
which the ICTY said could include "the number of ratifications to interna- 
tional treaties and the dictates of military manuals." 90 However, a "long list of 
signatories" has very little to do with determining State practice in the area of 
the law of armed conflict because the "vast majority of signatories of Protocol 
I are at best interested observers — bystanders if you will — when it comes to 
the actual application of the law of armed conflict in combat situations." 91 

On the issue of the precedential value of international case law, Judge 
Pocar writes: 

[I]t has to be stressed that previous decisions of international courts cannot be 
relied on as having the authority of precedents in order to establish a principle of 
law. The current structure of the international community, which clearly lacks a 
hierarchical judicial system, does not allow consideration of judicial precedent 
as a distinct source of law. Therefore, prior case law may only constitute 
evidence of a customary rule in that it may reflect the existence of opinio juris 



85. Dolzer, infra, at 353. 

86. Dolzer, infra, at 354. 

87. Graham, infra, at 384. 

88. See Parks, infra, at 281-2. 

89. Murphy, infra, at 235. 

90. Stein, infra, at 318-9. 

91. Graham, infra, at 383. 



XXVll 



Preface __ 

and international practice, but cannot be regarded per se as having precedential 
authority in international criminal jurisdiction. 92 

Finally, the traditional rules protecting the persistent objector still allow a 
State to protect itself from a developing norm it finds objectionable. 93 

3. The customary nature of provisions of Protocol I 

It is "undisputed" that Protocol I in part reaffirms and clarifies customary 
international law and in part develops that law. 94 "For the first part [its] rules 
bind all States, for the second only the State parties to the Protocols are 
bound." 95 The "fundamental principles" of "distinction between civilians and 
combatants, the prohibition against directly attacking civilians, and the rule 
of proportionality, are customary international law," Professor Stein writes, 
but "it is very doubtful whether the same can be said about other provisions of 
Protocol I — in particular those dealing with collateral damage." 96 

Three points are important to this debate: 1) the status of a particular pro- 
vision in Protocol I (whether it is new law or customary international law) may 
change with time, 2) if the provision is customary international law, it is cus- 
tomary international law that is binding "not the treaty provision as such" and 
3) the codification process necessarily involves new or more precise elements 
which must themselves be distinguished from the customary principle. 97 In the 
final analysis, "there is a trend in the increasing number of ratifications and 
some case law in some international tribunals" towards recognition of Proto- 
col I as customary law; however, there is also significant State practice involv- 
ing the "major actors" that prevents consideration of many provisions of 
Protocol I as customary international law. 98 

Reasonableness and Implementation of the Law of Armed Conflict 

It has become a popular .mantra for commentators to decry the perceived 
increasing influence of lawyers over the planning and execution of military op- 
erations. Yet, "[w]hether actors like it or not, Kosovo may serve as a harbinger 



92. Pocar, infra, at 342. 

93. Dolzer, infra, at 354. 

94. Pocar, infra, at 338-9. 

95. Sandoz, infra, at 273. 

96. Stein, infra, at 321-2. 

97. Pocar, infra, at 338-9. 

98. See comments by Judge Pocar, Discussion, infra, at 389-90. 

xxviii 



Andru E. Wall 



of the manner in which specific US military actions — down to the tactical 
sortie — will receive legal scrutiny, from non-governmental organizations, ad 
hoc tribunals, and the International Criminal Court." 99 The concern, how- 
ever, is not so much that military operations are subject to legal review, but 
what standard will be applied in evaluating the wartime actions of military 
commanders? Is it that of the reasonable man or the reasonable military com- 
mander? As Professor Green wryly observes, a "reasonable man is the man on 
a downtown bus; that is not the reasonable soldier." 100 Reasonableness during 
times of armed conflict must be judged through the eyes of the man involved 
in that armed conflict. 

A particular challenge arises in the context of proportionality, the determi- 
nation of which often gives rise to a "clash between the military and humani- 
tarian Value genres'." 101 Can a "reasonable civilian" ever properly determine 
military necessity and proportionality? Professor Bothe thinks they could with 
proper training, but Professor Green is less confident that civilian judges could 
ever appreciate "the circumstances that were prevailing at the time that led to 
the soldier's actions." 102 This, of course, raises the issue of whether civilian 
judges should try military cases. Professor Ronzitti offers a solution by distin- 
guishing between wartime crimes that are battlefield crimes (war crimes) and 
those that are not (crimes against humanity and genocide) . He suggests that 
special chambers be established to hear the former. 103 

Conclusion 

There are many people to thank for their role in bringing this work to fru- 
ition, foremost are the co-sponsors and participants in the colloquium from 
which this book is derived. Many thanks to Professor Dennis Mandsager for 
entrusting me with the opportunity to coordinate the colloquium and edit this 
volume — for seeing through rank to the individual that holds it. I am also 
grateful for two wise and experienced hands who patiently shepherded a 
first-time editor from first-draft to completion: Ms Susan Meyer for her patient 
and precise desktop publishing assistance, and Captain A. Ralph Thomas, 
JAGC, USN (Ret.) for his indefatigable editorial input and assistance. 
Thanks are also due Ms Pat Goodrich, Ms Erin Poe, Ms Margaret Richard, 



99. Baker, infra, at 15. 

100. Discussion, infra, at 212. 

101. Murphy, infra, at 247 (footnote omitted). 

102. Discussion, infra, at 211-2. 

103. Id. at 212. 



XXIX 



Preface 

and Mr Jeremiah Lenihan for their proofreading and publication support. 
While they all kept me from countless mistakes, those that remain are solely 
my own. 

During my nearly three years here at the Naval War College, I have had the 
privilege of learning from many of the greatest minds in international law, in- 
cluding the contributors to this volume. The most recent holders of the 
Charles H. Stockton Chair of International Law, Ruth Wedgwood, Ivan 
Shearer, Nicholas Rostow and Yoram Dinstein, have selflessly illuminated me 
with their brilliance and guided me with their mentoring wisdom. For that I 
am forever grateful. 

A note of personal thanks to my grandfather, Earl Wall, whose words of 
wisdom led me to pursue my dream of military service and, in turn, to discover 
a passion for international law, and to my beautiful wife, Yashmin, whose un- 
conditional love is a source of continual strength and encouragement. This 
book is dedicated to their honor.' 



xxx 



PARTI 



KEYNOTE ADDRESSES 



Opening Remarks 



Vice Admiral Arthur Cebrowski 



he Naval War College is thrilled to have such a distinguished and di- 
J-L verse group of participants in this colloquium. You represent the pre- 
eminent international law and ethics scholars and the top military lawyers and 
warfighters from the United States and at least ten of our friends and al- 
lies—including Australia, Belgium, Canada, the Netherlands, Germany, Israel, 
Italy, Sweden, Switzerland, and the United Kingdom. 

This colloquium, Legal and Ethical Lessons of NATO's Kosovo Campaign, 
is unique in that it is the first time that warfighters and international law 
scholars alike have gathered to specifically address the jus in hello issues that 
arose during Operation Allied Force. The opportunity to study, reflect, discuss 
and debate the issues involved is a rare one that must be seized with zeal and 
determination. The mission for this colloquium is simple: to examine the legal 
and ethical lessons of NATO's Kosovo Campaign — focusing exclusively on 
the jus in hello aspect of the campaign. Notice that we have not said lessons 
learned, for only the future will reveal if they have in fact been learned. Your 
work will lay the foundation that is necessary for policy makers and 
warfighters to comply with international law today, tomorrow and for years 
into the future. 

The Information Age and Modern Warfare 

How does law and ethics impact where we are headed with modern war- 
fare? We here at the US Naval War College, whether looking at ancient bat- 
tles or modern technology, always ask the question: what are the implications 
for the military and its activities in the future? 



Opening Remarks 



Admiral Jay Johnson, the former Chief of Naval Operations for the United 
States Navy, has described the future as being shaped by three increasing and 
irreversible trends: networking, greater globalization and economic interde- 
pendence, and technology assimilation. Each has enormous implications for 
militaries and societies throughout the world. 

Obviously, these trends have enormous implications for the armed forces. 
We are now in the midst of a revolution in military affairs unlike any seen 
since the Napoleonic Age. In that period, the practice of maintaining small 
professional armies to fight wars was replaced by the mobilization of citizen ar- 
mies composed of much of a nation's adult population. Henceforth, societies 
as a whole would, perhaps tragically, become intricately vested in warfare. The 
character of armed conflict had changed fundamentally. 

Today we are witnessing an analogous change in the character of war and 
warfare — an information revolution that enables a shift from what we call 
platform-centric warfare to network-centric warfare. Understanding of these 
new operations remains nascent. No great body of collated wisdom has 
emerged to explain how this revolution will alter national and international 
security dynamics. 

Allow me to briefly explain what network-centric warfare is, then raise 
some concerns with how it intersects with law and ethics. Perhaps most nota- 
bly, network-centric warfare enables a shift from attrition-based warfare to a 
much faster effects-based warfighting style, one characterized not only by op- 
erating inside an opponent's decision loop by speed of command, but by an 
ability to change the warfare context or ecosystem. At least in theory, the re- 
sult may well be decisional paralysis. 

How might this be achieved? The approach is premised on achieving three 
objectives: 

• First, the force achieves information superiority, having a dramatically 
better awareness or understanding of the battlespace. 

• Second, forces acting with speed, precision, and the ability to reach out 
long distances with their weapons achieve the massing of effects versus 
the massing of the forces themselves. 

• Finally, the results that follow are the rapid reduction of the enemy's 
options and the shock of rapid and closely coupled effects in his forces. 
This disrupts the enemy's strategy and, it is hoped, forecloses the options 
available to him. 

Underlying this ability is an alteration in the dynamics of command and 
control. The key to this possibility is the ability to provide information access 
to those force levels that need it most. In a sense, the middle-man is cut out. 



Vice Admiral Arthur Cebrowski 



Traditionally, military commanders engaged in top-down direction to achieve 
the required level of forces and weapons at the point of contact with the en- 
emy. However, top-down coordination inevitably results in delays and errors 
in force disposition. It is an unwieldy process that denies flexibility to subordi- 
nate commands. Combat power is needlessly reduced and opportunities pres- 
ent themselves to one's enemy. In contrast, bottom-up execution permits 
combat to move to a high-speed continuum in which the enemy is denied op- 
erational pause to regroup and redeploy. 

Challenges 

There are several challenges that arise from the information age and the re- 
sulting bottom-up organizational structure. The ones you will address during 
this colloquium concern the law of armed conflict as it relates to the conduct 
of hostilities, rather than the jus ad bellum or legality of the conflict. Two con- 
cerns related to targeting come immediately to mind. First is consistency: as 
you are delegating decision-making down to the lowest levels, how do you en- 
sure that commanders are uniformly applying the same standards of military 
necessity and proportionality? The second concern related to targeting is ac- 
countability: the information age ensures that we as warfighters will have 
more and better information, but it also means that everyone else will as well. 
Thus, our decision making — our targeting decisions — will continue to be 
scrutinized in ever-increasing detail. 

Allow me to remind you of an incident that occurred during Operation 
Allied Force. On April 12, 1999 a NATO fighter was given the mission to de- 
stroy the Leskovac railway bridge over the Grdelica Gorge and Juzna Morava 
River in eastern Serbia. The fighter was to drop two electro-optically guided 
bombs — one on each end of the bridge. The first bomb was launched and as it 
was being remotely guided in to the aimpoint, at the last instant before impact, 
a train came into view. It was too late to divert the bomb and the train and 
bridge were struck. The fighter then circled around to complete his mission by 
dropping the second bomb on the opposite end of the bridge as planned. The 
bomb was dropped and as it broke through the clouds and smoke, again at the 
last instant before impact, it became apparent that the train was covering the 
expanse of the bridge. The train was struck a second time. All told 15 civilians 
lost their lives. 

The laws of armed conflict judge military commanders on the basis of the 
information they have available to them at the time decisions are made. Now 
the decision to target and destroy this particular railway bridge was reviewed 



Opening Remarks 



and approved by the US National Command Authorities and, in general, by 
the North Atlantic Council. The bridge was a valid military objective because 
it was an integrated part of the communications and logistics networks in Ser- 
bia. It was determined that the military necessity of destroying the bridge was 
not outweighed by the potential incidental injury or collateral damage that 
would occur should civilians be on or near the bridge at the time of the attack. 

That was a reasonable determination consistent with the laws of armed 
conflict. The challenge arose during the execution of the mission when the pi- 
lot acquired information that the planners did not have — i.e. that a train, pos- 
sibly a civilian passenger train, was on or near the bridge. The pilot then made 
a split-second decision under the pressures of combat, while flying in enemy 
airspace that he would execute his mission as planned. He was properly as- 
suming that the possibility of incidental injury or collateral damage had been 
accounted for during the target approval process. But while the pilot made 
that decision as he flew above the clouds, at an altitude above 15,000 feet, in 
enemy airspace, and while guiding the bomb on a five-inch screen in his cock- 
pit, the public — including eventually the Prosecutor's Office for the Interna- 
tional Criminal Tribunal for the former Yugoslavia — had the luxury of 
hindsight and of viewing the cockpit video in slow-motion on large -screen 
televisions in the comfort of their own homes or offices. Many critics were ap- 
palled by the sight of crosshairs seemingly locked-on to a civilian passenger 
train. The pilot was accused by many of having committed a war crime — of 
having intentionally targeted civilians or recklessly disregarded the fact that 
they would be struck. 

So as our actions as warfighters will be increasingly analyzed in ever greater 
detail, it is important that we reflect back on Operation Allied Force and 
identify the legal and ethical lessons to be learned. There is no better venue 
for this colloquium than here at the Naval War College. Here we have a proud 
tradition of bringing the preeminent legal minds together with the leading 
warfighters and policy makers. Together we can ensure that the law of armed 
conflict is not only expertly articulated, but also applied to real world scenar- 
ios in a manner that incorporates the crucial operational perspective and real- 
ities. You will go even further by not just asking "what is lawful?" but also 
"what is ethical?" Not just what can we do, but what should we do. 



Judging Kosovo: The Legal Process, the 

Law of Armed Conflict, and the 

Commander In Chief 



The Honorable James E. Baker 



M; 



y objective is to give you some personal insights into the application 
of the law of armed conflict to the Kosovo air campaign from the per- 
spective of a lawyer serving the United States' commander in chief. I am not 
here out of any desire to tell my story. Almost all of my instincts as a lawyer, for- 
mer national security official, and judge run against my participation in this fo- 
rum. However, I have overcome my reticence because I am committed to 
constitutional government, and I believe that national level legal review is crit- 
ical, to military operations, not just in determining whether the commander in 
chief has domestic and international legal authority to resort to force, but also 
in shaping the manner in which the United States employs force, which is the 
focus of this colloquium. 

In short, Kosovo was a campaign during which the law of armed conflict 
was assiduously followed. The campaign was conducted with uncommon, if 
not unprecedented, discrimination. I believe the process for reviewing targets 
within the US government worked well. Where there were mistakes, they 
were not mistakes of analytic framework or law. Where the process did not 
work smoothly or effectively, the idiosyncratic nature of a NATO campaign 
likely came into play. And, let us not lose sight of the fact that the combina- 
tion of diplomacy and military operations that comprised the campaign was 
successful in achieving NATO's objectives. 



Judging Kosovo 



I would like to focus on a particular aspect of Kosovo — the process of re- 
viewing targets going to the president. At the outset I would like to correct a 
misperception. In preparing for the opportunity to comment here today, I 
asked military friends what they would be interested in hearing if they were in 
the audience. I was struck by the number of times thoughtful officers asked me 
why the president insisted upon approving all air targets; invoking images of 
President Johnson crouched over maps of Vietnam. As a matter of fact, the 
commander in chief did not approve all targets during Kosovo, but rather a 
smaller subset, which I will describe later. Carrying the analysis to the next 
step, in my opinion presidential review did not impede effective military oper- 
ations in Kosovo. Rather, such review was efficient, contributed to the rule of 
law, and allowed the president to engage more effectively with NATO allies. 

During my preparation for this speech, I was also (perhaps as a courtesy) 
asked about the role of lawyers, and particularly the role of a civilian lawyer at 
the National Security Council. Therefore, I will begin by describing and as- 
sessing my role in applying the law of armed conflict. I will close with a few 
concerns about the impending collision among the law of armed conflict, the 
doctrine of effects-based targeting, and a shared desire to limit collateral casu- 
alties and consequences to the fullest extent possible. 

The Targeting Process 

Before, during and after the air campaign, I performed three integrated 
roles with respect to the law of armed conflict. 

1. Preparation 

First, I educated and advised the president, the national security advisor, 
the principals and deputies committees, 1 and the attorney general on the law 
of armed conflict before (as well as during and after) the air campaign. As with 
any client, the time you spend educating them up front pays huge dividends 
when it comes time to apply the law in a live situation. (0400 on a secure 



1. The Principals Committee, chaired by the Assistant to the President for National Security 
Affairs, included the following core members during the Kosovo conflict: the Secretary of State, 
Secretary of Defense, Assistant to the Vice President for National Security Affairs, Chairman of 
the Joint Chiefs of Staff, United States Representative to the United Nations, and the Director of 
Central Intelligence. The Deputies Committee, chaired by the Deputy Assistant to the President 
for National Security Affairs, included the Deputy Secretary of State or Under Secretary of State 
for Political Affairs, the Undersecretary of Defense for Policy, Assistant to the Vice President for 
National Security Affairs, Vice Chairman of the Joint Chiefs of Staff, United States 
Representative to the United Nations, and Deputy Director of Central Intelligence. 

8 



The Honorable James E. Baker 



conference call is not the time to introduce any client, especially the na- 
tional decision-maker, to the concepts of proportionality, necessity and 
discrimination.) 

At the most practical level, I provided background and advice in the form 
of memoranda, e-mail, and oral input. My sources were customary interna- 
tional law (including those portions of Protocol I recognized by the United 
States as customary international law), the Geneva conventions, the com- 
mentaries on the Geneva conventions, US military manuals and academic 
treatises, and all who taught me along the way, including a number of the par- 
ticipants in this colloquium. 

I have often thought that questions about the president's domestic author- 
ity to resort to force are driven by one's constitutional perspective and doc- 
trinal convictions. In contrast, and I know this is risky to say in a room full of 
experts who have done so much to shape our understanding of the law of 
armed conflict, the principles underlying the law of armed conflict are gener- 
ally agreed upon: necessity, proportionality, discrimination, and military ob- 
jective. It is the different application of these principles to decisions to resort 
to force and to decisions regarding how force is used that generates most 
debate. 

The law of armed conflict is not law exclusively for specialists. We expect 
junior personnel to apply these same principles on a tactical level. These are 
principles that policymakers must understand and apply to their most solemn 
responsibility: the exercise of force and the taking of human life. I would add, 
particularly to this audience, that in this respect government lawyers share a 
common duty with law professors and other experts to educate the 
policymaker of today and tomorrow in advance of the crisis — and not just to 
comment after the fact. 

Advance guidance on the law of armed conflict also helps establish lines of 
communication and a common vocabulary of nuance between lawyer and cli- 
ent. In a larger, more layered bureaucracy than the president's national secu- 
rity staff, I imagine that the teaching process is even more important where 
the lawyer may be less proximate to the decision-maker. Not only does a good 
advance law of armed conflict brief educate the policymaker, any policymaker 
who hears such a brief will be sure his or her lawyer fully participates in the tar- 
geting process. In addition, the policymaker will understand in a live situation 
that the lawyer is applying hard law, and not kibitzing on operational matters. 

I say that in part because some policymakers treat international law as soft 
law, and domestic, particularly criminal law, as hard law. The law of armed 
conflict is, of course, both. Indeed, reading some of the literature on Kosovo, 



Judging Kosovo 



limitations on collateral casualties and consequences seem always to be re- 
ferred to as a political constraint and rarely as the legal constraint that it also 
is. Whether this reflects lack of knowledge about the law, or merely recogni- 
tion that the policy hurdle was often the first encountered, is hard to say. But 
as you well know, pursuant to 18 U.S.C. §2441, war crimes committed by or 
against US persons violate US criminal law. 

2. Target Categories 

My second law of armed conflict related role was the review of target cate- 
gories, such as air defense or lines of communication, under which rubric spe- 
cific targets were almost always approved in theater. Among other things, I 
would ensure that such categories were consistent with the president's consti- 
tutional authority and with his prior direction. 

How did I play this role in practice? To the extent specific targets or catego- 
ries of targets were briefed, suggested or debated at deputies or principals com- 
mittee meetings, I was immediately available in the room to identify issues and 
guide officials around legal rocks and shoals. 

You may ask why principals were discussing military targets at all. First, as 
General Wesley Clark makes clear in his book Waging Modem War, NATO al- 
liance operations involved the careful orchestration of nineteen national poli- 
cies and, I will add, nineteen legal perspectives, many of which hinged on the 
nature of targets selected and the risk of collateral casualties. If the secretary 
of state was to address an appeal from one foreign minister or another to 
change the course of the campaign, she needed to understand the campaign. 

Second, policymakers brought to bear extraordinary regional knowledge, 
including insight into Serbian pressure points. The principals had special 
knowledge into the effects of targeting that a military staff officer might not 
have. 

Principals also bore a heavy responsibility for the outcome of a policy car- 
ried out through Operation Allied Force. I believe it was their duty to test the 
scope of operations to ensure we were doing all that we should do to achieve 
NATO's objectives, but in a way that would hold the alliance together. This 
was a duty fulfilled. 

3. Targets 

My third law of armed conflict related role was to review specific targets. If 
the president was going to approve or concur in a target, it was my duty to en- 
sure the target was lawful. Time and again I returned to the same checklist: 
What is the military objective? Are there collateral consequences? Have we 

10 



The Honorable James E. Baker 



taken all appropriate measures to minimize those consequences and to dis- 
criminate between military objectives and civilian objects? Does the target 
brief quickly and clearly identify the issues for the president and principals? 

You might ask why the NSC legal adviser and not military lawyers was do- 
ing this. There are at least three reasons. First, the European Command staff 
judge advocate (EUCOM SJA) and legal counsel to the Chairman of the Joint 
Chiefs of Staff (Chairman's legal counsel) were performing these reviews. The 
system of legal review, however, was sufficiently streamlined that I served as a 
fail-safe to ensure legal review had occurred on targets going to the president. 
Moreover, the authority to approve is also the authority to modify or to 
change, and it was essential that any such changes receive legal review prior to 
final approval and execution. 

As you know, there is a propensity in government to adopt smaller and 
smaller decision- making circles in the interest of operational security. The cir- 
cle can become too small. A decision-making process limited to cabinet prin- 
cipals may ask too much of too few if those principals are to address issues of 
policy and law on operational timelines. In my view, there should be a lawyer 
at the senior most policy level who is directly responsible at that level (in addi- 
tion to the indispensable legal reviews conducted at other levels) for applying 
the law of armed conflict to each decision involving the use of force. 

Second, it was in Washington at the Pentagon, the State Department and 
at the White House that issues of law, policy, and operations came together. A 
NATO alliance objection to a particular target, at the "political" level, might 
be couched in both policy and legal terms. Having a lawyer involved helped to 
avoid a "default judgment" when legal issues were raised. 

Finally, and importantly, I implicitly assumed an additional role as a trustee 
to the process. I was not self-appointed; rather, this is what the national secu- 
rity advisor expected from his lawyer. In short, it was my job to make sure that 
in doing the right thing the US government was doing it the right way. 

I had a standard mental checklist: Are all the relevant facts on the ta- 
ble — do the president and his principal officials know what they are review- 
ing? Are the longer-term repercussions of striking a target identified? Have 
the right process steps been taken? These are, of course, not inherently legal 
questions, but the lawyer in the room may be the staff person best positioned 
to test the process with policy detachment. 

It is also important to think broadly about whom may be missing from a par- 
ticular process. For example, I would ask, is this a matter that the attorney 
general should review? If not, will the attorney general nonetheless be asked 
by the press or the congress for her legal view on whether an action is 

11 



Judging Kosovo 



consistent with the president's constitutional authority. Did this lead to the 
attorney general substituting her military judgment for those of the command- 
ers? Of course not. Understanding the military objective for an action is not to 
question the military recommendation. It is, however, central to evaluating 
constitutional authority and the application of US law to particular facts, and 
that is a lawyer's task. 

At the level of practice points and lessons learned, the critical process link 
was with the Chairman's legal counsel working closely with the Department of 
Defense (DoD) general counsel. As the national level lawyer closest to the op- 
erational line, Admiral Mike Lohr served as the primary communications 
channel with whom I could track and review briefs as they came to the White 
House. This ensured that I was ahead of, or at least even with, the operational 
timeline and that the president and not just the Pentagon had the benefit of 
military and DoD general counsel legal expertise. It also provided for one 
chain of legal communication, avoiding confusion. Because I had the familiar- 
ity of working with one person on hundreds of targets, we understood each 
other's vocabulary, tone and expression. 

Where I could, I provided my input and advice in writing. First, I felt I 
should be no less accountable for my legal concurrence than the president for 
his decision. Second, I wanted to make sure my advice was received. Relying 
only on oral communication is to run the risk that the process will move for- 
ward without your input, given the competing pressures for principals' time. 
Finally, I found that my advice was cumulative and that policymakers were 
ready to apply the law of armed conflict principles in other contexts, including 
during conversations and meetings that I might not attend. 

Assessment 

Having given you a sense of the legal process in the White House involving 
target review, let me now give you my assessment as to how that process 
worked, focusing first on the role of the commander in chief and then on the 
role of lawyers. 

1. Role of the Commander in Chief 

As part of the president's brief on military operations, he was briefed on all 
categories of targets (that is, he concurred in the framework for addressing 
certain classes of target such as air defense or ground force targets in Kosovo), 
and he reviewed a sub-category of specific targets. These were for the most 
part targets raising heightened policy concerns, because of, among other 

12 



The Honorable James E. Baker 



factors, potential allied reactions, and especially because of potential risk to 
US personnel and collateral casualties. Not surprisingly, these were the targets 
that also raised more difficult law of armed conflict questions. Of the approxi- 
mately 10,000 strike sorties involving some 2,000 targets, review of targets by 
the national security advisor and his legal adviser reached into the hundreds 
of targets (200-300), with the president reviewing a smaller subset of this 
number. 

From my vantage-point, the president's review of targets was crisp; he 
would hear the description, review the briefing materials and at times raise a 
question he wanted answered. He expected issues to be addressed before they 
reached him, or alternatively, that the issue — perhaps with an ally — be 
quickly and clearly presented. This was not a ponderous process, but rather a 
decision-making process that one would expect of a commander in chief. 

There is a school of thought that would have preferred that the commander 
in chief not review as many targets or the particular ones that he did, because 
such review amounts to micromanagement of the armed forces. Under this 
school, which has its genesis in the Vietnam era, the president should issue 
strategic guidance, a presidential mission statement of commander's intent, 
and give the authorization to pursue necessary targets. 

While I think it is prudent to test whether the right balance was struck be- 
tween military efficacy and civilian control, I disagree with the "minimal re- 
view" school as applied to Kosovo. In my view, the right balance was struck 
between national level and theater approved targets. I believe the success of 
the campaign is highly relevant in this debate — the alliance was sustained and 
NATO's objectives were achieved. 

Why was presidential review important? As General Jumper, and others, 
have pointed out, this was a highly idiosyncratic campaign involving coalition 
warfare by nineteen democracies — fourteen with deployed forces. In this con- 
text, some individual target decisions assumed strategic policy implications. A 
government might fall. A runway might close. Or, NATO consensus might 
collapse. In my view, those are implications of presidential dimension. Not 
surprisingly, when there were allied concerns about targets, the president 
would get called. 

Further, some of the targets the president reviewed required his approval. 
At the very least, his review removed any possible question of legal authority 
with respect to targets reaching beyond the scope of what he had already 
reviewed. 

Finally, whether legally required or not, the president was accountable to 
the American people for US operations and casualties. Whether a target was 



13 



Judging Kosovo 



approved at the tactical, operational or national level, its consequences would 
ultimately, and usually immediately, rest with NATO's political leader- 
ship — and no leader more than the US president. This last argument is not 
particular to Kosovo. Perhaps it is a truism, but it applies to an analysis of 
Kosovo just the same. 

If I were to strengthen the process, I would make doubly sure that national 
level target suggestions, or nominations, were processed in the same manner 
as targets originating in the military chain of command; no shortcuts and no 
deference to grade or policy position. This would ensure that all targets re- 
ceive the same measure of staff review and analytic scrutiny. Frankly, I am not 
in a position to state whether this was a novel or recurring problem during 
Kosovo. But there were times during the campaign when I would hear that so 
and so was pushing for a certain proposed target to be included in the next 
presidential brief. If I was aware of such "advice" I would channel it into the 
normal process of selection and review. In any event, the potential for error 
will diminish if target nominations all receive the same stepped process of re- 
view. Where operational necessity dictates speed, my answer is to make the 
process work faster, but do not adopt shortcuts. 

2. Lawyers* Role 

Although I think legal review at the NSC worked well with respect to 
Kosovo targets, there is no one answer to good process. Indeed, the policy and 
military context of one scenario is likely to be so different from the next that it 
would be dangerous to generalize — or to insist on one shoe size for all con- 
flicts. Kosovo was not Desert Storm. And Desert Storm was not Desert Fox. 
One has to maintain situational awareness. If there is no one right way to law- 
yer, however, there is a wrong way and that is to absent yourself from the deci- 
sion-making process or be prone simply to defer to others' conclusions. 

Lawyers are not always readily accepted into the military targeting team. 
This reluctance has to do with concerns about secrecy, delay, lawyer creep 
(the legal version of mission creep, whereby one legal question becomes 17, 
which requires not one lawyer but 43 to answer). And, of course, fear that the 
lawyer may "just say no" to something the policymaker wants to do. I was for- 
tunate that the national security advisor, secretary of defense and chairman 
and vice chairman of the joint chiefs of staff needed no persuading on the 
need for close-up lawyering. During the Kosovo campaign, legal advice may 
not have always received warm and generous thanks, but policymakers never 
hid from it or sought to shut it out. 

14 



The Honorable James E. Baker 



In return, I think the lawyers fulfilled their responsibilities under the con- 
tract. We kept the number of participants to the absolute minimum; for exam- 
ple, if a matter of domestic legal authority needed to be limited within the 
Justice Department to the attorney general alone, then the attorney general 
alone it was. And, within the US government, NSC legal review met all but 
one operational deadline. One target was put on the president's brief before 
legal review was complete. Therefore, when the president reached the target 
during an Oval Office briefing, I asked that it be set aside until that review 
could be completed. 

While I always felt pressure, I never let pressure dictate my analysis. One 
such pressure I did not fully anticipate was the extent to which US actions 
would receive international legal scrutiny. In any event, we applied the law, 
because it was the law, not because there was an audience. 

Whether actors like it or not, Kosovo may serve as a harbinger of the man- 
ner in which specific US military actions — down to the tactical sortie — will 
receive legal scrutiny, from NGOs, ad hoc tribunals, and the International 
Criminal Court, the latter two of which may attempt to assert jurisdiction over 
US actors. As a result, policymakers should anticipate that the same public 
statement intended to influence an adversary might also influence the legal 
observer. Policymakers, and not lawyers, should surely decide what points to 
emphasize in public statements, but they should do so conscious of the legal 
implications of what is being said. As the International Criminal Tribunal for 
the former Yugoslavia (ICTY) review of NATO action illustrates, although 
that review concluded our actions were indeed lawful, merely doing the right 
thing and doing it well and carefully will not necessarily immunize actors from 
law of armed conflict scrutiny. 

Areas of Future Tension 

I will close with a few words of caution involving three areas where I would 
forecast tension in the future between doctrine, policy and the law of armed 
conflict. 

1. Proportionality, Necessity, and "Going Downtown" 

First, there is a potential tension between proportionality and necessity on 
the one hand, and on the other hand, the military importance of striking hard 
at the outset of a conflict to surprise, to shock, and thus to effect a rapid end to 
conflict. There has been commentary about the incremental nature of the air 
campaign, and the merits of "going downtown" earlier. On one level this 

15 



Judging Kosovo 



aspect of the campaign was dictated by NATO's phased air campaign; that is 
what NATO approved and therefore that was the limit of alliance authority 
and consensus. 

Legal considerations did not drive this result. Indeed, the political con- 
straint agreed to by the alliance was reached well before any legal constraint 
based on necessity or proportionality, particularly so given NATO's objectives 
of preventing ethnic cleansing and avoiding a larger regional war. But looking 
forward, we should not lose sight that there is a legal facet to any decision to 
"go downtown." Legal judgments depend on factual predicate. If policymakers 
believe a symbolic show of force alone will accomplish the permitted goal, a 
lawyer would find it difficult to concur in the bombing of national level mili- 
tary targets in a nation's capital. 

2. Dual-Use Targets 

Similarly, so called "dual-use targets" present any number of inherent ten- 
sions. The law of armed conflict attempts to posit a clarity in the distinction 
between military objective and civilian object that may not exist on the 
ground. I found that dual-use targets largely appeared on a continuum. This 
seemed particularly true because we were dealing with a dictatorship with 
broad, but not always total, control over potential dual-use targets, like media 
relay towers or factories. In such an environment, facilities can be rapidly con- 
verted from civilian to military to civilian use at the direction of a government 
not bound by Youngstown Sheet and Tube. 

In such a context, effects-based targeting and the law of armed conflict may 
be on a collision course. The tension is particularly apparent where a facility fi- 
nancially sustains an adversary's regime, and therefore the regime's military 
operations, but does not make a product that directly and effectively contrib- 
utes to an adversary's military operations. The policy frustration is that in a 
dictatorial context, these may be exactly the targets that not only might per- 
suade an adversary of one's determination, but more importantly striking such 
targets may shorten the conflict and therefore limit the number of collateral 
casualties that will otherwise occur. 

I am not arguing here for a change in the law; I am very conscious that too 
malleable a doctrine of military objective will send the law hurdling down the 
slippery slope toward collateral calamity. Nor, I should be clear, am I suggesting 
that the United States applied anything other than a strict test of military ob- 
jective as recognized in customary international law and by those states that 
have adopted Protocol I. My purpose is to identify to you a very real area of ten- 
sion that warrants further review and that will confront lawyers in the future. 

16 



The Honorable James E. Baker 



3. Protection of Noncombatants and Traditional Understanding of Military 
Objective 

The law of armed conflict generates a number of ironic results in the inter- 
est of a higher principle or in the interest of clarity. For example, "treacher- 
ous" killing of military leaders (as that term is understood under the law of 
armed conflict) is prohibited, but the law of armed conflict permits the use of 
more dramatic force, even with significant collateral consequences, to attack 
a military headquarters with essentially the same objective of disrupting com- 
mand and control. During the Kosovo campaign, lawyers were never squarely 
confronted with the target that would have the effect of ending the conflict 
with minimal collateral consequences, but which nonetheless failed a tradi- 
tional test of military objective. But I sensed that such an issue could have 
arisen. 

Without diminishing the paramount principle of protection for noncomba- 
tants, I wonder whether the definition of military objective deserves another 
look, in the interest of limiting collateral casualties. Are traditional definitions 
adequate, or do they drive military operations toward prolonged conflict and 
ground combat? Do they provide enough guidance to shield the commander 
from prosecution where the commander has made legal judgments in good 
faith? 

These are more than academic questions of passing interest. The poten- 
tially poor fit between traditional categories of military objective and the real- 
ity of a conflict where targets fall on a continuum of judgment between 
military and civilian, becomes more perilous in an age of international scrutiny 
where good faith differences of view can take on criminal implications. Those 
who do evaluate such actions should do so aware of the factual and temporal 
context in which decisions are made. National security decision-making is not 
judicial decision-making. Time is more of the essence, and information is not 
necessarily of evidentiary quality. 

Further, as much as I would hope that the United States is not engaged in 
armed conflict in the future, there are no doubt national interests that will re- 
quire the exercise of force. As Air Vice-Marshal Mason has said, it is honor- 
able for democracies to strive to the fullest extent possible to eliminate 
collateral casualties from armed conflict. Just as low and no casualty conflicts 
have resulted in a public expectation, and some suggest a de facto policy con- 
straint, regarding US military action, some have used Kosovo to advance a le- 
gal view that the law of armed conflict virtually prohibits collateral casualties. 
This is an honorable and worthy aspiration, but not law. Nor should it be law, 
or the tyrants of the world will operate with impunity. 



17 



Judging Kosovo 



The law of armed conflict does not prohibit collateral casualties any more 
than international law prohibits armed conflict. It constrains, regulates, and 
limits. War is almost never casualty free and we will be extraordinarily lucky if 
the next conflict incurs as few collateral casualties as Kosovo. 

Conclusion 

In closing, I hope I have given you some insight into the process of legal re- 
view at the commander in chief level during the Kosovo air campaign. I also 
hope I have given you a sense of the issues, at least in a manner consistent 
with my duty to safeguard deliberations. 

My message is clear. First, lawyers are integral to the conduct of military op- 
erations at the national command level. They must be in the physical and 
metaphorical decision-making room. And, they can perform their duties to 
the law in a timely and secure way that meets operational deadlines and needs. 
Those who uphold the law of armed conflict bring honor to the profession and 
to the armed forces. 

Second, the law of armed conflict is hard law. It is US criminal law. Increas- 
ingly, it will also serve as an international measure by which the United States 
is judged. The law of armed conflict addresses the noblest objective of 
law — the protection of innocent life. And the United States should be second 
to none in compliance, as was the case with Kosovo. 

Finally, application of the law of armed conflict is a moral imperative. If 
international law regulates, but does not prohibit war, the law of armed con- 
flict helps to ensure that force is used in the most economical manner possi- 
ble. Whether we agree on the precise definition of military objective, or on 
each and every Kosovo target, I am confident that we all agree on the moral 
imperative of minimizing civilian casualties and suffering to the fullest extent 
possible. 



18 



Operation Allied Force from the 

Perspective of the 

NATO Air Commander 

Lieutenant General Michael Short, USAF (Ret) 



I 



he forces that I was privileged to command bombed Milosevic for sev- 
enty-eight days flying over thirty-eight thousand sorties without the 
loss of a single pilot, after which Milosevic accepted all of NATO's terms. 
Those terms were: number one, the killing would stop in Kosovo; number two, 
the professional military forces of the Serb Army and the paramilitary police 
would leave Kosovo; number three, a NATO commander would come in on 
the ground with a predominantly NATO force to occupy the province (this 
was General Mike Jackson and the NATO forces that came in shortly after 
the bombing campaign was over); number four, the Kosovar Albanians would 
return to their homes; and, number five, we would facilitate the ICTY (Inter- 
national Criminal Tribunal for the former Yugoslavia) process. We did all that 
despite some extraordinary restraints that were placed upon the warfighters in 
this effort. 

I would like to talk quite frankly tonight about three of the issues coming 
out of Kosovo that are of most concern to me personally and for the future of 
the US armed forces. I am not a lawyer. I will hopefully share with you some 
things that will be of value to you who are military lawyers, or civilian lawyers 
who impact the Department of Defense, about how the next generation of my 
profession does its business. But I am not a lawyer. I am a professional soldier. I 
did that for thirty-five years. The three things that are of particular interest to 
me are targeting, collateral damage and coalition warfare. 



Perspective of the NATO Air Commander 

Targeting 

Let's talk first about targeting. A lot has been said in a lot of different publi- 
cations and by a lot of different people about how we did our targeting. Let me 
first assure you that the professionals in the American and NATO militaries 
understand the concept of effects-based targeting. We know what we were try- 
ing to do. We were trying to compel Milosevic to accept NATO's terms as rap- 
idly as possible with as little destruction of Serbian property as possible and 
with as little loss of life on both sides as was humanly possible. That is what we 
were trying to do. Unfortunately, because NATO was an alliance of nineteen 
nations, you get the lowest common denominator. All those folks have to agree 
on something. 

Targeting became something that was not in my control. I spent thirty-four 
years in my profession thinking that when I was in charge of an air effort, I 
would indeed be in charge of targeting. I thought that the president of the 
United States and the leaders of whatever alliance we were associated with 
would give me broad guidance — political objectives that they wanted to 
achieve. I thought that my boss, the combatant commander, would translate 
those into military objectives for me. I thought I would perhaps brief the presi- 
dent of the United States on target categories that I intended to strike, but 
that individual targets would be mine to decide and mine to destroy. And, 
thereby, I would achieve the effect of bringing Milosevic to the table as rapidly 
as possible. As all of you understand, that was not the case. 

Targeting was not mine to decide. Targeting decisions were made in the 
White House, at Number Ten Downing Street, and in Paris, Rome and 
Berlin. The senior political leaders of the alliance approved individual fixed 
targets — a fixed target being something that doesn't move. Mobile targets 
were mine to decide upon. I could decide to attack tanks and armored person- 
nel carriers any time I thought it was appropriate. Quite frankly I never 
thought it to be appropriate, because the center of gravity was not the third 
army in Kosovo. The center of gravity was Milosevic, the circle of leadership 
around him, and the ruling elite. But that was not the way NATO wanted to 
wage war. 

We did our level best to target those things that we thought would have the 
effect of bringing Milosevic to the table. Instead, because those targets were 
not picked by professional soldiers and professional sailors and professional 
airmen, we bombed targets that were quite frankly inappropriate for bringing 
Milosevic to the table. I would say to you that in terms of targeting, this was 
victory by happenstance more than victory by design. 

20 



Lieutenant General Michael Short, USAF (Ret) 



We had a video teleconference (VTC) every day for seventy-eight 
days — clearly the highlight of my day — between myself and my staff and the 
combatant commander, General Wesley Clark, and his staff. One of my favor- 
ite video teleconferences occurred when General Clark was haranguing Admi- 
ral Jim Ellis, a great American. (No one in this audience, no one in this country 
will ever understand the extraordinary difficulties that Jim Ellis put up with 
and the incredible difficult position he was placed in.) General Clark was tell- 
ing Jim and I what we needed to do that day and at the end of his guidance he 
said to us: "Mike, Jim, I hope this will work." Jim Ellis looked at the Supreme 
Allied Commander Europe (SACEUR) on the VTC and said: "SACEUR, 
hope is not a course of action." Course of action is kind of a military 
term — maybe some of you are unfamiliar with it — but it is what we are going to 
do today. Hope is not something we would like to be doing today. We like to 
know what we are doing. 

We were accused by a lot of folks of inaccurate targeting and not under- 
standing what we were targeting. The fact of the matter is that every target we 
intended to strike had passed an extraordinary series of tests, perhaps the most 
important one being whether it fit with our definition of military objective un- 
der the law of armed conflict. We had some targeting failures. We acknowl- 
edge that. The Chinese embassy was a failure of intelligence, not a targeting 
failure. The young men who worked for me hit exactly what I told them to hit. 
It wasn't until two or three or four in the morning that I found out we had hit 
the Chinese embassy as opposed to the Serbian logistics headquarters that we 
thought we had struck. 

As for the convoy that we struck early in the operations against the third 
army in Kosovo, I reviewed that tape five times before it became clear to me 
that those were indeed tractors hauling wagons as opposed to eighteen-wheel 
military vehicles. The young man that dropped those bombs was flying at 450 
miles an hour in bad weather and he was being shot at. He had one chance to 
make identification and he made a mistake. That was not a war crime. He had 
no intent to kill people he was not supposed to kill. He made a mistake. 

The issue I would lay in front of you — particularly you youngsters who will 
be the next generation in the civilian hierarchy or in the uniformed mili- 
tary — is whose responsibility should targeting be. Should targeting be the re- 
sponsibility of the president of the United States — someone not trained in my 
profession, who does not fully understanding what I am trying to do in terms of 
military objectives and the targets that he has given me? Should he approve 
target sets? I believe he should. I believe we should have gone to Mr Clinton 
and Mr Blair and Mr Chirac and Mr Schroeder and Mr D'Alema and said: 



21 



Perspective of the NATO Air Commander 



"Gentlemen, we intend to target these sets. We will target the military pro- 
duction capability. We will target command and control nodes. We will target 
power grids. We will target lines of communication. We will target field forces. 
And we will target the integrated air defense capability of the nation. Now if 
there are targets within those sets that you don't want me to strike, tell me, 
and I will place those individual targets on a no-strike list. But once you have 
done that, then give me that totality of target set, and let me achieve the effect 
you want achieved as rapidly and with as little loss of life and as little destruc- 
tion of property as possible." 

Collateral Damage 

Now let me move to the issue of collateral damage. It is inconceivable to me 
that anyone who understands anything about modern warfare would think 
that as a responsible commander that I would not take every step within my 
command to limit collateral damage; that I would not provide to my air crews 
from all the participating nations and all the American forces the most precise 
guidance I could provide to them on limiting collateral damage; that I would 
not package the forces we send into battle every day with collateral damage 
foremost in my mind. But it becomes my job, your job as the next generation of 
commanders and the commanders' advisers, to balance concern for collateral 
damage and concern for loss of life on the one hand with the risk that you are 
asking your pilots to take. 

On about the fiftieth day of the war, we bombed the bridge outside the city 
of Nis in broad daylight on a Saturday afternoon. It was a valid line of commu- 
nication. We had seen Serbian troops moving across that bridge in reinforce- 
ment efforts to Kosovo. Two F-16's dropped laser guided bombs on that 
bridge. The first aircraft hit the right stanchion and the second aircraft hit the 
left stanchion. Predictably, the bridge dropped in the river. That is what I had 
told the pilots to do. Unfortunately, on or near the bridge were about twenty 
Serb civilians. It was market day. It was Saturday. The young pilots could do 
nothing about that. The next day Milosevic stretched the bodies out on the 
street, called the press down from Belgrade, and announced that the NATO 
war criminals had done their thing once again. As a result of that incident, 
this was the guidance I got from the very highest levels of the NATO military 
political leadership: you will no longer bomb bridges in daylight, you will no 
longer bomb bridges on market days, on holidays or on weekends. In fact, you 
will only bomb bridges between ten o'clock at night and three o'clock in the 
morning in order to ensure that we do not kill civilians crossing those bridges. 

22 



Lieutenant General Michael Short, USAF (Ret) 



I will grant you that that may indeed lessen the possibility of killing civilians 
crossing the bridges, but what does it do to your aircrews? Number one, it cre- 
ates sanctuary for the enemy. It will take Milosevic about forty-eight hours to 
figure out that no bridges are being bombed except between ten o'clock at 
night and three o'clock in the morning; that they are not being bombed on 
weekends or on market days. So he does not need to protect those bridges ex- 
cept for between ten o'clock at night and three o'clock in the morning. At ten 
o'clock at night the NATO aircrews become totally predictable because that 
is the five hour limit that the air commander is allowed to send those young 
men into harm's way to attack those bridges that must be struck. So the risk 
for NATO aircrews is raised by a magnitude of three or four or five times what 
it would have been if I were allowed to conduct the conflict the way I wish to. 
No responsible commander wishes to kill civilians. Let me say that to you 
again. No responsible commander wearing the NATO uniform wishes to kill 
civilians. Never in seventy-eight days did we target Serb civilians, but unfortu- 
nately in war civilians are sometimes where you would like them not to be. 
Unfortunately sometimes in a war civilians are a very key part of the establish- 
ment that you're targeting. 

There are civilian workers on every one of our air fields in this country and 
every shipyard and every aircraft factory. There are civilian workers who 
would die if they were attacked by an adversary of the United States of Amer- 
ica. Every day we did our very, very best to limit collateral damage and limit 
the loss of life on the adversary's side. Every time we failed in that effort, the 
reaction by political leaders was hysterical — along the lines I just outlined for 
you. The restrictions that were placed on the young men and women who 
were going in harm's way every day were extraordinary — losing all sight of 
what effect we were trying to achieve. In fact, we got to the point that during 
the last ten days of the war I was instructed to attack only those targets that 
had a potential for low collateral damage. I was given no instruction with re- 
gard to the impact this might have on Milosevic, whether this would injure 
the war machine, whether this would bring the conflict to a close. Our young 
people were to only to strike those targets that had the potential for a low col- 
lateral damage, because the leaders of the nineteen nation alliance could no 
longer stand collateral damage incidents and because they did not understand 
war. They thought it was a video game, and that no one ever dies. 

Did you ever see anybody die in the films from the Gulf War? I never did. I 
just saw crosshairs on the target in downtown Baghdad, and then it blew up. I 
never saw a body in the street. But Milosevic was extraordinarily good at putt- 
ing bodies in the street of people that we had in all probability killed. That is, 

23 



Perspective of the NATO Air Commander 



maybe a hundred Serbs, not in all cases did we kill who he said we killed. We 
were on the defensive and our political leaders could not stand the heat. They 
could not grit their teeth and say simply "get this done — do it as well as you 
can, don't kill folks you don't haye to kill, and don't blow up things you don't 
have to blow up, but go ahead and get it done — you know how to do this, we 
do not, but we have given you the basic guidance." That is not what hap- 
pened. Concern for collateral damage drove us to extraordinary degree, and it 
will drive the next generation of warriors even more so, because whereas I see 
this as an extraordinary failure, the leadership within the NATO senior ad- 
ministrations would say this was indeed an extraordinary success. We bombed 
for seventy-eight days; nobody died on our side; and Milosevic accepted all 
our terms. What in the world is that burned-out old three star whining about? 
This was an extraordinary success, they would say, yet indeed it was not. 

Coalition Warfare 

Finally, let me turn to the issue of coalition warfare. We do not want to fight 
by ourselves. My country wants to fight as part of the coalition. We want to be 
with our allies. We want to share the risk. We do not want just young Ameri- 
cans to die on the first night and the second night and the third night. We want 
our friends to be there with us. We do not want to be the lone wolf going out 
striking wherever we think we need to strike. We need to represent the consid- 
ered opinion of the NATO alliance, or the Western community of nations, or 
whoever it happens to be, if we choose to employ military action. We want to 
be part of a coalition. However, as a professional soldier, I would tell you I pre- 
fer to be a member of a coalition of the willing as we had in the Gulf War. 

In 1991 if you chose to throw in your forces with us and the Saudis and the 
Kuwaitis and the Brits, you were welcome, but you came under our terms. We 
explained to you how we were going to make war and if you did not like that 
explanation, or if you could not sign up for those terms, then you did not need 
to be part of our coalition. However, in 1999 it was NATO, not a coalition of 
the willing. All nineteen nations had to agree, and so we ended up with the 
lowest common denominator. That is how it was that a nation that was pro- 
viding less than 10% of the total effort could say to the most powerful nation 
on the face of the earth "you cannot bomb that target." 

The United States of America lost its leverage on the first night. On the 
first night of the war we lost any leverage we had, and we ended up being 
leveraged. What was the US interest in Operation Allied Force? Was there a 
US national interest? I make the case that our only national interest was the 

24 



Lieutenant General Michael Short, USAF (Ret) 



continuance of the NATO alliance in some successful form. If NATO had 
been defeated by a third-rate war criminal and murderer, then I think NATO 
would cease to exist. Before the war started, the United States of America en- 
joyed ultimate leverage over its NATO allies. NATO wanted to go to war. 
The Europeans were saying, "we need to do something about this tragedy that 
is occurring in Europe's backyard." NATO wanted to go to war. There was no 
maritime option and NATO did not want to commit ground troops, so the 
only option was the air option. I do not wish to offend any of my NATO 
friends in the audience, but NATO cannot make war without the United 
States of America. It is just that simple. You do not have the technology. You 
do not have the numbers. You do not have the precision. You do not have the 
forces that allow you to do it. So if the United States of America was not going 
to participate in that air war in Kosovo, it was not going to be a successful air 
war in Kosovo. So we had the ultimate leverage. We were in the same position 
we were in 1991 to dictate how this should be done. We did not do that be- 
cause it was going to be a three night war. We were going to demonstrate re- 
solve. Who cared what we bombed, because it was going to be over in three 
nights. So we threw that leverage away and we ended up being leveraged. 

Now what do the lawyers have to do with all of this? I expected that I 
would be the targeteer, and so the advice of my lawyer would be extraordi- 
narily important to me because everything I struck had to be a valid military 
target for all the coalition members. Concern for the law of armed conflict was 
absolutely paramount in my mind. However, as I said to you earlier, those tar- 
get decisions were taken out of our hands. Target decisions were made by the 
president of the United States, the prime minister of Great Britain, the presi- 
dent of France, and the president of Germany, and targets were just issued to 
me. So I really did not need to go to my lawyer and say "do you think this 
passes the test? Is this a valid military target?" What my lawyers say is a valid 
military target and consistent with the law of armed conflict, nation X's law- 
yers may disagree with. So every day I put together what was called the air 
tasking order which sent out to the thousand or more NATO airplanes what 
targets they were going to strike that next day. I had to wait for the individual 
nations to answer back, having gone to their capitals and asked whether they 
should accept that target. And, indeed, in many capitals the answer was 
no — we do not define that as a valid military target. Now if I could get that 
answer back in a timely fashion, I could assign that target to a nation that 
had a less restrictive view of the law of armed conflict, but if I got that infor- 
mation late, and the aircraft were already airborne, then I ended up cancel- 
ing the strike. 

25 



Perspective of the NATO Air Commander 



Great Britain exercised control over all US airplanes stationed on UK soil. 
AH B-52's and all B-l's stationed at Fairford and all F-15E's stationed at 
Lakenheath had to have their targets approved by the British parliament before 
they could be struck. US aircraft had to have their targets approved by other na- 
tions because we were based on British soil. As many of you know, the French 
exercised total veto over targets. They would take the position that not only 
would their aircraft not strike the "Rock-and-roll Bridge," no one could strike 
the "Rock-and-roll Bridge." That makes it very, very difficult to fight within a 
coalition. It makes it very, very difficult for your lawyer to do his business. 

Concluding Thoughts For Lawyers 

A young man asked me earlier this evening what advice I would give an 
up-and-coming young operational lawyer wearing the uniform in defense of 
this country. Understand what your commander is up against. Understand and 
participate in the development of his rules of engagement. Understand what 
special instructions he is providing as supplemental to his rules of engagement, 
to his troops in the field, or his men and women at sea, or his men and women 
in the air. Then, do not be afraid to tell him what he really does not want to 
hear — that he has put together this exquisite plan, but his targets indeed are 
not valid ones or his targets may in fact violate the law of armed conflict. 

Every target that we bombed for seventy-eight days had been reviewed at some 
level by professional military lawyers and that is the way it has to be. I want to bomb 
the targets. I want to get this thing done, but I must have advisers sitting at my right 
hand telling me whether I am doing this properly or not. Am I breaking laws? Am I 
doing things that are unacceptable? Will the eyes of a professional soldier believe 
that to be a valid target or a valid target set? It will take enormous courage to do 
that in particular circumstances because you're always going to be junior to your 
boss. My lawyer most of the time was a lieutenant colonel. It is very difficult for him 
to come in and say to a three star "you are out of bounds, sir, you are about to break 
the law." But you have got to be able to do that. You have got to know your busi- 
ness inside and out and you have got to think like an operator. Your job as a military 
lawyer is not to prevent me from doing my job, your job as a military lawyer is to 
make it possible for me to do my job without breaking the law, without blowing up 
things I should not blow up, without killing people I should not kill and without 
committing war crimes. I want to get this done. You have got to help me. Do not be 
a hindrance. Tell me the truth. Tell me when I have pushed it too far. Tell me when 
I am in the gray area, but help me get this thing done that our country wants to get 
done for the alliance. That's it. 

26 



Discussion 



Brian O'Donnell: 

General, did you ever feel constrained in the bombing campaign not to 
strike a target because you did not have a precision-guided munition? 

Michael Short: 

We started this fight out as a totally precision-munitions fight. A lot has 
been made in the press about the fifteen thousand foot floor that I placed on 
my people. You need to understand that when we started this fight, we were 
only going to attack fixed targets. We were not going to attack tanks. We were 
not going to attack troops in the field. We were going to attack buildings and 
airfields and aircraft shelters and bridges and those sorts of things, which are 
easily identifiable from fifteen thousand feet. Restrictions were placed on me 
that I could not lose any aircraft and any aircrews. So I had enormous concern 
for force protection. You cannot fly high enough to avoid the radar of a sur- 
face-to-air missile. But you can fly high enough to avoid small arms and light 
triple-A (anti-aircraft artillery) and the IR (infra-red) missile. Fifteen thou- 
sand feet was that floor, so that's where we started out. 

Every bomb that was dropped for the first X number of days in Serbia and 
Kosovo was a guided munition. There were a number of NATO nations that 
did not carry precision-guided munitions, and they were not allowed to drop 
bombs. Then as we moved into the next phase, which was attacking the Third 
Army in Kosovo, we continued to use nothing but precision munitions. Then 
we found that if we controlled it properly and used the correct force that we 
could drop a certain number of unguided munitions — what you and I call 
dumb bombs. We did indeed drop a number of dumb bombs, particularly from 
B-ls and B-52s. I understand there was a discussion earlier today about 
so-called carpet bombing B-52s. No carpet bombing occurred. Outside of 
Kosovo, again with the exception of the B-52 and the B-l, we dropped noth- 
ing that wasn't precision guided. Everything that hit Serbia proper was 



Discussion 

precision-guided munitions in an attempt to control collateral damage and in 
attempt to control loss of civilian life. 

Leslie Green: 

Do you not think that it is time we took the line that we want the military 
representative with perhaps their legal advisers from the members of the coali- 
tion to get together and say, putting it brutally, to hell with our constitutional 
political advisers — we are going to decide, not somebody sitting 
three-and-a-half thousand miles away who has not the vaguest idea of what is 
going on anyway? 

Michael Short: 

No, sir, I can never imagine giving up civilian control of the military. 

Leslie Green: 

It is the constitutional control that worries me, not the civilian control. 

Michael Short: 

No, as strongly as I feel about men and women in my profession being al- 
lowed to do their jobs, and as strongly as I would advise against 
micromanagement by political appointed or elected leaders, if that is the role 
they choose to play, then I have to accept that role. I advise against it. I hope 
that what my own country and I saw during the last eight years was an aberra- 
tion driven by a particular administration that I will not see again. But you 
need to understand, I hoped the same thing in 1967 when Lyndon Johnson 
was on his hands and knees in the Oval Office reviewing targets with Robert 
McNamara. Remember that my generation swore that would never happen 
again. In the Gulf War, in fact, it did not. George Bush the elder gave us mission- 
type orders. That was not the case in 1999. But I cannot imagine a military 
professional saying to hell with the constitution and to hell with our elected 
and appointed leaders, we'll do this as we see fit. That is not how we do 
business. 

Leslie Green: 

What if the constitution of one country interferes with the military opera- 
tions of the coalition? 



28 



Discussion == _^_ 

Michael Short: 

I believe, sir, you've got to set those rules beforehand with that particular 
country. In the case of the Canadians, there were targets I knew the Canadian 
F-18s were not allowed to attack. Their pilots were dying to do it, but Ottawa 
was not going to allow them. So it was my job to assign those targets to a na- 
tion with less restrictive guidance. I could still use the Canadians in many 
roles. It is my job to fold all those capabilities together and produce a coherent 
war-making effort. Now I agree with you that before the fact is when we have 
to agree on what the rules are. I would take the position that before the fact we 
say "nation X, if you don't wish to attack any of these targets, that's fine, but 
you cannot prohibit the rest of us from attacking those targets." But as far as I 
can tell, that conversation never took place, and once the fight started, we 
lost that leverage. 

Ruth Wedgwood: 

You said that the center of gravity to really win the campaign was the ruling 
elite in Belgrade. 

Michael Short: 

Milosevic and the men and women around him who depend upon him and 
who he, in turn, depends upon. 

Ruth Wedgwood: 

We had a big debate this afternoon about whether civilian morale as such is 
ever an allowable target. From an operational point of view, fill me in on what 
you make of that. 

Michael Short: 

Let me give you my perspective, and Colonel Sorenson who was my lawyer 
will leap to his feet if I get out of bounds here even though I am retired now. 
You cannot target civilians — pure and simple. Now, as a professional soldier, I 
will target the power grid, which I believe will significantly impact command 
and control of all Serb forces throughout the entire country. We will prohibit 
their ability to move on trains, and we will make it very, very difficult for them 
to do their military business. Now when I sit with my planners, I am not going 
to think that you are so naive that I do not say to myself and to my planners 
that this will also make the Serb population unhappy with their senior leader- 
ship because they allowed this to happen. But that is a spin-off — a peripheral 
result — of me targeting a valid military target. 

29 



Discussion 

If I had gone to my bosses with Colonel Sorenson and said I want to target 
something because it will impact the Serb civilian population, from my per- 
spective, that would be totally out of bounds. That would be unacceptable. 
But any thinking military professional knows that there are certain target sets 
that if targeted are going to have an effect on the population which in turn will 
pressure the senior leadership. There were factories that we were never able to 
get to for a number of different reasons that were dual-use factories. They pro- 
duced Yugos from midnight until noon and tank turrets from noon to mid- 
night. That is a valid military target. Now if I blow that up, two thousand 
Serbs probably just lost their jobs, and they will demonstrate outside 
Milosevic's palace because they would be unhappy. I know that, but that is not 
why I targeted that facility. I will stand in any court in the land and swear to 
that because that is how we hit our targets. But certainly we understand the 
peripheral in that. 

Christopher Greenwood: 

My question is this General: Britain would have been in the dock along with 
the United States, so can you see any circumstances in which it would have 
been responsible for a British government not to have insisted on reviewing 
targets? Can you think of any circumstances in which the United States would 
allow British aircraft to fly from a US air base to attack a target without the 
United States checking to see whether it would be attacking a lawful target? 

Michael Short: 

No, I understand your position. There were strange aircraft taking off from 
Germany every day and the Germans did not exercise their prerogative to ap- 
prove the targets of those aircraft. The vast majority of US strike aircraft were 
stationed at Aviano, Italy and Mr D'Alema, who was struggling with extraordi- 
nary skills to hold together a coalition government, never approached us and 
asked to review the targets of our aircraft taking off from Aviano. So while I 
certainly understand the position taken by the British government, when the 
rest of my allies did not take that position, then the British position stands out 
to me as a problem. Okay? I was able to work around this as long as I got a noti- 
fication time or as long as I was able to understand the sensitivity of what Brit- 
ain thought was good, bad, or indifferent. But on more than one occasion when 
the system wasn't working, I had dozens of strike aircraft on the tanker within 
ten minutes of pushing into Serbian airspace when the word came through 
from Ten Downing Street that the target was not acceptable to the British. 

30 



PART II 



THE APPLICABILITY OF 
THE LAW OF ARMED CONFLICT 



Introduction 



Scott Silliman 



T 



his first panel will address the overall applicability of the law of armed 
conflict, also called international humanitarian law, to the NATO op- 
eration in Kosovo. We are also going to be focusing on several specific issues 
that arose during that campaign, one being the legal status of the three Army 
soldiers who were captured while on a routine mission near the border. As you 
recall, immediately after they were captured, our State Department an- 
nounced to the press that the three were "illegal detainees" and many of 
us — and several are here at this conference — responded vehemently that they 
were clearly prisoners of war under the Third Geneva Convention, and that to 
consider them otherwise was to denude them of the protections afforded them 
under international law. 

Fd like to lay a foundation by reading from a portion of the very controver- 
sial Final Report to the Prosecutor by the Committee Established to Review 
the NATO Bombing Campaign Against the Federal Republic of Yugoslavia 1 
on this linkage between the jus ad bellum, which is a very large debate as all of 
you know, and the more particular jus in bello, which is the focus of this collo- 
quium. It reads: 

32. The precise linkage between jus ad bellum and jus in bello is not completely 
resolved. . . . [I]n the 1950's there was a debate concerning whether UN 
authorized forces were required to comply with the jus in bello as they 
represented the good side in a battle between good and evil. This debate died 
out as the participants realized that a certain crude reciprocity was essential if 
the law was to have any positive impact. An argument that the 'bad' side had to 



1 . Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 
Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL MATERIALS 
1257 (2000), reprinted herein as Appendix A [hereinafter Report to the Prosecutor]. 



Introduction 



comply with the law while the 'good' side could violate it at will would be most 
unlikely to reduce human suffering in conflict. 

33. More recently, a refined approach to the linkage issue has been advocated by 
certain law of war scholars. Using their approach, assuming that the only lawful 
basis for recourse to force is self defence, each use of force during a conflict must 
be measured by whether or not it complies with the jus in bello and by whether or 
not it complies with the necessity and proportionality requirements of self 
defence. The difficulty with this approach is that it does not adequately address 
what should be done when it is unclear who is acting in self defence and it does 
not clarify the obligations of the 'bad' side. 2 

The Report to the Prosecutor went on to say that the Committee deliber- 
ately refrained from assessing jus ad bellum issues and focused exclusively on 
whether violations of the law of war occurred within the confines of the jus in 
bello. It concluded that there was no basis for further investigation and no ba- 
sis whatsoever for the referral of war crimes charges against any of the NATO 
combatants. 

With regard to the question of linkage between the jus ad bellum and the jus 
in bello, though, there seems to be no ambiguity in the United States position. 
If there is an armed conflict, whether deemed just or unjust, right or wrong 
under the jus ad bellum, the jus in bello applies equally to both sides. That's the 
position I personally take, but I know that many will disagree with that. 



2. Id. 

34 



The Applicability of International 

Humanitarian Law and the Law of 

Neutrality to the Kosovo Campaign 

Christopher Greenwood 



he purpose of this paper 1 is to examine the applicability of interna- 
tional humanitarian law and the law of neutrality to Operation Allied 
Force, the NATO campaign over Kosovo in 1999. The paper is thus chiefly 
about jus in hello (which is treated here as synonymous with the law of armed 
conflict and international humanitarian law), not about jus ad bellum. It is not 
intended, therefore, to enter into the controversy regarding the legality of the 
decision to resort to force over Kosovo or the long-running debate over 
whether contemporary international law recognizes a right of humanitarian 
intervention in the face of large scale violations of human rights. The present 
writer has already made clear in other publications his view that a right of 
humanitarian intervention (albeit one of a strictly limited character) exists in 



1. This paper has been revised since the colloquium in order to take account of points made by a 
number of commentators in the immensely valuable discussion periods, although the 
responsibility for the views here expressed remain mine alone. I have also taken the opportunity 
to take account of the decision of the European Court of Human Rights in Bankovic v. Belgium 
and Others delivered on December 19, 2001 since that decision is directly concerned with the 
Kosovo conflict. Conflicts occurring since Kosovo are not discussed here. 



The Applicability of International Humanitarian Law 

international law and that the conditions for the exercise of that right were 
present in Kosovo in 1999, 2 although that view is by no means universal. 3 

That, however, is a debate for another occasion. For present purposes, it is 
sufficient — but also necessary — to note three points regarding the legal justifi- 
cation advanced by the NATO States for their resort to force, since these 
points have a bearing on the application of international humanitarian law 
and the law of neutrality during the campaign. 

First, the Kosovo campaign was one in which some actions against the Fed- 
eral Republic of Yugoslavia (FRY) were undertaken pursuant to a mandate 
from the United Nations Security Council, while others were taken by the 



2. See Christopher Greenwood, Evidence to the House of Commons Foreign Affairs Committee, 
Foreign Affairs Committee Fourth Report, 1999-2000, HC Paper 28-11, p. 137, reprinted in 49 

International and Comparative Law Quarterly 926 (2000), and Humanitarian 

Intervention: the Case of Kosovo, 10 FINNISH YEAR BOOK OF INTERNATIONAL LAW 
(forthcoming) . 

3. Amongst the literature on the subject, which reflects the very different positions taken by a 
wide range of international lawyers, see the evidence given by Ian Brownlie, Christine Chinkin 
and Vaughan Lowe to the Foreign Affairs Committee of the United Kingdom House of 
Commons, supra note 2, reprinted in 49 INTERNATIONAL AND COMPARATIVE LAW 
QUARTERLY 876-943 (2000); Louis Henkin, Ruth Wedgwood, Jonathan Charney, Christine 
Chinkin, Richard Falk, Thomas Franck and W. Michael Reisman, Editorial Comments: NATO's 
Kosovo Intervention, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 824-878 (1999); Bruno 
Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUROPEAN JOURNAL OF 
INTERNATIONAL LAW 1 (1999); Antonio Cassese, Ex iniuria ius oritur: Are We Moving towards 
International Legitimation of Forcible Humanitarian Countermeasures in the World Community?, 10 

European Journal Of International Law 23 (1999) and A Follow-Up: Forcible 

Humanitarian Countermeasures and Opinio Necessitatis, id., at 791; Nico Krisch, Unilateral 
Enforcement of the Collective Will: Kosovo, Iraq, and the Security Council, 3 YEARBOOK OF UNITED 
NATIONS LAV/ 59 (1999); Dino Kritsiotis, The Kosovo Crisis and NATO's Application of Armed 
Force Against the Federal Republic of Yugoslavia, 49 INTERNATIONAL AND COMPARATIVE LAW 
QUARTERLY 330 (2000) ; Steven Blockmans, Moving into UNchartered Waters: An Emerging Right 
of Unilateral Intervention?, 12 LEIDEN JOURNAL OF INTERNATIONAL LAW 759 (1999); and 
Francesco Francioni, Of War, Humanity and Justice: International Law After Kosovo, 4 YEARBOOK 
OF UNITED NATIONS LAW 107 (2000). The Kosovo crisis has also attracted an unusual number 
of studies by official and semi-official bodies. These include the report of the Foreign Affairs 
Committee of the United Kingdom House of Commons, HOUSE OF COMMONS PAPER 
(1999-2000) NO. 28-1 together with the response by the United Kingdom Government at 
COMMAND PAPERS 4825 (August 2000) ; the report of the Advisory Council on International 
Affairs and the Advisory Committee on Issues of Public International Law of the Netherlands 
Government, Report No. 13 (April 2000), available at http://www.aiv-advice.nl (reviewed by Ige 
Dekker in 6 JOURNAL OF CONFLICT AND SECURITY LAW 115 (2001)); the report of the Danish 
Institute of International Affairs, Humanitarian Intervention: Legal and Political Aspects 
(1999); and the Kosovo Report published by the Independent International Commission on 
Kosovo (2000). 

36 



Christopher Greenwood 



NATO States on their own initiative. The Security Council had imposed an 
arms embargo on the FRY when it adopted Resolution 1160 in 1998, a year 
before the NATO military action commenced. After the cessation of the 
bombing campaign on June 10, 1999, the Council adopted Resolution 1244, 
which provided the legal basis for ground forces led by NATO and known as 
KFOR, to enter Kosovo and assume responsibility for the security situation 
there, to the exclusion of the armed forces and paramilitary police of the FRY. 
The bombing campaign itself, however, was not authorized by the Council. 
Although that campaign was undertaken by NATO in support of goals identi- 
fied by the Security Council in Resolutions 1160, 1199 and 1203 (all of which 
contained provisions which were legally binding upon all States, including the 
FRY), none of those resolutions authorized military action. Unlike the situa- 
tion in the 1990-91 Gulf conflict, therefore, Operation Allied Force was not a 
case of enforcement action taken with the authority of the Security Council. 
A distinction must accordingly be drawn between the bombing campaign 
which occurred between March 24, 1999 and June 10, 1999, on the one hand, 
and the military presence in Kosovo thereafter. As will be seen, this distinc- 
tion is of some importance in considering the law applicable to military opera- 
tions after June 10, 1999. 

Secondly, while some members of NATO were more forthright on this 
matter than were others, the only substantial justification advanced for the 
decision to resort to military action was that such action was justified as a re- 
sponse to the humanitarian situation which had been created in Kosovo in the 
immediate run-up to the commencement of Operation Allied Force on March 
24, 1999. For example, the United Kingdom's Permanent Representative to 
the United Nations told the Security Council, on the day that the military op- 
eration commenced, that: 

The action being taken is legal. It is justified as an exceptional measure to prevent 
an overwhelming humanitarian catastrophe. Under present circumstances in 
Kosovo, there is convincing evidence that such a catastrophe is imminent. 
Renewed acts of repression by the authorities of the Federal Republic of Yugoslavia 
would cause further loss of civilian life and would lead to displacement of the 
civilian population on a large scale and in hostile conditions. 

Every means short of force has been tried to avert this situation. In these 
circumstances, and as an exceptional measure on grounds of overwhelming 
humanitarian necessity, military intervention is legally justifiable. The force 



37 



The Applicability of International Humanitarian Law 

now proposed is directed exclusively to averting a humanitarian catastrophe, 
and is the minimum judged necessary for that purpose. 4 

The emphasis on the limited purpose for which force was being employed 
and the reference, inherent in that statement, to the requirement that the 
force used should be proportionate to that goal has led some commentators to 
argue that the application of international humanitarian law in the NATO 
operation should have been different from that required of States engaged in a 
"normal" armed conflict. That argument is considered later in this paper. 

Finally, it needs to be remembered that, while the jus ad helium and the jus 
in hello are separate bodies of law (a fact which has important legal conse- 
quences), for military action by a State to be lawful, it must comply with both 
bodies of law. The Gulf conflict of 1990-91 may be used as an illustration. 
Iraq's invasion of Kuwait was the clearest possible violation of the jus ad 
helium. It followed that the subsequent occupation of Kuwait and the Iraqi re- 
sistance to the coalition campaign to liberate Kuwait were also a violation of 
the jus ad helium, even though some aspects of Iraq's behavior (e.g., some of 
the property requisitions which occurred or the missile attacks on the Dahran 
airbase) complied with the jus in hello. 5 Thus, Iraq's liability to make repara- 
tion in accordance with the provisions of Security Council Resolution 687 for 
the consequences of its unlawful invasion is not confined to damages caused 
by acts unlawful under the jus in hello. 

In this context, it has to be recognized that there was considerable contro- 
versy about the legal justification advanced by the NATO States for their re- 
sort to force against the FRY. That controversy about the application of the 
jus ad helium may have affected the way in which certain issues regarding the 
jus in hello and, in particular, the law of neutrality were perceived. Specifically, 
it may have affected the approach of various governments to the question 
whether the NATO States would have been entitled to impose an embargo on 



4. U.N. Doc. S/PV.3988, at 12. See also the views expressed in the same debate by the 
Permanent Representatives of the United States of America (4-5), Canada (6) and the 
Netherlands (8) . In the cases concerning Legality of Use of Force brought by the FRY against ten 
of the NATO States in the International Court of Justice, Belgium advanced the same 
justification for military action; see Oral Pleadings of Belgium (Yugo. v. Belg.), 1999 I.C.J. 
CR/99/15, available at http://www.icj'Cij.org/icjwww/idocket/iybe/iybeframe.htm. The other 
respondent States did not address this issue during that phase of the case. 

5. For a discussion of these issues, see Christopher Greenwood, New World Order or Old? The 
Invasion of Kuwait and the Rule of Law, 55 MODERN LAW REVIEW 153-178 (1992) and the 
articles cited at note 38, infra. 

38 



Christopher Greenwood 



shipments of oil and other supplies to the FRY, even where those supplies 
were carried in ships flying the flags of States not involved in the conflict. 

This paper will first consider the applicability of international humanitarian 
law to Operation Allied Force before examining certain general issues regard- 
ing the manner in which that law had to be applied in the Kosovo campaign. 
The question whether persons captured during the operation were prisoners 
of war within the Third Geneva Convention will be addressed next, followed 
by discussion of the issue of a naval embargo and the law of neutrality. The le- 
gal regime applicable to KFOR operations in Kosovo since June 10, 1999 will 
be briefly considered before closing with a discussion of the various judicial 
proceedings relating to the conduct of the Kosovo conflict. Questions of tar- 
geting and proportionality are considered only in passing, as these are the sub- 
ject of other papers in the present volume. 6 

The Applicability of International Humanitarian Law 

1. The Existence of an Armed Conflict between the NATO States and the 
FRY 

The first question to consider is whether international humanitarian law 
was applicable to Operation Allied Force. Though much discussed at the 
time, there is less to this question than meets the eye. The answer — which can 
be given without qualification — is that international humanitarian law was 
fully applicable from the moment that Operation Allied Force began on 
March 24, 1999 until the cessation of hostilities on June 10, 1999. Through- 
out that period an international armed conflict existed between the FRY on 
the one hand and the NATO States on the other. 

There is no definition of an international armed conflict in any of the trea- 
ties on international humanitarian law. It is agreed, however, that the concept 
is a factual one based on the existence of actual hostilities between two or more 
States, even if those hostilities are at a low level and of short duration. The Ap- 
peals Chamber of the International Criminal Tribunal for the former Yugosla- 
via (ICTY) has stated that an "armed conflict exists whenever there is a resort 
to armed force between States." 7 That test was undoubtedly satisfied in the 
case of Operation Allied Force. The fact that no declaration of war was made 
was, of course, irrelevant to the applicability of international humanitarian law 



6. See the papers by Professors Bothe and Dinstein and Lieutenant Colonel Montgomery on 
targeting and by Professors Bring and Murphy on collateral damage. 

7. Prosecutor v. Tadic, Jurisdiction, 105 INTERNATIONAL LAW REPORTS 453, 11 70 (1997). See 

also Commentary on Geneva Convention III 23 Oean Pictet ed., i960). 

39 



The Applicability of International Humanitarian Law 

to that conflict. It is well established that it is the fact of armed conflict be- 
tween two or more States, not the formality of a declaration of war (which has 
been almost unknown since 1945) which triggers the application of that law. 8 

Nor does it make any difference to the applicability of international humani- 
tarian law that the decision to resort to force was taken by the North Atlantic 
Council, the governing body of NATO, or that the military conduct of the cam- 
paign was in the hands of the Supreme Allied Commander Europe (SACEUR) 
and the NATO military authorities, who acted in consultation with the NATO 
Secretary-General under the authority given them by the North Atlantic Coun- 
cil. While NATO is an international organization which possesses a legal person- 
ality separate from those of its members, that separate personality does not affect 
the applicability of international humanitarian law to the armed forces of any 
member State which implements a NATO decision. 9 That fact was expressly rec- 
ognized both by NATO and the member States during Operation Allied Force. 
Thus, the North Atlantic Council's authorization to SACEUR and the military 
authorities expressly required that operations were to be conducted in accor- 
dance with international humanitarian law. Similarly, the United Kingdom Gov- 
ernment stated that "action by our forces is in strict conformity with international 
humanitarian law, including the 1949 Geneva Conventions and their Additional 
Protocols." 10 Other NATO governments adopted a similar position. 

The fact that NATO acted for humanitarian reasons, so that the legal justifi- 
cation offered for the decision to resort to force was different from the reliance on 
self-defense or Security Council authorization which has been characteristic of 
most armed conflicts since 1945, is also irrelevant to the applicability of interna- 
tional humanitarian law. The principle that international humanitarian law 



8. See Christopher Greenwood, The Concept of War in International Law, 36 INTERNATIONAL 
AND COMPARATIVE LAW QUARTERLY 283 (1987). US forces are specifically required to comply 
with international humanitarian law in any armed conflict, irrespective of its formal 
characterization; see Department of Defense, DoD Law of War Program, DoD Directive 
5100.77, Dec. 9, 1998 and ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK 
ON THE LAW OF NAVAL OPERATIONS 290-1 (A.R. Thomas and James Duncan eds., 1999) 
(Vol. 73, US Naval War College International Law Studies). 

9. Whether it affects the issue of State responsibility for a violation of those rules is currently 
under consideration in the proceedings in the International Court of Justice and the European 
Court of Human Rights discussed later in this paper. No one, however, has suggested that armed 
forces operating under NATO command and control are not subject to customary international 
humanitarian law and the treaty provisions binding upon the State concerned. 

10. Answer to a Parliamentary question on May 18, 1999 by Baroness Symons, Parliamentary 
Under-Secretary of State, Foreign and Commonwealth Office, 70 BRITISH YEAR BOOK OF 

International Law 605 (1999). 

40 



Christopher Greenwood 



applies equally to both sides of a conflict irrespective of the reasons for resort to 
force or its legality is one of the best established principles of the jus in hello} 1 

It follows that the humanitarian law of international armed conflicts was 
applicable throughout the period March 24, 1999 to June 10, 1999 to the hos- 
tilities between the NATO States and the FRY. Two questions, however, re- 
quire further consideration. 

2. The Status of the FRY as a Party to the Geneva Conventions and 
Protocol I 

The first question concerns the applicability of the 1949 Geneva Conven- 
tions and Protocol I of 1911. u This question arises because of the peculiar sta- 
tus of the FRY at the relevant time. The FRY was one of the States which 
emerged from the former Socialist Federal Republic of Yugoslavia (SFRY) 
when that State collapsed in 1991-92. Of the six republics which had made up 
the SFRY, four — Bosnia-Herzegovina, Croatia, Macedonia and 
Slovenia — had declared their independence between June 1991 and May 
1992 and had, in due course, been recognized and admitted as members of the 
United Nations. The two remaining republics, Serbia and Montenegro, 
formed the FRY. The Government of the FRY from its foundation until the 
overthrow of Slobodan Milosevic in 2000 considered the FRY to be the con- 
tinuation of the old SFRY (just as the Russian Federation was the continua- 
tion of the USSR) and not a successor State. It therefore maintained that the 
FRY continued the SFRY's membership in all international organizations and 



1 1. See, e.g., the decision of the United States Military Tribunal in United States v. List, 8 LAW 
REPORTS OF TRIALS OF WAR CRIMINALS 1234, 1247. See also Protocol I to the 1949 Geneva 
Conventions, the Preamble to which states that "the provisions of the Geneva Conventions . . . 
and of this Protocol must be fully applied in all circumstances to all persons who are protected by 
those instruments, without any adverse distinction based on the nature or origin of the armed 
conflict or on the causes espoused by or attributed to the parties to the conflict." Protocol 
Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the Protection of 
Victims of International Conflicts, Jun. 8, 1977, 1125 U.N.T.S. 3, DOCUMENTS ON THE LAWS 
OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter Protocol I]. 

12. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3 1 14, 75 U.N.T.S. 31, DOCUMENTS ON THE 
LAWS OF WAR supra note 11, at 197 [hereinafter Geneva I]; Geneva Convention for the 
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of the Armed 
Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85, id. at 222 [hereinafter Geneva II]; 
Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 
3316, 75 U.N.T.S. 135, id. at 244 [hereinafter Geneva III]; Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, 
id. at 301 [hereinafter Geneva IV]. Protocol I, supra note 11. 

41 



The Applicability of International Humanitarian Law 

that all treaties concluded by the SFRY, including the Geneva Conventions 
and Protocol I, continued to apply to the FRY without any need for an act of 
succession. Accordingly, whereas the other States which emerged from the 
SFRY each made a declaration of succession to the Conventions and Proto- 
cols, the FRY did not. 

The FRY's claim to be the continuation of the SFRY was not, however, ac- 
cepted by the rest of the international community. Thus, the Arbitration 
Commission of the Peace Conference for the Former Yugoslavia (known as 
"the Badinter Commission" after the name of its Chairman, Judge Robert 
Badinter of the French Constitutional Court) rejected the FRY's claim and 
gave the opinion that the States which emerged from the SFRY were all suc- 
cessor States, none of which had any special claim to continue the personality 
of the old State. 13 The United Nations Security Council and General Assem- 
bly also rejected the FRY's claim and stated that it should apply for member- 
ship of the United Nations. 14 The then Government of the FRY, however, 
adhered to its position that it continued the personality of the SFRY and thus 
continued to be bound by, and to have the benefit of, all of the latter's treaty 
obligations. Thus, in the cases brought against it in the International Court of 
Justice by Bosnia-Herzegovina and Croatia for alleged violations of the Geno- 
cide Convention, it did not contest that it was bound by that Convention. 15 
The FRY took the same position in the cases which it brought against ten 
NATO States in 1 999. 16 

The change of government in the FRY in 2000 brought a complete reversal 
of this position. The post-Milosevic government accepted that the FRY was a 
new State, one of five successors to the SFRY. In October 2000 it applied for, 



13. Opinions 9 and 10, 92 INTERNATIONAL LAW REPORTS 203, 206 (1998); 31 
INTERNATIONAL LEGAL MATERIALS 1488 (1998). See Michael Wood, Participation of Former 
Yugoslav States in the United Nations and in Multilateral Treaties, 1 YEARBOOK OF UNITED 

Nations Law 231 (1997). 

14. S.C. Res. 757 (May 30, 1992), U.N. Doc. S/RES/757 (1992); S.C. Res. 777 (Sep. 19, 1992), 
U.N. Doc. S/RES/777 (1992); S.C. Res. 821 (Apr. 28, 1993), U.N. Doc. S/RES/821 (1993); and 
G.A. Res. 47/1 (Sep. 22, 1992), U.N. Doc. A/RES/47/1 (1992). 

15. Application of the Convention on the Prevention and Punishment of the Crime of Genocide 
(Bosn. & Herz. v. Yugo.) 1996 I.C.J. 595 (Preliminary Objections) and 1997 I.C.J. 243 
(Counter-claims) ; Application of the Convention on the Prevention and Punishment of the 
Crime of Genocide (Croat, v. Yugo.), available on the ICJ website at http://www.icj-cij.org. At 
the time this was written, the Court had not held hearings on the merits of the Bosnian case or 
taken any substantive decision in the Croatian case. 

16. See infra note 56 and accompanying text. 

42 



Christopher Greenwood 



and was admitted to, membership of the United Nations. 17 On March 8, 2001, 
the new government deposited an instrument of accession to the Genocide 
Convention, which became effective ninety days later in accordance with Ar- 
ticle XIII of the Convention. By the same instrument, the FRY entered a res- 
ervation to Article IX (the provision which confers jurisdiction on the 
International Court of Justice). The FRY subsequently applied to the Interna- 
tional Court under Article 61 of the Court's Statute to re-open the jurisdic- 
tion phase of the Bosnia case on the grounds that the FRY had not been bound 
by the Genocide Convention at the relevant times and had never been bound 
by Article IX. 18 At the time of writing, the Court had not taken any decision 
regarding this application. 

The FRY had, however, been treated throughout the Kosovo conflict as a 
party to the Geneva Conventions and Protocols both by other States (includ- 
ing the NATO States) and by the ICRC, which sent a formal note to the FRY 
and the NATO member States on March 24, 1999 reminding them of their 
obligations under the Geneva Conventions. 19 

On October 16, 2001, the new government of the FRY deposited with the 
Swiss Federal Government a declaration regarding the Geneva Conventions 
and Protocols. In contrast to the position taken by the new government with 
regard to the Genocide Convention, however, this declaration was an instru- 
ment of succession, not accession. Moreover, it was expressly made retrospec- 
tive, stating that it took effect as from April 27, 1992. Any element of doubt 
which might therefore have arisen regarding the status of the FRY as a party to 
the Geneva Conventions and Protocols is therefore removed. The new gov- 
ernment had earlier deposited instruments of succession to a large number of 
multilateral conventions. 

Accordingly, the Geneva Conventions were applicable to all the States in- 
volved in the conflict, while Protocol I applied as between the FRY and those 
NATO States which were parties to it (all of them except France, Turkey and 



17. S.C. Res. 1326 (Oct. 31, 2000), U.N. Doc. S/RES/1326 (2000); G.S. Res. 55/12 (Nov. 1, 
2000), U.N. Doc. A/RES/55/12 (2000). 

18. Application of the Convention on the Prevention and Punishment of the Crime of 
Genocide (Bosn. & Herz. v. Yugo.), Application for Revision of Judgment of 11 July 1996 (23 
April 2001), available at http://www.icj-cij.org. 

19. ICRC Press Release 99/15, Mar. 24, 1999, available at http://www.icrc.org/eng/ 
news_by_date. 

43 



The Applicability of International Humanitarian Law 

the United States of America). 20 The customary law of armed conflict was also 
applicable. 

3. The Relationship between NATO and the KLA/UCK 

The second question concerns the extent to which the hostilities between 
the FRY and the Kosovo Liberation Army (KLA or UCK) were governed by 
international humanitarian law. There is little doubt that, even before the 
start of Operation Allied Force, an armed conflict existed in Kosovo between 
the FRY and the KLA/UCK. The possibility that such a conflict might exist 
was impliedly recognized by the Security Council as early as March 1998, 
when it urged the Prosecutor of the International Criminal Tribunal for the 
former Yugoslavia (ICTY) "to begin gathering information relating to the vio- 
lence in Kosovo that may fall within its jurisdiction." 21 Since the Tribunal's 
jurisdiction is largely confined to crimes committed in armed conflict, 22 this 
invitation appears to have proceeded on the basis that, at least, an armed con- 
flict might already exist. The events of early 1999 also strongly suggested that 
an armed conflict existed within Kosovo. 23 

At least until March 24, 1999, that conflict was of a non-international char- 
acter, since it consisted of "protracted armed violence between governmental 



20. France became a party to Protocol I in 2001. Peter Kovacs, Intervention armee des forces 
del'OTAN au Kosovo, 82 INTERNATIONAL REVIEW OF THE RED CROSS 103 (2000), argues that 
the United States had agreed to comply with Protocol I and was therefore bound by it. This 
argument is unconvincing. It confuses the willingness (and, indeed, the obligation) of the United 
States to apply the rules of customary international law codified in some of the provisions of 
Protocol I with a declaration of readiness to apply the entire Protocol as such. The United States 
has never agreed to apply all of the provisions of Protocol I. 

21. S.C. Res. 1160 11 17 (Mar. 31, 1998), U.N. Doc. S/RES/1160 (1998). 

22. The existence of an armed conflict is an inherent feature of grave breaches (Article 2 of the 
Tribunal's Statute) and war crimes (Article 3); it is also expressly required as a condition for 
jurisdiction over crimes against humanity (Article 5). Only genocide (Article 4) can be 
prosecuted in the Tribunal without the need to demonstrate the existence of an armed conflict. 
The ICTY was created by the United Nations Security Council in Resolution 827 (May 25, 
1993), U.N. Doc. S/RES/827 (1993). The ICTY Statute and the Secretary-General's 
Commentaries are contained in the Report of the Secretary-General Pursuant to Paragraph 2 of 
Security Council Resolution 808 (May 3, 1993), U.N. Doc. S/25704, reprinted in 32 

International Legal Materials 1163, 1192 (1993). 

23. See the indictment against Slobodan Milosevic and others issued by the Prosecutor on May 
22, 1999 and confirmed by Judge Hunt on May 24, 1999 (IT-99-37-I). Note also the ICRC 
statement of January 18, 1999 regarding the massacre at Racak, which called on "both sides to 
comply with international humanitarian law and to spare those not, or no longer, involved in the 
fighting." ICRC Press Release 99/04, Jan. 18, 1999, available at the ICRC website, supra note 19. 

44 



Christopher Greenwood 



authorities and organized armed groups . . . within a State." 24 As such, it was 
governed by the provisions of common Article 3 and the customary law appli- 
cable to non-international conflicts. 25 Although the KLA/UCK has at 
times claimed to be a national liberation movement, so that its struggle for 
self-determination would constitute an international armed conflict under 
Article 1 (4) of Protocol I, that claim has not been accepted by the interna- 
tional community. 26 

The question is whether the intervention of NATO on March 24, 1999 
"internationalized" that conflict, so that all the hostilities became subject to 
the law applicable to international armed conflicts considered above. The 
ICTY has recognized, in its two decisions in the Tadic case, 27 that an interna- 
tional armed conflict can co-exist alongside a non-international one and that 
the latter will be internationalized only if there is a clear relationship between 
the non-governmental party to that conflict and one of the States party to the 
international conflict. While the reasoning of the Appeals Chamber on the 
nature of that relationship is open to criticism, the requirement that some 
kind of relationship exist is surely right — the mere fact that a conflict between 
States comes into being alongside a conflict within one of those States cannot, 
in and of itself, be sufficient to make the law of international armed conflicts 
applicable to the latter. At least until the end of May 1999, however, NATO 
kept its distance from the KLA/UCK and even after that time it is far from 
clear that the relations between them were sufficiently close for the conflict 



24. The definition of a non-international armed conflict given by the Appeals Chamber of the 
International Criminal Tribunal for the former Yugoslavia in Tadic, supra note 7, 11 70. 

25. It is more doubtful whether Protocol II applied. Until the closing stages of the fighting, it is 
unclear whether the KLA/UCK exercised sufficient control over a defined area of territory to 
meet the requirements of Article 1(1) of Protocol II. Protocol Additional to the Geneva 
Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International 
Armed Conflicts, Jun. 8, 1977, 1 125 U.N.T.S. 609, DOCUMENTS ON THE LAWS OF WAR, supra 
note 1 1, at 483 [hereinafter Protocol II]. 

26. It is noticeable, for example, that none of the NATO States argued that the KLA/UCK was 
a national liberation movement or that the population of Kosovo had a right to 
self-determination, nor is such a view reflected in the various UN Security Council resolutions 
regarding Kosovo. The Prosecutor has not charged Slobodan Milosevic with grave breaches 
under Article 2 of the ICTY Statute — the only offense within the jurisdiction of the Tribunal 
which can only be committed in an international armed conflict (Tadic, supra note 7) — in 
respect of Kosovo, even though some of the incidents in Kosovo in early 1999 (such as the 
massacre of forty-five villagers at Racak on January 15, 1999 (U.N. Doc. S/PRST/ 1999/2)) would 
appear to have qualified as a grave breach had there been an international conflict. 

27. Prosecutor v. Tadic (Jurisdiction) (2 October 1995), 105 INTERNATIONAL LAW REVIEW 
419 (1997); Prosecutor v. Tadic (Merits), 38 INTERNATIONAL LEGAL MATERIALS 1518 (1999). 

45 



The Applicability of International Humanitarian Law 

between the KLA/UCK and the FRY to be regarded as part of the interna- 
tional armed conflict, rather than a separate internal conflict governed by a 
different set of rules. 28 

Application of International Humanitarian Law in the Kosovo Conflict 

The preceding discussion leads to the conclusion that the law of interna- 
tional armed conflicts (both the customary law and that contained in the rele- 
vant treaties) was applicable to the Kosovo conflict. Since it is a well 
established principle that international humanitarian law applies equally to 
both sides in a conflict, irrespective of the lawfulness of the resort to force or 
the purpose for which force is used, it should follow that there was nothing 
special about the application of international humanitarian law in the Kosovo 
campaign. 29 

That means, in particular, that the two main principles of targeting — dis- 
tinction and proportionality — were applicable throughout. While these prin- 
ciples are discussed in greater detail in other papers in the present volume, it is 
useful to recall the way in which they are formulated in Protocol I, which is 
generally regarded as stating the customary law on the subject. The principle 
of distinction is evident throughout Articles 48 to 58 of the Protocol but three 
provisions are particularly important: 

Article 48 

In order to ensure respect for and protection of the civilian population and 

civilian objects, 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 only against military 

objectives. 

Article 51(2) 

The civilian population as such, as well as individual civilians, shall not be the 
object of attack. Acts or threats of violence the primary purpose of which is to 
spread terror among the civilian population are prohibited. 



28. On the subject of prisoners captured by the KLA and handed over to NATO forces, see infra 
this paper. 

29. The principle of equal application is clearly stated in the List case, supra note 11, and was 
more recently reaffirmed in the Preamble to Protocol I, supra note 11. 

46 



Christopher Greenwood 



Article 52(2) 

Attacks shall be strictly limited to military objectives. In so far as objects are 
concerned, 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 neutralization, in the 
circumstances ruling at the time, offers a definite military advantage. 

The principle of proportionality is succinctly stated in Article 51(5)(b), 
which prohibits "an attack 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 mili- 
tary advantage anticipated." 

Two very different schools of thought have suggested that the purpose of 
the NATO intervention and the unusual character of the conflict meant that 
the rules of international humanitarian law — and, in particular, these rules of 
distinction and proportionality — were to be applied in a manner different 
from that in other recent conflicts such as the 1990-91 hostilities in the Gulf. 

The purpose for which NATO employed force — to halt the attacks on the 
Kosovars and to reverse the effects of ethnic cleansing in Kosovo — has al- 
ready been considered. The unusual character of the conflict may be said to 
have manifested itself in two ways. First, for most of the period of Operation 
Allied Force, the ability of the NATO States directly to influence events on 
the ground in Kosovo was very limited. With no ground forces available for 
immediate deployment, they were obliged to rely on air power and their ability 
to strike effectively at the FRY forces engaged in the process of ethnic cleans- 
ing in Kosovo was limited, at least until the closing stages of the conflict. In- 
stead, their strategy was to attack targets throughout much of the FRY in 
order to bring about a change of policy on the part of the FRY government. 

Secondly, while the FRY's anti-aircraft defenses continued to attack 
NATO aircraft throughout the conflict, the FRY did not attack the territory 
of any of the NATO States, nor, apart from the capture of a US patrol on the 
border between the FRY and Macedonia, did it conduct any operations 
against NATO forces anywhere outside the FRY. The result was that the con- 
flict was exceptionally one-sided — in contrast, for example, to the Gulf con- 
flict, where Iraq launched missile attacks against Saudi Arabia and other 
coalition States, as well as against Israel. 

The purpose for which NATO resorted to force and these unusual charac- 
teristics of the conflict have led to two very different theories, each of which 
suggests a departure from the normal principles of the law of armed conflict 

47 



The Applicability of International Humanitarian Law 

and each of which, in this writer's view, is a heresy which demands emphatic 
rejection. 

The first of these heresies is that NATO's motives and the manner in 
which it was obliged to fight the conflict permitted it a greater latitude in 
choosing the targets which it would attack than would otherwise be the case. 
In particular, since the purpose of the bombing campaign was not to defeat the 
FRY armed forces (in the normal sense of that term, i.e., by successfully engag- 
ing them in battle) but to produce a change of policy on the part of the FRY 
Government, objects whose destruction was particularly likely to increase the 
pressure on the FRY Government were legitimate targets in this conflict irre- 
spective of whether they fell within the definition of military objectives codi- 
fied in Article 52(2) of Protocol I. An important part of this thesis is that 
attacks carried out in order to undermine support amongst the enemy civilian 
population for the policy of its government would be lawful. 

Tempting though such an approach may be, it is difficult to reconcile with 
contemporary international humanitarian law. As demonstrated above, the 
principle that the enemy civilian population and individual civilians are not 
themselves legitimate targets is now clearly established in that law. 30 More- 
over, the definition of a military objective requires both that the object in 
question make an effective contribution to the enemy's military action and 
that the destruction or damage of the object offers a definite military advan- 
tage to the State whose forces attack it. 31 Nothing in any of the treaties on the 
law of armed conflict or the practice of States suggests that a State's motives 
or the fact that it seeks to procure a change in its adversary's policy rather 
than that adversary's total defeat can expand the range of targets which is law- 
fully open to it. It follows that an object does not become a target simply be- 
cause of its political significance or the effect which its destruction is likely to 
have on civilian morale and support for a hostile government. Only something 
which meets the criteria of a military objective laid down by international hu- 
manitarian law may lawfully be attacked. 

That does not mean that the political effect (including the effect on enemy 
morale) of attacking a particular target cannot legitimately be taken into con- 
sideration. Provided that the target constitutes a military objective and the 



30. See, e.g., the provision to that effect in Protocol I, Articles 48, 50 and 51(2), supra note 11, 
and the statement in 11 8. 1.2 of Naval Doctrine Command, THE COMMANDER'S HANDBOOK ON 

the Law of Naval Operations (NWP 144M/MCWP 5-2.1/COMDTPUB P5800.1) (1995), 

reprinted in the ANNOTATED SUPPLEMENT, supra note 8, at 403. 

31. Protocol I, Article 52(2), supra note 1 1, at 450; COMMANDER'S HANDBOOK, supra note 30, 
11 8.1.1 (the wording of which is slightly different). 

48 



Christopher Greenwood 



principle of proportionality contained in humanitarian law is respected, 32 it is 
entirely legitimate to seek to undermine the will of and support for the en- 
emy's government. But the desire to achieve that goal cannot convert into a 
lawful target something which does not otherwise meet those criteria. It is 
noteworthy that none of the NATO governments suggested otherwise. 33 

The rival heresy is that, because the campaign was fought for a humanitar- 
ian objective, international humanitarian law has to be interpreted as impos- 
ing upon NATO more extensive restrictions than would otherwise have been 
the case. Such an approach is apparent in the report of the Independent Inter- 
national Commission on Kosovo (an unofficial body of non-governmental 
commentators established at the initiative of the Prime Minister of Sweden) . 
As part of what it describes as a "Framework for Principled Humanitarian In- 
tervention," the Report proposes that in cases of humanitarian intervention 
"there must be even stricter adherence to the laws of war and international 
humanitarian law than in standard military operations." 34 

This suggestion (which is admittedly made de lege ferenda) is open to criti- 
cism on at least three grounds. First, there is something distinctly woolly- 
minded about the whole idea. The Report does not appear to suggest that the 
rules of international humanitarian law applicable to a force engaging in hu- 
manitarian intervention should differ from those applicable to forces engaged 
in other military operations, but rather that those rules should be more strictly 
applied. Yet the idea that the law can prescribe the same rules for all types of 
military operations but require a higher standard of adherence in some cases 
than in others is untenable. International humanitarian law requires that, 
whenever it applies, it should be complied with. One violation may, of course, 
be less serious than another and, as a matter of fact, one force may have a 
better record of compliance than another. It is, however, illogical and contrary 
to principle to say that the law requires one party to comply with all of the 
rules which are binding upon it but requires another party — albeit bound by 
all of the same rules — to comply only with some, or to comply with all but to a 
lesser degree. In reality what the Commission is proposing is that differ- 
ent — and stricter — rules should apply to a State which resorts to force by way 



32. See Protocol I, Article 51(5)(b), supra note 11, at 448-9; COMMANDER'S HANDBOOK, 
supra note 30, H 8.1.2.1. 

33. See also the article by James Burger, International Humanitarian Law and the Kosovo Crisis: 
Lessons Learned or to be Learned, 82 INTERNATIONAL REVIEW OF THE RED CROSS 129, 131-2 

(2000). 

34. Independent International Commission on Kosovo, The Kosovo Report 195 

(2000); see also page 179. 

49 



The Applicability of International Humanitarian Law 

of humanitarian intervention than to one which resorts to force for any other 
purpose. But the Commission's proposal begs many questions about which 
rules are involved and what degree of modification might be involved. 

Secondly, whichever way the Commission's suggestion is put, it would have 
the effect of driving a coach and horses through the principle that interna- 
tional humanitarian law applies equally to both sides in any conflict, without 
regard to the cause which they espouse or the legality of their action under the 
jus ad helium. A State whose forces were resisting humanitarian intervention by 
another State or group of States would, presumably, be required to comply with 
the normal rules of international humanitarian law (or to display the normally 
required degree of adherence) . It would therefore be entitled to a greater de- 
gree of latitude than its opponent. The implications of the Commission's pro- 
posal in this respect are concealed by the unusual circumstances of the Kosovo 
conflict. As has already been noted, the FRY did not respond by force against 
the NATO States (other than by the use of anti-aircraft fire) and did not at- 
tack the NATO States themselves. It would be naive, however, to assume that 
the same conditions will necessarily apply in any future humanitarian interven- 
tion. Indeed, had NATO proceeded to a ground campaign, it would not have 
been the case in the Kosovo conflict, as the FRY could, and almost certainly 
would, have put up a strenuous resistance to NATO ground forces. 

Thirdly, the effect of the Commission's suggestion would be that interna- 
tional humanitarian law would impose greater constraints on a State engaging 
in humanitarian intervention than on a State which acted in self-defense or 
even one which invaded a neighbor in clear violation of Article 2(4) of the 
United Nations Charter. It is not immediately obvious why an aggressor 
should be subject to less rigorous rules in respect, for example, of targeting 
than a State which intervenes to prevent genocide or other large-scale viola- 
tions of human rights. 

A more sophisticated suggestion is canvassed by Professor Bothe in a cri- 
tique of the Report to the Prosecutor. 35 After examining the Report's findings 
regarding the NATO campaign, Professor Bothe states: 

Both in relation to the question of the definition of the military objective and in 
relation to the proportionality principle, the report fails to raise yet another 
fundamental question. Do traditional considerations of military necessity and 



35. Final Report to the Prosecutor by the Committee Established to Review the NATO 
Bombing Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL 
MATERIALS 1257 (2000), reprinted herein as Appendix A [hereinafter Report to the Prosecutor! . 
The Report is discussed infra this paper. 

50 



Christopher Greenwood 



military advantage have a legitimate place in a conflict the declared purpose of 
which is a humanitarian one, namely to promote the cause of human rights? The 
thought would deserve further consideration that in such a conflict, more 
severe restraints would be imposed on the choice of military targets and of the 
balancing test applied for the purposes of the proportionality principle than in a 
'normal' armed conflict. 36 

The reasoning which seems to underlie this proposal can be summarized as 
follows: humanitarian intervention, in so far as it justifies military action at all, 
does so only for strictly limited purposes. It follows that only military action 
which serves those limited purposes is legitimate and the traditional consider- 
ations of military advantage and military necessity must be adapted (and cir- 
cumscribed) accordingly. In effect, it requires reading the definition of a 
military objective codified in Article 52(2) of Protocol I and the statement of 
the proportionality principle in Article 5 1 (5) (b) as though they referred to a 
legitimate military advantage. 

Professor Bothe's approach 37 avoids the first objection raised in relation to 
the Kosovo Commission proposals but it still falls foul of the other two objec- 
tions and must therefore be rejected. As soon as one qualifies the concept of 
military advantage (or military necessity) by reference to considerations of le- 
gitimacy drawn from the purpose for which a party resorts to force, the jus ad 
bellum and the jus in hello become inextricably mixed and the principle of 
equal application of international humanitarian law is fatally compromised. If 
a State, whose resort to force is in jus ad bellum terms lawful only for strictly 
limited purposes, violates the jus in hello whenever it attacks a target whose de- 
struction will not contribute to the achievement of those purposes, it follows 
that a State whose resort to force is unlawful under the jus ad helium will vio- 
late the jus in hello whenever it targets anything. Yet that is precisely the argu- 
ment which was advanced and comprehensively rejected both in the trials at 
the end of World War Two and in the negotiation of Protocol I. 

The difficulties, both practical and theoretical, of such an approach are ob- 
vious when one asks what standards would have been applicable to attacks by 
the FRY on targets in the NATO States had such attacks been carried out 
during the Kosovo conflict. The FRY was plainly not acting by way of humani- 
tarian intervention. Would its actions therefore have been judged by 



36. Michael Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia: 
Comments on the Report to the Prosecutor of the ICTY, 12 EUROPEAN JOURNAL OF 

International Law 531, 535 (2001). 

37. See the papers by Professors Bothe and Bring in the present volume. 

51 



The Applicability of International Humanitarian Law 

reference to the modified jus in hello considered to apply to a humanitarian in- 
tervention or would they have been subject to the jus in hello applicable in a 
"normal" armed conflict? Neither answer would be at all satisfactory, for the 
first treats the FRY as engaged in an activity which was entirely alien to it 
while the second would mean that the FRY would enjoy greater latitude in 
targeting than the NATO States for no apparent reason. It is only because the 
circumstances of the Kosovo conflict were such that the FRY was not, in prac- 
tice, able to attack the NATO States that these difficulties were obscured. 

That is not to say that the legal basis for resort to force has no bearing on 
the manner in which that force may be used. As the statement by the United 
Kingdom Representative, quoted in Part I above, makes clear, the force used 
in humanitarian intervention has to be necessary in order to achieve the goal 
of ending (or preventing) the humanitarian emergency. In other words, the 
purpose for which force is permitted under the jus ad helium — in the case of 
Kosovo, a humanitarian purpose — limits the degree of force which may be 
used. However, this recognition of the relationship between the degree of 
force used and the goal to be achieved is different from the suggestion ad- 
vanced by Professor Bothe in two important respects. 

First, considerations of necessity and proportionality here operate as part of the 
jus ad helium, not the jus in hello. This is much more than a theoretical distinction 
and has important practical consequences. It leaves intact the jus in hello defini- 
tion of what constitutes a military objective and such concepts as military neces- 
sity and proportionality for the purposes of Article 51(5)(b). The proportionality 
limitation in the jus ad helium measures the use of force as a whole against the 
yardstick of what is proportionate to the overall goal to be achieved; it does not re- 
quire analysis of each individual attack by reference to that overall goal. More- 
over, the limits of the jus ad helium, unlike those of the jus in hello, do not carry 
with them the possibility of criminal sanctions for individual servicemen. Sec- 
ondly, a requirement that the force used must be proportionate to the goal to be 
achieved is not confined to humanitarian intervention. Proportionality in this 
sense is also a requirement of the law of self-defense. 38 



38. See, e.g., the decision of the International Court of Justice in Military and Paramilitary 
Activities in and against Nicaragua (Nicar. v. U.S.), 1986 I.C.J. 14, H 194 (June 27); this principle 
was common ground between the United States of America and Nicaragua. For further 
discussion of the principle of proportionality in self-defense and its relationship to the jits in bello, 
see Christopher Greenwood, The Relationship Between lus ad Bellum and lus in Bello, 9 REVIEW OF 
INTERNATIONAL STUDIES 221-34 (1983) and Self -Defence and the Conduct of International 
Armed Conflict, in INTERNATIONAL LAW AT A TIME OF PERPLEXITY 273-88 (Yoram Dinstein 
ed., 1989). 

52 



Christopher Greenwood 



Both of the "heretical" views considered here are the product of under- 
standable (though largely contradictory) concerns but they involve an unjus- 
tified muddling of jus ad bellum and jus in hello issues in a way which is contrary 
to principle and unsupported by authority. In this writer's view, the true posi- 
tion can be stated very simply: the NATO States and the FRY were bound to 
comply with the relevant rules of international humanitarian law in this con- 
flict, as they would have been in any other — nothing more or less. 

Prisoners of War 

Issues concerning prisoners of war arose in two contexts during the Kosovo 
conflict. First, three US soldiers serving with the multinational peacekeeping 
force in the Former Yugoslav Republic of Macedonia (FYROM) were cap- 
tured by FRY forces on March 31, 1999. Secondly, two members of the FRY 
forces captured by the KLA/UCK were subsequently handed over to United 
States forces who held them for a short period. Both cases gave rise to a degree 
of confusion about the status of the prisoners, which is surprising in view of 
the clarity of the Third Geneva Convention. In both cases the status of those 
concerned as prisoners of war entitled to the full protection of the Convention 
should never have been in doubt. 

At the time of their capture, the three US soldiers were serving in a multi- 
national peacekeeping force in the FYROM. That force had originally been a 
United Nations one (UN Preventative Deployment Force (UNPREDEP)) but 
in February 1999 the People's Republic of China had vetoed the Security 
Council resolution required to renew the mandate of UNPREDEP, because of 
the FYROM's diplomatic links with Taiwan. The contingents which had com- 
posed UNPREDEP had remained in the FYROM at the request of its govern- 
ment and had reconstituted themselves as a multinational force outside 
United Nations control. At the time of their capture, the three US soldiers 
were not involved in the military operations against the FRY and were con- 
ducting a patrol as part of the multinational force's operations. There was 
some doubt as to whether at the time of their capture they had inadvertently 
strayed into the FRY or whether they were captured in the territory of the 
FYROM. 

Neither their membership in the multinational force nor the place of their 
capture, however, affects their status. Under Article 4A(1) of the Third Con- 
vention, members of the armed forces of a party to the conflict who have 
"fallen into the power of the enemy" automatically have the status of prisoners 
of war. The three US servicemen were undoubtedly members of the US armed 

53 



The Applicability of International Humanitarian Law 

forces and the United States was clearly a party to an armed conflict with the 
FRY at the time of their capture. Moreover, it is difficult to think of words 
more apt to describe what happened to the three than that they had "fallen 
into the power of the enemy." Nothing in the Convention, or the subsequent 
practice in its interpretation leaves any room for excluding them on the 
ground that they were not involved in the conflict itself or that they were 
members of a non-United Nations peacekeeping force. 

Nor would their status be affected by the fact that they were captured in the 
FYROM. Whether the FYROM was, strictly speaking, a neutral State is a 
controversial question but even if it was, the place of their capture does not af- 
fect the applicability of the Convention. If the FYROM was properly regarded 
as a neutral State, then the FRY incursion into its territory which resulted in 
the capture of the three would have been unlawful but the status of prisoner of 
war is made contingent on the fact of being in the hands of an enemy, not the 
legality of the means by which that was accomplished. 

In these circumstances, it is surprising and disturbing that there was ever 
any doubt about the status of the three captured soldiers. James Burger has 
commented that "[sjome persons thought initially that it would be better to 
assert that the captured soldiers were illegal detainees, allowing the United 
States to demand their immediate release, rather than waiting until the end of 
active hostilities" 39 but that the United States instead took the position that 
the men were prisoners of war, which he describes as "the right decision." It 
was certainly that but the point needs to be emphasized that the status of the 
three as prisoners of war was an automatic consequence of the fact that they 
met the requirements of the Convention, not the result of a policy choice. The 
status of a detainee as a prisoner of war is not something dependent upon the 
choice of either his or her own State or the detaining power. The initial uncer- 
tainty may have contributed to the refusal by the FRY to allow access by the 
ICRC to the three until more than three weeks after their capture, a clear 
breach of the Convention. 40 

In passing, it should be noted that, had the force in which the three men 
been serving remained a United Nations peacekeeping force, then the answer 
would probably have been different. In principle, when a national unit is as- 
signed to the United Nations for a mission under United Nations com- 
mand — i.e., a "blue beret" operation — the members of the unit are, for the 



39. Burger, supra note 33, at 136. 

40. ICRC Press Releases 99/21, Apr. 23, 1999 (protesting lack of access) and 99/25, Apr. 27, 
1999 (recording a visit by the ICRC to the three men) available at ICRC website, supra note 19. 

54 



Christopher Greenwood 



duration of their assignment and at least as long as they do not act outside the 
scope of the United Nations mandate (e.g., by engaging in surveillance activi- 
ties unauthorized by the United Nations), to be considered as United Nations 
personnel, not members of the armed forces of their own State. In those cir- 
cumstances, they would be protected by the provisions of the Convention on 
the Safety of United Nations and Associated Personnel of 1994, assuming that 
the States concerned were parties, or the Convention on Privileges and Immu- 
nities of 1946. 

The position of the FRY soldiers captured by the KLA/UCK is also straight- 
forward, at least once they came into the custody of the United States. As- 
suming that, at the time of their capture, the conflict between the KLA/UCK 
and the FRY was still an internal conflict (a matter considered above), the 
captured soldiers did not become prisoners of war when they fell into the 
hands of the KLA/UCK, as that status does not apply to prisoners in internal 
conflicts. Nevertheless, once they were transferred to the custody of a State 
which was engaged in an international armed conflict against their own State, 
they fulfilled the requirements of Article 4A(1) of the Third Convention and 
were thus entitled to treatment as prisoners of war. It appears that they were 
treated as such throughout the time they were held by the United States and 
access by the ICRC was allowed in accordance with the Convention. 41 

The Naval Embargo 

By contrast, the naval operations against the FRY gave rise to more serious 
legal questions. The focus of discussion was the proposal — in fact never imple- 
mented — that the considerable naval forces available in the Adriatic should 
prevent shipments of oil to the FRY, even where the oil was being carried by 
ships flying the flag of States not involved in the conflict. There was obviously 
no obstacle in international law to the NATO States preventing ships flying 
their own flags from engaging in this trade. 42 Nor was there any such obstacle 
where the flag State, though not a member of NATO, consented to NATO 
warships intercepting its vessels, as a number of States did. The question 
which gave rise to difficulty was whether NATO could lawfully intercept and 



41. See ICRC Press Releases 99/20, Apr. 18, 1999 and 99/29, May 18, 1999; available at ICRC 
website, supra note 19. 

42. Whether the national laws of the States concerned permitted such action is another matter 
and one which falls outside the scope of this study. 

55 



The Applicability of International Humanitarian Law ___ 

divert ships flying the flag of a neutral State which did not consent to such ac- 
tion, such as Russian merchant ships. 

The problem was, in part, of a political, rather than a legal, character. 
There was an understandable desire on the part of NATO not to risk an esca- 
lation of the conflict or further to embitter their relations with Russia. A fur- 
ther political complication was that the FRY's only port, Bar, was in 
Montenegro, not Serbia. Throughout the conflict, the Government of 
Montenegro sought to distance itself to the greatest extent possible from the 
actions of the FRY Federal Government and the Government of Serbia. 
While Montenegro, as part of the FRY, could not be regarded as a neutral in 
the legal sense of the term, it nevertheless sought something akin to a neutral 
status in political terms. NATO, although it bombed some targets in 
Montenegro, wished to bolster the position of the Montenegro Government 
and thus to minimize military action against Montenegro. 

By contrast, international law appeared to present few problems. Although 
the matter is not entirely free of controversy, the general view is that the cus- 
tomary international law of armed conflict still permits a State engaged in an 
international armed conflict to prevent strategic commodities such as oil from 
reaching its opponent by sea, even if carried in neutral flagged vessels. The 
majority view is that that can be done either by the imposition of a blockade 43 
or by less drastic measures of visit, search and capture designed to prevent the 
flow of contraband to an enemy. 44 Since the NATO States were engaged in an 
armed conflict with the FRY, the imposition of an oil embargo (with or with- 
out a general blockade) would, in principle, have been compatible with the jus 
in hello. 

It would, however, be wrong to dismiss the doubts about the proposed em- 
bargo as having no legal basis. Two different legal issues need to be consid- 
ered. First, in order to be lawful an oil embargo would have had to comply not 
only with the jus in hello but also with the jus ad helium. A blockade of Saudi 
Arabia by the Iraqi navy (had that been possible) during the 1990-91 Gulf 
conflict might well have complied with the requirements of the jus in hello but 
it would nevertheless have been unlawful, because the entire Iraqi resort to 
force contravened the jus ad helium. The need to comply with the jus ad helium 
is particularly important when the measures in question are taken against 



43. See, e.g., COMMANDER'S HANDBOOK, supra note 30, 11 7.7; SAN REMO MANUAL ON 

International Law Applicable to armed Conflicts at Sea 1111 93-104 (Louise 

Doswald-Beck ed., 1995). 

44. Commander's Handbook, supra note 30, 11 7.4.1; San Remo Manual, supra note 43, 
1111 146-152. 

56 



Christopher Greenwood 



neutral States. An oil embargo of the FRY would have involved enforcing re- 
strictions on the exercise by the shipping of neutral States of the normal rights 
of freedom of navigation under international law. Accordingly, while it is nec- 
essary to show that those restrictions were compatible with the jus in hello, it is 
not sufficient to do so; they must also be within the limits of the jus ad helium. 

The uncertainty about the possible imposition of an oil embargo was there- 
fore, for many, the reflection of their uncertainty about whether NATO had a 
solid legal justification for resorting to force at all. In addition, even if interna- 
tional law does recognize a right to use force by way of humanitarian interven- 
tion, it is still necessary to ask whether that extends to the exercise of 
belligerent rights over the shipping of neutral States. As was made clear earlier 
in this paper, the present writer is firmly of the view that there is a right of hu- 
manitarian intervention in an extreme case. Moreover, if international law 
permits States to use force in such a case against the State responsible for the 
humanitarian crisis, then it is logical that it should also permit the taking of 
action which is both necessary and proportionate against neutral shipping to 
prevent that State from acquiring supplies needed to continue its human 
rights abuses or resist attempts to prevent them. But it is in considerations of 
this kind, and not just in references to the traditional rights of belligerents at 
sea, that the justification for an oil embargo needed to be found. 

Secondly, both the jus ad helium and the jus in hello require that action 
taken against neutral shipping be necessary and proportionate. In view of the 
limited port facilities at Bar, the difficulty of moving oil from the port to the 
rest of the FRY and the relative ease with which the NATO States could have 
disrupted links between Bar and the rest of the FRY, it is questionable 
whether interference with neutral shipping was really necessary on the facts of 
the case. 

The Military Presence in Kosovo after June 10, 1999 

On June 10, 1999 the NATO airstrikes were suspended and active hostili- 
ties came to an end. The FRY Government accepted the principles on a settle- 
ment presented to it by the European Union envoy, Mr Ahtisaari, and the 
Russian Federation envoy, Mr Chernomyrdin, on June 2, 1999, themselves 
based on an earlier set of principles laid down by the G-8 foreign ministers. 45 
On June 9, 1999, a military technical agreement was concluded between 
NATO and FRY commanders. United Nations Security Council Resolution 



45. Annexes 1 and 2 to S.C. Res. 1244 Gune 10, 1999), U.N. Doc. S/RES/1244 (1999). 

57 



The Applicability of International Humanitarian Law 

1244, adopted under Chapter VII of the Charter on June 10, 1999 approved 
these steps. The resolution went on, in paragraph 7, to authorize "member 
States and relevant international organizations to establish the international 
security presence in Kosovo . . . with all necessary means to fulfill its responsi- 
bilities." The responsibilities of KFOR, as the security presence became 
known, were set out in paragraph 9 of the resolution as follows: 

(a) Deterring renewed hostilities, maintaining and where necessary enforcing a 
ceasefire, and ensuring the withdrawal and preventing the return into 
Kosovo of Federal and Republic military, police and paramilitary forces, 
except as provided in point 6 of annex 2; 

(b) Demilitarising the Kosovo Liberation Army (KLA) and other armed 
Kosovo Albanian groups; 

(c) Establishing a secure environment in which refugees and displaced persons 
can return home in safety, the international civil presence can operate, a 
transitional administration can be established, and humanitarian aid can be 
delivered; 

(d) Ensuring public safety and order until the international civil presence can 
take responsibility for this task; 

(e) Supervising demining until the international civil presence can, as 
appropriate, take over responsibility for this task; 

(f) Supporting, as appropriate, and coordinating closely with the work of the 
international civil presence; 

(g) Conducting border monitoring duties as required; 

(h) Ensuring the protection and freedom of movement of itself, the 
international civil presence, and other international organisations. 

Although NATO was not expressly mentioned, the reference in paragraph 7 to 
"relevant international organizations" was clearly intended to mean NATO 
and KFOR was, from the start, largely NATO-led. While KFOR derived its le- 
gal authority from the Security Council, it was not a United Nations force and 
was not subject to United Nations command and control. 

By contrast, the international civil presence, UNMIK, was a United Na- 
tions body, created and controlled by the United Nations. It is worthwhile 
noting UNMIK's terms of reference. Paragraph 10 of Resolution 1244 autho- 
rized the United Nations Secretary-General, with the assistance of relevant 
international organizations (a reference not confined to NATO) to establish a 
civil presence: 

58 



Christopher Greenwood 



[I]n order to provide an interim administration for Kosovo under which the 
people of Kosovo can enjoy substantial autonomy within the Federal Republic 
of Yugoslavia, and which will provide transitional administration while 
establishing and overseeing the development of provisional democratic 
self-governing institutions to ensure conditions for a peaceful and normal life for 
all inhabitants of Kosovo. 

Under paragraph 11, the responsibilities given to the international civil 
presence were: 

(a) Promoting the establishment, pending a final settlement, of substantial 
autonomy and self-government in Kosovo, taking full account of annex 2 
and of the Rambouillet accords (S/1999/648); 

(b) Performing basic civilian administrative functions where and as long as 
required; 

(c) Organising and overseeing the development of provisional institutions for 
democratic and autonomous self-government pending a political 
settlement, including the holding of elections; 

(d) Transferring, as these institutions are established, its administrative 
responsibilities while overseeing and supporting the consolidation of 
Kosovo's local provisional institutions and other peace-building activities; 

(e) Facilitating a political process designed to determine Kosovo's future 
status, taking into account the Rambouillet accords (S/1999/648); 

(0 In a final stage, overseeing the transfer of authority from Kosovo's provisional 
institutions to institutions established under a political settlement; 

(g) Supporting the reconstruction of key infrastructure and other economic 
reconstruction; 

(h) Supporting, in coordination with international humanitarian 
organisations, humanitarian and disaster relief aid; 

(i) Maintaining civil law and order, including establishing local police forces 
and meanwhile through the deployment of international police personnel 
to serve in Kosovo; 

(j) Protecting and promoting human rights; 

(k) Assuring the safe and unimpeded return of all refugees and displaced 
persons to their homes in Kosovo. 

Resolution 1244 (1999) is of the utmost importance. By using its powers 
under Chapter VII of the Charter to create a civilian administration for 

59 



The Applicability of International Humanitarian Law 

Kosovo and to authorize an international military presence there, the Security 
Council ensured that Kosovo did not fall under a regime which was subject to 
the law of belligerent occupation. Whatever the doubts regarding the applica- 
bility of international humanitarian law to United Nations military operations 
generally, 46 the United Nations is not bound by the basic framework of the 
law of belligerent occupation (in particular, the duty codified in Article 43 of 
the Hague Regulations on Land Warfare to respect "unless absolutely pre- 
vented" the law in force in the occupied territory) where it establishes a new 
administration for a territory after a conflict. To hold otherwise would place a 
wholly unreasonable fetter on the power of the Council to provide for political 
change in territories such as Kosovo and East Timor. Resolution 1 244 has to 
be seen as an exercise of that power and the legal regime governing both the 
security and civil presences is derived primarily from that Resolution, not from 
the law of belligerent occupation. 47 That said, individual principles of the law 
of belligerent occupation, such as those requiring humane treatment of de- 
tainees, would be applicable. 

International Proceedings Relating to the Kosovo Conflict 

One of the unusual features of the Kosovo conflict was the extent to which 
the military operations became the subject of scrutiny by international courts 
and tribunals. Three different tribunals have considered different aspects of 
the Kosovo conflict (and, at the time of writing, proceedings were continuing 
in two of them). While space does not permit a detailed analysis of these pro- 
ceedings, it is nonetheless important briefly to consider each of them. 

1. The International Criminal Tribunal for the former Yugoslavia 

International humanitarian law has long expressly provided for its enforce- 
ment through criminal proceedings against individuals. Nevertheless, while 
the grave breaches machinery established by the Geneva Conventions and 



46. On which, see the Observance by United Nations forces of international humanitarian law, 
Secretary -GeneraVs Bulletin, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999), reprinted in 2 

Yearbook of International Humanitarian Law 563 (1999); Christopher Greenwood, 

International Humanitarian Law and United Nations Military Operations, 1 YEARBOOK OF 

International Humanitarian Law 3-34 (1998). 

47. For a contrary view, see John Cerone, Minding the Gap: Outlining KFOR Accountability in 
Post-Conflict Kosovo, 12 EUROPEAN JOURNAL OF INTERNATIONAL LAW 469 (2001). 

60 



Christopher Greenwood 



Protocol I 48 requires States to take action in cases of grave breaches and to 
bring offenders to justice irrespective of nationality, proceedings of this kind 
have in fact been almost unknown. In the case of Kosovo, however, there was 
already in existence an international tribunal able to exercise criminal juris- 
diction. The ICTY, which was established by United Nations Security Coun- 
cil Resolution 827 (1993), had "the power to prosecute persons responsible 
for serious violations of international humanitarian law committed in the ter- 
ritory of the former Yugoslavia since 1991." 49 Although drawn up with the 
conflicts in Bosnia-Herzegovina and Croatia in the early 1990's in mind, the 
Statute was not limited to those conflicts and was clearly applicable to 
events in Kosovo (as the Security Council recognized in Resolutions 1160 
and 1199 (1998)). 

The attacks by the FRY armed forces and police on the majority commu- 
nity in Kosovo led to the indictment, on May 22, 1999, by the ICTY Prosecu- 
tor of the then FRY President, Slobodan Milosevic, and a number of other 
prominent political and military figures on charges of war crimes and crimes 
against humanity. 50 While this indictment was dismissed as a political gesture 
by Milosevic at the time, the new government of the FRY surrendered him to 
the custody of the Tribunal in 2001. At the time of writing, Milosevic was 
standing trial on these and other charges. 

The Prosecutor also considered that the ICTY had jurisdiction over any se- 
rious violations of humanitarian law which might have occurred in the 
NATO air campaign. Although her stance in this regard attracted some criti- 
cism in political circles, it was plainly correct. The ICTY's jurisdiction under 
Article 1 of its Statute is confined to the territory of the former Yugoslavia but 
it is not limited to offenses committed there by Yugoslavs and clearly extends 
to offenses by NATO personnel. The Prosecutor established a committee to 
inquire into various allegations that NATO forces had violated interna- 
tional humanitarian law and to advise whether there was "a sufficient basis 
to proceed with an investigation into some or all of the allegations or into 
other incidents related to the NATO bombing." 51 The committee concluded 



48. See Geneva I (Article 49), Geneva II (Article 50), Geneva III (Article 129), and Geneva IV 
(Article 146), supra note 12. See also Protocol I (Article 85), supra note 1 1. 

49. Statute of the Tribunal, Article 1, supra note 22. 

50. The indictment is available on the ICTY website at http://www.un.org/icty/indictment/ 
english/mil-ii990524e.htm. On May 24, 1999, Judge Hunt confirmed the indictment, Case No. 
IT-99-37-I. 

51. Report to the Prosecutor, Appendix A, 11 3. 

61 



The Applicability of International Humanitarian Law 

that no investigation should be commenced. 52 The Prosecutor accepted that 
recommendation and told the Security Council that: 

[T]here is no basis for opening an investigation into any of those allegations or 
into other incidents related to the NATO bombing. Although some mistakes 
were made by NATO, I am very satisfied that there was no deliberate targeting 
of civilians or of unlawful military targets by NATO during the bombing 
campaign. 53 

The committee's report and the conclusions drawn by the Prosecutor have 
attracted much criticism. Most of that criticism has come from those who 
wanted to see charges brought against members of the NATO armed forces 
and who accused the committee of adopting too lenient a stance in its ap- 
praisal of the NATO actions. 54 More surprisingly, however, others have criti- 
cized the committee for subjecting decisions taken in the heat of the moment 
and sometimes in conditions of considerable danger to too close and detached 
a scrutiny. 55 In the opinion of this writer, both criticisms are misconceived. 
The report suggests neither undue leniency nor an excessive dose of hind- 
sight. While scrutiny of military decisions with a view to prosecution is never a 
comfortable experience for those who might be the subject of charges, it is 
what the Geneva Conventions and Protocol I envisage and what has been ap- 
plied to non-NATO defendants by the ICTY for several years. What the re- 
port shows is that armed forces today cannot expect to be immune from the 
kind of legal scrutiny — seeking to apply rules which have long been binding 
on all States — which has become commonplace in other walks of life. It also 
shows that a body like the committee established by the Prosecutor of the 
ICTY is capable of applying those rules in a fair and sensible manner. 

2. The International Court of Justice 

The NATO air campaign was also the subject of proceedings instituted by 
the FRY before the International Court of Justice against ten of the NATO 



52. Id., 11 91. 

53. United Nations Security Council 4150 th Meeting; S/PV.4150, at 3, col. 1. 

54. See, e.g., Paolo Benvenuti, The ICTY Prosecutor and the Review of the NATO Bombing 
Campaign against the Federal Republic of Yugoslavia, 1 2 EUROPEAN JOURNAL OF INTERNATIONAL 
LAW 503 (2001) and, for more moderate criticism, see the article by Professor Bothe, supra note 
36. 

55. See the Commentary by Judith Miller in the present volume. 

62 



Christopher Greenwood 



States while the campaign was in progress. 56 The FRY maintained both that 
the NATO resort to force was a violation of the principles oijus ad helium en- 
shrined in the United Nations Charter and that the conduct of the campaign 
violated obligations contained in a wide variety of treaties ranging from the 
Geneva Conventions to the Convention on Navigation on the River Danube. 
In each case the FRY sought provisional measures in the form of an order that 
the respondent State should immediately cease military action against the 
FRY pending the hearing of the merits. In order to obtain provisional mea- 
sures, however, an applicant must demonstrate the existence of a prima facie 
basis for jurisdiction on the merits. The Court held, by large majorities, that 
the FRY had failed to satisfy this threshold requirement. 

The result is scarcely surprising. None of the treaties which were the basis 
for the FRY's substantive claim contain provisions conferring jurisdiction on 
the International Court and the two bases for jurisdiction advanced by the 
FRY 57 — Article IX of the Genocide Convention of 1948 (which was invoked 
against all the respondents) and Article 36(2) of the Statute of the Court, the 
so-called "Optional Clause" (which was invoked against six out of the 
ten) — were rightly rejected by the Court. 

Even assuming that the FRY was a party to the Genocide Convention, a po- 
sition which it has subsequently repudiated, Article IX manifestly offered no 
basis for jurisdiction against Spain and the United States of America, both of 
which had entered reservations rejecting the application of that provision 
when they became party to the Convention. Moreover, Article IX confers ju- 
risdiction only with regard to a dispute "relating to the interpretation, 



56. Belgium, Canada, France, Germany, Italy, the Netherlands, Portugal, Spain, the United 
Kingdom and the United States of America. The Orders of the Court refusing the FRY's request 
for provisional measures of protection and ordering the removal of the cases against Spain and 
the United States of America from the Court's list are each reported under the title Case 
concerning Legality of Use of Force, 1999 I.C.J. 124 (Belgium), 259 (Canada), 363 (France), 422 
(Germany), 481 (Italy), 542 (the Netherlands), 656 (Portugal), 761 (Spain), 826 (United 
Kingdom) and 916 (United States of America). At the time of writing, the cases against the 
respondents, other than Spain and the United States of America, were still before the Court. The 
eight remaining respondents have all objected to the jurisdiction of the Court and the 
admissibility of the applications. The writer acted as counsel for the United Kingdom in these 
proceedings; the present paper represents his personal views. 

57. In the cases against Belgium and the Netherlands, the FRY also attempted at a late stage to 
rely upon a bilateral treaty. The Court held that this treaty had been invoked too late in the 
proceedings; see, e.g. y Case concerning Legality of Use of Force (FRY v. Belgium), 1999 I.C.J. 124 
Gun. 2) (Order — Request for the Indication of Provisional Measures), 11 44. 



63 



The Applicability of International Humanitarian Law 

application or fulfillment" of the Genocide Convention. Not surprisingly, the 
Court held that: 

[T]he essential characteristic [of genocide] is the intended destruction of a 
'national, ethnical, racial or religious group' (Application of the Convention on the 
Prevention and Punishment of Genocide, Provisional Measures Order of 13 
September 1993, ICJ Reports 1993, p. 345, para. 42); . . . the threat or use of force 
against a State cannot in itself constitute an act of genocide within the meaning 
of Article II of the Genocide Convention; and ... in the opinion of the Court, it 
does not appear at the present stage of the proceedings that the bombings which 
form the subject of the Yugoslav Application 'indeed entail the element of 
intent, towards a group as such, required by [Article II]' (Legality of the Threat or 
Use of Nuclear Weapons, Advisory Opinion, ICJ Reports, 1996 (I), p. 240, para. 
26) . 58 

In effect, the FRY was seeking to use Article IX of the Genocide Convention as 
a device to establish jurisdiction over complaints relating to quite different 
agreements. The FRY's interpretation of the Genocide Convention would 
have entailed watering down the crime of genocide to the point that it was de- 
prived of its separate identity as the most serious of international crimes. 

The other provision relied on by the FRY — Article 36(2) of the Statute of 
the Court — could afford jurisdiction only in the event that both the FRY and 
the respondent State in question had each made a valid declaration accepting 
the Court's jurisdiction under that provision and the dispute fell within the 
scope of both declarations. The FRY had purported to make a declaration un- 
der Article 36(2) on April 25, 1999 (a month after the commencement of the 
NATO campaign and three days before the FRY filed its applications against 
the respondent States). It then sought to rely upon that declaration as a basis 
for jurisdiction in the proceedings against those respondent States which had 
extant declarations under Article 36(2) (Belgium, Canada, the Netherlands, 
Portugal, Spain and the United Kingdom). 

In view of the dispute regarding the status of the FRY, the question imme- 
diately arose whether the FRY declaration was valid. If, as the Security Coun- 
cil and the General Assembly had decided, 59 the respondent States claimed 
and the FRY has now accepted, the FRY was not at the relevant time a mem- 
ber of the United Nations, then it was not a party to the Statute of the Court 
and could not have made a valid declaration under Article 36(2) of that 

58. Id.,U40. 

59. See supra note 14. 

64 



Christopher Greenwood 



Statute. The Court, however, understandably chose not to decide that ques- 
tion in provisional measures proceedings when there were other, more obvi- 
ous, reasons for holding that there was no basis for jurisdiction. In the cases 
against Spain and the United Kingdom, Article 36(2) of the Statute could not 
have provided a basis for jurisdiction, because those two States had accepted 
the jurisdiction of the Court only as between themselves and another State 
which had made a similar declaration not less than one year earlier. The FRY's 
declaration, even if valid, plainly did not fulfill that requirement. 

The Court's reason for holding that Article 36(2) did not afford a basis for 
jurisdiction in the cases against Belgium, Canada, the Netherlands and Portu- 
gal is of more general interest. The FRY declaration accepted the jurisdiction 
of the Court as between the FRY and other States with Article 36(2) declara- 
tions "in all disputes arising or which may arise after the signature of the pres- 
ent declaration [i.e., after April 25, 1999], with regard to the situations or 
facts subsequent to this signature." 60 The Court held that the dispute which 
the FRY wished to bring before the Court had arisen before April 25, 1999. 
That was clear from the terms of the FRY applications, which referred primar- 
ily to events before that date, and from the debates in the Security Council on 
March 24 and 26, 1999 in which the legality of the NATO action was the sub- 
ject of extensive discussion. The Court rejected the suggestion that the air 
campaign could be sliced up like salami, so that each air raid gave rise to a 
fresh dispute. The decision is not a technical one. The temporal reservation in 
the FRY's declaration was carefully drafted to ensure that no proceedings 
could be brought against the FRY in respect of the abuses in Kosovo which 
had led to the NATO campaign. It was entirely in accordance with precedent 
and principle that the FRY was not allowed, in the words of the old saying, "to 
have its cake and eat it too." 

The International Court proceedings are, nevertheless, an important re- 
minder that military action can be the subject of scrutiny by the International 
Court not merely after the action has ended but while it is in progress. Provi- 
sional measures proceedings can be brought before the Court in a compara- 
tively short time and the Court has now held that an order for provisional 
measures is legally binding. 61 Since it cannot be assumed that there will always 
be a jurisdictional ground for dismissing a request for provisional measures in 



60. The full text of the FRY declaration is quoted in Order in the case against Belgium, supra 
note 57, H 23. 

61. LaGrand Case (Germany v. United States of America), 40 INTERNATIONAL LEGAL 
MATERIALS 1069 (2001) Oudgment of June 27, 2001). 

65 



The Applicability of International Humanitarian Law 

such a case, the possibility clearly exists that States involved in ongoing mili- 
tary operations might be forced to defend them before the Court in such pro- 
ceedings. The stakes, in such an event, could be very high indeed. Moreover, 
the Court's findings were, for the most part, provisional and, at the time of 
writing, the proceedings against all of the respondent States except for Spain 
and the United States of America remained on the Court's list. 

3. The European Court of Human Rights 

The third proceedings were in the European Court of Human Rights. The 
case of Bankovic v. Belgium concerned the attack on the building in Belgrade 
housing the studios of Radio Televizije Srbije (RTS) . 62 That building was hit in 
an air raid on April 23, 1999. Sixteen people were killed and sixteen injured. 
The application was brought by one of those injured and relatives of some of 
those killed against the seventeen NATO States which were also parties to 
the European Convention on Human Rights (i.e., all of the NATO States ex- 
cept Canada and the United States). The applicants alleged that the attack 
had violated the right to life, under Article 2 of the Convention, and the right 
to freedom of expression, under Article 10, of those killed or injured. They 
maintained that the respondent States were responsible for those violations 
even though they had occurred outside the territory of any of them (and, in- 
deed, in the territory of a State not party to the European Convention). In ar- 
guing that the Convention was not confined to events occurring on the 
territory of the States parties, the applicants relied on the decisions in Loizidou 
v. Turkey, in which the European Court had held Turkey responsible for viola- 
tions of the Convention occurring in the north of Cyprus where large numbers 
of Turkish forces have been stationed since 1974 and in which the Court 
found that Turkey exercised effective control. 63 In addition they argued that 
the respondents were responsible for the alleged violations irrespective of 
which State's forces had actually carried out the attack, because they con- 
tended that NATO operated on the basis that any NATO State could have 



62. The decision of the Grand Chamber of the Court on December 12, 2001 (Bankovic et al. v. 
Belgium et al.) 11 BUTTERWORTHS HUMAN RIGHTS CASES 435 (2002) is also available at the 
website of the Court, http://www.echr.coe.int. The present writer was counsel for the United 
Kingdom in those proceedings; this paper represents his personal views. 

63. Loizidou v. Turkey (Preliminary Objections), 103 INTERNATIONAL LAW REPORTS 622 
(1995); Loizidou v. Turkey (Merits), 108 INTERNATIONAL LAW REPORTS 443 (1996). These 
decisions were confirmed by the Court's decision in Cyprus v. Turkey (10 May 2001), available on 
the Court's website, supra note 62. 

66 



Christopher Greenwood 



vetoed the decision to attack the RTS building. 64 In doing so, they high- 
lighted the whole issue of the geographical extent of the European Conven- 
tion and Its applicability to operations involving the armed forces of States 
party to the Convention which occur outside the territory of those States. 

The case also raised important questions about the relationship between 
the principles of international humanitarian law and international human 
rights law. The applicants contended that human rights law and international 
humanitarian law were not mutually exclusive and denied that military opera- 
tions in an international armed conflict were governed solely by humanitarian 
law. 65 The first argument of the applicants was that the legality of the attack 
on the RTS building had to be assessed by reference to provisions of the Euro- 
pean Convention, quite independently of whether that attack complied with 
international humanitarian law, although they also contended, in the alterna- 
tive, that the Convention in effect incorporated the principles of humanitar- 
ian law, so that the Convention would have been violated if the attack on the 
RTS building had been in breach of international humanitarian law. 

These are arguments of very considerable breadth which, had they been ac- 
cepted, would radically have altered the legal framework within which mili- 
tary operations have to be conducted. A Grand Chamber of the Court, 66 
however, rejected the applicants' arguments and unanimously declared the 
application inadmissible. The Grand Chamber accepted the respondents' ar- 
gument that the case fell outside the scope of the Convention. Article 1 of the 
Convention defines that scope by providing that "the High Contracting 
Parties shall secure to everyone within their jurisdiction the rights and free- 
doms defined in Section I of this Convention." The Court held that this pro- 
vision reflected a largely (though not exclusively) territorial concept of 
jurisdiction and that it was only in exceptional cases that persons outside the 
territory of one of the High Contracting Parties would be considered as falling 
within the jurisdiction of that Party. The Court contrasted Article 1 of the Eu- 
ropean Convention with common Article 1 of the Geneva Conventions, 



64. Benvenuti, supra note 54, at 526-9, broadly supports these propositions. 

65. They relied in part on the report of the Inter- American Commission of Human Rights in 
Coard et al. v. United States of America, Case 10, 951 (Sept. 29, 1999) 9 BUTTERWORTHS 
HUMAN RIGHTS CASES 150 (2001), which considered that the detention by United States 
forces of persons captured in the Grenada operation was subject to the American Convention 
on Human Rights. Available at http://www.cidh.oas.org/annualrep/99eng/merits/ 
unitedstatesl0.95.htm. 

66. While most cases in the Court are heard by a Chamber of seven judges, the Chamber 
originally constituted to hear Bankovic relinquished jurisdiction to the Grand Chamber of 
seventeen judges because of the importance of the issues raised by the case. 

67 



The Applicability of International Humanitarian Law 



under which "the High Contracting Parties undertake to respect and ensure 
respect for the present Convention in all circumstances." The parties to the 
Geneva Conventions were expressly required to respect the Conventions in 
all their military operations and could be held responsible for any failure on 
the part of their forces anywhere in the world to observe those Conventions. 
By contrast, Article 1 of the European Convention was clearly narrower and 
imposed responsibility only in respect of treatment of a person who was within 
the jurisdiction of the State concerned at the relevant time. The Court held 
that a person was not to be treated as falling within the jurisdiction of a State 
merely because he or she was affected by the military operations of that State's 
forces. 

The Bankovic judgment removed the possibility that military operations by 
the European members of NATO would henceforth be measured not only 
against the yardstick of international humanitarian law but also by reference 
to the very different standards of the European Convention on Human 
Rights. Indeed, had the applicants' arguments been accepted it would not only 
have been NATO that would have been affected. Coalition military opera- 
tions in the Gulf and United Nations operations in, for example, East Timor 
would also presumably have come within the purview of the European Court 
and the provisions of a regional human rights treaty would have been superim- 
posed on the requirements of international humanitarian law. The Court did 
not reverse its earlier decisions in the Cyprus cases, but it noted that the cir- 
cumstances in Cyprus were unusual in that both Cyprus and Turkey were par- 
ties to the European Convention so that the inhabitants of northern Cyprus 
should not be deprived of the benefits of the Convention by reason of the 
changes brought about by the Turkish intervention of 1974. It remains to be 
seen what attitude the Court would take in a case where armed forces of a 
party to the European Convention occupied territory of a non-Convention 
country. 

Conclusions 

The Kosovo conflict raised important questions about the jus in hello in ad- 
dition to the difficult issues of the jus ad bellum which have already attracted so 
much attention. Indeed, in one sense the former group of questions are more 
important, because they may have a wider impact. Although, for the reasons 
given above, the Kosovo conflict was unusual in certain respects (notably its 
asymmetric character), many of the lessons learned should be relevant to fu- 
ture conflicts. 

68 



Christopher Greenwood 



The following conclusions seem warranted: 

1 . International humanitarian law applies to a conflict between two or 
more States irrespective of what that conflict is called or the cause for 
which force is used; the use of force by way of humanitarian 
intervention is no different in this respect from the use of force for 
other purposes. 

2. While the jus ad bellum requires that the use of force be proportionate 
to the goals which the State or States using force are permitted to 
pursue, that does not mean that the jus in hello principles on such 
issues as targeting are to be interpreted or applied differently and it 
should never be used as an excuse to undermine the principle of the 
equal application of the jus in hello. 

3. Members of the armed forces of a party to an international conflict 
who find themselves in the power of the enemy are prisoners of war, 
irrespective of the purpose for which the conflict is waged, whether 
prisoner of war status is claimed on their behalf or how or where they 
were captured. 

4. It might have been lawful for the NATO States to have imposed an 
oil embargo on the FRY but the legal issues involved went beyond a 
simple application of the law of neutrality. 

5. The KFOR and UNMIK presence in Kosovo pursuant to Security 
Council Resolution 1244 (1999) was not governed by the law of 
belligerent occupation. 

6. Scrutiny by international courts and tribunals of military operations 
was a fact of life even before the establishment of the International 
Criminal Court. The approach of the three tribunals which 
considered the conduct of the Kosovo conflict suggests that much of 
the concern which has been expressed on this subject is misplaced. 



69 



Rules of Conduct During 
Humanitarian Intervention 

Ivan Shearer 



I 



he Russian Orthodox Church recently canonized the last Czar of Rus- 
sia, Nicholas II. A fantasy of mine is that the Church will at some point 
also consider for sainthood (assuming his private life met appropriate stan- 
dards) the czar's legal adviser, Baron Feodor de Martens, who was responsible 
for the wording of what has come down to us as the "Martens Clause." 

As it first appeared in the Preamble to the Second Hague Convention of 
1899, the Martens Clause reads: 

Until a more complete code of the laws of war is issued, the high contracting 
parties think it right to declare that in cases not included in the Regulations 
adopted by them, populations and belligerents remain under the protection and 
empire of the principles of international law, as they result from the usages 
established between civilized nations, from the laws of humanity and the 
requirements of the public conscience. 1 

In common articles of the 1949 Geneva Conventions, the Martens 
Clause is substantially repeated, with the substitution of the word "dictates" 



1. Preamble, Convention (II) with Respect to the Laws and Customs of War on Land, July 29, 
1899, U.S.T.S. 403, 32 Stat. 1803, 1 Bevans 247. 



Rules of Conduct During Humanitarian Intervention 

for "requirements" in relation to the public conscience. 2 The Clause also ap- 
pears in the 1977 Additional Protocols to the Geneva Conventions. 3 

The Martens Clause is a powerful reminder that in situations of armed con- 
flict, of whatever kind, there is never a total gap in the law, never a situation in 
which there cannot be an appeal to law in order to mitigate the horror and the 
suffering. Baron de Martens correctly foresaw in 1899, and again in 1907, that 
unscrupulous commanders and their cunning legal advisers might seek to ex- 
ploit loopholes or ambiguities in the written law. An egregious example is the 
"general participation clause" of the Hague Conventions of 1907, according 
to which the provisions of the Conventions did not apply to any of the 
belligerents unless all of them were parties to the Conventions. Thus, the de- 
tailed Hague Regulations might not apply but, according to the Martens 
Clause, standards of civilized behavior deriving from custom, humanity and 
the public conscience do. 



2. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in 
Armed Forces in the Field, Aug. 12, 1949, Article 63, 6 U.S.T. 3114, 75 U.N.T.S. 31, 
DOCUMENTS ON THE LAWS OF WAR 197 (Adam Roberts & Richard Guelff eds., 3d ed., 2000) 
[hereinafter Geneva I]; Geneva Convention for the Amelioration of the Condition of the 
Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, Article 
142, 6 U.S.T. 3217, 75 U.N.T.S. 85, id. at 222 [hereinafter Geneva II]; Geneva Convention 
Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Article 142, 6 U.S.T. 3316, 75 
U.N.T.S. 135, id. at 244 [hereinafter Geneva III]; Geneva Convention Relative to the 
Protection of Civilian Persons in Time of War, Aug. 12, 1949, Article 158, 6 U.S.T. 3516, 75 
U.N.T.S. 287, id. at 301 [hereinafter Geneva IV]. 

3. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, Jun. 8, 1977, Article 1(2), 1 125 U.N.T.S. 3, id. 
at 422 [hereinafter Protocol I]. Protocol Additional to the Geneva Conventions of 12 August 
1949, and Relating to the Protection of Victims of Non- International Armed Conflicts, Dec. 12, 
1977, Preamble, 1 125 U.N.T.S. 609, id. at 483 [hereinafter Protocol II]. 

72 



Ivan Shearer 



I take this as my starting point in the discussion of the jus in hello in relation 
to humanitarian intervention operations. 4 Whatever may be the uncertainties 
in the identification and application of this law to a relatively new form of 
armed conflict, at least we can be confident that we start from a firm, albeit 
general, basis in humanitarian law. That basis is indeed becoming more de- 
tailed in content as consensus emerges that certain principles and rules of the 
jus in hello have achieved recognized status in customary law. Note should be 
taken in this regard of ongoing discussions in Geneva to identify those parts of 
Protocol I that may be regarded as customary, notwithstanding the inability of 
certain States to ratify the Protocol by reason of particular objections. 5 

The other firm foundation for my approach is that the application of the jus 
in hello is not dependent upon the demonstration of a legal basis for the resort 
to armed force in the jus ad helium. The law of armed conflict (which term I re- 
gard as including international humanitarian law) applies its protection 
equally to the just and the unjust sides to a conflict. This is an established and 
undoubted proposition. 

What is "Intervention"? 

We may consider first a number of actions that constitute (for the most 
part) non-forcible and thus uncontroversial forms of intervention. These are 
sometimes listed under the heading "Military Operations Other than War" 
(MOOTW) and include disaster relief, humanitarian assistance, peace 



4. Some recent literature on the topic includes: Hilaire McCoubrey and Nigel White, THE BLUE 
HELMETS: LEGAL REGULATION OF UNITED NATIONS MILITARY OPERATIONS (1996); 
Daphna Shraga and Ralph Zacklin, The applicability of international humanitarian law to UN 
peacekeeping operations: conceptual, legal and practical issues, in SYMPOSIUM ON HUMANITARIAN 
ACTION AND PEACE-KEEPING OPERATIONS (Umesh Palwankar, ed., 1994); Willy Lubin, 
Towards the international responsibility of the UN in human rights violations during peace-keeping 
operations: the case of Somalia, 52 BULLETIN OF THE INTERNATIONAL COMMISSION OF JURISTS 
47 (1994); Julianne Peck, Note: The UN and the Laws of War: How Can the World's Peacekeepers 
Be Held Accountable?, 21 SYRACUSE JOURNAL OF INTERNATIONAL AND COMPARATIVE LAW 
283 (1995); Brian Tittemore, Belligerents in Blue Helmets: Applying International Humanitarian 
law to UN Peace Operations, 33 STANFORD JOURNAL OF INTERNATIONAL LAW (1997); Garth 
Cartledge, Legal constraints on military personnel deployed on peace-keeping operations, in THE 

Changing Face of Conflict and the Efficacy of International Humanitarian 

LAW (Helen Durham and Timothy L.H. McCormack eds., 1999). 

5. Yoram Dinstein, The Thirteenth Waldemar A. Solf Lecture in International Law, 166 MILITARY 

Law Review 93 (2000). 



73 



Rules of Conduct During Humanitarian Intervention 

operations, arms control, military support to the civil authorities, enforcement 
of sanctions, foreign internal defense, counter-drug operations, evacuation of 
noncombatants, hostage rescue, and others. 6 The law applicable to such oper- 
ations consists principally of the norms of human rights, as recognized in the 
major international covenants and conventions, and established as general in- 
ternational law. The domestic law of the country where the intervention takes 
place will also call for respect, except in so far as it may conflict with estab- 
lished international human rights law or the provisions of a higher law, such as 
a resolution of the United Nations Security Council. 

Some of these examples may, of course, in the circumstances, involve the 
use of armed force or grow through "mission creep" to require the use of armed 
force. A hostage rescue almost certainly requires the use of armed force, but 
the swiftness of the insertion and withdrawal of force hardly allows for the ap- 
plication of the law of armed conflict as such: only the general principles of 
proportionality and humanity guide us here. Lengthier presences, such as the 
operation in Somalia, may come to pose questions of the applicability of the 
laws of armed conflict as the situation escalates from a peaceable and unop- 
posed intervention to armed conflict. A peacekeeping operation authorized by 
the United Nations may envisage the necessity of the use of force beyond the 
elementary right of UN forces to defend themselves against armed attack. 7 
These are sometimes referred to as "robust" peacekeeping operations. This 
type of operation also raises the question of application of the laws of armed 
conflict. 

Finally, intervention may be avowedly a forcible action — a peace enforce- 
ment action usually authorized by the UN Security Council (as in the case of 
Iraq's invasion of Kuwait), but in certain cases not authorized by it (as in the 
case of the bombing by NATO forces of Yugoslavia by reason of the situation 
in Kosovo). This is the type of intervention most clearly requiring the applica- 
bility of the laws of armed conflict. But what laws? 



6. Chairman of the Joint Chiefs of Staff, U.S. Department of Defense, Joint Publication 3-07, 

Joint Doctrine for Military Operations Other Than War (1995). 

7. In September 1992 the Secretary-General of the United Nations announced that 
peacekeeping troops in Bosnia-Herzegovina "would follow normal peace-keeping rules of 

engagement [and] would thus be authorized to use force in self-defense It is to be noted that 

in this context self-defense is deemed to include situations in which armed persons attempt by 
force to prevent UN troops from carrying out their mandate." Cited by LESLIE GREEN, THE 
CONTEMPORARY LAW OF ARMED CONFLICT 344 (2d ed. 2000). 

74 



Ivan Shearer 



The Applicability of the Conventional Laws of Armed Conflict 

to Forcible Intervention 

We speak more narrowly of the law of armed conflict (LOAC) as "Hague 
Law," since it finds its principal elaboration in the now rather dated Hague 
Conventions of 1907. We speak of international humanitarian law (IHL) as 
"Geneva Law", since it derives principally from the Geneva (Red Cross) Con- 
ventions of 1949. These two sets of laws, of separate origin in the nineteenth 
century and flowing in separate if parallel streams through most of the twenti- 
eth century, were brought together in one stream and updated in Additional 
Protocols I and II to the Geneva Conventions, adopted in 1977. 8 Those Proto- 
cols have since been widely (although not universally) ratified. It is now usual 
to speak of "the law of armed conflict" and "international humanitarian law" 
interchangeably. Either expression generally includes the other. 

What is the threshold of application of these laws? The Hague Conventions 
are silent on the point, assuming that their application to "war" was objectively 
ascertainable by reason of a declaration to that effect by one or more parties. 
The Charter of the United Nations no longer envisages declarations of war as a 
right of States and restricts the use of force by States against other States to sit- 
uations of self-defense and actions authorized by the Security Council under 
Chapter VII of the Charter. (Some also believe that there is a limited range of 
uses of armed force which are not prohibited by Article 2 (4) of the Charter, 
such as "humanitarian intervention.") Hence, the UN Charter does not estab- 
lish a definition of a state of war or armed conflict. The Geneva Conventions of 
1949, however, adopted soon after the creation of the United Nations, do es- 
tablish a threshold in general terms, a threshold that is also adopted in Proto- 
col I. Common Article 2 of the Geneva Conventions provides: 

In addition to the provisions which shall be implemented in peacetime, the 
present Convention [s] shall apply to all cases of declared war or of any other 
armed conflict which may arise between two or more of the High Contracting 
Parties, even if the state of war is not recognized by one of them. 



The Convention[s] shall also apply to all cases of partial or total occupation of 
the territory of a High Contracting Party, even if the said occupation meets with 
no armed resistance. 9 



8. Protocol I and Protocol II, supra note 3. 

9. See Article 2 in each of the four Geneva Conventions, supra note 2. 

75 



Rules of Conduct During Humanitarian Intervention 

The threshold of application of the Geneva Conventions and of Protocol I is 
thus not set high: it merely requires the objective existence of an "armed con- 
flict," which presumably exists from the first moment after an exchange of 
fire. 

The Conventions and Protocol I apply between "the Contracting Parties." 
Can the United Nations, as such, be a Contracting Party? Following the Advi- 
sory Opinion of the International Court of Justice in the Reparations for In- 
juries Suffered in the Service of the United Nations case, 10 the United Nations 
could, if it chose, become a party to such conventions. But it has not done so 
for reasons to be discussed further below. The national contingents of UN 
forces participating in an armed conflict would, however, be bound by the 
conventions to which their States are parties. 

It is also necessary to note that under the Geneva Conventions and Proto- 
col I they may apply between Contracting Parties and other parties to the con- 
flict which are not represented by a government or an authority recognized by 
the adverse party. These latter forces must, however, "be subject to an inter- 
nal disciplinary system which, inter alia, shall enforce compliance with the 
rules of international law applicable in armed conflict." 11 Essentially this 
means voluntary de facto compliance by a entity not competent to become a 
Contracting Party to the Conventions, which — if offered — must be recipro- 
cated. More formal status, however, is accorded by Protocol I, Article 96(3) to 
the particular case of an "authority representing a people engaged against a 
High Contracting Party in an armed conflict of the type referred to in Arti- 
cle 1, paragraph 4 [self-determination struggles against colonial, alien, or rac- 
ist regimes]" provided that the authority undertakes to apply the Conventions 
and the Protocol by means of a declaration addressed to the depositary (the 
Swiss Federal Council). 

So far as non-international armed conflicts (civil wars) are concerned, 
Common Article 3 of the Geneva Conventions similarly refers merely to the 
objective existence of an armed conflict, and applies as between "the parties 
to the conflict," an expression distinct from, and wider than, "Contracting 
Parties." Protocol II supplements this by defining such a conflict in terms of 
the parties being the armed forces of the Contracting Party in whose terri- 
tory the conflict takes place and "dissident armed forces or other organized 
armed groups which, under responsible command, exercise such control over 



10. 1949 I.CJ. 174 (Apr. 11). 

11. Protocol I, supra note 3, art. 43. 



76 



Ivan Shearer 



a part of its territory as to enable them to carry out sustained and concerted 
military operation and to implement this Protocol." Thus, police-type actions 
against armed individuals or bands that do not fulfill these conditions do not 
engage the application of Common Article 3 of the Geneva Conventions or 
Protocol II. 

As can be seen, there are a number of issues of interpretation and applica- 
tion of the above instruments to particular situations. Notwithstanding these, 
one must always remember the Martens Clause and the growing body of cus- 
tomary law of armed conflict and human rights law as relevant sources of law 
to apply to any situation. 

The United Nations and International Conventions Relating to 

Armed Conflict 

The United Nations is not, as an international personality in its own right, 
a party to any of the conventions relating to armed conflict. It is sometimes 
suggested that it should become a party. This, however, could impede its 
peacekeeping missions. The problem is the threshold of application of the 
conventions. There are situations in peacekeeping, especially those that re- 
quire — or come to require — "robust" measures, that may cross the threshold, 
but it may be undesirable for the operation to "change gears" notionally from a 
peacekeeping mission into an armed conflict. This could well be escalatory in 
effect. Moreover, there would be something odd about a situation in which 
the United Nations, in the name of the international community, is conduct- 
ing an essentially peaceful operation in accordance with the United Nations 
Charter, which could be characterized nonetheless as an "armed conflict" in 
which United Nations forces and opposed forces are equally "combatants." It 
has rightly been suggested that the threshold of armed conflict must be set 
higher than that set by the Geneva Conventions and Protocols where United 
Nations peacekeeping operations are concerned. 12 

Notwithstanding that understandable view, the United Nations has consis- 
tently taken the view that "the principles and spirit of general international 



12. Joseph Bialke, United Nations Peace Operations: The Applicable Norms and 

THE APPLICATION OF THE LAW OF ARMED CONFLICT, LL.M thesis, University of Iowa College 
of Law, published by Defense Information Systems Agency, Defense Technical Information 
Center, Ft. Belvoir, Virginia, AD No. ADA380930 (2000) ; Joseph Bialke, United Nations Peace 
Operations: Applicable Norms and the Application of the Law of Armed Conflict, 50 AIR FORCE LAW 

Review 1 (2001). 

77 



Rules of Conduct During Humanitarian Intervention ^__ 

conventions applicable to the conduct of military personnel" shall be observed 
by forces participating in United Nations peacekeeping operations. 13 This, of 
course, is to underline the fundamental consideration that the absence of for- 
mal applicability of the laws of armed conflict/international humanitarian law 
does not open up a vacuum in which no laws apply. 

It might stick in the throats of right-thinking people that there should be an 
equality of arms (and the equal moral stature that might be implied by the for- 
mal applicability of international conventions relevant to armed conflict) in 
the case of enforcement actions carried out under the authority of the United 
Nations Security Council acting under Chapter VII of the Charter. After all, 
in such a case there is a party clearly identified by the Security Council as be- 
ing in the wrong, and United Nations forces are being deployed to right that 
wrong. That, however, would be a wrong approach, if it led to the proposition 
that the conventions could not apply. Both the law of armed conflict and in- 
ternational humanitarian law have throughout their development been con- 
sistently agnostic so far as the Tightness or wrongness of a belligerent party's 
position is concerned. The jus in hello applies equally among the parties how- 
ever strong or weak their claims may be to have the right to resort to force un- 
der the jus ad bellum. And of course that must be so, otherwise the conflict 
could be fought without restraint. 

Peace enforcement personnel acting on behalf of the United Nations are 
essentially engaged in hostilities as belligerents and "are treated in exactly the 
same way as the armed forces of a state." 14 Looked at from the practical point 
of view, as Professor Greenwood has remarked, if those laws did not apply 



13. In 1991 the United Nations formulated a Model Participation Agreement, to be concluded 
between itself and Member States contributing forces, to be used in peacekeeping operations. 
Paragraph 28 of the Model Agreement provides: 

[The United Nations peacekeeping forces] shall observe and respect the principles and 
the spirit of the general international conventions applicable to the conduct of military 
personnel. The international conventions referred to above include the four Geneva 
Conventions of 12 August 1949 and their Additional Protocols of 8 June 1977 and the 
UNESCO Convention of 14 May 1954 on the Protection of Cultural Property in the 
Event of Armed Conflict. [The participating State] shall therefore ensure that the 
members of its national contingent serving with [the UN peacekeeping force] be fully 
acquainted with the principles and spirit of the Conventions. 

U.N. DOC. A/46/185 (1991). 

14. Christopher Greenwood, Protection of peacekeepers: the legal regime, 7 DUKE JOURNAL OF 

Comparative and International Law 185, 189 (1996). 

78 



Ivan Shearer 



then a commander of the force opposed to the UN force could well conclude 
that he "might as well be hanged for a sheep as for a lamb." 15 

The Convention on the Safety of United Nations and Associated Personnel 

The difference between peacekeeping and peace enforcement operations is 
clearly marked by the Convention on the Safety of United Nations and Asso- 
ciated Personnel, adopted by the General Assembly and opened for signature 
on December 9, 1994. 16 The convention applies to protect military, police or 
civilian personnel engaged or deployed in a "United Nations operation." It is 
made a crime for any person to murder, kidnap, or otherwise attack personnel 
so engaged or deployed. The convention provides for quasi-universal jurisdic- 
tion over offenders. 17 The term "United Nations operation" is defined to 
mean: 

[A]n operation established by the competent organ of the United Nations in 
accordance with the Charter of the United Nations and conducted under 
United Nations authority and control: 

where the operation is for the purpose of maintaining or restoring international 
peace and security; or 

where the Security Council or the General Assembly has declared, for the 
purposes of this Convention, that there exists an exceptional risk to the safety of 
the personnel participating in the operation. 

Thus there is no "equality of arms" between UN personnel and others in peace- 
keeping operations authorized under what Secretary-General Dag Hammar- 
skjold, referring to the situation in the Congo, once dubbed "Chapter VI and a 
half — even "robust" ones under what some others have dubbed "Chapter VI 
and three quarters." However, as mentioned above, the policy of the United 



15. Id. 

16. 34 International Legal Materials 482 (1995). Note also the protection of 

peacekeepers contained in Protocol I (1977), art. 37(1) (d), supra note 3. 

17. By "quasi-universal jurisdiction" is meant jurisdiction of a pattern common in modern 
conventions creating international crimes (aircraft hijacking, torture, etc.) which provide that 
any State may exercise jurisdiction over offenders in accordance with its national law. If a 
suspected offender is in the territory of any contracting State, that State must either prosecute 
the offender itself or extradite to a State competent and willing to prosecute: aut dedere aut 
judicare. It is not truly universal jurisdiction as in the case of piracy. 

79 



Rules of Conduct During Humanitarian Intervention 

Nations is that "the principles and the spirit of the general conventions appli- 
cable to the conduct of military personnel" apply to those operations. 

In relation to peace enforcement operations the situation is different. Arti- 
cle 2(2) of the Convention provides: 

This Convention shall not apply to a United Nations operation authorized by 
the Security Council as an enforcement action under Chapter VII of the 
Charter of the United Nations in which any of the personnel are engaged as 
combatants against organized armed forces and to which the law of 
international armed conflict applies. 

This provision thus indirectly recognizes that while the principles and spirit 
of LOAC/IHL apply to peacekeeping, the letter of that law applies to peace 
enforcement. 

The UN Secretary -General's Bulletin of 1999 

On August 6, 1999 the Secretary-General of the United Nations issued a 
Bulletin entitled "Observance by United Nations forces of international 
humanitarian law." 18 In this document one can discern that United Nations 
parlance has come out of the shadows of "the principles and spirit" formula 
and has embraced "international humanitarian law" as such, which the docu-, 
ment then proceeds to summarize in substance (sections 5 to 9). These sec- 
tions are "promulgated" by the Secretary-General "for the purpose of setting 
out fundamental principles and rules of international humanitarian law appli- 
cable to UN forces conducting operations under United Nations command 
and control." 

It will be noted that these principles and rules apply only to UN forces 
"conducting operations under United Nations command and control." While 
this covers most UN peace operations, it would not have applied in the case of 
Iraq, where the Security Council approved the operations of a "coalition of 
the able and willing," led by the United States, acting in support of the right to 
self-defense of Kuwait. Nor does it apply to current operations in the Balkans, 
which have been approved by the UN Security Council but the command of 
which has been entrusted to NATO. 



18. Observance by United Nations forces of international humanitarian law, Secretary 'General's 
Bulletin, U.N. Doc. ST/SGB/1999/13 (Aug. 6, 1999), reprinted in 2 YEARBOOK OF 

International Humanitarian Law 563 (1999). 

80 



Ivan Shearer 



The statement in Section 1 of the Bulletin — "Field of application" — is of 
importance. It provides: 

1.1 The fundamental principles and rules of international humanitarian law set 
out in the present bulletin are applicable to United Nations forces when in 
situations of armed conflict they are actively engaged as combatants, to the 
extent and for the duration of their engagement. They are accordingly 
applicable in enforcement actions, or in peacekeeping operations when the use 
of force is permitted in self-defence. 

1.2 The promulgation of this bulletin does not affect the protected status of 
members of peacekeeping operations under the 1994 Convention on the Safety 
of United Nations and Associated Personnel or their status as non-combatants, 
as long as they are entitled to the protection given to civilians under the law of 
armed conflict. 

There are some possible problems of interpretation of the first paragraph of 
this provision. In the first place, one wonders whether, in the course of a single 
operation, UN forces can move in and out of "situations of armed conflict" 
and "engagement" as the paragraph implies. Thresholds of application are not 
so neatly marked in situations of the kind likely to be encountered. In the sec- 
ond place, rather than to search for some more polite and more exact defini- 
tion of "robust peacekeeping," such situations are described as "peacekeeping 
operations when the use of force is permitted in self-defence." Just as self-de- 
fense is described in the UN Charter, Article 51, as an "inherent" right of 
States, it is also in all major legal systems of the world an inherent right of indi- 
viduals to use necessary, proportionate and reasonable force in personal 
self-defense. The right of members of UN forces to use force in immediate per- 
sonal and unit self-defense in all operations should be assumed; it should not 
be used in order to characterize a particular type of operation. 

Conclusions 

While the difference between interventions authorized by the United Na- 
tions and those not so authorized may have everything to do with the debate 
regarding the jus ad bellum — the right to use force — it is, for all the reasons 
given above, not relevant to the jus in hello — the law applicable in armed con- 
flict. Whether an intervention is carried out under the authority of the United 
Nations, or by a single State, or by a coalition of States (e.g., NATO) without 

81 



Rules of Conduct During Humanitarian Intervention 



the authority of the United Nations, the participants are equally bound by the 
law of armed conflict. 

The effect of the various statements and documents discussed above re- 
garding the applicability of the law of armed conflict and international hu- 
manitarian law to forces acting under the authority of the United Nations is to 
make the entire corpus of that law, as presently understood to represent cus- 
tomary international law, applicable. National contingents may, in addition, 
apply various rules and interpretations of that law contained in conventions 
binding on them (notably Protocol I) that may not have reached customary 
law status. In the interests of consistency in adopting combined rules of en- 
gagement among the participating forces and for the avoidance of disagree- 
ment, US forces acting against Iraq in 1991 applied certain of the provisions of 
Protocol I de facto, even though that instrument has not been ratified by the 
United States. 

The application of the law relating to armed conflict is not a difficult matter, 
at least for most of the armed forces of the world likely to contribute forces to 
UN operations. They are trained constantly in their use, secured through rules 
of engagement. It would be difficult indeed for them to act in any other way. 

Michael Ignatieff has recently observed that "legal constraints are neces- 
sary if wars are to preserve public support. The real problem with the entry of 
lawyers into the prosecution of warfare is that it encourages the illusion that 
war is clean if the lawyers say so. A further illusion is that if we play by the 
rules, the enemy will too." Then, after describing the way in which Serbian 
forces behaved in Kosovo, he concludes: "The lesson is clear: it is a form of 
hubris to suppose that the way we choose to wage a war will determine how 
the other side fights. Our choice to wage 'clean' war may result in wars of ex- 
ceptional dirtiness." 19 That may be so, but neither public opinion nor the 
training and instincts of modern armed forces in civilized countries would 
have it any other way. 

The real problem may lie elsewhere. It lies not so much in the observance of 
the laws of armed conflict as in the manner of conducting operations. The 
problems of discrimination in targeting, illustrated by certain tragic errors in 
the bombing campaign against Yugoslavia, do not result in any sense from a 
desire to ignore or avoid the law, but may have more to do with the tendency 
of forces, especially Western forces, to be averse to taking casualties. As an- 
other writer has observed: "In recent years the key results of these concerns 



19. Michael Ignatieff, Virtual War: Kosovo and Beyond 200 (2000). 

82 



Ivan Shearer 



for the military have been rules of engagement and force-protection direc- 
tives — designed largely to protect political and military leaders from recrimi- 
nations that often follow casualties." 20 "Duke et decorum est pro patria mori." 
But human sentiment, and public opinion, may be less understanding when a 
life is lost in the course of nasty wars between other peoples. To die, or suffer 
injury, for the human rights of other people is indeed a noble, even heroic, act. 



20. John Gentry, Complex Civil-Military Operations: A U.S. Military -centric Perspective, 53 

Naval War College Review 57, 61 (2000). 

83 



Application of the Law of Armed Conflict 
During Operation Allied Force: 
Maritime Interdiction and 
Prisoner of War Issues 



George Walker 
Introduction 



N; 



ATO's 1999 Operation Allied Force, to succor Albanian Kosovars 
and others (e.g., Roma) indigenous to the former Yugoslavia's 1 
Kosovo province subjected to brutal actions, including murder, rape and dis- 
placement from their homes by Serbian forces under SFRY President Slobodan 
Milosevic's direction, was a legitimate collective action for humanitarian inter- 
vention pursuant to principles of state of necessity under circumstances known 
at the time. 2 NATO's Kosovo intervention was but one of those crises where 
States, individually or collectively, succored indigenous nationals, as part of a 
rescue operation for their own or other non-State nationals, or with the sole 



1. Hereinafter referred to as SFRY. There may be no "Yugoslavia" in the future. A March 14, 
2002 agreement, which must be approved by Serbia and Montenegro, declares the area of the 
former Yugoslavia will be known as Serbia and Montenegro. See Ian Fisher, Serbia and 
Montenegro Sign a Plan for Yugoslavia's Demise, N.Y. TIMES, Mar. 15, 2002, at A3. 

2. For analysis of principles of the state of necessity doctrine for collective humanitarian 
intervention and its application to Operation Allied Force in Kosovo, see George Walker, 
Principles for Collective Humanitarian Intervention to Succor Other Countries' Imperiled Indigenous 
Nationals, published in the American University International Law Review (2002). Milosevic 
raised the issue of the NATO campaign's lawfulness in his opening statement in his genocide and 
war crimes trial in The Hague. See Ian Fisher &. Marlise Simons, Defiant, Milosevic Begins His 
Defense by Assailing NATO, N.Y. TIMES, Feb. 15, 2002, at Al. 



Maritime Interdiction and Prisoner of War Issues 



goal of protecting indigenous nationals. Some occurred during the nineteenth 
and twentieth centuries before the United Nations Charter era, in some cases 
pursuant to the Concert of Europe, which lasted in one form or another from 
1815 through most of the nineteenth century. Scholars have traced these prin- 
ciples to ancient times. 3 Others have arisen since 1945, i.e., after the Charter 
became effective for interState relations. 4 Among the more important of the 
latter was NATO's bombing and sea interdiction campaigns, conducted pursu- 
ant to UN Security Council decisions authorizing them, that led to the 1995 
Dayton Accords for Bosnia-Herzegovina, which included protection for indig- 
enous peoples. NATO's 1999 Operation Allied Force action was among the 
latest of this kind of campaign. What made Allied Force unique was that it was 
the first time a collective self-defense organization constituted under Article 
5 1 of the Charter intervened while the Security Council was seized of a crisis 
the Council had said threatened international peace and security. 

A. Relevance of the General Law of Armed Conflict and Neutrality Law 

Other papers in this volume discuss the lawfulness of particular NATO at- 
tacks. A more fundamental question is whether the law of armed conflict and 
the law of neutrality, which apply during war in the traditional sense, govern 
during operations like Operation Allied Force. 

There is a developing view that military operations operating under UN Se- 
curity Council decisions pursuant to Articles 25 and 48 of the Charter do not 
necessarily follow the law of armed conflict. When a Council decision is con- 
trary to law of armed conflict principles, particularly those in a treaty, the de- 
cision must be followed. This rule, rooted in Article 103 of the Charter and 
the obligatory nature of Council decisions, does not account for contrary 



3. See Walker, supra note 2. 

4. See id. 



86 



George Walker 



customary or general principles norms, nor does it consider the possibility of a 
jus cogens norm in the law of armed conflict. 5 If a Council decision does not 
specify rules of conduct for conducting military operations that would appear 
to contradict the law of armed conflict, and this is the usual case, the law of 
armed conflict should be followed. If non-mandatory UN resolutions 6 are con- 
trary to law of armed conflict rules, the only established body of law for stan- 
dards is the law of armed conflict, and it should be followed. The same is true 
for Council decisions authorizing force with unspecified standards; the law of 
armed conflict should be followed. Thus although the law of armed conflict, 
strictly speaking, does not govern because a UN resolution-authorized 



5. UN CHARTER arts. 25, 48, 103. Jus cogens, i.e., a peremptory norm that trumps inconsistent 
treaty, customary and general principles rules, is a vague doctrine whose contours are less than 
certain; it is not cited in traditional international law sources, e.g., Statute of the International 
Court of Justice, Articles 38, 59; RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE 
UNITED STATES §§ 102-03 (1987). See generally Vienna Convention on the Law of Treaties, 
May 23, 1969, arts. 53, 64, 1 155 U.N.T.S. 33 1, 345, 347; IAN BROWNLIE, PRINCIPLES OF PUBLIC 
INTERNATIONAL LAW 4, 19, 514-17 (5th ed. 1998); T. ELIAS, THE MODERN LAW OF 

Treaties 177-87 (1974); 1 Oppenheim's International Law §§ 2, 642, 653 (Robert 

Jennings & Arthur Watts eds., 8th ed. 1992); RESTATEMENT (THIRD), supra, §§ 102 r.n.6, 323 
cmt. b, 331(2), 338(2); THE CHARTER OF THE UNITED NATIONS 1 1 18-19 (Bruno Simma ed., 

1994); Ian Sinclair, The Vienna Convention on the Law of Treaties 17-18, 85-87, 

94-95, 160, 184-85, 218-26, 246 (2d ed. 1984) (Vienna Convention, supra is progressive 
development); GRIGORII I. TUNKIN, THEORY OF INTERNATIONAL LAW 98 (William E. Butler 
trans., 1974); Levan Alexidze, Legal Nature of Jus Cogens in Contemporary International Law, 172 
RECUEIL DES COURS 219, 262-63 (198 1) ; John Hazard, Soviet Tactics in International Lawmaking, 

7 Denver Journal of International Law and Policy 9, 25-29 (1977); Eduardo Jimenez 

de Arechaga, International Law in the Past Third of a Century, 159 RECUEIL DES COURS 1, 64-69 
(1978); George Walker, Integration and Disintegration in Europe: Reordering the Treaty Map of the 
Continent, 6 THE TRANSNATIONAL LAWYER 1, 60, 63 (1993); Mark Weisburd, The Emptiness of 
the Concept of Jus Cogens, As Illustrated by the War in Bosnia-Herzegovina, 17 MICHIGAN JOURNAL 
OF INTERNATIONAL LAW 1 (1995). For UN Charter Article 103 analysis, see generally LELAND 

Goodrich et al, Charter of the United Nations 614-17 (3d ed. 1969); The Charter 

OF THE UNITED NATIONS, supra at 1 1 16-25; W. Reisman, The Constitutional Crisis in the United 
Nations, 87 AMERICAN JOURNAL OF INTERNATIONAL LAW 83 (1993). 

6. Non-mandatory UN resolutions include General Assembly resolutions and Council 
resolutions recommending action. Assembly or Council recommendations passed pursuant to 
UN Charter Articles 10-1 1, 13-14 and Chapters VI-VII are non-mandatory, although they may 
strengthen preexisting customary and treaty norms recited in them. SYDNEY BAILEY & SAM 

Daws, The Procedure of the UN Security Council ch. 1.5 (3d ed. 1998); Brownlie, 

supra note 5, at 14-15, 694; JORGE CASTENEDA, LEGAL EFFECTS OF UNITED NATIONS 
RESOLUTIONS ch. 3 (Alba Amoia trans., 1969); GOODRICH ET AL, supra note 5, at 126, 144, 
290-314; 1 OPPENHEIM, supra note 5, § 16, at 47-49; RESTATEMENT (THIRD), supra note 5, § 
103(2) (d), cmt. c, r.n.2; THE CHARTER OF THE UNITED NATIONS, supra note 5, at 284, 407-18, 
605-36, 652. 



87 



__ Maritime Interdiction and Prisoner of War Issues 

operation is not a conflict between States in the traditional sense of war, the 
law of armed conflict should govern in these situations. If UN resolution-gov- 
erned operations grow in number and complexity and intensity of conflict, an 
ultimate result may be a parallel body of law that should be, and hopefully will 
be, the same as the law of armed conflict for war. 

Humanitarian intervention under Operation Allied Force stood on footing 
similar to the latter situations. The campaign was not war in the classical 
sense, although there are reports the United Kingdom's Prime Minister and 
maybe others characterized later phases of the NATO campaign as war. Par- 
ticipants, whether the collectively intervening States or the affected State, 
should have applied the law of armed conflict as in the case of UN resolution- 
authorized actions. No Council decision governed the Allied Force situation 
with respect to humanitarian intervention. Humanitarian law issues covered 
by, e.g., the 1949 Geneva Conventions, stand in a special place. 7 The same 
principles of applying the law of armed conflict and neutrality law should gov- 
ern during collective humanitarian interventions operating under state of ne- 
cessity principles. 

Standards of necessity and proportionality in self-defense situations may be 
different from law of armed conflict standards of necessity and proportionality 
for attacks during traditional armed conflict. What is necessary or propor- 
tional for a self-defense response may not be necessary or proportional in an 
armed conflict situation. The reverse is also true; what is necessary or propor- ' 
tional under the law of armed conflict for attacks may not be necessary or pro- 
portional in a self-defense context. The same is true for humanitarian 
intervention pursuant to state of necessity. What is necessary or proportional 
for humanitarian intervention may not be necessary or proportional in a 
self-defense or law of armed conflict situation, and what is necessary or pro- 
portional in a self-defense or law of armed conflict situation may not be neces- 
sary or proportional in attacks incident to a particular humanitarian 
intervention. Depending on the scope of the intervention and the timing of 
attacks (immediately after a decision to intervene is made as distinguished 
from attacks made well into a campaign) , the law of self-defense or the law of 
armed conflict may be examined as guides. 



7. See infra this paper. 



88 



George Walker 

There are some per se forbidden targets, e.g., cultural property unless used 
for military purposes. 8 Under the law of armed conflict, there are some meth- 
ods of warfare, e.g., no first use of poison gas, 9 that are per se indiscriminate 
under the law of armed conflict. These targets or methods and means of war- 
fare, forbidden under the law of armed conflict, should also be followed in hu- 
manitarian intervention operations under state pf necessity. 

Decision makers should only be held accountable for what is known, or rea- 
sonably should have been known, at the time a decision to attack is made. 
Hindsight can be 20/20; decisions at the time may be clouded with the fog of 
war. 10 Declarations of understanding by countries party to Protocol I 11 to the 



8. See generally, e.g., Convention for Protection of Cultural Property in Event of Armed 
Conflict, May 14, 1954, 249 U.N.T.S. 240 [hereunafter Cultural Property Convention]; 
Protocol for Protection of Cultural Property in Event of Armed Conflict, May 14, 1954, 249 
U.N.T.S. 358; Second Protocol to Hague Convention of 1954 for Protection of Cultural Property 
in Event of Armed Conflict, Mar. 26, 1999, art. 1(f), 38 INTERNATIONAL LEGAL MATERIALS 
769 (1999) [hereinafter Second Protocol]; Treaty on Protection of Artistic &. Scientific 
Institutions & Historic Monuments, Apr. 15, 1935, 49 Stat. 3267, 167 L.N.T.S. 290; JlRI 

Toman, The Protection of Cultural Property in the Event of Armed Conflict 
(1996); George Walker, The Tanker War, 1980-88: Law and Policy 507-11 

(2000) (Vol. 74, US Naval War College International Law Studies). 

9. Protocol for Prohibition of Use in War of Asphyxiating, Poisonous or Other Gases, &. of 
Bacteriological Methods of Warfare, June 17, 1965, & US Reservation, 26 U.ST. 571, 94 
L.N.T.S. 65. See also ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE 
LAW OF NAVAL OPERATIONS HH 10.3-10.4.2 (A. Thomas & J. Duncan eds., 1999) (Vol. 73., 
US Naval War College International Law Studies). 

10. CARL VON CLAUSEWITZ, ON WAR 117-21 (Michael Howard & Peter Paret ed. & trans., 
1976). 

1 1. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, & Relating to the 
Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 
[hereinafter Protocol I]. 

89 



Maritime Interdiction and Prisoner of War Issues 

1949 Geneva Conventions state that for civilians' protection in Article 51, 12 
protection of civilian objects in Article 52, 13 and precautions to be taken in at- 
tacks, stated in Article 57, 14 a commander should be liable based on that com- 
mander's assessment of information available at the relevant time, i.e., when a 



12. Protocol I, id., art. 5 1, 1 125 U.N.T.S. 26. Articles 5 1 (2) and 5 1 (5) prohibitions on attacks on 
civilians, absent other considerations, e.g., civilians who take up arms, restate customary law. 

Michael Bothe et al, New Rules for Victims of Armed Conflict 299 & n.3 (1982); 
San Remo Manual on International Law Applicable to Armed Conflicts at Sea 11 

39 (Louise Doswald-Becked., 1995); ANNOTATED SUPPLEMENT, supra note 9, 11 6.2.3.2; 1 JEAN 
PlCTET, THE GENEVA CONVENTIONS OF 12 AUGUST 1949, at 224-29 (1952); CLAUDE 
PILLOUD ET AL., COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE 

Geneva Conventions of 12 August 1949, at 618, 623-26 (1987); Julius Stone, Legal 
Controls of International Conflict 684-732 (1959); Michael Matheson, Remarks, in 

Session One: The United States' Position on the Relation of Customary International Law to the 1977 
Protocols Additional to the Geneva Conventions, in Symposium, The Sixth Annual American Red 
Cross - Washington College of Law Conference on International Humanitarian Law: A Workshop on 
Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 , 

American University Journal of International Law and Policy 423, 426 (1987); 

William Schmidt, The Protection of Victims of International Armed Conflicts: Protocol I Additional to 
the Geneva Conventions, 24 AIR FORCE LAW REVIEW 225-32 (1984); Waldemar Solf, Protection 
of Civilians Against the Effects of Hostilities Under Customary International Law and Under Protocol 

1, 1 American University Journal of International Law and Policy 130-31 (1986). 

13. Article 52 states a general customary norm, except its Article 52(1) prohibition on reprisals 
against civilians, upon which commentators divide. See generally BOTHE ET AL., supra note 12, at 
320-27; C. COLOMBOS, THE INTERNATIONAL LAW OF THE SEA §§ 510-11, 524-25, 528-29 
(6th rev. ed. 1967); ANNOTATED SUPPLEMENT, supra note 9, UH 6.2.3 &n.36, 6.2.3.2, 8.1.1 & 
n.9, 8.1.2 & n.12 (noting U.S. position that Protocol I Article 52(1) "creates new law"); 2 D. 

O'Connell, The International Law of the Sea 1 105-06 (I. Shearer ed., 1984) ; 4 Pictet, 

supra note 12, at 131 (1958); PILLOUD ET AL., supra note 12, at 630-38; Matheson, supra note 
12, at 426; Horace B. Robertson, Jr., The Principle of the Military Objective in the Law of Armed 
Conflict, in THE LAW OF MILITARY OPERATIONS: LlBER AMICORUM PROFESSOR JACK 
GRUNAWALT 197 (Michael Schmitt ed., 1998) (Vol. 72, US Naval War College International 
Law Studies); Solf, supra note 12, at 131. Frank Russo, Jr., Targeting Theory in the Law of Naval 
Warfare, 30 NAVAL LAW REVIEW 1, 17 n.36 (1992) rejects applying Protocol I Article 52(2) to 
naval warfare. 

14. See also ANNOTATED SUPPLEMENT, supra note 9, 1IH 8.1-8.1.2.1; BOTHE ET AL., supra note 
12, at 359-69; PILLOUD ET AL., supra note 12, at 678-89. Rules of distinction, necessity and 
proportionality, with the concomitant risk of collateral damage inherent in any attack, recited in 
Article 57, generally restate customary norms. See supra note 12. 

90 



George Walker 

decision is made. 15 Two 1980 Conventional Weapons Convention 16 protocols 
have similar terms, i.e., a commander is only bound by information available 
when a decision to attack is made. 17 The Second Protocol to the 1954 Hague 
Cultural Property Convention also recites this principle. 18 

Protocol I, with its understandings, and the Conventional Weapons Con- 
vention protocols are on their way to acceptance, among States. 19 These trea- 
ties' common statement, in text or declarations, that commanders are held 



15. Declaration of Belgium, May 20, 1986, reprinted in THE LAWS OF ARMED CONFLICTS: A 

Collection of Conventions, Resolutions and Other Documents 706, 707 (Dietrich 

Schindler &Jiri Toman eds., 3d ed. 1988); Declaration of Italy, Feb. 27, 1986, reprinted in id at 
7 12; Declaration of the Netherlands, June 26, 1977, reprinted in id. at 713, 714; Declaration of the 
United Kingdom, Dec. 12, 1977, reprinted in id. at 717. 

16. Convention on Prohibitions or Restrictions on Use of Certain Conventional Weapons 
Which May Be Deemed Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, 
T.I.A.S. No. , 1342 U.N.T.S. 137 [hereinafter Conventional Weapons Convention!. 

17. Protocol on Prohibitions or Restrictions on Use of Mines, Booby Traps &. Other Devices, 
Oct. 10, 1980, art. 2(4), 1342 U.N.T.S. 168 (Protocol II (Mines)); as amended, May 3, 1996, art. 
2(6), 35 INTERNATIONAL LEGAL MATERIALS 1206, 1209 (1996) (Amended Protocol II); 
Protocol on Prohibitions or Restrictions on Use of Incendiary Weapons (Protocol III), Oct. 10, 
1980, art. 1(3), 1342 U.N.T.S. 171, 172. The United States has ratified the Convention and 
Protocols I and II (Mines) supra; Protocol III is not in force for the United States. United States 
Department of State, Treaties in Force 478-79 (2000) [hereinafter TIF]. Amended Protocol II, 
Protocol III and Protocol IV on Blinding Laser Weapons, May 3, 1995, 35 INTERNATIONAL 
LEGAL MATERIALS 1218 (1996) are now before the US Senate. Marian Leich, Contemporary 
Practice of the United States Relating to International Law, 91 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 325 (1997). Protocol IV and Protocol on Non-Detectable Fragments 
(Protocol I), Oct. 10, 1980, 1342 U.N.T.S. 168, do not have these provisions. Protocol II (Mines) 
and III commentators say little about these provisions; they state the obvious. See Burrus 
Carnahan, The Law of Land Warfare: Protocol II to the United Nations Convention on Certain 
Conventional Weapons, 105 MILITARY LAW REVIEW 73 (1984); W. Fenrick, Comment, New 
Developments in the Law Concerning the Use of Conventional Weapons in Armed Conflict, 19 

Canadian Year Book of International Law 229 (1981); Howard Levie, Prohibitions and 

Restrictions on the Use of Conventional Weapons, 68 ST. JOHN'S LAW REVIEW 643 (1994); J. 
Roach, Certain Conventional Weapons Convention: Arms Control or Humanitarian Law?, 105 
MILITARY LAW REVIEW 1 (1984); William Schmidt, The Conventional Weapons Convention: 
Implications for the American Soldier, 24 AIR FORCE LAW REVIEW 279 (1984). 

18. Second Protocol, supra note 8, art. 1 (f). Second Protocol is not in force; 10 States are party, 
and 101 have ratified the Hague Cultural Property Convention, supra note 8. International 
Committee of the Red Cross website as of March 24, 2002, available at 
http://www.icrc.org/eng/party_gc. 

19. 159 States are party to Protocol I, but not the United States. See International Committee of 
the Red Cross website, supra note 18. International Committee of the Red Cross website, id., 
listed 88 States as parties to the Conventional Weapons Convention, supra note 16; 79 for 
Protocol II (Mines), 63 for Amended Protocol II, 81 for Protocol III, supra note 17, as of March 
24, 2002. 

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Maritime Interdiction and Prisoner of War Issues 



accountable based on information they have at the time for determining 
whether attacks are necessary and proportional has become a nearly universal 
norm. The San Remo Manual recognizes it as the naval warfare standard. 20 
It can be said with fair confidence that this is the jus in hello customary stan- 
dard. It is also the standard for self-defense situations. It was the standard for 
Allied Force. 

Collective action after a decision to intervene raises problems of consensus 
on action within a campaign. Even as collective self-defense situations may 
raise scope and definitional problems (i.e., whether anticipatory self-defense is 
admissible in the Charter era, what are proportional and necessary responses) , 
and the same kinds of issues can surface in the law of armed conflict under col- 
lective action situations, analogous problems will arise during collective 
humanitarian intervention under state of necessity. What are proper targets? 
Is the proposed attack necessary and proportional? These issues arose with re- 
spect to targeting during Allied Force and were resolved, like the decision to 
mount the campaign, by consensus among the 19 NATO member States. 

One issue, perhaps for Operation Allied Force and certainly for the future, 
is how far consensus decision making should penetrate into operational mat- 
ters. To take an extreme example from a hypothetical ground campaign, must 
a NATO squad leader seek a necessity and proportionality determination all 
the way up the chain of command to take a particular building, with almost as- 
sured damage to it? US commentators and military commanders have decried 
the "rudder orders" approach to military command and control; is there a col- 
lective consensus decision version of it? Should there be one? How does a rud- 
der orders policy, or the opposite of letting field and at sea commanders and 
perhaps lower echelon commanders decide, affect accountability under inter- 
national law if things go wrong? 

B. NATO's Right to Conduct Maritime Interdiction as Part of Allied Force 

NATO considered but did not implement visit and search of ships that may 
have carried goods to the SFRY through Adriatic Sea ports. Nothing in the 
law of state of necessity or the law of armed conflict forbade these kinds of op- 
erations if they had been ordered. 



20. SAN REMO MANUAL, supra note 12, H 46(b) & Commentary 46.3. See also BEN CHENG, 

General Principles of Law as Applied by International Courts and Tribunals 90 
(1983) ; Myres McDougal & Florentino Feliciano, Law and Minimum World Public 
Order 220 (1961). 

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George Walker 

1. NATO Naval Assets Available; Naval Operations during Allied Force 

There were no naval engagements at or under the sea connected with 
Allied Force; some apparently had been projected. 21 But, as the following indi- 
cates, naval forces had a role: 

NATO forces provided defense and logistics support [undoubtedly including 
sealift after the campaign,] for the alliance forces deployed in Italy, Albania, 
and . . . Yugoslavia; . . . and carried out naval operations in the Adriatic Sea. The 
latter included, at one time, aircraft carriers, submarines, and surface ships from 
four nations, all operating within the same confined space. 22 

These vessels included the US Navy's USS Kitty Hawk and USS Theodore 
Roosevelt battle groups and UK Royal Navy units, including a missile-launching 
submarine. 23 When Allied Force began the USS Enterprise battle group was in 
the Persian Gulf; there was no other battle group within bombing range of Ser- 
bia. 24 In late March 1999, incident to sponsoring a Security Council resolution 
condemning Operation Allied Force and conversations with Yugoslavia, Rus- 
sia sent several naval vessels to the Mediterranean where they could enter the 
Adriatic. This caused tension between NATO and Russia, leading to worries 
that the SFRY might get information on NATO flight operations from these 
ships. 25 The Roosevelt battle group arrived April 5, the first in the area since 
mid-March. 26 There is no record of NATO-Russian maritime confrontations. 
There is also no report of blue-water NATO-SFRY naval confrontations. 27 



21. General Wesley Clark, while Supreme Allied Commander Europe (SACEUR), spoke to the 
Yugoslav Chief of Staff [by telephone] at least once during the campaign, warning him that if he 
sent any of his navy out into the Adriatic it would be sunk. WESLEY CLARK, WAGING MODERN 

War 184 (2001); Michael Ignatieff, Virtual War: Kosovo and Beyond 137 (2000). 

22. United States Department of Defense, Report to Congress: Kosovo/Operation Allied Force 
After- Action Report xiv (Jan. 3 1, 2000) [hereinafter After- Action Report] ; but see id. at 41 (little 
reliance on sealift) . 

23. Id. at 92; North Atlantic Council, Statement on Kosovo, Apr. 23, 1999, reprinted in IVO 

Daalder & Michael O'Hanlon, Winning Ugly: NATO's War to Save Kosovo 104 

(2000). The Roosevelt battlegroup had been in the Adriatic; it had been sent to the Persian Gulf 
in March 1999 as the Kosovo crisis deepened. Clark, supra note 21, at 240, 421. 

24. Daalder & O'Hanlon, supra note 23, at 103. 

25. CLARK, supra note 21, at 212; DAALDER & O'HANLON, supra note 23, at 127. 

26. Daalder & O'Hanlon, supra note 23, at 23 1. 

27. The SFRY had been warned of the risks. See supra note 21. 

93 



Maritime Interdiction and Prisoner of War Issues 



Although NATO land-based aircraft (for the United States, US Air Force 
and US Marine shore-based aircraft) predominantly conducted strike opera- 
tions, "Navy carrier-based aircraft, Marine . . . sea-based strike aircraft and 
cruise-missile equipped ships and submarines played a significant role." 28 Navy 
electronic warfare aircraft, operating off the carriers, protected NATO air- 
craft from attack by Yugoslav air defenses. These aircraft were the only US 
platforms able to use electronic jamming to suppress enemy air defenses. Na- 
val aircraft also launched air defense suppression support for strike aircraft. 29 
The Navy flew unmanned aerial vehicles (UAVs) to identify Yugoslav naval 
vessels, survey potential landing areas for Marines if amphibious landings were 
ordered, and to target coastal defense radar sites. Navy F-14 aircraft with the 
Tactical Air Reconnaissance Pod System identified targets; Navy maritime 
patrol aircraft made significant intelligence, surveillance and reconnaissance 
(ISR) collection contributions. 30 Although never used for at-sea interdiction, 
these assets were available to contribute to that effort, besides warships in the 
Adriatic. 

There were differences of opinion at NATO headquarters after the 1999 
NATO summit on the possibility of boarding ships in the Adriatic "to enforce 
the maritime blockade of Yugoslavia. . . ." 31 Oil reached Serbia through 
Montenegro's port of Bar; the "stop and search" regime would have aimed to 
halt this. However, there was concern over provoking Russia, Serbia's princi; 
pal oil supplier. 32 This was reflected at national levels. In the Danish parlia- 
ment, e.g., 

[a] minor controversy arose over the possible contribution to a naval blockade 
and the modes of its implementation. Not only was this blockade probably a 
violation of international law; it also [was seen to entail] risks of a direct 
confrontation with the Russian Navy. As a compromise it was decided (by 
NATO) to enforce the blockade only with . . . countries . . . parties to the [prior] 
sanctions regime, on which basis Denmark decided ... to participate. 



28. After-Action Report, supra note 22, at 55, 79, 92-3. 

29. Id. at 66-7. 

30. Id. at 57-8. 

31. Nicola Butler, NATO: From Collective Defence to Peace Enforcement, in KOSOVO AND THE 

Challenge of Humanitarian Intervention 279 (Albrecht Schnabel & Ramesh Thakur 

eds., 2000) [hereinafter KOSOVO AND THE CHALLENGE]. See also Continued NATO Air-Strikes 
on Yugoslavia, 45 Keesing's Record of World Events 42901 (1999) [hereinafter 45 Keesing]. 

32. Continued NATO Air-Strikes on Yugoslavia, supra note 31, at 42901. 

94 



George Walker 

Denmark promised a corvette from July 1999 onwards, but the conflict 
ended first. Later its navy contributed a mine -clearing vessel and a minelayer 
to clear NATO munitions dumped in the Adriatic. 33 Poland was not "asked to 
participate in the maritime blockade against Yugoslavia." 34 

After the Alliance pledged to impose a binding naval embargo in its April 
statement, European Union (EU) foreign ministers met April 26 and proposed 
an embargo, to begin April 30, to cut off oil shipments to the SFRY, coming 
primarily from Italy and Greece. The EU ministers also approved economic 
measures targeting Milosevic and his family and closing loopholes halting ex- 
port credits and investment flows to the SFRY previously agreed in 1998. A 
statement offered support to Montenegro and pledged EU upgrade of EU rela- 
tions with Albania and Macedonia through association agreements. 35 The 
naval embargo 

became a somewhat hollow promise . . . when NATO decided it would not 
physically enforce [it] through a blockade at Montenegro's two main ports, Bar 
and Kotor Bay. But all was not lost. It did go into effect and was joined by a 
number of non-EU and non-NATO countries. . . . [T]he voluntary "visit and 
search" scheme at least had the benefit of preventing profiteers using ships 
flagged in cooperating countries from shipping oil into Montenegro. 

NATO also used its influence and NATO SFOR troops in Bosnia- 
Herzegovina to cut off oil coming from there to the SFRY. 36 

2. Proposed NATO Naval Interdiction during Allied Force: A Lawful 
Option 

There were two principles concerning any projected naval interdiction dur- 
ing Allied Force. First, would vessel interdiction, considered with other as- 
pects of Operation Allied Force, i.e., the aerial bombing campaign, have been 
a necessary and proportional part of the campaign when the overall goal of 
collective humanitarian intervention under state of necessity was taken into 



33. Bjorn Moller, The Nordic Countries: Whither the West's Conscience?, in KOSOVO AND THE 
CHALLENGE, supra note 31, at 156. 

34. Peter Talas & Laszlo Valki, The New Entrants: Hungary, Poland, and the Czech Republic, in 
KOSOVO AND THE CHALLENGE, supra note 31, at 207. 

35. They encouraged EU members not to organize sports events with SFRY participation. 
DAALDER & O'HANLON, supra note 23, at 146; Continued NATO Air-Strikes on Yugoslavia, 
supra note 31, at 42901. 

36. DAALDER & O'HANLON, supra note 23, at 146. 

95 



Maritime Interdiction and Prisoner of War Issues 

account? If the response is Yes (and the record suggests this), the second prin- 
ciple is that under the view that parties to a humanitarian intervention should 
follow the law of armed conflict for these operations, 37 NATO could have im- 
posed vessel interdiction, visit and search, and capture or diversion, subject to 
the usual law of armed conflict rules and limitations. 38 

Blockade was an option discussed outside NATO circles, probably reflect- 
ing media and others' confusion between blockade and interdiction. If NATO 
wanted to establish a blockade, traditional rules — notice of start and end, 
grace period, area, impartiality, effectiveness, limitation to belligerents' coasts 
and ports and other requirements or limitations 39 — would have been required 
under law of armed conflict standards after an affirmative answer to the first 
question on blockade's place in necessity and proportionality, etc., for Allied 



37. See supra Part A. 

38. See generally Convention for Amelioration of Wounded, Sick & Shipwrecked Members of 
Armed Forces at Sea, Aug. 12, 1949, art. 31,6 U.S.T. 3217, 3226, 3230, 3234, 75 U.N.T.S. at 85, 
92-96 [hereinafter Second Convention] ; Convention Concerning Rights & Duties of Neutral 
Powers in Naval War (Hague XIII), Oct. 18, 1907, 36 Stat. 2415; Convention Relative to 
Certain Restrictions with Regard to Exercise of the Right of Capture in Naval War (Hague XI), 
Oct. 18, 1907, id. 2396; Convention for Adaptation to Maritime Warfare of Principles of the 
Geneva Convention (Hague X), Oct. 18, 1907, art. 4, id. 2371, 2384; Hague Cultural Property, 
Convention, supra note 8, art. 14(2), 249 U.N.T.S. at 252; Convention on Maritime Neutrality, 
Feb. 20, 1928, 47 Stat. 1989, 135 L.N.T.S. 187; Commission of Jurists, Hague Rules of Air 
Warfare, Dec. 1922 - Feb. 1923, arts. 49-50, reprinted in THE LAWS OF ARMED CONFLICTS, 
supra note 15, at 207, 215 [hereinafter Hague Air Rules]; International Law Association 
Committee on Maritime Neutrality, Final Report: Helsinki Principles on Maritime Neutrality, 
reprinted in International Law Association, Report of the Sixty-Eighth Conference Held at 
Taipei, Taiwan, Republic of China 497, Principles 1.4, 2.1-2.4, 5.2.1-5.2.9 (1998) [hereinafter 
Helsinki Principles]; Institute of International Law, The Laws of Naval Warfare Concerning the 
Relations Between Belligerents, Aug. 9, 1913, art. 41, reprinted in id. at 857, 864 [hereinafter 
Oxford Naval Manual]; ANNOTATED SUPPLEMENT, supra note 9, 1111 7.6-7.6.2, 7.10-7.10.2; 2 
PlCTET, supra note 12, at 181-84 (1960); SAN REMO MANUAL, supra note 12, HU 112-34; 
WALKER, supra note 8, at 357-64. 

39. See generally Hague XI, supra note 38, art. 1, 36 Stat, at 2408; Declaration Concerning 
Maritime Law, Apr. 16, 1856, U 4, 115 Consol. T.S. 1, 3; Declaration Concerning Laws of Naval 
War (Declaration of London), Feb. 26, 1909, Annex, arts. 1-21, 208 Consol. T.S. 338, 341, 
343-44, reprinted in THE LAWS OF ARMED CONFLICTS, supra note 15, at 843, 846-47, never in 
force; Hague Air Rules, supra note 38, art. 53(i), id. at 215; Helsinki Principles, supra note 38, 
Principles 5.2.10, 5.3; BOTHE ET AL, supra note 12, at 432-39, 694-97; ANNOTATED 
SUPPLEMENT, supra note 9, 1JH 7.7-7.7.5; Oxford Naval Manual, supra note 38, arts. 30, 53, 92, 
at 862, 866, 872; 4 PlCTET, supra note 13, at 309-12, 3 18-24; PlLLOUD ET AL, supra note 12, at 
812-36, 1476-81; SAN REMO MANUAL, supra note 12, 1111 93-104; WALKER, supra note 8, at 
389-94. 

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_^ George Walker 

Force's overall goals for intervention which laid primary stress on humanitar- 
ian intervention. 40 Any blockade imposed during Operation Allied Force 
would not have been a "pacific blockade," i.e., a blockade imposed on an ad- 
versary's coasts during time of peace, generally thought to be unlawful under 
the Charter. 41 

C. Captured Armed Forces Members' Entitlement to Prisoner of War Status 

SFRY forces took three NATO ground service personnel into custody dur- 
ing Allied Force, perhaps kidnapping them across the Macedonia border. The 
three suffered beatings at the hands of their captors. 42 Two downed NATO 
pilots risked capture before NATO rescued them. 43 NATO forces later took 
SFRY army personnel into custody after moving into Kosovo. On May 16, 
1999 President Clinton authorized releasing two SFRY force members the 
Kosovo Liberation Army (KLA) captured in April. 44 Although the record is 
not clear, it is likely that the SFRY captured members of the KLA and that the 
KLA captured other SFRY armed forces members. 



40. See generally North Atlantic Council, Statement on Kosovo, Apr. 23, 1999, reprinted in 
DAALDER & O'HANLON, supra note 23, at 262 (2000) ; NATO Secretary-General Javier Solana, 
Statement by NATO Secretary General, Mar. 23, 1999, 45 Keesing, supra note 31, at 42847; 
After- Action Report, supra note 22, at 10; supra notes 31-36 and accompanying text. 

41. 2 O'CONNELL, supra note 13, at 1157-58, citing UN Charter Article 2(4); ANTHONY 

D'Amato, International Law: Process and Prospect 43-46 (1987) (same, listing rules 

for permissible blockades); WALKER, supra note 8, at 389; but see COLOMBOS, supra note 13, §§ 

484-88B; 2 Lassa Oppenheim, International Law §§ 44-49, 52b-52e, 521 (Hersch 

Lauterpacht ed., 7th ed. 1952); U.S. Department of the Navy, Law of Naval Warfare: NWIP 
10-2, 1 632a n.26 (1955 through Change 6, 1974). UN Charter Article 42 authorizes the 
Security Council to impose a blockade. See also GOODRICH ET AL., supra note 5, at 3 14-17; THE 

Charter of the United Nations, supra note 5, at 629-36. Annotated Supplement, 

supra note 9, It 7.7.2. 1 n. 13 1 correctly says, "It is not possible to say whether, or to what extent, a 
U.N. blockade would be governed by the traditional rules." See also The Charter of the United 
Nations, supra at 632. This is an example of how a Council decision can trump LOAC treaty 
rules. UN Charter arts. 25, 48, 103. See supra note 5 and accompanying text. 

42. Reverend Jesse Jackson, US President Bill Clinton's friend, was involved in negotiating their 
release; there had been fears the detainees would be held hostage. CLARK, supra note 21, at 229, 
286-87; DAALDER & O'HANLON, supra note 23, at 119, 146; Continued NATO Air-Strikes 
Against Yugoslavia, supra note 31, at 42957; Continued NATO Air-Strikes on Yugoslavia, supra 
note 31, at 42900. 

43. CLARK, supra note 21, at 214-18, 274- 

44. Id. at 286; DAALDER & O'HANLON, supra note 23, at 146, 233. 

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Maritime Interdiction and Prisoner of War Issues 

These personnel were entitled to those parts of the 1949 Geneva Conven- 
tions, other applicable humanitarian law treaties, and customary law or gen- 
eral principles of law governing them, absent a Security Council decision to 
the contrary. 45 (There was none.) 

1. NATOSFRY Aspects of Allied Force 

First, as between NATO and the SFRY, the 1949 Geneva Conventions ap- 
plied. Although Operation Allied Force was not a war in the traditional sense, 
Common Article 2 declares their provisions apply to "other" international 
armed conflicts. For example, the Third Convention, establishing prisoner of 
war treatment standards, provides in part in Article 2: 

In addition to the provisions which shall be implemented in peace time, the 
present Convention shall apply to all cases of declared war or of any other 
conflict which may arise between two or more of the High Contracting Parties, 
even if the state of war is not recognized by one of them. 

lit] shall also apply to all cases of partial or total occupation of the territory of 
a . . . Party, even if the said occupation meets with no armed resistance. 

Although one . . . Power . . .in the conflict may not be a Party to 
the . . . Convention, the Powers that are parties thereto shall remain bound by it 
in their mutual relations. They shall furthermore be bound by the Convention 
in relation to the said Power, if the latter accepts and applies the provisions 
thereof. 46 

The SFRY and all NATO States were parties to the 1949 Conventions be- 
fore the SFRY's dissolution. 47 Although there was no official record of the 
SFRY's having accepted and applied the Conventions in accordance with 



45. UN CHARTER arts. 25, 48, 103. See supra note 5 and accompanying text. 

46. Convention Relative to Treatment of Prisoners of War, Aug. 12, 1949, art. 2, 6 U.S.T.3316, 
3318, 75 U.N.T.S. 135, 136 (hereinafter Third Convention). See also Convention for 
Amelioration of Condition of Wounded & Sick in Armed Forces in the Field, Aug. 12, 1949, art. 
2, 6 U.S.T. 31 14, 31 16, 75 U.N.T.S. 31, 32 (hereinafter First Convention); Second Convention, 
supra note 38, art. 2, id. at 3220, 75 U.N.T.S. at 86; Convention Relative to Protection of Civilian 
Persons in Time of War, Aug. 12, 1949, art. 2, 6 U.S.T. 3516, 3518, 75 U.N.T.S. 287, 288 
(hereinafter Fourth Convention) 

47. TIF, supra note 17, at 330, 450-52. 

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George Walker 



Article 2 before or during the NATO campaign, after Allied Force ended, the 
SFRY accepted them retroactive to 1992 on October 16, 200 1. 48 Neverthe- 
less, treaty succession principles, 49 even if the SFRY and other States had for- 
mal acceptance of the former country's treaties under review at the time of 
Allied Force, 50 may have bound the SFRY during the NATO campaign. The 
SFRY was also bound to the extent the Conventions restated custom or gen- 
eral principles of law. 51 The general view is that much, but maybe not all, of 
the Third Convention restates customary rules or general principles of law. 52 
Therefore, it bound the SFRY and NATO to that extent as custom or general 
principles. The Third Convention also has a Martens clause; even denuncia- 
tion of the Convention "shall in no way impair the obligations which the 
Parties to the conflict shall remain bound to fulfil by virtue of the principles of 
the law of nations, as they result from the usages established among civilized 
peoples, from the laws of humanity and the dictates of the public con- 
science." 53 The clause may reflect a general principle of law or custom. 54 If so, 
the SFRY was bound to apply principles of humanity for detainees' treatment, 
even if not bound by the Conventions as treaty law. 

Not all States party to NATO-SFRY aspects of Allied Force, e.g., the 
United States, were parties to 1977 Protocol I to the 1949 Conventions. The 

48. International Committee of the Red Cross website, supra note 18. See also Christopher 
Greenwood, The Applicability of International Humanitarian Law and the Law of Neutrality to the 
Kosovo Campaign in the present volume. When this paper was researched and delivered in June 
2001, the SFRY's acceptance had not been deposited. The ensuing and sometimes convoluted 
discussion based on treaty succession principles and the Conventions and Protocols as restating 
custom or general principles of law demonstrates the importance of the Conventions and 
Protocols as treaty law. 

49. See generally Symposium, State Succession in the Former Soviet Union and in Eastern Europe, 33 

Virginia Journal of International Law 253 (1993); Walker, supra note 5. 

50. TIF, supra note 17, at 330, 450-52. 

51. Today 189 States are party to the four 1949 Geneva Conventions. International Committee 
of the Red Cross website, supra note 18. This suggests that many if not all of their provisions 
represent customary norms. BROWNLIE, supra note 5, at 5; RESTATEMENT (THIRD), supra note 
5, § 102 cmts. f, i; 1 OPPENHEIM supra note 5, § 10, at 28, 31; George Walker, Anticipatory 
Collective Self -Defense in the Charter Era.What the Treaties Have Said, 31 CORNELL 

International Law Journal 321, 367-68 (1998); The Law of Military Operations, 

supra note 13, at 391-92. See also ANNOTATED SUPPLEMENT, supra note 9, 11H 8.5.1.1, 
8.5.1.4-8.5.1.5,11.2-11.3. 

52. See Annotated Supplement, supra note 9, 1111 1 1.4, 1 1.7-1 1.7.4; supra note 51. 

53. Third Convention, supra note 46, art. 142, 6 U.S.T. at 3424, 75 U.N.T.S. at 242. See also 1 
PlCTET, supra note 12, at 41 1-13; 2 id., supra note 38, at 281-83; 3 id., supra note 12, at 647-48 
(1960); 4 id., supra note 13, at 624-26. 

54. BOTHE ET AL, supra note 12, at 44. See also I.C.J. Statute, art. 38(1); RESTATEMENT 
(THIRD), supra note 5, §§ 102-03. 

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Maritime Interdiction and Prisoner of War Issues 



former Yugoslavia was, 55 but this is subject to treaty succession principles and 
other considerations as to whether the SFRY was bound in 1999. 56 To the ex- 
tent the Protocol's terms relating to prisoners of war 57 reflected custom or gen- 
eral principles, 58 they bound States involved in Allied Force, including NATO 
countries and the SFRY. Protocol I also has a Martens clause: "In cases not 
covered by this Protocol or by other international agreements, civilians and 
combatants remain under the protection and authority of the principles of in- 
ternational law derived from established custom, from the principles of hu- 
manity and from the dictates of public conscience." 59 The clause may reflect a 
general principle of law or custom; 60 if so, like the analysis applied to its Third 
Convention counterpart, 61 the SFRY was required to treat its prisoners of war 
with humanity even if Protocol I did not apply as treaty law. 

The same principles apply to the 1907 Hague IV Regulations relating to 
prisoners of war, insofar as they reflected custom. 62 Yugoslavia was not a for- 
mal party to them, but, e.g., the Regulations' provision forbidding killing or 
wounding those who have laid down arms, or who no longer have means of 



55. Signatures, Ratifications and Accessions Concerning the Protocols I and 11 Additional to the 
Geneva Conventions, 1977, in THE LAWS OF ARMED CONFLICT, supra note 15, at 703. The 
SFRY accepted Protocol I, supra note 1 1, on October 16, 2001, retroactive to 1992, but was also 
bound by customary and general principles norms stated in Protocol I. As in the case of the 1949 
Conventions, the ensuing and sometimes convoluted discussion based on treaty succession 
principles and the Protocol as restating custom or general principles of law demonstrates the 
importance of Protocol I as treaty law. See supra note 48 and accompanying text 

56. TIF, supra note 17, at 330; Symposium, State Succession, supra note 48; Walker, supra note 5. 

57. Protocol I, supra note 1 1, arts. 8-1 1, 1 125 U.N.T.S. at 10-12, 22-24. See also ANNOTATED 
SUPPLEMENT, supra note 9, 1JU 11.4, 11.7; BOTHE ET AL, supra note 12, at 82-116, 216-62; 
PILLOUD ET AL, supra note 12, at 107-63, 473-559. 

58. See supra notes 5, 11-15, 19, 53 and accompanying text. 

59. Protocol I, supra note 11, art. 1(2), 1125 U.N.T.S. at 7. See also supra note 53 and 
accompanying text. 

60. See supra note 54 and accompanying text. 

61. See supra notes 53-54 and accompanying text. 

62. BROWNLIE, supra note 5, at 5; RESTATEMENT (THIRD), supra note 5, § 102 cmts. f, i; 1 
OPPENHEIM, supra note 5, § 10, at 28, 31; Walker, supra note 51, 31, supra note 13, CORNELL 

International Law Journal at 367-68; The Law of Military Operations at 391-92. 



100 



George Walker 

defense, 63 bound the SFRY and NATO States as a customary norm. 64 The 
Third 1949 Convention and Protocol I are complementary to the extent that 
they do not supersede the 1907 Hague IV Regulations. 65 Moreover, Hague 
IV's preamble, and its 1899 predecessor's preamble include Martens clauses. 66 
To the extent these clauses reflect custom or a general principle of law, 67 the 
SFRY was bound to apply principles of humanity in its custody of prisoners of 
war whether the Hague treaties were binding as treaty law or not. 

2. The SFRY-KLA Aspects of Allied Force 

Common Article 3 to the 1949 Geneva Conventions establishes minimum 
criteria for armed conflicts that are not of an international nature; e.g., the 
Second Convention relating to prisoners of war says: 



63. Hague Convention (IV) Respecting Laws & Customs of War on Land, Oct. 18, 1907, 
Regulations, art. 23(c). 

64. ANNOTATED SUPPLEMENT, supra note 9, H 11.4. See also Protocol I, supra note 11, arts. 
40-41, 1125 U.N.T.S. at 22; BOTHE ET AL, supra note 12, at 216-24; PlLLOUD ET AL, supra 
note 12, at 473-91; SAN REMO MANUAL, supra note 12, H 47(i), cmt. 47.56; Horace B. 
Robertson, Jr., The Obligation to Accept Surrender, in READINGS FROM THE NAVAL WAR 
COLLEGE REVIEW ch. 40 (John Moore & Robert Turner eds., 1994) (Vol. 68, US Naval War 
College International Law Studies); supra note 62 and accompanying text. Serbia was a party, 
but the Ottoman Empire, predecessor State to modern Turkey, a NATO member, and some 
areas today within the SFRY, only signed 1899 Hague Convention II with Respect to Laws & 
Customs of War on Land, July 29, 1899, 32 Stat. 1803 (hereinafter 1899 Hague II), Regulations, 
art. 23(c), 32 Stat, at 181 1, 1817, identical with Hague IV, supra note 62, Regulations, art. 23(c), 
36 id. at 2301-02, which Montenegro, Serbia and the Ottoman Empire signed but did not ratify. 
Austria-Hungary, a predecessor State to parts of the SFRY and its successor States and Hungary, 
a NATO member, was party to the 1899 and 1907 Conventions. See Convention of 1899, 
Convention of 1 907: Signatures, Ratifications and Accessions, in THE LAWS OF ARMED CONFLICTS, 
supra note 15, at 94-98. There is a circuitous argument that the SFRY, constituted as it was in 
1999, was bound by treaty succession principles as well as custom. See generally Symposium, State 
Succession, supra note 49; Walker, supra note 5. The same kind of issues might plague analysis 
within NATO because of, e.g., Canada's status as a NATO member; Canada had a different 
status a century ago within the British Empire. TIF, supra note 17, at 455 does not list Canada, 
Montenegro, Serbia or Yugoslavia but does list Turkey as Hague IV parties; 1899 Hague II is not 
listed. 

65. Third Convention, supra note 46, art. 135, 6 U.S.T. at 3422, 75 U.N.T.S. at 240; Protocol I, 
supra note 1 1, art. 96, 1 125 U.N.T.S. at 46. See also BOTHE ET AL, supra note 12, at 554-57; 3 
PlCTET, supra note 53, at 636-40; PlLLOUD ET AL., supra note 12, at 1084-92 

66. Hague IV, supra note 63, preamble, 36 Stat, at 2277-80; 1899 Hague II, supra note 64, 
preamble, 32 id. at 1803-05. See also supra notes 53, 59 and accompanying text. 

67. See supra notes 54, 60 and accompanying text. 



101 



Maritime Interdiction and Prisoner of War Issues 

In the case of armed conflict not of an international character occurring in the 
territory of one of the High Contracting Parties, each Party to the conflict shall 
be bound to apply, as a minimum, the following provisions: 

(1) Persons taking no active part in the hostilities, including members of armed 
forces who have laid down their arms and those placed hors de combat by 
sickness, wounds, detention, or any other cause, shall in all circumstances be 
treated humanely, without any adverse distinction founded on race, color, 
religion or faith, sex, birth or wealth, or any other similar criteria. To this end 
the following acts are and shall remain prohibited at any time and in any 
place . . . with respect to the above-mentioned persons: 

(a) violence to life and person, in particular murder of all kinds, mutilation, 
cruel treatment and torture; 

(b) taking of hostages; 

(c) outrages upon personal dignity; in particular, humiliating and degrading 
treatment; 

(d) the passing of sentences and the carrying out of executions without previous 
judgment pronounced by a regularly constituted court affording all the judicial 
guarantees . . . recognized as indispensable by civilized peoples. 

(2) The wounded and sick shall be collected and cared for. 



Parties to the conflict should further endeavor to bring into force, by means of 
special agreements, all or part of the other provisions of [this] . . . Convention. 

The application of the preceding provisions shall not affect the legal status of 
the Parties to the conflict. 68 

If Allied Force was not an international armed conflict with respect to 
KLA-SFRY confrontations but would be within the Common Article 3 



68. Third Convention, supra note 46, art. 3, 6 U.S.T. at 33 19, 75 U.N.T.S. at 136. See also First 
Convention, supra note 46, art. 3, id. at 31 16, 75 U.N.T.S. at 32; Second Convention, supra note 
38, art. 3, id. at 3220, 75 U.N.T.S. at 86; Fourth Convention, supra note 46, art. 3, id. at 3518, 75 
U.N.T.S. at 288; 1 PlCTET, supra note 12, at 38-61; 2 id., supra note 38, at 33-38; 3 id., supra note 
53, at 28-44; 4 id., supra note 13, at 26-44- 



102 



George Walker 

definition, its standards applied to those taken into custody, e.g., KLA mem- 
bers the SFRY captured, or SFRY armed forces members the KLA captured. 

It is doubtful whether the SFRY and the KLA negotiated Article 3 special 
arrangements. Article 3 recites minimum standards; other provisions of the 
Third Convention reciting customary law may also have applied to these per- 
sons. Protocol II, applying to non-international conflicts as a supplement to 
the Third Convention, 69 lists additional protections. 70 The former Yugoslavia 
was a Protocol II party subject to a declaration, 71 but this is also subject to 
treaty succession principles and other considerations as to whether the SFRY 
was bound in 1999. 72 To the extent Protocol II standards recited custom, 73 the 
SFRY and the KLA were bound. The SFRY and the KLA were also bound by 
the Martens clause principle ("in cases not covered by the law in force, the hu- 
man person remains under the protection of the principles of humanity and 
the dictates of the public conscience") stated in Protocol II, 74 even if they were 
not bound under Protocol II or other formal treaty rules. 

Conclusions 

Operation Allied Force's legitimacy under international law is, as US sports 
commentators would say, a close call. Because of its history, intervention, like 



69. Protocol Additional (II) to Geneva Conventions of 12 August 1949, & Relating to 
Protection of Victims of Non-International Armed Conflicts, June 8, 1977, art. 1, 1125U.N.T.S. 
609, 611 [hereinafter Protocol II]. See also BOTHE ET AL, supra note 12, at 604-0.8, 623-29; 
PlLLOUD ET AL., supra note 12, at 1319-36, 1343-46. 

70. Protocol II, supra note 69, arts. 4-1 1, 1 125 U.N.T.S. at 612-15. See also BOTHE ET AL., supra 
note 12, at 640-64; PlLLOUD ET AL., supra note 12, at 1368-1436. 

71. Signatures, supra note 55, at 703, 718. 

72. TIF, supra note 1 7, at 330; Symposium, State Succession, supra note 49; Walker, supra note 5. 
The SFRY accepted Protocol II, supra note 69, on October 16, 2001, retroactive to 1992, but was 
also bound by customary and general principles norms stated in Protocol II. As in the case of the 
1949 Conventions, the ensuing and sometimes convoluted discussion based on treaty succession 
principles and the Protocol as restating custom or general principles of law demonstrates the 
importance of Protocol II as treaty law. See supra note 48 and accompanying text 

73. See supra notes 62-64 and accompanying text. 

74. Protocol II, supra note 69, preamble, 1 125 U.N.T.S. at 61 1, which does not add "established 
custom" as in other Martens clauses, because of the relative newness of law applying to 
non-international armed conflicts, although time since 1977 may argue for including that norm 
as well. See also BOTHE ET AL., supra note 12, at 44, 620; PlLLOUD ET AL., supra note 12, at 
134 1 — 42; supra notes 53-54, 59-61, 66-67 and accompanying text. 



103 



Maritime Interdiction and Prisoner of War Issues 



war, is a loaded word for many States or commentators and in many contexts. 
Today, in the UN Charter era, intervention in some contexts may be less law- 
ful than it was before 1945, given Charter provisions on sovereignty, territorial 
integrity and the political independence of States. On the other hand, the 
growing body of the law of human rights, also recognized in the Charter, and 
humanitarian law, recognized by UN organizations' resolutions, within the 
world arena must be considered. Under the perhaps (and hopefully) unique 
circumstances of Kosovo, the NATO campaign was legitimate under princi- 
ples of collective humanitarian intervention under state of necessity. 

With regard to the application of the law of armed conflict, as an operation 
involving the use of force, Allied Force certainly met the threshold of Com- 
mon Article 2 of the 1949 Geneva Conventions. Therefore NATO was obli- 
gated to conduct its campaign in accordance with the standards of that body 
of law. Additionally, state of necessity principles mandated that NATO oper- 
ations, to be considered legitimate, must have been undertaken only when 
necessary and proportional to Operation Allied Force's overall goal of protect- 
ing the Albanian Kosovars from the depredations of Serbian forces. Under law 
of armed conflict standards and consistent with that objective, NATO, al- 
though choosing to implement only voluntary measures, could have con- 
ducted traditional visit and search ship interdiction operations to halt the 
shipment of oil to the SFRY. On the issue of the status of captured NATO and 
SFRY military personnel, the Third Convention was binding as either treaty 
or customary law on both sides; thus captured personnel were entitled to pris- 
oner of war status. The situation with regard to KLA personnel is more com- 
plex. If the KLA-SFRY conflict is viewed as an international armed conflict, 
then captured KLA personnel would also be prisoners of war and entitled to 
the protections of the Third Convention. If, however, that conflict is consid- 
ered to be non-international in nature, then detained KLA personnel would 
be subject to the more general protective standards of Common Article 3. 

Intervention to protect indigenous nationals such as occurred in 1999 in 
the SFRY creates two distinct legal issues for the international community. 
First, is the intervention itself lawful? I believe that long-accepted state of ne- 
cessity principles would apply and that interventions that meet state of neces- 
sity criteria are legitimate. This will limit humanitarian interventions to the 
most immediate and egregious situations when no reasonable alternative to 
intervention exists. Second, what law applies to the use of military force dur- 
ing humanitarian interventions? Except in the most extraordinary circum- 
stances (none of which I can currently envision) , it must be the law of armed 
conflict applicable to international armed conflicts. It is that body of law to 



104 



George Walker 

which military forces train, and it is that body of law that provides the greatest 
protections to both combatants and noncombatants. Any lesser standard risks 
inflicting greater harm than the good sought to be accomplished. 



105 



Commentary 



Judith A- Miller 



In several instances during this colloquium scholars have alluded to UN Se- 
curity Council Resolutions as having the impact "as law." I'm not sure that 
I would be willing to accord the Security Council such overarching authority. I 
certainly agree that the member States of the United Nations, in Article 24 of 
the Charter, conferred on the Security Council the primary responsibility for 
the maintenance of international peace and security, and agreed that the Secu- 
rity Council, in carrying out its responsibility, acts on their behalf. Further- 
more, member States agreed, in Article 25, to accept and carry out the decisions 
of the Security Council in accordance with the Charter. In Chapter VI of the 
Charter the member States conferred on the Security Council the authority 
and responsibility to inquire into disputes which may endanger international 
peace and security, and to investigate those disputes and recommend measures 
with a view towards pacific settlement. Member States also conferred on the 
Security Council in Chapter VII the responsibility to determine the existence 
of a breach of the peace or act of aggression, make recommendations, and de- 
cide what measures shall be taken pursuant to Articles 41 and 42 of the Char- 
ter, which we all know involve non-forcible and forcible measures to maintain 
or restore international peace and security. 

The international security paradigm established by the Charter, in my view, 
is an international mutual security agreement, in which sovereign States mem- 
bers of the UN have by mutual agreement conferred on the UN Security 
Council certain responsibilities for the maintenance and restoration of inter- 
national peace and security, and have agreed to abide by the decisions of the 
Security Council in this respect. I do not read the Charter, however, as confer- 
ring law-making authority on the UN Security Council. In my view, neither 



Commentary 

the UN Security Council nor the UN General Assembly commands the au- 
thority or the responsibility to establish rules of law applicable to the interna- 
tional community or to any particular State. The Security Council, of course, 
may by its decisions reinforce applicable principles of international law, and 
may even advance developing principles of international law. 

Each dispute or threat to international peace and security addressed by the 
Security Council is unique, having its own factual basis. UN Security Council 
decisions in respect to those factual situations must of necessity be tailored to 
the factual situation at hand. Because of this, and because decisions of the Se- 
curity Council often do not reach out and touch all members of the interna- 
tional community, the resolutions of the Security Council do not and should 
not establish principles of international law applicable to all members of the 
international community. I think it is a stretch, and a dangerous one at that, 
to read into the UN Charter authority and responsibility which is not articu- 
lated, and which was never intended for those institutions established therein. 
Even the decisions of the International Court of Justice are applicable only to 
the parties to a case before the Court, although those decisions can be power- 
fully persuasive evidence of applicable international legal principles. And, al- 
though some may disagree, Article 13 of the Charter authorizes the General 
Assembly only to initiate studies and make recommendations concerning the 
progressive development of international law and its codification — it is not a 
law-making body. 

I am sure everyone is aware of the difficulty we are now experiencing in the 
International Criminal Court Preparatory Committee in arriving at a suffi- 
ciently precise definition of the crime of aggression. One of the difficulties is 
the insistence of some States on adopting the definition of aggression embod- 
ied in UN General Assembly Resolution 3314 of December 14, 1974, arguing 
that the resolution articulates the international legal principle defining ag- 
gression. If one looks into the preparatory work on the definition, the debate 
in the General Assembly, and the interventions by States after its adoption by 
consensus, one would clearly discern that the definition does not represent by 
any means a definitive statement of aggression, much less the crime of 
aggression. 

This is but one example of the difficulties posed by UN General Assembly 
declarations purporting to reflect the state of the law. Such pronouncements 
are so often political in nature, not supported by State practice or the realities 
of international discourse, and so tainted by underlying political agendas as to 
be highly suspect. Yet we are confronted with such pronouncements years 
later as definitive statements of the law. The same would hold true of UN 



108 



Judith A. Miller 



Security Council decisions, and I would hope that we would not lose our per- 
spective on just how limited UN Security Council resolutions are intended to 
be, the fact that they too are political statements, and that they do not have 
the force and effect of law. 

Turning now to the applicability of the law of armed conflict to the Kosovo 
air operation, I think that the appropriate point of departure must be the ap- 
plicable rules of engagement. Since this was a 1 NATO operation, the NATO 
rules of engagement were applicable and were employed by all NATO forces. 
In this respect, the NATO ROE specify that: "ROE first must be lawful. Inter- 
national law defines the lawful limits for the use of force during military opera- 
tions. . . . The conduct of military operations is circumscribed by international 
law, to include the applicable provisions of the law of armed con- 
flict. . . . NATO ROE, and the application of them, never permit the use of 
force which violates applicable international law." Furthermore, each NATO 
member is bound by its own domestic law, which may further constrain the 
use of force in certain circumstances and complicate the conduct of combined 
operations. For United States armed forces, service regulations specify that 
the international law of armed conflict applies to the use of force in hostilities, 
and that at all times, commanders shall observe, and require their commands 
to observe, the principles of international law, including the observation and 
enforcement of the law of armed conflict. 

So from the outset of hostilities on March 24, 1999, indeed during the plan- 
ning process in preparation for Operation Allied Force, there was no question 
that the law of armed conflict was fully applicable and that it was incumbent 
that there be scrupulous compliance with the principles of the law of armed 
conflict at all times. This was particularly important in the selection of targets, 
in weaponizing those targets, in choosing aimpoints, and in employing weap- 
ons against those targets. US Department of Defense (DoD) attorneys played 
a critical role in conducting legal reviews and analyses during the entire tar- 
geting process, and applied the traditional principles of the law of armed con- 
flict throughout. Allow me to briefly provide you with a couple of examples of 
the target sets which were attacked during Allied Force, and walk you through 
the legal issues and concerns posed by those target sets. 

In addition to targeting purely military objectives (i.e., tanks, barracks, 
bunkers, fighter aircraft, etc.) NATO targeted so-called "dual-use" infrastruc- 
ture assets such as command, control and communication (C3), electric 
power, industrial plant, leadership lines of communication (LOCs) and petro- 
leum, oil and lubricant (POL) facilities. This immediately raised issues of dis- 
crimination and the prohibitions against attacking civilians and civilian 

109 



Commentary 

objects. We were also acutely aware of the rules of proportionality — that col- 
lateral damage to civilians and civilian objects was not to be excessive in light 
of the military advantage anticipated. 

It is no secret that NATO targeted electrical power facilities. Such facilities 
are normally targeted during hostilities, because they do provide energy re- 
sources to military forces, and their destruction has a direct military advan- 
tage. Nevertheless, during Kosovo, we were careful to avoid undue and 
prolonged power outages which would have a disproportionate effect on the 
civilian population. In most cases, attacks on electrical power facilities em- 
ployed "soft kill" capabilities, which could take the system down for a few 
hours or a day or two, but would not permanently shut down the power grid. 
We also were mindful of the possible cascading effects of the attacks on power 
grids, which could spill power outages over into neighboring countries not in- 
volved in the hostilities, and we were careful to ensure that these outages did 
not occur. There were some "hard kill" power grid attacks, and NATO did 
shut down the grid throughout Serbia at one point, but the outage was not 
permanent. 

I will readily admit that, aside from directly damaging the military electrical 
power infrastructure, NATO wanted the civilian population to experience 
discomfort, so that the population would pressure Milosevic and the Serbian 
leadership to accede to UN Security Council Resolution 1244, but the in- 
tended effects on the civilian population were secondary to the military ad- 
vantage gained by attacking the electrical power infrastructure. 

Likewise, NATO mounted attacks on "dual-use" industrial facilities, those 
having both military and civilian purposes. But each and every target of this 
nature was carefully scrutinized by our lawyers, both at the Joint Staff level 
and in my office (DoD General Counsel). In each case a direct military link 
was required, or only those portions of the facility having military utility, or 
conducting military work, were targeted. An example of this type facility was 
the Kragujevac Arms/Motor Vehicle Plant — one side of which produced au- 
tomobiles while the other side produced tanks. NATO targeted only that side 
of the plant producing tanks. I might add that initially this facility was identi- 
fied as a heavy bomber target, but later disapproved as such because of the 
proximity of civilian housing. 

You might find it interesting to review a recently published RAND study by 
Stephen T. Hosmer, entitled "Why Milosevic Decided to Settle When He 
Did." Hosmer concluded that it was the attacks and the threat of attacks on 
"dual-use" infrastructure targets that generated the decisive pressure for war 
termination. Furthermore, Milosevic and the Serbian leadership capitulated 

110 



Judith A. Miller 



because they expected an unconstrained bombing campaign of even greater 
magnitude, including carpet bombing of Belgrade, if they rejected the NATO 
ultimatum delivered by Chermnomyrdin and Ahtisaari on June 2, 1999. This 
study also concluded that the air campaign against military targets did not sig- 
nificantly influence Milosevic's decision to come to terms. This in my view, 
has significant and disturbing implications for the application of the law of 
armed conflict in future conflicts of this type. There very well could be serious 
consequences for the civilian population should decision makers no longer ap- 
preciate the military utility of striking military targets, and applying military 
pressure solely against military objectives. 

These are but two examples of the application of the law of armed conflict 
during the targeting process for Operation Allied Force. I wish to assure all of 
you that careful and thorough legal reviews of all targets were conducted at 
every echelon of command, from the Supreme Allied Commander up through 
the Joint Staff and in my office prior to the target lists being sent over to the 
US National Command Authorities (President and Secretary of Defense) for 
final approval. In many cases sound legal advice led to the deletion of targets, 
change of ordnance assigned, adjustment of aimpoints, or disapproval of tar- 
gets because of law of armed conflict concerns. Principles of distinction, pro- 
portionality and military advantage were applied on a daily basis throughout 
the conflict. Although mistakes were made, and weapons did not always per- 
form as accurately as we had hoped, in my view NATO scrupulously complied 
with the law of armed conflict in every instance. We should be gratified that 
civilian casualties were kept remarkably low considering the intensity of the 
air campaign. In many ways, we have the lawyers, and the incredibly talented 
and dedicated targeteers, to thank for such a superb effort. 

One final comment. You undoubtedly are aware of, and may have read the 
Final Report to the Prosecutor by the Committee Established to Review the 
NATO Bombing Campaign Against the FRY. 1 The Report concludes that for 
several reasons, not the least because the law of armed conflict in the area of 
"dual-use" targets is not clear, no "in-depth" investigation of the NATO air 
campaign as a whole was warranted, nor should there be further investigations 
into specific incidents. While I found this aspect of the Report to the Prosecu- 
tor gratifying, the manner in which the committee reached its conclusions is 
deeply disturbing. To have twenty-twenty hindsight scrutiny, done at leisure, 



I. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 
Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL MATERIALS 
1257 (2000), reprinted herein as Appendix A. 

Ill 



Commentary 

of decisions and determinations made in the fog of war, often under instanta- 
neous time constraints and life -threatening conditions by military command- 
ers, pilots, soldiers and airmen, based on allegations by those who do not hold 
Western nations in very high regard, is a chilling and frightening prospect. I 
fear that the reservations of the United States with respect to the Interna- 
tional Criminal Court are well-founded, based on the aftermath of the Kosovo 
conflict. I also fear that a precedent has been established, and we can expect 
such allegations in future instances where the use of force is employed, even in 
instances of humanitarian assistance. The prospects for Western participa- 
tion in peacekeeping or peace enforcement operations do not necessarily look 
good, and one wonders if this bodes well for the force and effect of interna- 
tional law for the future. 



112 



Commentary 



Natalino Ronzitti 



i 



n order to assess the relevance of the Hague and Geneva Conventions and 
J-L Protocol I to the Kosovo conflict, one has to ascertain, first of all, the na- 
ture of the conflict. Without a doubt, the hostilities between NATO countries 
and the Federal Republic of Yugoslavia (FRY) should be qualified as an inter- 
national armed conflict. 

On the contrary, the qualification of hostilities between the FRY and the 
Kosovo Liberation Army (KLA) is more controversial. At first glance, it 
would seem that it should be regarded as an internal conflict, since the con- 
flict took place between the constituted government and an insurgent com- 
munity within a State. Can the hostilities between the FRY and the KLA be 
qualified as an international armed conflict, since Article 1 (4) of Protocol I 
applies? 1 Article 1 (4) refers to peoples under colonial domination or alien oc- 
cupation and racist regime fighting for the implementation of their right to 
self-determination. It does not apply to mere secessionist movements. The 
question, therefore, is whether the Kosovars are a people entitled to self- 
determination, or whether they are simply a minority. 

The distinction between people and minority is a moot point and interna- 
tional law, while conferring different categories of rights on peoples and minor- 
ities, does not define either peoples or minorities. It is true that UN Security 
Council Resolution 1244 2 qualifies the inhabitants of Kosovo as "people." 



1. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, DOCUMENTS 
ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000) [hereinafter 
Protocol I]. 

2. S.C Res. 1244 Gune 10, 1999), U.N. Doc. S/RES/1244 (1999). 



Commentary 

However, it does not clarify whether this people enjoys the right of self-deter- 
mination. It only says that the people of Kosovo should enjoy "substantial au- 
tonomy." Autonomy fits more with the rights of minorities than with those of 
people. Be that as it may, the KLA, as a liberation movement representing 
Kosovo's "people," did not address any declaration to the depositary of Proto- 
col I in order to bring into effect both the Geneva Conventions and the Proto- 
col, as required by Article 96(3) of Protocol I. 

The other possibility is to consider the KLA as being so close to NATO 
countries that the Kosovar militias, under the control of NATO, did not rep- 
resent an autonomous party to the conflict. The Appeals Chamber of the 
ICTY, in the Tadic case relied on the control criterion to qualify the conflict, 
which took place in Bosnia and Herzegovina between the Bosnian Serb Army 
and Bosnia-Herzegovina, as international. 3 Since the Bosnian Serb Army was 
under the strict control of the FRY, the conflict was in reality between the 
FRY, on one hand, and Bosnia-Herzegovina on the other. The FRY did not re- 
gard the conflict against the KLA as international. NATO countries, on the 
other hand, did not take any stance on that point. Hence, the dual qualifica- 
tion of the Kosovo conflict (NATO countries-FRY; FRY-KLA) still holds 
good, unless contradicted by a future judgment of the ICTY. 

I will now turn my attention to the applicability of the relevant instruments 
of international humanitarian law (IHL). While the Hague Conventions are 
mostly regarded as declaratory of customary international law, this is only true 
in part for the Geneva Conventions and in particular for Protocol I. All 
NATO countries are party to the Geneva Conventions. As for Protocol I, all 
were party to it at the time of Operation Allied Force except for France, Tur- 
key and the United States. 4 All the NATO countries which conducted hostil- 
ities against the FRY are parties to Protocol II except the United States, 
although the United States does consider its provisions to be reflective of cus- 
tomary international law. 

The FRY was admitted to the United Nations in 2000 as a new State. How- 
ever, during the hostilities the FRY considered itself the continuation of the 
former Yugoslavia, which was party to the Geneva Conventions and to Proto- 
cols I and II. If one disregards the continuity claim, other principles could be 
applied to affirm that the FRY was obliged, during hostilities, to abide by the 
Geneva Conventions and the two Additional Protocols. Article 34 of the 



3. See Prosecutor v. Tadic, Jurisdiction, 105 INTERNATIONAL LAW REPORTS 453, 11 70 (1997). 
4- France acceded to Protocol I on April 11, 2001. 

114 



Natalino Ronzitti 



1978 Vienna Convention on the Succession of States, 5 imposing the rule of 
automatic succession in case of dissolution of States, is regarded as declaratory 
of customary international law, or it could be argued that the declaration by 
the FRY that it would honor the treaties stipulated by the former Yugoslavia 
should be considered equivalent to a declaration of succession to all multilat- 
eral treaties binding the predecessor State. 

As far as conduct of hostilities is concerned, the Kosovo war consisted 
mostly of air warfare, with the exception of cruise missiles launched by war- 
ships in the Adriatic, which fall under the aegis of naval warfare. Hague Con- 
vention IX regulates naval bombardment. For air bombardment there are no 
conventional rules, although some commentators have argued that the 1923 
Hague Rules on Aerial Warfare are declaratory of customary international 
law. 6 Protocol I, Article 49(3) subjects all three kinds of attacks (land, naval 
and air) to the same rules. Is that provision declaratory of customary interna- 
tional law? The point is important, since France and the United States were 
not parties to Protocol I. However, the very fact that all NATO countries 
were not parties to the same conventional instruments, did not raise any seri- 
ous problem as far as the legal interoperability of forces (for instance, target- 
ing) was concerned. 

Three US soldiers were captured on March 31, 1999 at the Macedonia-Yu- 
goslavia border. They were entitled to prisoner of war status. They were wear- 
ing uniforms and could not be considered spies. The pretense by Milosevic, 
subsequently abandoned, to subject them to criminal proceedings was without 
any legal foundation. Given the nature of the operations, the allies did not 
capture any FRY soldier. Personnel captured by the KLA and handed over to 
NATO countries were entitled to prisoner of war status. KLA personnel were 
covered by Common Article 3 of the Geneva Conventions and by Protocol II. 
As previously mentioned, the conflict between the FRY and the KLA should 
be regarded as an internal one. 

The Kosovo conflict raised a new problem, that of the interface of the law 
of neutrality and peacekeeping operations. The case in point refers to the sta- 
tus of military personnel, belonging to a party to the conflict, in the territory of 
a non-participating State. During the Kosovo war, personnel belonging to 
NATO countries were stationed in foreign territory, close to the theater of 
war. They were either part of a peacekeeping operation, such as SFOR in 



5. Vienna Convention on Succession of States in Respect of Treaties, Aug. 22, 1978, U.N. Doc. 
A/CONF.80/31/Corr2 (1978), 17 INTERNATIONAL LEGAL MATERIALS 1448 (1978). 

6. See authorities cited infra note 14- 

115 



Commentary 

Bosnia-Herzegovina, or dispatched as a measure of preventive deployment, 
such as UNPREDEP in Macedonia, whose mandate was terminated on Febru- 
ary 28, just before the commencement of hostilities. 

According to the customary law of neutrality and the rules of the Hague 
Convention V, belligerent military units present in neutral territory should be 
interned. Is the same principle applicable to units, belonging to a party to the 
conflict, but part of a peacekeeping force? The danger for the enemy is that 
the military unit might be diverted to a combat mission and take part in the 
hostilities. 

This is a new problem, which should be resolved taking into account the 
principles embodied in Article 1 1 of the Hague Convention V of 1907, on the 
one hand, and the law of the UN Charter, on the other. The resolution of the 
issue could be along the following lines: 

• If personnel are under the command and control of UN Headquarters, 
the danger that troops be diverted to take part in combat operations is 
remote; 

• The same is true, however with difficulty, if the force, even though under 
national command and control, is mandated by the United Nations; 

• A further line of reasoning could be to invoke Charter Article 103, 
overriding the law of neutrality, on this point; 

• A policy of non-belligerency might also be invoked by the neutral State, 
hosting foreign troops, insofar as they do not commit any warring act. 

During the conflict, NATO aircraft dropped weapons, not used during 
their mission in Serbia, in the Adriatic, before landing at Aviano, Italy. Land- 
ing with the weapons represented a hazard to the safety of the aircraft. The 
weapons were dropped in jettison areas that had been identified by NATO in 
previous years on the high seas. 

The use of the high seas for military purposes is without any doubt lawful. 
Therefore one may conclude that jettison areas are not contrary to interna- 
tional law. However, the weapons dropped by NATO aircraft lie on the conti- 
nental shelf of both Italy and Croatia. Italy was a member of the warring 
coalition, which took part in the identification of jettison areas, and con- 
sented to the weapon dropping. However, the case of Croatia, a State that did 
not take part in the armed conflict, is different. Could the continental shelf of 
a neutral State be used for warring activities? Our answer is yes, since the con- 
tinental shelf is not under the sovereignty of the coastal State, which only en- 
joys sovereign rights on it. The same solution proposed for mines or other 

116 



Natalino Ronzitti 



devices on the continental shelf should be followed. Military activities on the 
continental shelf of a foreign State are lawful, provided that the economic ac- 
tivities of the coastal State are not irremediably impaired. The principle of 
"due regard" should be taken into account. 

Unlike total exclusion zones, jettison areas are a new phenomenon. Should 
they be regulated? The first problem is whether there is a duty of notification. 
Incidents may occur, as happened with Italian trawlers in the upper Adriatic, 
which caught a number of weapons in their nets. A duty of notification of 
minefields, as soon as military exigencies permit, is established under Article 3 
of the Hague Convention VIII. The same rationale could be invoked as far as 
dropping of weapons is concerned, even though the danger is more remote 
than with mines. It should also be taken into account that in the Corfu Chan- 
nel case, the International Court of Justice (ICJ) stated that Albania had the 
duty to notify of the danger to navigation represented by mines floating in its 
territorial waters. 7 

The second problem is whether there is a duty to remove weapons dumped 
in the high seas at the end of hostilities. Article 5 of the Hague Convention 
VIII establishes a generic duty to remove mines. De-mining is a duty, which 
has been rendered more stringent by new conventions on land mines. Envi- 
ronmental considerations play a role, not only during the armed conflict (Ar- 
ticles 35(3) and 55 of Protocol I), but also after its termination. After the 
termination of hostilities, Italy and other NATO countries dispatched 13 
minesweepers to remove the weapons dropped during the war. However, that 
operation was considered a sort of exercise and not regarded by NATO as a 
duty imposed by international law. 

The law of neutrality has not been abolished by the entry into force of the 
United Nations Charter. The ICJ reaffirmed the permanent validity of this 
body of law in 1996 in its advisory opinion on Nuclear Weapons, even though 
the Court took into consideration only the rights of neutral States and not 
those of belligerents vis-a-vis neutrals. 8 The right to visit and search neutral 
shipping in order to confiscate contraband of war is a well-established right 
under the law of neutrality, which has also been exercised during naval con- 
flicts that have occurred since the entry into force of the UN Charter. 

During the Kosovo war, NATO envisaged exercising belligerent rights against 
neutral shipping in order to stop the oil supply to FRY. This position was opposed 



7. See Corfu Channel (U.K. v. Albania), 1949 I.C.J. 4, 22 (Dec. 5). 

8. Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 78 
(July 8). 

117 



__ Commentary 

by the Russian Federation, according to which the control of shipping bound for 
the port of Bar could be enforced only if authorized by a UN Security Council res- 
olution. Also, among NATO allies, France and Italy were not enthusiastic. Reso- 
lution 1 160 established an embargo on the sale and supply of war material to FRY, 
but did not authorize any enforcement measures, except those which could be ex- 
erted by a country on its own shipping. 9 

It is true that foreign shipping may not be visited and searched, unless a Secu- 
rity Council resolution authorizes appropriate measures to enforce an embargo es- 
tablished by the Security Council. This is a well established practice going back to 
the Rhodesia case 10 and implemented more recently against Iraq, 11 the former Yu- 
goslavia 12 and the FRY. 13 However, this statement holds true in time of peace, i.e., 
in a situation in which there is no armed conflict. In such a case, in the absence of 
a Security Council resolution, States are authorized to control shipping flying 
their flag or belonging to foreign countries, which agree that their ships, usually 
under reciprocity, may be visited. A completely different situation arises when an 
armed conflict is going on. Warring States, as practice shows, are entitled to exer- 
cise belligerent rights, including visit and search. One can only discuss whether 
there is any geographical limitation or whether visiting and searching may be con- 
ducted anywhere. This depends on the scale of hostilities. The principle of neces- 
sity and proportionality might advise that those activities be conducted close to 
the theater of war. 

A blockade of the port of Bar was also envisaged by NATO countries to im- 
pede the oil supply to the FRY. This idea was immediately qualified by the 
Russian Federation as contrary to international law and was also opposed by 
France and Denmark within the Alliance. Lacking a Security Council resolu- 
tion, those countries did not regard a blockade as in keeping with interna- 
tional law. A blockade is still considered a lawful measure, at least when 
established by the United Nations, as it is one of the measures referred to in 
Article 42 of the Charter. But a blockade is a far more intrusive measure than 
visit and search and might contribute to an escalation of the conflict. Yet 
these are policy considerations. From a legal viewpoint, the considerations 



9. S.C. Res. 1160 (Mar. 31, 1998), U.N. Doc. S/RES/1160 (1998) 11 8. This was restated in 
paragraph 7 of S.C. Res. 1199 (Sep. 23, 1998), U.N. Doc. S/RES/1199 (1998) without any 
mention of enforcement measures. 

10. S.C. Res. 221 (Apr. 9, 1966), U.N. Doc. S/RES/221 (1966). 

11. S.C. Res. 665 (Aug. 25, 1990), U.N. Doc. S/RES/665 (1990). 

12. S.C. Res. 713 (Sep. 25, 1991), U.N. Doc. S/RES/713 (1991); S.C. Res. 757 (May 30, 1992), 
U.N. Doc. S/RES/757 (1992). 

13. S.C. Res. 787 (Nov. 16, 1992), U.N. Doc. S/RES/787 (1992). 

118 



Natalino Ronzitti 



made before, in relation to visit and search, are also valid, mutatis mutandis, 
with regard to blockade. In time of peace, a blockade to enforce an embargo 
requires an authorization by the Security Council; in time of armed conflict, 
Security Council authorization is not necessary. 

The Kosovo conflict once again brought attention to the question of the 
use of neutral territory as a base for hostile operations or in a manner contrary 
to neutrality rules. The 1923 Hague Rules on Aerial Warfare, regarded by sev- 
eral writers as declaratory of customary international law, establish two basic 
principles, as far as neutrality is concerned. 14 Belligerent military aircraft are 
forbidden to enter the jurisdiction of a neutral State (Article 40); a neutral 
State should prevent the entry into its jurisdiction of belligerent military air- 
craft (Article 42). 

Austria and Switzerland did not permit NATO aircraft to over fly their ter- 
ritory. This posture is in keeping with law of neutrality, as proven by the 
Hague rules. On the contrary, Bulgaria, Hungary, Romania and Slovenia 
agreed that their airspace could be used by NATO aircraft. This practice 
might be justified only if one admits that a policy of non-belligerency is in 
keeping with international law. If a deviation from the rule of impartiality is 
the consequence of a Security Council resolution, non-belligerency does not 
raise any particular difficulty. Security Council Resolution 1160 established 
an arms embargo against the FRY. Consequently, States not taking part in the 
hostilities were forbidden to supply the FRY with war material, but were al- 
lowed to sell weapons to NATO countries (something which did not happen 
in practice). It is more difficult to justify derogation from neutrality rules, in 
the absence of a Security Council resolution, imposing sanctions on the en- 
emy and/or qualifying it as an aggressor. Even if it is argued that non-belliger- 
ency does not constitute a violation of international law, one has to admit that 
the belligerent, without infringing any neutrality rule, would be allowed to re- 
act against non-belligerent States, since their territory is being used by the ad- 
versary for warlike purposes. 



14- Remigiusz Bierzanek, Commentary to the 1923 Hague Rules for Aerial Warfare, in THE LAW 
OF NAVAL WARFARE 404-6 (Natalino Ronzitti ed., 1988). R.R. Baxter says in commenting on 
the Rules: "While these Rules were never put in treaty form, they nevertheless had a profound 
impact on the customary international law governing aerial bombardment." This passage is 
quoted by Yoram Dinstein, The Law of Air, Missile and Nuclear Warfare, 27 ISRAEL YEARBOOK 
ON HUMAN RIGHTS 1 n.2 (1977). See also the decision by the Tokyo District Court, December 
7, 1963 in the Shimoda Case, in 8 THE JAPANESE ANNUAL OF INTERNATIONAL LAW 212ff 
(1964). 

119 



Commentary 



Richard Sorenson 



I am going to shift the focus just a little bit to what is appropriate for my 
background as a military operational law attorney. During Operation 
Allied Force, I served at the headquarters of the United States Air Forces in 
Europe, at Ramstein Air Base in Germany. Along with Lieutenant Colonel 
Tony Montgomery, I worked targeting issues in theater in concert with 
NATO. Tony Montgomery from the US European Command and myself down 
at the air component level can discuss what we did to comply with the law of 
armed conflict as we planned and executed this operation. 

By way of background, both NATO and the United States were doing de- 
tailed planning in June 1998 to address the situation in Kosovo. It was simply 
untenable to accept another Srebrenica, where five to eight thousand individ- 
uals were taken out and slaughtered wholesale. As you know, the Interna- 
tional Tribunal for the former Yugoslavia (ICTY) convicted General Krstic for 
his activities at Srebrenica on August 2, 2001. Neither NATO nor the United 
States, individually, could allow another Srebrenica. In the event we were un- 
able to get consensus in NATO to go with military action, the United States 
was also planning for the possibility of a US-only operation. My principal role 
was in planning and executing the US portion of the operation. 

The United States had over forty air campaigns developed as a result of de- 
tailed planned during the ten months preceding Operation Allied Force. US 
and NATO planning was occurring in parallel. We had very detailed intelli- 
gence information at very high levels of classification. We also had lawyers 
looking at each and every individual target throughout that time period. 
There is no question that we had more scrutiny of every single target in Oper- 
ation Allied Force than has ever been done in the history of warfare. 



Commentary 

Military planners and lawyers applied the jus in hello as we considered mili- 
tary necessity and proportionality. Every effort was made to eliminate unnec- 
essary suffering whenever possible and to discriminate between military and 
non-military objectives. There is no question that Operation Allied Force was 
a successful campaign — it covered seventy-eight days, thirty-eight thousand 
aircraft sorties, over ten thousand strike sorties, and yet resulted in the unin- 
tended deaths of only about 500 civilians. While the loss of every civilian life is 
regrettable, the proportion of unintended deaths relative to the scale of the 
operation is unprecedented in warfare. 

To plan for those strike sorties we conducted target analysis using a predic- 
tive model for collateral damage. The United States used this targeting pro- 
cess with its four-tier collateral damage model to look at each and every 
target. We used imagery and distance rings around the proposed target to de- 
termine whether we had non-military objects within range of the targets. We 
then would analyze the type of weapon we were putting against the target and 
adjust our aim point or the weapon employed as required to minimize collat- 
eral damage. The model would, for example, predict the damage likely from 
the use of a particular weapon against a particular building — whether it would 
cause panel collapse, glass breakage, or eardrum rupture. 

Regarding the obligation to discriminate between military and non-military 
objects, it is difficult to discriminate regardless of what altitude you're flying 
when you have a high threat level in a very sophisticated air defense environ- 
ment. Since emissions are created every time a bomb is dropped or a target is 
otherwise taken down, aircrews are exposed to increased risk with every suc- 
cessive mission. Regardless of risk to our own forces, however, we still have to 
comply with the law of armed conflict during offensive operations and we did. 

Weapons reliability is always an issue during proportionality analysis. You 
can talk about the possibility of using missiles that are 100% reliable; however, 
even the United States cannot afford to buy 100% reliable weapons because 
the costs are about one to three million dollars per weapon. No country in the 
world is required by the law of armed conflict to have 100% reliable weapons. 

Another problem with weapon accuracy is the delivery system. When you 
have pilots in the cockpit dropping ordinance or submarines launching Toma- 
hawk land attack missiles, the systems don't always function as advertised 
when you hit the switch to launch the missile or you "pickle off the bomb. 
But, again, the law of armed conflict does not require weapons and delivery 
systems with 100% reliability, rather it requires the acquisition of weapons sys- 
tems that are lawful under international law and the exercise of due care when 
utilizing them. Once it is determined that a target is a legitimate military 

122 



Richard Sorenson 



objective, we must then determine that any unnecessary damage to non-mili- 
tary objects or loss of civilian lives caused by either the choice of weapon, de- 
livery system, or reliability is not excessive in relation to the military 
advantage anticipated. Of course we must avoid civilian casualties whenever 
possible and we did that during Operation Allied Force. 

The applicability of Protocol I 1 was not an issue from my perspective, be- 
cause all NATO States applied a common understanding based on customary 
international law. It is well known that the United States has some reserva- 
tions with regard to Protocol I, but as far as the execution of Allied Force with 
our NATO allies, we were able to reach common ground on all the important 
issues. Every nation signed up to the common NATO rules of engagement de- 
veloped for Operation Allied Force. These rules also allowed for national res- 
ervations when appropriate so that if a country's national laws or policies 
didn't allow for certain activities, then its national forces would be exempted 
from those functions. 

In summary, I agree with Professor Greenwood's remarks that the law of 
armed conflict was fully applicable during Operation Allied Force. The target- 
ing analysis was conducted the same as in any other conflict and the captured 
military personnel were entitled to be treated as prisoners of war. 



1. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, Jun. 8, 1977, 1125 U.N.T.S. 3, DOCUMENTS 
ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelffeds., 3d ed. 2000). 

123 



Discussion 



The UN Security Council and the Creation of International Law 

John Murphy: 

Regarding Judy Miller's comment about the United Nations Security 
Council and its powers of law creation, I would suggest with respect that the 
Security Council of the United Nations — at least if it's acting under 
Chapter VII — has the authority to debate, decide, and enforce international 
law. For more on this issue, I would recommend the two- volume book United 
Nations Legal Order 1 edited by Oscar Schachter and Chris Joyner, which goes 
into the authority of the UN Security Council and other bodies of the United 
Nations to create, to interpret, to apply and enforce international law. 

George Walker: 

I think I agree that Security Council's decisions under Chapter VII are law. 
Any other resolution of the Security Council, any General Assembly resolu- 
tion except those governing United Nations governments and most other or* 
ganizations unless the participants have agreed that they are law, are either 
supportive of law or the like. General Assembly resolutions may never declare 
law and they are not law in their own light, but I believe that on the political 
side of things they can contribute to soft law. 

The Law of Neutrality Under the UN Charter 

Christopher Greenwood: 

Regarding the question of the application of the law of neutrality in an en- 
vironment where you have Security Council action. I think it is clear that if 
the Security Council adopts a decision under Chapter VII, that decision or 



1. UNITED NATIONS LEGAL ORDER (2 vols.), (Oscar Schachter and Christopher C. Joyner 
eds., 1995). 



Discussion 

rather the obligation to comply with it prevails over any other rule of interna- 
tional law. There is, therefore, no difficulty if you have a Security Council de- 
cision which, for example, prohibits the delivery of particular goods to a 
particular State. That is why I have some reservation in trying to draw lessons 
from what happened in the second Gulf conflict and applying them to the 
conflict in Kosovo. 

In the second Gulf conflict, you had a very clear, unambiguous Security 
Council Resolution 66 1, 2 which forbid the delivery of virtually anything to 
Iraq or Kuwait, and a second resolution, 665, 3 which authorized navies of gov- 
ernments cooperating with the government of Kuwait to enforce 661. Now 
neither of those conditions was satisfied in the Kosovo conflict. Resolution 
1 160 4 only applied to the delivery of weapons and military equipment to Yugo- 
slavia and there was no equivalent of 665. So on the critical point about inter- 
cepting deliveries of oil to Yugoslavia, there was no Security Council 
authority. For legal basis, you would have had to fall back on the customary in- 
ternational law principles. That's where I would suggest there is a real diffi- 
culty in practice. 

Peacekeepers or an Occupying Force? 

Christopher Greenwood: 

I would just like to say something about the situation after Resolution 
1244 5 was adopted because we've only briefly touched on that so far. It seems 
to me that 1244 moved the goalposts completely with respect to Kosovo be- 
cause it meant that when ground troops went into Kosovo, they did so under a 
Security Council mandate. Had that not happened, then I think the legal po- 
sition would have been a very murky one indeed. Suppose that the Yugoslav 
government had capitulated as it did, but we had not been able to get a resolu- 
tion through the Security Council because of the Chinese veto. You would 
then, I think, be in a position where the troops that now make up KFOR 
would have been there in effect as belligerent occupants or at least under a re- 
gime of belligerent occupation tempered by whatever Yugoslavia had agreed 
to. That would have been an extremely uncomfortable position indeed. How- 
ever much we might find 1244 limiting, the law of belligerent occupation 
would have been a limit a great deal more difficult to live with. 



2. S.C. Res. 661 (Aug. 6, 1990), U.N. Doc. S/RES/661 (1990). 

3. S.C. Res. 665 (Aug. 25, 1990), U.N. Doc. S/RES/665 (1990). 

4. S.C. Res. 1160 (Mar. 31, 1998), U.N. Doc. S/RES/1160 (1998). 

5. S.C. Res. 1244 Qune 10, 1999), U.N. Doc. S/RES/1244 (1999). 



126 



Discussion ===== ^ ====== __ 

The Legality of Blockade or Visit & Search 

Adam Roberts: 

As I recall the way the issue of visit and search arose during the Kosovo 
events of 1999, there should have been no problem about the application of 
most of the law of armed conflict because it applies when there is fighting. But 
I recall it being said that one oi the difficulties was that numerous Western 
leaders in their wisdom had proclaimed that this was not a war. In the United 
Kingdom we had, for example, a Minister of Defence then, now Secretary- 
General of NATO, proclaiming repetitiously that this was not a war. Then the 
suggestion was made that it was particularly difficult to exercise rights of visit 
and search when Western leaders had been so industriously and, in my opin- 
ion, so absurdly claiming that this was not a war. I wonder if there was a con- 
nection there between this jus ad bellum problem and the application of that 
particular branch of jus in hello. 

Christopher Greenwood: 

Well I don't think it has anything to do with whether there was a state of 
war in the formal sense. I really think that is an issue which has become almost 
completely a museum piece. Having said that, I think that if you repeatedly 
say in public we are not fighting a war, you are not simply saying there is no 
technical state of war in being. You are trying to damp down expectations of 
the level of violence that is going to occur. If you do that, then you almost in- 
variably as a matter of political reality — if not a matter of law — constrain your 
freedom of action in the future. 

Wolff H. von Heinegg: 

Let me address the subject of visit and search. I really don't understand this 
debate over the legal issues involved, because when we are just concentrating 
upon the legal issues and not on the policies, it is quite clear that at least that 
part of the law of neutrality would strictly be labeled the law of maritime neu- 
trality. If you look at the law of maritime neutrality and if you look at the 
works of the International Law Association as well as the San Remo Manual, 6 
there is no doubt that as soon as a belligerent decides to conduct visit and 
search operations it is perfectly in order and in conformity with the existing 



6. San Remo Manual on International Law Applicable to Armed Conflicts at 

SEA HI 93-104 (Louise Doswald-Beck ed., 1995). 

127 



Discussion 

law. In my opinion, this is customary law and there is a customary right of 
belligerents to conduct visit and search operations. 

Now when it comes to certain legal limitations that have been suggested 
this morning, well I warn you against mixing up self limitations with legal obli- 
gations. A belligerent would be entitled to conduct visit and search operations 
with regard to neutral shipping everywhere in the high seas outside neutral 
territorial waters. Of course, he probably would not do that in the Atlantic if 
he is engaged in the Indian Ocean, but that is just a self limitation and nothing 
else. So when it comes to this part of the law of neutrality that means maritime 
neutrality, I think there can be no real doubt about the legality of conducting 
visit and search operations. 

Natalino Ronzitti: 

We both agree that visit and search is legal as soon as there is an armed 
conflict. About the legal limitation, there is some practice and precedent that 
you are entitled to search a ship within the limits of self defense, but it's very 
difficult to exemplify what these limitations are. 

Christopher Greenwood: 

I take the point that there are any number of texts from the Naval Com- 
mander's Handbook 7 in the United States to the International Law Associa- 
tion to the San Remo Manual that talk about rights of visit and search. I 
subscribe to the views that the right could have been exercised in these cir- 
cumstances if it was really necessary to do so. The problem was more a politi- 
cal than a legal one. But I do think we have to go into this with our eyes open. 
Our own governments would be exceptionally reluctant to accept the exercise 
of those kind of belligerent rights if we were on the receiving end of them in 
conflicts in which we were neutral. It is simply not the case today that one can 
give the kind of confident advice that "don't worry this right is clearly estab- 
lished in customary international law, nothing else to bother about." I think 
that that would not today be responsible advice for a lawyer to give. Also, I 
don't accept that limitations as to area are purely politically self-imposed imi- 
tations. I think that if Iran had sent frigates to the Mediterranean during the 
first Gulf war, which it could just about have done, and made a few token visit 



7. Annotated Supplement to The Commander's Handbook on the Law of Naval 

OPERATIONS (A.R. Thomas and James Duncan eds., 1999) (Vol. 73, US Naval War College 
International Law Studies). 

128 



Discussion 

and searches there, we would not have accepted the legality of that in Britain. 
The United States would not have accepted its legality either. 

Ove Bring: 

I think I rather stand on the line with Chris Greenwood being more cautious 
of the applicability of the law of neutrality in warfare than Wolff von Heinegg 
who takes a more cock-sure attitude that the traditional law of neutrality is still 
in place. I take this view because the law of 1907 was adopted at a time when 
there was no law of collective security — there was no UN Charter. In 1907 the 
use of force for visit and search purposes was not doubted at all. What has hap- 
pened since then is that we have the law of collective security: belligerents may 
not automatically, or perhaps should not automatically at least, rely on the op- 
tion of the use of force in relationship to States that are not involved in the 
armed conflict. There is a tension between the law of 1907 and the law of 1945, 
and that is a logical, legal and ideological tension. I'm not sure that this has re- 
sulted in state practice confirming one thing or the other, but it is a matter that 
should be discussed in legal circles because I think that it is a problem. 

Christopher Greenwood: 

First of all, without looking to get into the argument about whether the 
NATO operation in Yugoslavia was lawful or not, I agree entirely that there is 
a real problem if you have a State that maintains that there is no right of hu- 
manitarian intervention at all, or that, if there is, it doesn't apply to Yugosla- 
via, and then takes the position "what right have you to stop us from trading 
with an existing trading partner?". But that same problem arises where you 
have a State not involved in the conflict that says we don't accept your 
self-defense argument. Obviously you can't contend that there is no right of 
self-defense in international law. 

Exactly the same problem arises if a neutral country says it doesn't accept 
that Iran is acting in self-defense against Iraq. "We don't accept Iraq is acting 
in self-defense against Iran, thus what power do you have to prevent us from 
trading with an existing trading partner." It is, I think, the question mark that 
hangs over this area of the law of neutrality in the twenty-first century. Now 
there is an answer to that, and the answer is that the customary international 
law of neutrality continues to provide certain elements of rights to belligerents 
irrespective of the legality of the resort to force. If you didn't have some princi- 
ple of that kind, then you would in effect be scrapping the law of neutrality all 
together. But I come back to a point I made in my opening statement. Where 
you have a combination of real doubt — admittedly doubt I don't share, but 

129 



Discussion 

real doubt nonetheless — about the legal basis for an operation in the first 
place, coupled with doubts about how far the law of neutrality has survived 
into the modern era in relation to intercepting ships and doubts about the ne- 
cessity for such action, then you have a real problem about stopping neutral 
ships irrespective of what your lawyers tell you. 

Applying the LOAC: A Question of Intent or Act? 

Ruth Wedgwood: 

I had a question for Judy Miller and for anybody else who wants to com- 
ment on it. When I recently spoke to Dejan Sahovic who's the new Yugoslav 
Permanent Representative to the United Nations, he concurred essentially 
with the conclusion of the Rand Study. His answer to the question "why did 
Milosevic ultimately step down from the campaign?" was that he thought that 
Milosevic doubted the ultimate loyalty of the Yugoslav Army. The disloyalty 
was not ideologically based, but rather that they would fear for the safety and 
comfort of their own families. 

My question is the old catholic question of motive versus purpose, or inten- 
tion versus act. If in fact we succeeded because the Serbs believed we would 
reduce Belgrade to a flattened version of Frankfurt or Hamburg after the Sec- 
ond World War, was that a licit kind of animation? The threat of force versus 
the actual use of force, because we may indeed have chosen our target. I know 
we chose our targets with great care, but if the Serbs believed we would not let 
up until everything they used in civilian life was destroyed, then we may have 
won the war by intimating, or allowing them to conclude, that we would use 
force in a much more unrelenting way that would raise far greater questions of 
proportionality. 

Judith Miller: 

I don't think objectively speaking that the people of Yugoslavia should 
have had that fear. In point of fact we were not razing parts of Belgrade. In 
fact, NATO and the United States were saying throughout — and we were 
saying it because it was true — that we were going to follow the law of armed 
conflict. So I can't account for the belief, if it occurred, among the army and 
the civilian population that we were going to practice total war. That simply 
wasn't in the cards from anyone's perspective, or from anyone's formal or in- 
formal statements. 

I do think that if in fact somehow that perception is what really drove 
Milosevic to relent, then that does create some issues for people going forward 

130 



Discussion 

because you're presumably going to hear military commanders say that we 
want to do X or Y. We're going to have lawyers even harder pressed to explain 
you can't do that because it's not allowed under the law of armed conflict. I 
think it does challenge one's ideas about what it is to engage in hostilities in a 
world where our every move is covered on CNN and reported instanta- 
neously. It may have reverberations that are somewhat different than we've 
been accustomed to previously. H 

Enforcement of the Laws of Armed Conflict and 20/20 Hindsight 

Christopher Greenwood: 

If I may respond to something Judy Miller said on the question of enforce- 
ment. I take the point entirely, and I recognize the difficulty for a civilian in 
speaking on a subject of this kind to a predominantly military audience. I rec- 
ognize entirely that it is uncomfortable to have the idea of a judge and a court 
with twenty-twenty hindsight second guessing the decisions you took in the 
heat of the moment, but I don't think we should be afraid of this. I don't think 
we should be worried by the sight of our own shadow. 

If you take for example what was happening in Northern Ireland over the 
last thirty years; any British soldier firing a weapon at somebody in Northern 
Ireland did so knowing that the decision that he took in the heat of the mo- 
ment was likely to be hauled over afterwards in great detail by people with 
twenty-twenty hindsight. The fact of the matter is, it didn't chill all military 
activity in Northern Ireland. It may have produced some circumstances and 
cases where we would question the result, but the fact of the matter is that it 
hasn't handicapped the British forces in what they set out to do, And I don't 
think the prospect of an International Criminal Court or the International 
Criminal Tribunal for the former Yugoslavia is going to have that effect on 
military action in general. Perhaps a more important point is that whether we 
like it or not, this is a fact of life. It's not something we're going to be able to es- 
cape from and there's no point in our pretending otherwise. 

W. Hays Parks: 

I agree that we often times are judged in law enforcement situations with 
twenty-twenty hindsight. Every law enforcement officer in the United States, 
any soldier who uses force in the United States, is subject to a line of cases that 
govern whether that person should have used deadly force in that circum- 
stance. We have those processes at both the state and federal level. We are 
not blessed like you are with a European Court of Human Rights. That's your 

131 



Discussion 

burden. You can have it; we don't want it. The example I can think of is the 
1988 SAS killing of the three Irish Republican Army terrorists in Gibraltar. 
There was a very political 10 to 9 decision that found the use of force unlaw- 
ful. 8 That's the kind of chilling decision that we are concerned about when 
talking about judging decisions that commanders make in the fog of war. 

Christopher Greenwood: 

First, I understand where you're coming from and the answer is you need to 
make sure you get the right judges. You need to make sure you have people 
who are not there just because they have a political axe to grind, but are genu- 
inely seeking to apply the law impartially. Then I think you have nothing to 
fear provided that you get over the second hurdle. It has got to be clearly un- 
derstood by everybody concerned that you are looking at an event after it hap- 
pened. Therefore, there is inevitably a degree of detachment and a degree of 
hindsight, but you have got to apply a test that is actually capable of being ap- 
plied by somebody in the heat of the moment. There's an English case on self 
defense from about thirty years ago which contains the passage that detached 
reflection is not to be expected in the face of an uplifted knife. I think it's es- 
sential to appreciate that that is the standard which has to be applied, for ex- 
ample, to any investigation of a pilot's decision to fire a missile on the basis of a 
couple of seconds in which he had a chance to appreciate the situation in 
front of him. 

Judith Miller: 

The problem I have with the International Criminal Court (ICC) is that as 
it's currently constituted it does not have the sort of ground rules that Christo- 
pher Greenwood has pointed to. Impartial judges, impartial prosecutors, and a 
body of law that is knowable in advance and fairly applied has not been guar- 
anteed by the ICC as currently envisioned and embraced by so many people in 
the world. I regret personally that we are in this situation. I do not believe the 
United States is entitled to do what it wants to do without scrutiny. I simply 
want to have an institution set up that we can rely on, and everyone else in the 
world can rely on, to do it in a fair way. 



8. See McCann and Others v. the United Kingdom, 324 Eur. Ct. H.R. (ser. A) (1995) holding by 
only ten votes to nine that United Kingdom had violated the European Convention on Human 
Rights. The European Commission on Human Rights had previously voted eleven to six that the 
use of lethal force was "no more than 'absolutely necessary.'" McCann and Others v. the United 
Kingdom, App. No. 18984/91, Eur. Comm'n. H.R. (Mar. 4, 1994), p. 251. 

132 



Discussion 

My point about the Report to the Prosecutor is that you must look at that 
and think about it from the point of view of a lawyer in the Department of De- 
fense trying to give good advice to the secretary and the chairman and every- 
one else trying to carry out a military mission. If you read that Report and try 
to figure out what kind of advice you're going to give, then I think it raises a lot 
of serious questions. So the point I'm making is that there are issues that it 
raises and approaches that it took that I think are not necessarily the obvious 
way to interpret the law of armed conflict and apply it in individual instances. 

Are the Laws of War a Constraint? 

Adam Roberts: 

There has been an implication that the laws of armed conflict are essen- 
tially a constraining factor on the waging of war. Of course they are a con- 
straining factor, but there are two sub-aspects of that that should be brought 
out. One is that some of the most important parts of the law of armed conflict 
don't deal with combat as such, but with the treatment of victims of war, pris- 
oners of war, inhabitants of occupied territory and so on. Those crucially im- 
portant bits of the law of armed conflict are not as it were affected by this 
critique, but the law of armed conflict is still constraining in a number of 
respects. 

It's also true that the law of armed conflict is a very important means 
whereby the conduct of war can be kept within limits which Western publics 
will accept. In that sense, it is enabling and not constraining. We've seen 
plenty of evidence of that in the at least three major wars in which Western 
democracies have been involved in the last twenty years — the Falklands War, 
the 1991 Gulf War and Kosovo. In all three, a sense that the forces involved 
were fighting within certain constraints and were treating prisoners honorably 
and everything else was an important precondition for continued public sup- 
port for the operations. So while it is true that the laws of war may be con- 
straining, we should not think of them as exclusively a constraining and 
restraining factor. 



133 



PART III 



TARGETING 



Introduction 



Robert F. Turner 



I 



his panel will focus on the legal and ethical lessons of NATO's Kosovo 
campaign as they concern targeting — the jus in hello issues of what ob- 
jects may lawfully be attacked by weapons that are themselves not prohibited 
by the jus in hello. 

In my view, no development in US national security law in recent decades 
has been more important than the development and growth of the field of op- 
erational law in the military and the cooperative relationship between the fin- 
est legal minds in the US military and the leading scholars on these issues from 
the United States and around the world has been truly remarkable. The Naval 
War College anticipated the benefits of such cooperative relationships de- 
cades ago with the establishment of the Stockton Chair of International Law 
and this remarkable colloquium is but a continuation of that tradition. 



Legitimate Military Objectives Under The 
Current Jus In Bello 

Yoram Dinstein 

The Principle of Distinction and Military Objectives 

In its Advisory Opinion of 1996 on Legality of the Threat or Use of Nuclear 
Weapons, the International Court of Justice recognized the "principle of 
distinction" — between combatants and noncombatants (civilians) — as a fun- 
damental and "intransgressible" principle of customary international law. 1 The 
requirement of distinction between combatants and civilians lies at the root of 
the jus in hello. It is reflected in Article 48 of Protocol Additional I of 1977 to the 
1949 Geneva Conventions for the Protection of War Victims, entitled "Basic 
rule:" "the Parties to the conflict shall at all times distinguish between the civil- 
ian population and combatants and between civilian objects and military objec- 
tives and accordingly shall direct their operations only against military 
objectives." 2 There is no doubt that, irrespective of objections to sundry other 



1. Advisory Opinion on Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. Reports 
226,257 (July 8). 

2. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, 
DOCUMENTS ON THE LAWS OF WAR 447 (Adam Roberts and Richard Guelff eds., 3d. ed. 
2000) [hereinafter Protocol I]. 



Legitimate Military Objectives 



stipulations of Protocol I, 3 "the principle of the military objective has become 
a part of customary international law for armed conflict" whether on land, at 
sea or in the air. 4 

The coinage "military objectives" first came into use in the non-binding 
1923 Rules of Air Warfare, drawn up at The Hague by a Commission of 
Jurists 5 (set up in 1922 by the Washington Conference on the Limitation of 
Armament). It also appears in the 1949 Geneva Conventions for the Protec- 
tion of War Victims 6 (which fail to define it 7 ), the 1954 Hague Convention 
for the Protection of Cultural Property in the Event of Armed Conflict 8 and 
especially the 1999 Second Protocol appended to the Cultural Property 
Convention, 9 as well as the 1998 Rome Statute of the International Crimi- 
nal Court. 10 

A binding definition of military objectives was crafted in 1977, in Article 
52(2) of Protocol I: 

Attacks shall be limited strictly to military objectives. In so far as objects are 
concerned, military objectives are limited to those objects which by their 
nature, location, purpose or use make an effective contribution to military 



3. See, e.g., Guy Roberts, The New Rules for Waging War: The Case against Ratification of 
Additional Protocol I, 26 VIRGINIA JOURNAL OF INTERNATIONAL LAW 109, 124-170 
(1985-1986). 

4. See Horace Robertson, The Principle of the Military Objective in the Law of Armed Conflict 197, 

207, in The Law of Military Operations, Liber Amicorum Professor Jack 

GRUNAWALT (Michael Schmitt ed., 1998) (Vol. 72, US Naval War College International Law 
Studies). 

5. Hague Rules of Air Warfare, 1923, DOCUMENTS ON THE LAWS OF WAR, supra note 2, art. 
24(1), at 139, 144. 

6. See Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick 
in Armed Forces in the Field, Aug. 12,1 949, DOCUMENTS ON THE LAWS OF WAR, supra note 2, 
art. 19 2d para., at 195, 205; Geneva Convention (IV) Relative to the Protection of Civilian 
Persons in Time of War, Aug. 12, 1949, id., art. 18 5th para., at 299, 308. Both texts refer to the 
perils to which medical establishments may be exposed by being situated close to "military 
objectives." 

7. See Edward Kwakwa, The International Law of Armed Conflict: Personal 
and Material Fields of Application 141 (1992). 

8. Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 
May 14, 1954, DOCUMENTS ON THE LAWS OF WAR, supra note 2, art. 8(1) (a), at 371, 376. 

9. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in 
the Event of Armed Conflict, Mar. 26, 1999, DOCUMENTS ON THE LAWS OF WAR, supra note 2, 
art. 6(a), 8, 13(1) (b), at 699, 702, 703-4, 706. 

10. Rome Statute of the International Criminal Court, Jul. 17, 1998, DOCUMENTS ON THE 
LAWS OF WAR, supra note 2, art. 8(2)(b)(ii), (v), (ix), at 667, 676-7. 

140 



Yoram Dinstein 



action and whose total or partial destruction, capture or neutralization, in the 
circumstances ruling at the time, offers a definite military advantage. 11 

The term "attacks" is defined in Article 49(1) of the Protocol as "acts of vi- 
olence against the adversary, whether in offence or in defence." 12 Any act of 
violence fits this matrix: not only massive air attacks or artillery barrages, but 
also small-scale attacks (like a sniper firing a single bullet). As Article 52(2) 
elucidates, all attacks must be strictly limited to military objectives. 

The definition of military objectives appearing in Article 52(2) is repeated 
word-for-word in several subsequent instruments: Protocols II and III, An- 
nexed to the 1980 Convention on Prohibitions or Restrictions on the Use of 
Certain Conventional Weapons Which May Be Deemed to be Excessively In- 
jurious or to Have Indiscriminate Effects; 13 and the 1999 Second Protocol to 
the Hague Cultural Property Convention. 14 It is also replicated in the 
(non-binding) San Remo Manual of 1995 on International Law Applicable to 
Armed Conflicts at Sea. 15 Many scholars regard the definition as embodying 
customary international law. 16 With one significant textual modification — to 
be examined infra — that is also the view of the United States, which objects 
on other grounds to Protocol I. 17 

Notwithstanding its authoritative status, Article 52 (2) 's definition leaves a 
lot to be desired. It is an exaggeration to claim (as does Antonio Cassese) that 
"[t]his definition is so sweeping that it can cover practically anything." 18 Still, 
it is regrettable that the wording is abstract and generic, and no list of specific 
military objectives is provided (if only on an illustrative, non-exhaustive basis). 
Under Article 57(2) (a) (i) of the Protocol, those who plan or decide upon an 



11. Protocol I, supra note 2, at 450. 

12. Id. at 447. 

13. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 
Which May Be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 
1980, DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 5 15; Protocol II on Prohibitions or 
Restrictions on the Use of Mines, Booby Traps and Other Devices, id., art. 2(4), at 528; Protocol 
III on Prohibitions or Restrictions on the Use of Incendiary Weapons, id., art. 1(3), at 533. 

14. Second Protocol, supra note 9, art. 1(f), at 701. 

15. San Remo Manual on International Law Applicable to armed Conflicts at 

SEA 114 (Louis Doswald-Becked., 1995). 

16. See THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY 

Law 64-65 (1989). 

17. See Annotated Supplement to The Commander's Handbook on the Law of 

NAVAL OPERATIONS 402 n.9 (A.R. Thomas & J.C. Duncan eds., 1999) (Vol. 73, US Naval 
War College International Law Studies). 

18. Antonio Cassese, International Law 339 (2001). 

141 



Legitimate Military Objectives 



attack must "do everything feasible to verify that the objectives to be at- 
tacked ... are military objectives within the meaning of paragraph 2 of Article 
52. " 19 Due to its abstract character, the definition in Article 52(2) does not 
produce a workable acid test for such verification. The text lends itself to "di- 
vergent interpretations" in application, and, needless to say, perhaps, 
"[a]mbiguous language encourages abuse." 20 

The relative advantages of a general definition versus an enumeration of mili- 
tary objectives — or a combination of both — have been thoroughly discussed in 
connection with the preparation of the San Remo Manual. 21 The present 
writer believes that only a composite definition — combining an abstract state- 
ment with a non-exhaustive catalogue of concrete illustrations 22 — can effec- 
tively avoid vagueness, on the one hand, and inability to anticipate future 
scenarios, on the other. No abstract definition standing by itself (unaccompa- 
nied by actual examples) can possibly offer a practical solution to real problems 
emerging — often in dismaying rapidity — on the battlefield. 

The noun "objects," used in the definition, clearly encompasses material 
and tangible things. 23 However, the phrase "military objectives" is certainly 
not limited to inanimate objects, 24 and it is wrong to suggest that the Proto- 
col's language fails to cover enemy military personnel. 25 To be on the safe side, 
the frame rs of Article 52(2) added the (otherwise superfluous) words "[i]n so 
far as objects are concerned," underscoring that not only inanimate objects 
constitute military objectives. Human beings can categorically come within 



19. Protocol I, supra note 2, at 452. 

20. ESBJORN ROSENBLAD, INTERNATIONAL HUMANITARIAN LAW OF ARMED CONFLICT 71 
(1979). 

21. SAN REMO MANUAL, supra note 15, at 114-116. See also William Fenrick, Military 
Objectives in the Law of Naval Warfare, in THE MILITARY OBJECTIVE AND THE PRINCIPLE OF 

Distinction in the Law of Naval Warfare: Report, Commentaries and 
Proceedings of the Round-Table of Experts on International Humanitarian 
Law Applicable to Armed Conflicts at Sea 1, 4-5 (Wolff Heimschel v. Heinegg ed., 

1991). 

22. This legal technique is epitomized in Articles 2-3 of the 1974 General Assembly consensus 
Definition of Aggression, G.A. Resolution 3314 (XXIX), 15 UNITED NATIONS RESOLUTIONS: 

Series I, Resolutions Adopted by the General Assembly 392, 393 (Dusan Djonovich 

ed., 1984). 

23. Claude Pilloud & Jean Pictet, Article 52, in COMMENTARY ON THE ADDITIONAL 

Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 633-4 

(Yves Sandoz et al. eds., 1987). 

24. See A.P.V. ROGERS, LAW ON THE BATTLEFIELD 33 (1996). 

25. Such a suggestion is made by Hamilton DeSaussure, Comment, 3 1 AMERICAN UNIVERSITY 

Law Review 883, 885 (1981-1982). 

142 



Yoram Dinstein 



the ambit of military objectives. 26 Indeed, human beings are not the only living 
creatures that do. Certain types of animals — cavalry horses and pack mules in 
particular — can also be legitimate targets. 

The pivotal issue is what ingredient or dimension serves to identify a mili- 
tary objective. On the face of it, under Article 52(2), an object must fulfill two 
cumulative criteria in order to qualify as a military objective: (a) by nature, lo- 
cation, purpose or use it must make an effective contribution to military ac- 
tion; and (b) its destruction, capture or neutralization, in the circumstances 
ruling at the time, must offer a definite military advantage. 27 However, 

In practice . . . one cannot imagine that the destruction, capture, or 
neutralization of an object contributing to the military action of one side would 
not be militarily advantageous for the enemy; it is just as difficult to imagine how 
the destruction, capture, or neutralization of an object could be a military 
advantage for one side if that same object did not somehow contribute to the 
military action of the enemy. 28 

Article 52(2) refers to "a definite military advantage" that must be gained 
from the (total or partial) destruction, capture or neutralization 29 of the tar- 
gets. The expression "a definite military advantage" (like "military objec- 
tives") is derived from the Hague Rules of Air Warfare, which resorted to the 
formula "a distinct military advantage." 30 There is no apparent difference in 
the present context between the adjectives "distinct" and "definite" or, for 
that matter, several other alternatives pondered by the framers of Article 
52(2). 31 Whatever the adjective preferred, the idea conveyed is that of "a 
concrete and perceptible military advantage rather than a hypothetical and 



26. See Elmar Rauch, Attack Restraints, Target Limitations and Prohibitions or Restrictions of Use of 
Certain Conventional Weapons, 18 REVUE DE DROIT PENAL MlLITAIRE ET DE DROIT DE LA 
GUERRE 51, 55 (1979). 

27. See Marco Sassoli & Antoine Bouvier, How Does Law Protect in War: Cases, 
Documents, and Teaching Materials on Contemporary Practice in 
International Humanitarian Law 161 (1999). 

28. Id. at 140. 

29. The term "neutralization" in this setting means denial of use of an objective to the enemy 
without destroying it. See Waldemar Solf, Article 52, in NEW RULES FOR VICTIMS OF ARMED 
CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA 
CONVENTIONS OF 1949, at 318, 325 (Michael Bothe, Karl Partsch & Waldemar Solf eds., 
1982). 

30. Hague Rules of Air Warfare, supra note 5, art. 24(1), at 144. 

31. See Frits Kalshoven, Reaffirmation and Development of International Humanitarian Law 
Applicable in Armed Conflicts: The Diplomatic Conference, Geneva, 1974-1977, Part //, 9 

Netherlands Yearbook of International Law 107, 111 (1978). 

143 



Legitimate Military Objectives 



speculative one." 32 The advantage gained must be military and not, say, 
purely political 33 (hence, "forcing a change in the negotiating attitudes" of 
the adverse party 34 cannot be deemed a proper military advantage). But when 
coalition war is being waged, the military advantage may accrue to the benefit 
of an allied country — or the alliance in general — rather than the attacking 
party itself. 35 

The process of appraising military advantage must be made against the 
background of the circumstances prevailing at the time, so that the same ob- 
ject may be legitimately attacked in one temporal framework but not in oth- 
ers. 36 A church, as a place of worship, is not a military objective; nor is it a 
military objective when converted into a hospital; yet, if the church steeple is 
used by snipers, it becomes a military objective. 37 In this sense, the definition 
of military objectives is "relativized:" 38 there is "no fixed borderline between 
civilian objects and military objectives." 39 

The trouble is that the notion of "military advantage" is not singularly 
helpful. Surely, military advantage is not restricted to tactical gains. 40 The 
spectrum is necessarily wide, and it extends to the security of the attacking 
force. 41 The key problem is that the outlook of the attacking party is unlikely 
to match that of the party under attack in evaluating the long-term military 
benefits of any action contemplated. 42 Moreover, the dominant view is that 
assessment of the military advantage can be made in light of "an attack as a 



32. Solf, supra note 29, at 326. 

33. See Hamilton DeSaussure, Remarks, 2 AMERICAN UNIVERSITY JOURNAL OF 

International Law and Policy 511, 513-514 (1987). 

34. Forcing such a change is viewed (wrongly) as a legitimate military advantage by Burrus 
Carnahan, 'Linebacker IV and Protocol I: The Convergence of Law and Professionalism, 31 

American University Law Review 861, 867 (1981-1982). 

35. See Henri Meyrowitz, Le Bombardement Strategique d'apres le Protocole Additionnel I aux 
Conventions de Geneve, 41 ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND 
VOLKERRECHT (ZAORV) 1, 41 (1981). 

36. See DeSaussure, supra note 33, at 513. 

37. See B.A. Wortley, Observations on the Revision of the 1 949 Geneva 'Red Cross' Conventions, 54 

British Year Book of International Law 143, 154 (1983). 

38. Geoffrey Best, War and Law Since 1945, at 272 (1994). 

39. Albrecht Randelzhofer, Civilian Objects, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL 
LAW 603, 604 (Rudolf Bernhardt ed., 1992). 

40. See James Burger, International Humanitarian Law and the Kosovo Crisis: Lessons Learned or to 
Be Learned, 82 INTERNATIONAL REVIEW OF THE RED CROSS 129, 132 (2000). 

41. See Annotated Supplement to The Commander's Handbook on the Law of 
Naval Operations, supra note 17, at 402. 

42. See Dieter Fleck, Strategic Bombing and the Definition of Military Objectives, 27 ISRAEL 

Yearbook on Human Rights 41, 48 (1997). 

144 



Yoram Dinstein 



whole," as distinct from "isolated or specific parts of the attack." 43 The attack- 
ing party may thus argue, e.g., that an air raid of no perceptible military 
advantage in itself is justified by having misled the enemy to shift its stra- 
tegic gaze to the wrong sector of the front. 44 Nonetheless, "an attack as a 
whole" is a finite event, not to be confused with the entire war. 45 

The Definition of Military Objectives by Nature, Location, Purpose and Use 

The text of Article 52(2) incorporates helpful definitional guidelines by ad- 
verting to the nature, location, purpose and use of military objectives "making 
an effective contribution to military action." The requirement of effective 
contribution relates to military action in general, and there need be no "direct 
connection" with specific combat operations. 46 All the same, an American at- 
tempt (reflected in the United States' Commander's Handbook on the Law of 
Naval Operations 47 ) to substitute the words "military action" by the idiom 
"war-fighting or war-sustaining capability," goes too far. 48 The "war-fighting" 
limb can pass muster, since it may be looked upon as equivalent to military ac- 
tion. 49 But the "war-sustaining" portion is too broad. The American position 
is that "[e]conomic targets of the enemy that indirectly but effectively support 
and sustain the enemy's war-fighting capability may also be attacked," and the 
example offered is that of the destruction of raw cotton within Confederate 
territory by Union forces during the Civil War on the ground that the sale of 
cotton provided funds for almost all Confederate arms and ammunition. 50 As 
will be seen infra, multiple economic objects do constitute military objectives, 
inasmuch as they directly support military action. Yet, the raw cotton illustra- 
tion (which may be substituted today by the instance of a country relying 



43. See Stefan Oeter, Methods and Means of Combat, in THE HANDBOOK OF HUMANITARIAN 
LAW IN ARMED CONFLICTS 105, 162 (Dieter Fleck ed., 1995). 

44. See Solf, supra note 29, at 325. 

45. See Francoise Hampson, Means and Methods of Warfare in the Conflict in the Gulf, in THE 

Gulf War 1990-91 in International and English Law 89, 94 (Peter Rowe ed., 1993). 

46. See Solf, supra note 29, at 324. 

47. Annotated Supplement to The Commander's Handbook on the Law of 
Naval Operations, supra note 17, at 402. 

48. See James Busuttil, Naval Weapons Systems and the Contemporary Law of 
War 148 (1998). 

49. Roberts, supra note 4, at 209. 

50. Annotated Supplement to The Commander's Handbook on The Law of 
Naval Operations, supra note 17, at 403. 

145 



Legitimate Military Objectives 



almost entirely on the export of coffee beans or bananas) 51 displays the danger 
of introducing the slippery-slope concept of "war-sustaining capability." The 
connection between military action and exports, required to finance the 
war effort, is "too remote." 52 Had raw cotton been acknowledged as a valid 
military objective, almost every civilian activity might be construed by the 
enemy as indirectly sustaining the war effort (especially when hostilities 
are protracted). For an object to qualify as a military objective, there must ex- 
ist a proximate nexus to military action (or "war-fighting") . No wonder that 
the San Remo Manual rejected an attempt to incorporate the wording "war- 
sustaining effort." 53 

As far as "nature, location, purpose or use" are concerned, each of these 
terms deserves a closer look. 

1 . The Nature of the Objective 

"Nature" denotes the intrinsic character of the military objective. To meet 
this yardstick, an object (or living creature) must be endowed with some in- 
herent attribute which eo ipso makes an effective contribution to military ac- 
tion. As such, the object, person, etc., automatically constitutes a legitimate 
target for attack in wartime. 

Although no list of military objectives by nature has been compiled in a 
binding manner, the following non-exhaustive enumeration is believed by the 
present writer to reflect current legal thinking: 54 

(a) Fixed military fortifications, bases, barracks 55 and installations, including 
training and war-gaming facilities; 

(b) Temporary military camps, entrenchments, staging areas, deployment 
positions, and embarkation points; 



51. See ROGERS, supra note 24, at 41. 

52. See SAN REMO MANUAL, supra note 15, at 161. 

53. Id. at 150. 

54. Compare the various lists of legitimate military objectives offered by ANNOTATED 

Supplement to The Commander's Handbook on the Law of Naval Operations, 

supra note 17, at 402; A.P.V. ROGERS & PAUL MALHERBE, MODEL MANUAL ON THE LAW OF 

Armed Conflict 72 (1999). See also Leslie Green, The contemporary law of armed 

CONFLICT 191 (2d ed. 2000). 

55. A question has been raised about the status of deserted military barracks (see Konstantin 
Obradovic, International Humanitarian Law and the Kosovo Crisis, 82 INTERNATIONAL REVIEW 
OF THE RED CROSS 699, 720 (2000)). But the whole point about military barracks is that they 
constitute a military objective per se, irrespective of being deserted. When military units are 
stationed there, they qualify as military objectives by themselves (see (c)). 

146 



Yoram Dinstein 



(c) Military units and individual members of the armed forces, whether 
stationed or mobile; 

(d) Weapon systems, military equipment and ordnance, armor and artillery, 
and military vehicles of all types; 

(e) Military aircraft and missiles of all types; 

(f) Military airfields and missile launching sites; 

(g) Warships (whether surface vessels or submarines) of all types; 

(h) Military ports and docks; 

(i) Military depots, munitions dumps, warehouses or stockrooms for the 
storage of weapons, ordnance, military equipment and supplies (including 
raw materials for military use, such as petroleum) ; 

(j) Factories (even when privately owned) engaged in the manufacture of 
arms, munitions and military supplies; 

(k) Laboratories or other facilities for the research and development of new 
weapons and military devices; 

(1) Military repair facilities; 

(m) Power plants (electric, hydroelectric, etc.) serving the military; 

(n) Arteries of transportation of strategic importance, principally mainline 
railroads and rail marshaling yards, major motorways (like the interstate 
highways in the US, 56 the Autobahnen in Germany and the autostradas in 
Italy), navigable rivers and canals (including the tunnels and bridges of 
railways and trunk roads) ; 

(o) Ministries of Defense and any national, regional or local operational or 
coordination center of command, control and communication relating to 
running the war (including computer centers, as well as telephone and 
telegraph exchanges, for military use) ; 

(p) Intelligence -gathering centers (even when not run by the military 
establishment). 



56. Appropriately enough, the mammoth US interstate highway network (with a total length of 
more than 45,000 miles) — initiated by President Eisenhower — is formally known as the 
National System of Interstate and Defense Highways. See 26 THE NEW ENCYCLOPEDIA 
BRITANNICA 324 (15th ed. 1997). 

147 



Legitimate Military Objectives 



2. The Purpose of the Objective 

More often than not, the "purpose" of a military objective is determined ei- 
ther by its (inherent) nature or by its (de facto) use. But if the word "purpose" 
in Article 52(2) is not redundant, it must be distinguished from both nature 
and use. The present writer is of the opinion that the purpose of an object — as 
a separate ground for classifying it as a military target — is determined after the 
crystallization of its original nature, yet prior to actual use. In other words, the 
military purpose is assumed not to be stamped on the objective from the outset 
(otherwise, the target would be military by nature). Military purpose is de- 
duced from an established intention of a belligerent as regards future use. As 
pointed out by the official ICRC Commentary: "the criterion of purpose is con- 
cerned with the intended future use of an object, while that of use is con- 
cerned with its present function." 57 

At times, enemy intentions are crystal clear, and then the branding of an 
object (by purpose) as a military target becomes rather easy. A good illustra- 
tion might be that of a civilian luxury liner, which a belligerent overtly plans 
(already in peacetime) to turn into a troop ship at the moment of general mo- 
bilization. Although by nature a civilian object, and not yet in use as a troop 
ship, it may be attacked as a military objective at the outbreak of hostilities 
(assuming that it is no longer serving as a passenger liner) . 

Unfortunately, most enemy intentions are not so easy to decipher, and 
then much depends on the gathering and analysis of intelligence which may 
be faulty. In case of doubt, caution is called for. Thus, field intelligence reveal- 
ing that the enemy intends to use a particular school as a munitions depot 
does not justify an attack against the school as long as the munitions have not 
been moved in. 58 The Allied bombing in 1944 of the famous Abbey of Monte 
Cassino is a notorious case of a decision founded on flimsy intelligence re- 
ports, linked to a firm supposition ("the abbey made such a perfect observa- 
tion point that surely no army could have refrained from using it") which 
turned out to have been entirely false. 59 This writer cannot accept the conclu- 
sion that the Abbey was a military objective only because it appeared to be 
important to deny its potential use to an enemy (who in reality refrained from 
using it) . 60 Purpose is predicated on intentions known to guide the adversary, 
and not on those figured out hypothetically in contingency plans based on a 
"worst case scenario." 



57. Pilloud & Pictet, supra note 23, at 636. 

58. See ROGERS, supra note 24, at 36. 

59. Id. at 54-55. 

60. Id. at 55. 



148 



Yoram Dinstein 



3. The Use of the Objective 

Actual "use" of an objective does not depend necessarily on its original na- 
ture or on any (later) intended purpose. A leading example is that of the cele- 
brated "Taxis of the Marne" commandeered in September 1914 to transport 
French reserves to the frontline, thereby saving Paris from the advancing 
German forces. 61 "So long as these privately owned taxicabs were operated for 
profit and served their normal purposes, they were not military equipment. 
Once they were requisitioned for the transportation of French troops, their 
function changed." 62 They became military objectives through use. 

Article 52(3) of the Protocol prescribes: "In case of doubt whether an ob- 
ject which is normally dedicated to civilian purposes, such as a place of wor- 
ship, a house or other dwelling or a school, is being used to make an effective 
contribution to military action, it shall be presumed not to be so used." 63 
There are three elements here: 

(a) Certain objects are normally (by nature) dedicated to civilian purposes 
and, as long as they fulfill only their essential function, they must not be 
treated as military targets. The examples given are places of worship, civilian 
dwellings and schools. 

(b) The same objects may nevertheless be used in actuality in a manner 
making an effective contribution to military action. When (and as long as) 
they are subject to such use, outside their original function, they can be 
treated as military objectives. The dominant consideration should be "the cir- 
cumstances ruling at the time" (referred to in the text of Article 52(2)). 

(c) Article 52(3) adds a caveat that, in case of doubt whether an object 
normally dedicated to civilian purposes is actually used to make an effective 
contribution to military action, it must "be presumed not to be so used." The 
presumption has given rise to controversy at the time of the drafting of this 
clause, and an attempt to create an exception with respect to objects located 
in the contact zone failed in the ensuing vote. 64 While the results of the vote 
may reflect a "[r]efusal to recognize the realities of combat" in some situa- 
tions, 65 it must be taken into account that the presumption (which is 
rebuttable) comes into play only in case of doubt. Often there is no doubt at 
all, especially when combatants are exposed to direct fire from a supposedly 



61. See George Schwarzenberger, 2 International Law as applied by 
International Courts and Tribunals: The Law of Armed Conflict 112 (1968). 

62. Id. at 113. 

63. Protocol I, supra note 2, at 450. 

64. See Solf, supra note 29, at 326-327. 

65. See W.Hays Parks, AirWar and the Law of War, 32 A\K FORCE LAWREVIEW 1, 137 (1990). 

149 



Legitimate Military Objectives 



civilian object. 66 If, for instance, the minaret of a mosque is used as a sniper's 
nest, the presumption is rebutted and the enemy is entitled to treat it as a 
military objective. 67 The degree of doubt that has to exist prior to the emer- 
gence of the (rebuttable) presumption is by no means clear. But surely that 
doubt has to exist in the mind of the attacker, based upon "the circumstances 
ruling at the time." 

It follows that, by dint of military use (or, more precisely, abuse) , virtually 
every civilian object — albeit, innately, deemed worthy of protection by the jus 
in hello — can become a military objective. 68 

4. The Location of the Objective 

"Location" of an objective must be factored in, irrespective of the nature, 
purpose and use thereof. Logic dictates that, if a civilian-by-nature object (like 
a supermarket) is located within a sprawling military base, it cannot be im- 
mune from attack. If a merchant vessel is anchored in a military port, it be- 
comes a military objective by location. 

The real issue with respect to location goes beyond these elementary obser- 
vations. The notion underlying the reference to location is that a specific land 
area can be regarded per se as a military objective. 69 Surely, the incidence of 
such locations cannot be too widespread: there must be a distinctive feature 
turning a piece of land into a military objective (e.g., a mountain pass, a spe- 
cific hill of strategic value, a bridgehead or a spit of land controlling the en- ' 
trance of a harbor). 70 

5. Bridges 

The quadruple subdivision of military objectives by nature, purpose, use 
and location is not as neat as it sounds, and certain objectives can be cata- 
logued within more than one subset. Bridges may serve as a prime illustration. 
Bridges constructed for the engineering needs of major motorways and rail 
tracks are surely integrated in the overall network: like the roads and the 
tracks that they serve, they constitute military objectives by nature. But even 
where bridges connect non-arterial lines of transportation, as long as they are 



66. See Solf, supra note 29, at 327. 

67. Countless other examples can be postulated. Rogers refers to the case of a cathedral used as 
divisional headquarters. ROGERS, supra note 24, at 35. 

68. See SASSOLI & BOUVIER, supra note 27, at 161. 

69. For the underlying reasons, see ROGERS, supra note 24, at 38-39. 

70. See Elmar Rauch, The Protection of the Civilian Population in International Armed Conflicts and 
the Use of Landmines, 24 GERMAN YEARBOOK OF INTERNATIONAL LAW 262, 273-277 (198 1). 

150 



Yoram Dinstein 



apt to have a perceptible role in the transport of military reinforcements and 
supplies, their destruction is almost self- explanatory as a measure playing 
havoc with enemy logistics. It is wrong to assume (as does Michael Bothe in 
the context of bridges targeted during the Kosovo air campaign of 1999) that 
bridges can be attacked only "where supplies destined for the front must pass 
over" them. 71 The destruction of bridges can be effected to disrupt any 
movements of troops and military supplies, not necessarily in the direction 
of the front. 

If not by nature, most bridges may qualify as military objectives by purpose, 
use or — above all — location. 72 Every significant waterway or similar geophysi- 
cal obstruction to traffic (like a ravine) must be perceived as a possible military 
barrier, and there comes a time when the strategy of either belligerent would 
dictate that all bridges (even the smallest pedestrian overpass) across the ob- 
stacle have to be destroyed or neutralized. Surely, there is nothing wrong in a 
military policy striving to effect a fragmentation of enemy land forces through 
the destruction of all bridges — however minor in themselves — spanning a 
wide river. Thus, in the Gulf War in 1991, destruction of bridges over the Eu- 
phrates River impeded the deployment of Iraqi forces and their supplies (sev- 
ering also communications cables). 73 

It has been asserted that "[b] ridges are not, as such, military objectives," 74 
and that a bridge is like a school: the question whether it "represents a military 
objective depends entirely on the actual situation." 75 However, the compari- 
son between bridges and schools is meretricious. A school is recognized as a 
military objective only in the extraordinary circumstances of military use by 
the adverse party. A bridge, as a rule, would qualify as a military objective (by 
nature, location, purpose or use). It would fail to be a military objective only 
under exceptional conditions, when it is neither actually nor potentially of any 
military use to the enemy. 



71. Michael Bothe, The Protection of the Civilian Population and NATO Bombing on Yugoslavia: 
Comments on a Report to the Prosecutor of the ICTY, 12 EUROPEAN JOURNAL OF INTERNATIONAL 

Law 531, 534(2001). 

72. For the view that bridges are military objectives by location, see Pilloud & Pictet, supra note 
23, at 636. 

73. See ROGERS, supra note 24, at 42. 

74. Francoise Hampson, Proportionality and Necessity in the Gulf Conflict, 86 PROCEEDINGS OF 

the american society of international law 45, 49 (1992). 

75. Frits Kalshoven, Constraints on the Waging of War 90 (1987). 

151 



Legitimate Military Objectives 



6. Military Objectives Exempt from Attack 

The determination that an object constitutes a military objective is not al- 
ways conclusive in legitimizing an attack. Some objects are exempted from at- 
tack, notwithstanding their distinct character as military objectives. The most 
extreme illustration appears in Article 56(1) of the Protocol: 

Works or installations containing dangerous forces, namely dams, dykes and 
nuclear electrical generating stations, shall not be made the object of attack, 
even where these objects are military objectives, if such attack may cause the 
release of dangerous forces and consequent severe losses among the civilian 
population. Other military objectives located at or in the vicinity of these works 
and installations shall not be made the object of attack if such attack may cause 
the release of dangerous forces from the works or installations and consequent 
severe losses among the civilian population. 76 

Granted, according to Article 56(2), the special protection is not unquali- 
fied: it ceases when the dam, dyke or nuclear electrical generating station 
regularly, significantly and directly supports military operations, and there is no 
other feasible way to terminate such support. 77 In any event, the entire stipu- 
lation of Article 56 is innovative and binding only on contracting Parties. 

For their part, the Geneva Conventions prohibit attacks against protected 
military persons, i.e., those combatants who become hors de combat, either by 
choice (through surrender) or by force of circumstances (being wounded, sick 
or shipwrecked); 78 fixed establishments and mobile military medical units of 
the Medical Service; 79 hospital ships; 80 medical aircraft; 81 medical personnel 
engaged in the treatment of the wounded and sick; 82 and chaplains attached 
to the armed forces 83 (to name the most important categories). Protection 



76. Protocol I, supra note 2, at 45 1. 

77. Id. 

78. Geneva Convention (I) , art. 12, supra note 6, at 379; Geneva Convention (II) for the 
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at 
Sea, Aug. 12, 1949, art. 12, DOCUMENTS ON THE LAWS OF WAR, supra note 2, at 221, 226-7; 
Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, id. art. 
13, at 243, 250. 

79. Geneva Convention (I), supra note 6, art. 19, at 205. 

80. Geneva Convention (II), supra note 78, art. 22, at 230. 

81. Geneva Convention (I), supra note 6, art. 36, at 210-1. 

82. Id., art. 24, at 207. 

83. Id. 

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Yoram Dinstein 



from attack is also granted by customary international law to other categories, 
like cartel ships. 84 

Additionally, an attack against a military objective — which is not protected 
as such — may be illicit owing to the principle of proportionality, whereby the 
"collateral damage" or injury to civilians (or civilian objects) must not be ex- 
cessive. This issue is dealt with separately by the present writer. 

General Problems Relating to the Scope of Military Objectives 

The definition of military objectives, as discussed supra, raises a number of 
question marks: 

1 . Retreating troops 

It is sometimes contended that when an army has been routed, and its sol- 
diers are retreating in disarray — as epitomized by the Iraqi land forces during 
the Gulf War — they should not be further attacked. 85 But this is a serious mis- 
conception. The only way for members of the armed forces to immunize them- 
selves from further attack is to surrender, thereby becoming hors de combat. 86 
Otherwise, as the Gulf War amply demonstrates, the fleeing soldiers of today 
are likely to regroup tomorrow as viable military units. 

2. Targeting Individuals 

Is it permissible to target specific individuals who are members of the 
armed forces? As a rule, when a person takes up arms or merely dons a uni- 
form as a member of the armed forces, he automatically exposes himself to en- 
emy attack (even if he does not participate in actual hostilities and does not 
pose an immediate threat to the enemy) . The jus in bello prohibits treacherous 
assassination, yet nothing prevents singling out as a target an individual en- 
emy combatant (provided that the attack is carried out by combatants). 87 The 
prohibition of assassination does not cover "attacks, by regular armed military 
forces, on specific individuals who are themselves legitimate military tar- 
gets." 88 The United States was, consequently, well within its rights during 



84. See Louise Doswald-Beck, Vessels, Aircraft and Persons Entitled to Protection during Armed 
Conflicts at Sea, 65 BRITISH YEAR BOOK OF INTERNATIONAL LAW 21 1, 239 (1994). 

85. See Eric David, Principes de Droit des Conflits Arm£s 246 (2d ed. 1999). 

86. See Peter Barber, Scuds, Shelters and Retreating Soldiers: The Laws of Aerial Bombardment in the 
Gulf War, 31 ALBERTA LAW REVIEW 662, 690 (1993). 

87. See ROGERS & MALHERBE, supra note 54, at 62. 

88. Burrus Camahan, Correspondent's Report, 2 YEARBOOK OF INTERNATIONAL 

Humanitarian Law 423, 424 (1999). 

153 



Legitimate Military Objectives 



^Vo^ld War II when it specifically targeted the Commander-in-Chief of the 
Japanese Fleet, Admiral Yamamoto, whose plane was ambushed (subsequent 
to the successful breaking of the Japanese communication codes) and shot 
down over Bougainville in 1943. 89 The ambush of the car of SS General 
Heydrich in 1942 is different, but only because he was killed by members of 
the Free Czechoslovak army (parachuted from London) who were not wear- 
ing uniforms and were therefore not lawful combatants: otherwise, 
Heydrich — as a military officer — was a legitimate target, just like 
Yamamoto. 90 

3. Police 

Can police officers and other law enforcement agents be subsumed under 
the heading of members of armed forces (who are legitimately subject to at- 
tack) ? The answer to the question depends on whether the policemen have 
been officially incorporated into the armed forces 91 or (despite the absence of 
official incorporation) have taken part in hostilities. 92 If integrated into the 
armed forces, policemen — like all combatants — "may be attacked at any time 
simply because they have that particular status." 93 

4. Industrial plants 

It is exceedingly difficult to draw a dividing line between military and civil- 
ian industries. Sometimes, even the facts are hard to establish. Who is to say 
whether a textile factory is producing military uniforms or civilian clothing? 
In wartime, civilian consumption gives way as a matter of course to military 
priorities. Can one seriously asseverate that certain steel works ought not to 
be classified as military objectives only because their output has heretofore 
been channeled to the civilian market? The long-time civilian-oriented char- 
acter of an industrial center in peacetime provides no guarantee that produc- 
tion would not transition in the course of hostilities into war materials. A line 
of production, even when introduced for plainly civilian ends (e.g., tractors 
for agricultural use), can often be swiftly adjusted to military use (in this 



89. See Joseph Kelly, Assassination in War Time, 30 MILITARY LAW REVIEW 101, 102-103 
(1965). 

90. See Patricia Zengel, Assassination and the Law of Armed Conflict, 43 MERCER LAW REVIEW 
615, 628 (1991-1992). 

91. On such incorporation, cf. Article 43(3) of Protocol I, supra note 2, at 444. 

92. See Peter Rowe, Kosovo 1 999: The Air Campaign, 82 INTERNATIONAL REVIEW OF THE RED 
CROSS 147, 150-151 (2000). 

93. Id. at 151. 



154 



Yoram Dinstein 



instance, the assembly of tracked vehicles, such as tanks) . The children's toys 
factory of today may become tomorrow's leading manufacturer of electronic 
precision-munitions. Besides, in the present era of high technology, the con- 
struction of any computer hardware architecture or software program can 
turn into a central pillar of the war effort. 94 "The problem is that the [com- 
puter] technology capable of performing . . . [military] functions differs little, 
if at all, from that used in the civilian community." 95 If that is not enough, 
subcontracting in the manufacture of components of modern weapon systems 
causes a dispersion in the fabrication of war materials which is almost impossi- 
ble to trail. 96 All in all, it is easy to object to the automatic removal of any in- 
dustrial plant from the list of military objectives. 

5. Oil, coal and other minerals 

What is the status of oil fields and rigs, refineries, coal mines, and other 
mineral extraction plants, which are not ostensibly tied to military produc- 
tion? In the final analysis, despite their civilian bearings, all of them can be 
deemed to constitute the infrastructure of the military industry. It can well be 
argued that "oil installations of every kind are in fact legitimate military objec- 
tives open to destruction by any belligerent." 97 As for petrol filling stations, 
only those functioning in civilian residential areas — away from major motor- 
ways — may be exempted from attack. 

6. Electric grids 

Can power plants in civilian metropolitan areas be set apart from military 
power plants? During the Gulf War, the Coalition air campaign in 1991 
treated as a military target the integrated Iraqi national grid generating and 
distributing electricity (used both by the armed forces and civilians). 98 Unde- 
niably, an integrated power grid makes an effective contribution to modern 
military action: 99 any shortfall in military requirements can be compensated at 



94. As regards the growing military reliance on computers, see Michael Schmitt, Computer 
Network Attacks and the Use of Force in International Law: Thoughts on a Normative Framework, 37 

Columbia Journal of Transnational Law 885, 887 (1998-1999). 

95. Michael Schmitt, Future War and the Principle of Discrimination, 28 ISRAEL YEARBOOK ON 

Human Rights 51, 68 (1998). 

96. See Parks, supra note 65, at 140. 

97. Leslie Green, The Environment and the Law of Conventional Warfare, 29 CANADIAN 

Yearbook of International Law 222, 233 (1991). 

98. See Christopher Greenwood, Customary International Law and the First Geneva Protocol of 
1977 in the Gulf Conflict, in THE GULF WAR 1990-91, supra note 45, at 63, 73. 

99. Id. at 74. 

155 



Legitimate Military Objectives 



the expense of civilian needs. Indeed, the Coalition attacks against Iraqi power 
generating plants and transformer stations had a great impact on the Iraqi air 
defense structure (supported by computers), unconventional weapons research 
and development facilities, and telecommunications systems. 100 The large- 
scale attacks also had unintended — albeit inevitable — non-military conse- 
quences, such as the disruption of water supply (due to loss of electric pumps) 
and the inability to segregate the electricity that powers a hospital from "other" 
electricity in the same lines. 101 But these unfortunate results did not detract 
from the standing of the Iraqi electric grid system as a military objective. 102 

7. Civilian airports and maritime ports 

It would be imprudent to disregard the possibility that civilian airports and 
maritime ports can become hubs of military operations, side by side with con- 
tinued civilian activities (which can conceivably be a fig leaf) . No wonder that 
the 1954 Hague Cultural Property Convention refers to "an aerodrome" or "a 
port" — in a generic fashion — as a military objective. 103 
< 

8. Trains, trucks and barges 

If strategic arteries of transportation come within the bounds of military 
objectives (as stated), should the definition not incorporate all the railroad 
rolling stock, the truck fleets which are the backbone of motorway traffic, 
and the barges plying the rivers and canals? The consequences for civilian 
traffic are palpable. Unlike passenger liners or airliners (mentioned infra) , 
passenger trains do not have any visible hallmarks setting them apart from 
troop-carrying trains. If an inter-urban train (as distinct from a city tram) is 
sighted from the air, there being no telling signs of the civilian identity of the 
train riders, this writer believes that the train would be a legitimate military 
objective. In the Kosovo air campaign of 1999, a passenger train (not targeted 
as such) was struck while crossing a railway bridge. 104 In analyzing the case, 



100. See Daniel Kuehl, Airpower vs. Electricity: Electric Power as a Target for Strategic Air 
Operations, 18 JOURNAL OF STRATEGIC STUDIES 237, 251-252 (1995). 

101. Id. at 254. 

102. See Christopher Greenwood, Current Issues in the Law of Armed Conflict: Weapons, Targets 
and International Criminal Liability, 1 SINGAPORE JOURNAL OF INTERNATIONAL AND 
COMPARATIVE LAW 441, 461 (1997). 

103. Hague Cultural Property Convention, art. 8(1) (a), supra note 8, at 376. 

104. See Final Report to the Prosecutor by the Committee Established to Review the NATO 
Bombing Campaign Against the Federal Republic of Yugoslavia, HU 58-62, 39 INTERNATIONAL 
LEGAL MATERIALS 1257, 1273-1275 (2000), reprinted herein as Appendix A [hereinafter 
Report to the Prosecutor] . 

156 



Yoram Dinstein 



Natalino Ronzitti seems to take the position that — although the bridge was 
no doubt a legitimate military objective — a passenger train should not be at- 
tacked. 105 However, in the opinion of this writer it would all depend on 
whether or not the passengers were identified by the aviators as civilians. 

9. Civilian television and radio stations 

In wartime, control of civilian broadcasting stations can at any time be as- 
sumed by the military apparatus, which may wish to use it in communications 
(e.g., summoning reservists to service), in pursuit of psychological warfare, 
and for other purposes. In April 1999, NATO intentionally bombed the 
(State-owned) Serbian Television and Radio Station in Belgrade. 106 Was the 
bombing legally warranted? The Committee Established to Review the 
NATO Bombing Campaign against the Federal Republic of Yugoslavia 
averred that if the attack was carried out because the station played a role in 
the Serbian propaganda machinery, its legality might well be questioned. 107 In 
the Committee's opinion, the attack could be justified only if the TV and ra- 
dio transmitters were integrated into the military command and control com- 
munications network. 108 However, it is noteworthy that the Hague Cultural 
Property Convention of 1954 refers to any "broadcasting station" as a military 
objective (in the same breath with an aerodrome and a port). 109 The phrase 
clearly covers civilian TV and radio stations. 110 

10. Government offices 

It is occasionally questioned "whether government buildings are excluded 
under any clear rule of law from enemy attack." 111 But this sweeping statement 
is wrong. Government offices can be considered a legitimate target for attack 
only when used in pursuance or support of military functions. The premises of 
the Ministry of Defense have already been mentioned. Any subordinate or in- 
dependent Department of the Army, Navy, Air Force, Munitions and so forth 



105. Natalino Ronzitti, Is the Non Liquet of the Final Report by the Committee Established to Review 
the NATO Bombing Campaign against the Federal Republic of Yugoslavia Acceptable?, 82 

International Review of the Red Cross 1017, 1025 (2000). 

106. See Report to the Prosecutor, Appendix A, H 75. 

107. Id., 11 76. 

108. Id., H 75. 

109. Hague Cultural Property Convention, art. 8(1) (a), supra note 8, at 376. 

1 10. For reference to a radio broadcasting station in the Vatican City, see the UNESCO 
Commentary on the Hague Cultural Property Convention: THE PROTECTION OF CULTURAL 

Property in the Event of Armed Conflict: Commentary 106 Oiri Toman ed., 1996). 
ill. Ingrid Detter, The Law of War 294 (2d ed. 2000). 

157 



Legitimate Military Objectives 



is embraced. As for the edifice of the Head of State, circumstances vary from 
one country to another. Whereas the White House in Washington would 
constitute a legitimate military target (since the American President is the 
Commander-in-Chief of ail US armed forces), Buckingham Palace in London 
would not (inasmuch as the Queen has no similar role). 

11. Political leadership 

Obviously, members of the political leadership of the enemy country can be 
attacked (even individually) if they serve in the armed forces. 112 Additionally, 
when civilian leaders are present in any military installations or government of- 
fices constituting military objectives — or when they are visiting either the front 
line or munitions factories in the rear areas, when they board military aircraft 
or are driven by military command cars, etc. — they expose themselves to dan- 
ger. However, notwithstanding the personal risk run when present in a military 
objective, a civilian member of the political leadership does not become a mili- 
tary objective by himself and cannot be targeted away from such objective. 

Defended and Undefended Localities in Land Warfare 

The real test in land warfare is whether a given place, inhabited by civilians, 
is actually defended by military personnel. Should that be the case, the civil 
object becomes — owing to its use — a military objective. The criterion of the 
defense of an otherwise civilian place is highlighted in Article 25 of the Hague 
Regulations: "The attack or bombardment, by whatever means, of towns, vil- 
lages, dwellings, or buildings which are undefended is prohibited." 113 

Similar language appears in Article 3 (c) of the Statute of the International 
Criminal Tribunal for the former Yugoslavia (ICTY). 114 Article 8(2)(b)(v) of 
the Rome Statute brands as a war crime: "Attacking or bombarding, by what- 
ever means, towns, villages, dwellings or buildings which are undefended and 



1 12. See ROGERS & MALHERBE, supra note 54, at 62. 

1 13. Hague Regulations Respecting the Laws and Customs of War on Land, Annexed to 1899 
Hague Convention (II) and 1907 Hague Convention (IV) Respecting the Laws and Customs of 
War on Land, THE LAWS OF ARMED CONFLICTS: A COLLECTION OF CONVENTIONS, 
RESOLUTIONS AND OTHER DOCUMENTS 63, 83-84 (Dietrich Schindler & Jiri Toman eds., 3d 
ed. 1988). The words "by whatever means" were added to the text in 1907. 

114. 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 (ICTY), Report of the Secretary-General Pursuant to Paragraph 2 of 
Security Council Resolution 808 (1993), 32 INTERNATIONAL LEGAL MATERIALS 1159, 1193 
(1993). 

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Yoram Dinstein 



which are not military objectives." 115 The last words are plainly an addition to 
the original Hague formula. They sharpen the issue by denoting that some un- 
defended civilian habitations may still constitute military objectives. 

Article 59(1) of Protocol I sets forth: "It is prohibited for the Parties to the 
conflict to attack, by any means whatsoever, non-defended localities." 116 
Once more it is the Hague criterion of defending a place that counts: if a 
place is defended, it may be attacked. But the expression "localities," em- 
ployed by the Protocol, is wider than single buildings, albeit narrower than a 
whole city or town. This is important to bear in mind, for land warfare cannot 
always be analyzed on a building-by-building basis. Not infrequently, 
large-scale combat is conducted in an extensive built-up area, particularly a 
large city. It goes without saying that "any building sheltering combatants be- 
comes a military objective." 117 In extreme cases, when fierce fighting is con- 
ducted from house to house (a la Stalingrad), a whole city block — or even 
section — may be regarded as a single military objective: partly by (actual) use 
and partly by purpose (namely, potential use). The fact that, in the meantime, 
a given building within that block or section is not yet occupied by any mili- 
tary unit is immaterial. The reasonable expectation is that, as soon as the tide 
of battle gets nearer, it would be converted into a military stronghold. Hence, 
it may be bombarded even prior to that eventuality. Yet, the old Hague 
sweeping reference to a town in toto (defended or undefended) must be re- 
garded as obsolete. 118 

A belligerent desirous of not defending a city — with a view to saving it from 
harm's way — can convey that message effectively to the enemy. Article 59(2) 
of the Protocol prescribes: 

The appropriate authorities of a Party to the conflict may declare as a 
non-defended locality any inhabited place near or in a zone where armed forces 
are in contact which is open for occupation by an adverse Party. Such a locality 
shall fulfill the following conditions: 

(a) all combatants, as well as mobile weapons and mobile military equipment, 
must have been evacuated; 

(b) no hostile use shall be made of fixed military installations or establishments; 



115. Rome Statute, supra note 10, at 676. 

1 16. Protocol I, supra note 2, at 454- 

1 17. Pilloud & Pictet, supra note 23, at 699, 701, 

1 18. See Oeter, supra note 43, at 171. 



159 



Legitimate Military Objectives 

(c) no acts of hostility shall be committed by the authorities or by the 
population; and 

(d) no activities in support of military operations shall be undertaken. 119 

There seem to be some complementary implicit conditions not enumerated in 
the text: roads and railroads crossing the locality must not be used for military 
purposes, and factories situated there must not manufacture products of mili- 
tary significance. 120 Nevertheless, the presence in the non-defended locality of 
police forces retained for the sole purpose of maintaining law and order is per- 
missible under Article 59 (3). 121 

Apart from the explicit and implicit cumulative conditions, it is sine qua 
non that (i) the declared non-defended locality would be in or near the con- 
tact zone, 122 and that (ii) it would be open for occupation. 123 A declared non- 
defended locality cannot be situated in the hinterland — far away from the con- 
tact zone — for the simple reason that it is not yet within "the effective grasp of 
the attacker's land forces." 124 Au fond, a non-defended locality cannot be 
established in anticipation of future events, but only "in the 'heat of the mo- 
ment', i.e., when the fighting comes close." 125 

Article 59(4) goes on to state that the declaration mentioned in para- 
graph (2) — defining as precisely as possible the limits of the non-defended 
locality — is to be addressed to the adverse party, which must treat the locality 
as non-defended unless the prerequisite conditions are not in fact fulfilled. 126 
The outcome is that, subject to the observation of all the conditions (specified 
and unspecified in the text), the unilateral declaration of a locality as non- 
defended binds the adverse party by virtue of the Protocol. 127 



1 19. Protocol I, supra note 2, at 454. 

120. See Pilloud & Pictet, supra note 23, at 702. 

121. Protocol I, supra note 2, at 454. 

122. A contact zone means the area where the most forward elements of the armed forces of 
both sides are in contact with each other. See Pilloud &. Pictet, supra note 23, at 701 n.2. 

123. Indeed, prior to Protocol I, the expression commonly used was not a "non-defended 
locality" but an "open city." For the transition in terminology, see J. Starke, The Concept of Open 
Cities in International Humanitarian Law, 56 AUSTRALIAN LAW JOURNAL 593-597 (1982). 

124. Julius Stone, Legal Controls of International Conflict: A Treatise on the 

DYNAMICS OF DISPUTE— AND WAR— LAW 622 (2d ed. 1959). The comment was made prior to 
the drafting of Protocol I, but it is still valid. 

125. Claude Pilloud & Jean Pictet, Localities and Zones under Special Protection, in COMMENTARY 
ON THE ADDITIONAL PROTOCOLS, supra note 23, at 697. See also M. Torrelli, Les Zones de 
Security 99 REVUE GENERALE DE DROIT INTERNATIONAL PUBLIC 787, 795 (1995). 

126. Protocol I, supra note 2, at 454. 

127. Solf, Article 59, supra note 29, at 379, 383-384. 

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Yoram Dinstein 



Article 59(5) adds that the two parties to the conflict may agree on the es- 
tablishment of non-defended localities, even when the conditions are not 
met. 128 But manifestly, in that case, it is the bilateral agreement (as distinct 
from the unilateral declaration) that is decisive. Article 15 of Geneva Con- 
vention (IV) 129 provides that the belligerents may establish in the combat zone 
neutralized areas intended to serve as a shelter for (combatant or noncomba- 
tant) sick and wounded, as well as for civilians who perform no work of a mili- 
tary character, but the creation of such areas and their demarcation is 
contingent on the agreement of the parties. 

Special Problems Relating to Sea Warfare 

1. Areas of Naval Warfare 

Hostile actions by naval forces may be conducted in or over the internal 
waters, the territorial sea, the continental shelf, the exclusive economic zone 
and (where applicable) the archipelagic waters of the belligerent States; the 
high seas; and (subject to certain conditions) even the continental shelf and 
the exclusive economic zone of neutral States. 130 Military objectives at sea in- 
clude not only vessels but also fixed installations (especially weapon facilities 
and detection or communication devices), which can be emplaced on — or 
beneath — the seabed, anywhere within the areas of naval warfare. 131 Cables 
and pipelines laid on the seabed and serving a belligerent may also constitute 
legitimate military objectives. 132 

2. Warships 

Every warship is a military objective. The locution "warships" covers all 
military floating platforms, including submarines, light craft (e.g., torpedo 
boats), and even unarmed auxiliary naval vessels (except hospital ships). A 
warship can be attacked on sight and sunk (within the areas of naval warfare). 
"These attacks may be exercised without warning and without regard to the 
safety of the enemy crew." 133 



128. Protocol I, supra note 2, at 454. 

129. Geneva Convention (IV), supra note 6, at 307. 

130. See SAN REMO MANUAL, supra note 15, at 80. 

131. See Tullio Treves, Military Installations, Structures, and Devices on the Seabed, 74 AMERICAN 

Journal of International Law 808, 809, 819 ff (1980). 

132. See SAN REMO MANUAL, supra note 15, at 1 1 1. 

133. William Fenrick, Legal Aspects of Targeting in the Law of Naval Warfare, 29 CANADIAN 

Yearbook of International Law 238, 269 (1991). 



161 



Legitimate Military Objectives 



3. Enemy Merchant Vessels 

Enemy merchant vessels are generally deemed to be civilian objects, and 
are therefore exempt from attack (even though they are subject to capture as 
prize). 134 Still, the San Remo Manual lists no less than seven exceptions to the 
rule. 135 In these seven instances, merchant vessels may be attacked and sunk 
as military objectives: 

(a) When an enemy merchant vessel is engaged directly in belligerent acts 
(e.g., laying mines or minesweeping). 

(b) When an enemy merchant vessel acts as an auxiliary to the enemy armed 
forces (e.g., carrying troops or replenishing warships). 

(c) When an enemy merchant vessel engages in reconnaissance or otherwise 
assists in intelligence gathering for the enemy armed forces. 

(d) When an enemy merchant vessel refuses an order to stop or actively resists 
capture. 

(e) When an enemy merchant vessel is armed to an extent that it can inflict 
damage on a warship (especially a submarine) . 

(0 When an enemy merchant vessel travels under a convoy escorted by 
warships, thereby benefiting from the (more powerful) armament of the 
latter. 

(g) When an enemy merchant vessel makes an effective contribution to 
military action (e.g., by carrying military materials). 136 

Some vessels — above all, passenger liners exclusively engaged in carrying 
civilian passengers — are generally exempted from attack. 137 Even if the pas- 
senger liner is carrying a military cargo in breach of the requirement of 



134. See Natalino Ronzitti, he Droit Humanitaire Applicable aux Conflits Armes en Mer, 242 
RECUEIL DES COURS 9, 69-71 (1993). 

135. San Remo Manual, supra note 15, at 146-151. 

136. The war materials under this rubric cannot be exports. Except in the context of refusing an 
order to stop while blockade running, a private tanker would not constitute a military objective 
when carrying oil exported from a belligerent oil-producing State, even though the revenue 
derived from the export may prove essential to sustaining the war effort. See Michael Bothe, 
Neutrality in Naval Warfare: What Is Left of Traditional International Law?, in HUMANITARIAN 

Law of Armed Conflict Challenges Ahead: Essays in Honour of Frits Kalshoven 

387, 401 (Astrid Delissen &. Gerard Tanja eds., 1991). C/. the comments supra about raw cotton 
in the American Civil War. 

137. On passenger liners, see SAN REMO MANUAL, supra note 15, at 132. 



162 



Yoram Dinstein 



exclusive civilian engagement, an attack against it may be unlawful because it 
would be clearly disproportionate to the military advantage expected. 138 

4. Neutral Merchant Vessels 

Neutral merchant vessels are generally immune from attack, although sub- 
ject to visit and search by belligerent warships (and military aircraft) and pos- 
sible capture for adjudication as prize in appropriate circumstances. 139 
Nevertheless, according to the San Remo Manual, neutral merchant vessels 
are liable to attack — as if they were enemy military objectives — in the six fol- 
lowing cases: 140 

(a) When a neutral merchant vessel is engaged in belligerent acts on behalf of 
the enemy. 

(b) When a neutral merchant vessel acts as an auxiliary to the enemy armed 
forces. 

(c) When a neutral merchant vessel assists the enemy's intelligence system. 

(d) When a neutral merchant vessel is suspected of breaching a blockade or of 
carrying contraband and clearly refuses an order to stop, or resists visit, 
search or capture. 

(e) When a neutral merchant vessel travels under a convoy escorted by enemy 
warships. 

(f) When a neutral merchant vessel makes an effective contribution to the 
enemy's military action (e.g., by carrying military materials). 141 

Thus, "[t]he mere fact that a neutral merchant vessel is armed provides no 
grounds for attacking it." 142 As for traveling under convoy, the entitlement to 
attack a neutral merchant vessel exists only when the convoy is escorted by 
enemy warships. Neutral merchant vessels traveling under convoy escorted by 
neutral warships, in transit to neutral ports, cannot be attacked (and are not 
subject to visit and search). 143 The neutral escort can also belong to a State 
other than the State of the flag. 144 During the Iran-Iraq War, the practice de- 
veloped of reflagging the merchant vessels of one neutral State (like Kuwait) 



138. See id. 

139. See id. at 154, 212-213. 

140. Id. at 154-161. 

141. See supra note 136. 

142. San Remo Manual, supra note 15, at 161. 

143. see george politakis, modern aspects of the laws of naval warfare and 
Maritime Neutrality 560-561 (1998). 

144. See id. at 571-575. 

163 



Legitimate Military Objectives 



escorted by warships of another (like the United States). 145 But reflagging (in 
the absence of a "genuine link" between the merchant vessels and their new 
flag State 146 ) is not strictly necessary. Suffice it for the two neutral States to 
conclude an agreement enabling the flag State of the escorting warships to 
verify and warrant that the merchant vessel (flying a different neutral flag) is 
not carrying contraband and is not otherwise engaged in activities inconsis- 
tent with its neutral status. 147 

Of course, neutral passenger liners would benefit from special protection. 148 

5. Destruction of Enemy Merchant Vessels after Capture 

When enemy merchant vessels are protected from attack that does not 
mean that they cannot be destroyed. The rule is that warships (and military 
aircraft) have a right to capture enemy merchant vessels, with a view to taking 
them into port for adjudication and condemnation as prize. 149 As an excep- 
tional measure, when circumstances preclude taking it into port, the captured 
merchant vessel may be destroyed. 150 The legality of the destruction of the 
captured ship is to be adjudicated by the prize court. 151 

There is a vital distinction between the destruction of an enemy merchant 
vessel subsequent to capture and an attack launched against it on the ground 
that it constitutes a military objective. An enemy merchant vessel liable to at- 
tack as a military objective can be sunk at sight with all those on board. Con- 
versely, the destruction of an enemy merchant vessel in the exceptional 
circumstances following capture can only take place subject to the dual condi- 
tion that (i) the safety of passengers and crew is assured; (ii) the documents 
and papers relating to the prize proceedings are safeguarded. 152 A special 



145. See id. at 560-571. 

146. See Myron Nordquist & Margaret Wachenfeld, Legal Aspects of Reflagging Kuwaiti Tankers 
and Laying of Mines in the Persian Gulf, 31 GERMAN YEARBOOK OF INTERNATIONAL LAW 138, 
140-151 (1988). 

147. See SAN REMO MANUAL, supra note 15, at 197-199. 

148. See George Walker, Information Warfare and Neutrality, 33 VANDERBILT JOURNAL OF 
TRANSNATIONAL LAW 1079, 1164 (2000). 

149. SAN REMO MANUAL, supra note 15, at 205, 208. 

150. See id. at 209. 

151. See Wolff Heintschel von Heinegg, Visit, Search, Diversion, and Capture in Naval Warfare: 
Part I, The Traditional Law, 29 CANADIAN YEARBOOK OF INTERNATIONAL LAW 283, 309 
(1991). 

152. See SAN REMO MANUAL, supra note 15, at 209. 

164 



Yoram Dinstein 



Proces-Verbal of 1936 applies this general rule to submarine warfare. 153 The 
Proces-Verbal specifies that the ship's boats are not regarded as a place of 
safety for the passengers and crew unless that safety is assured by the existing 
sea and weather conditions, the proximity of land, or the presence of another 
vessel in a position to take them on board. 154 The San Remo Manual follows 
the Proces-Verbal, adding an important caveat: the vessel subject to destruc- 
tion must not be a passenger liner. 155 

6. Exclusion Zones 

The San Remo Manual rejects the notion that a belligerent may absolve it- 
self of its duties under international humanitarian law by establishing mari- 
time "exclusion zones," which might enable it to attack enemy merchant 
vessels and even neutral ships entering the zones. 156 The practice of establish- 
ing exclusion zones evolved during World Wars I and II, and was resorted 
to — albeit with considerable conceptual differences — in the Iran-Iraq War 
and in the Falkland Islands War. 157 It is clear from the 1946 Judgment of the 
International Military Tribunal at Nuremberg that the sinking of neutral mer- 
chant vessels without warning when entering unilaterally proclaimed exclu- 
sion zones, is unlawful. 158 This holding is not germane, however, to enemy 
merchant vessels in such zones. 159 

Most commentators agree that, given the on-going practice, the legality of 
exclusion zones should be acknowledged in some manner. 160 The San Remo 
Manual itself concedes that belligerents may establish exclusion zones as ex- 
ceptional measures, subject to the condition that no new rights be ac- 
quired — and no existing duties be absolved — through such establishment. 161 



153. Proces-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of 
London of 22 April 1930, 1936, THE LAWS OF ARMED CONFLICTS, supra note 1 13, at 883, 884. 

154. Id. 

155. San Remo Manual, supra note 15, at 210. 

156. Id. at 181. 

157. See William Fenrick, The Exclusion Zone Device in the Law of Naval Warfare, 24 CANADIAN 

Yearbook of International Law 91-126 (1986). 

158. International Military Tribunal (Nuremberg), Judgment and Sentence, 41 AMERICAN 

Journal of International Law 172, 304 (1947). 

159. See Edwin Nwogugu, 1936 London Proces-Verbal Relating to the Rules of Submarine Warfare 
Set Forth in Part IV of the Treaty of London of 22 April 1 930, in THE LAW OF NAVAL WARFARE: A 

Collection of Agreements and Documents with Commentaries 349, 358-359 

(Natalino Ronzitti ed., 1988). 

160. See POLITAKIS, supra note 143, at 145. 

161. San Remo Manual, supra note 15, at 181-182. 



165 



Legitimate Military Objectives 



The condition is somewhat softened when the Manual adds that, should a bel- 
ligerent create an exclusion zone, "it might be more likely to presume that 
ships or aircraft in the area without permission were there for hostile pur- 
poses." 162 This proviso "allows a 'grey area,'" 163 although incontestably exclu- 
sion zones must not become "free-fire zones," and specified sea lanes ensuring 
safe passage to hospital ships, neutral shipping, etc., must be made available. 164 
Evidently, the specifics of a new law regarding exclusion zones have not yet 
crystallized. 165 Until the new law emerges in detail, the lex lata remains valid, 
so that "an otherwise protected platform does not lose that protection by 
crossing an imaginary line drawn in the ocean by a belligerent." 166 

The reverse side of the coin is that enemy warships — being military objec- 
tives subject to attack at sight — do not gain any protection by staying away 
from an exclusion zone. Consequently, there was no legal fault in the sinking 
by the British of the Argentine cruiser ARA General Belgrano outside a pro- 
claimed exclusion zone (in the course of the Falkland Islands War of 1982): 
an enemy warship "has no right to consider itself immune" from attack beyond 
the range of an exclusion zone. 167 

7. Bombardment of Coastal Areas 

A special problem arises with respect to the bombardment from the sea of 
enemy coastal areas. The matter is governed by Hague Convention (IX) of 
1907, which sets forth in Article 1: "The bombardment by naval forces of un- 
defended ports, towns, villages, dwellings, or buildings is forbidden." 168 Article 
2, for its part, clarifies that military works, military or naval establishments, 
depots of arms or war materials, workshops or plants which can be utilized for 
the needs of the hostile fleet or army, and warships in the harbor, are excluded 



162. Id. at 181. 

163. Fausto Pocar, Missile Warfare and Exclusion Zones in Naval Warfare, 27 ISRAEL YEARBOOK 

on Human Rights 215, 223 (1997). 

164. See Wolff Heintschel von Heinegg, The Law of Armed Conflicts at Sea, in THE HANDBOOK 

of Humanitarian Law in Armed Conflicts, supra note 43, at 405, 468. 

165. See L.F.E. Goldie, Maritime War Zones & Exclusion Zones, in THE LAW OF NAVAL 
OPERATIONS 156, 193-194 (Horace B. Robertson ed., 1991) (Vol. 64, US Naval War College 
International Law Studies). 

166. ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF 

Naval Operations, supra note 17, at 395-396. 

167. See Howard Levie, The Falklands Crisis and the Laws of War, in THE FALKLANDS WAR: 

Lessons for Strategy, Diplomacy and International Law 64, 66 (Alberto Coll & 

Anthony Arend eds., 1985). 

168. Hague Convention (IX) Concerning Bombardment by Naval Forces in Time of War, Oct. 

18, 1907, Documents on the Laws of War, supra note 2, at 1 1 1, 1 13. 

166 



Yoram Dinstein 



from this prohibition. 169 Article 3 — which is "a throwback to a bygone era of 
naval warfare" 170 — permits the bombardment of ports, towns, etc., if the local 
authorities (having been summoned to do so) fail to furnish supplies to the 
naval force before them. 171 

Article 1 of Hague Convention (IX) applies to coastal bombardment a land 
warfare rule, laid down in Article 25 of Hague Convention (IV). As noted, 
the sweeping reference in the Hague Conventions to entire towns as either 
defended or undefended (and accordingly subject to, or exempted from, at- 
tack) is obsolete, and the term "localities" — employed by Protocol I — is 
more precise. Additionally, coastal bombardments are in general different 
from land warfare. Whereas on land a bombardment usually serves as a pre- 
lude to assault on the target with a view to its occupation, naval bombard- 
ment is more frequently intended to inflict sheer destruction on the enemy 
rear (only exceptionally is the intention to land troops). 172 If there is room for 
some elasticity in treating whole sections of a city as a single military objec- 
tive — when house-to-house combat is raging — no similar impetus affects 
coastal bombardment. The grafting of a land warfare rule onto coastal bom- 
bardment is therefore inappropriate. 173 

A specific issue in the context of coastal bombardment is that of light- 
houses. Can they be treated as military objectives? On the one hand, they de- 
serve protection as installations designed to ensure the safety of navigation in 
general. 174 On the other hand, the French Court of Cassation held in 1948 
that a lighthouse is a military objective, since it can be used for the needs of a 
hostile fleet. 175 The present practice of States is certainly not conclusive. 



169. Id. 

1 70. Horace Robertson, 1 907 Hague Convention IX Concerning Bombardment by Naval Forces in 
Time of War, in THE LAW OF NAVAL WARFARE, supra note 159, at 149, 166. 

171. Hague Convention (IX), supra note 168, at 113. 

172. See ROBERT TUCKER, THE LAW OF WAR AND NEUTRALITY AT SEA 143 (1955) (Vol. 50, 
US Naval War College International Law Studies). 

173. See Robertson, supra note 170, at 163-164. 

174. See Matthias Hartwig, Lighthouses and Lightships, in 3 ENCYCLOPEDIA OF PUBLIC 
INTERNATIONAL LAW 220 (Rudolph Bernhardt ed., 1997). 

175. In re Gross-Brauckmann (France, Court of Cassation [Criminal Division], 1948), 1948 

Annual Digest and Reports of public International Law Cases 687, 688. 

167 



Legitimate Military Objectives 



Special Problems Relating to Air Warfare 

1. Military Aircraft 

Enemy military aircraft — and any other military aerial platforms, including 
gliders, drones, blimps, dirigibles, etc. — are legitimate targets for attack. In 
fact, air combat is intrinsically different from land or sea combat, considering 
that (i) it is most difficult for a military aircraft in flight to convey a wish to 
surrender (i.e., there is no effective counterpart in the air to the land or sea 
method of hoisting a white flag, striking colors or — in the case of subma- 
rines — surfacing) ; and (ii) it is generally permissible to continue to fire upon a 
military aircraft even after it has become clearly disabled. 176 (Although, under 
Article 42 of Protocol I, persons parachuting from an aircraft in distress — in 
contradistinction to airborne troops — must not be made the object of attack 
during their descent, and upon reaching hostile ground must be given an op- 
portunity to surrender. 177 ) 

2. Civilian Aircraft 

Enemy civilian aircraft per se do not constitute military objectives. Still, 
civilian aircraft are subject to rather stringent strictures under the non- 
binding Hague Rules of Air Warfare, whereby enemy civilian aircraft in flight 
are liable to be fired upon — as if they were military objectives — in the follow- 
ing circumstances: 

(a) When flying within the jurisdiction of their own State, should enemy 
military aircraft approach and they do not make the nearest available 
landing. 178 

(b) When flying (i) within the jurisdiction of the enemy; or (ii) in the 
immediate vicinity thereof and outside the jurisdiction of their own State; 
or (iii) in the immediate vicinity of the military operations of the enemy by. 
land or sea (the exceptional right of prompt landing is inapplicable). 179 

Even neutral civilian aircraft are exposed to the risk of being fired upon if 
they are flying within the jurisdiction of a belligerent, are warned of the ap- 
proach of military aircraft of the opposing side, and do not land 



176. See ANNOTATED SUPPLEMENT TO THE COMMANDER'S HANDBOOK ON THE LAW OF 

Naval Operations, supra note 17, at 407-408. 

177. Protocol I, supra note 2, at 444. 

178. Hague Rules of Air Warfare, supra note 5, art. 33, at 147. 

179. Id., art. 34. 

168 



Yoram Dinstein 



immediately. 180 Thus, the only advantage that neutral civilian aircraft have 
over belligerent civilian aircraft within enemy airspace, is that the neutral ci- 
vilian aircraft must be warned first (belligerent civilian aircraft in that situa- 
tion must establish at their own peril whether the enemy military aircraft are 
approaching) . 

These provisions have been criticized as impractical, addressing an improb- 
able contingency (of civilian aircraft venturing into the enemy's jurisdiction), 
and creating new and difficult categories (what is the vicinity of the enemy's 
jurisdiction?). 181 Although the Hague Rules have generally had a substantial 
influence on the evolution of customary international law 182 — and their im- 
pact on the terminology adopted by the framers of Protocol I has been 
noted — it is impossible to forget that they were enunciated in 1923, at the 
dawn of civil aviation and prior to the exponential growth of passenger traffic 
by air. The normal modern procedure of declaring air exclusion zones in war- 
time is supposed to preclude any type of undesirable overflight in sensitive 
areas. 183 But even within a "no-fly" zone, it is arguable that attack against 
civilian aircraft in flight should follow a due warning. 184 Outside "no-fly" 
zones, the contemporary jus in hello (as corroborated by military manuals) for- 
bids attacks against civilian aircraft in flight unless they are utilized for military 
purposes or refuse to respond to interception signals; and civilian airliners (en- 
gaged in passenger traffic) are singled out for special protection. 185 Still, as 
demonstrated by the lamentable 1988 incident of the US cruiser VSS 
Vincennes shooting down an Iranian passenger aircraft (with 290 civilians on 
board) , the speed of modern electronics often creates insurmountable prob- 
lems of erroneous identification. 186 

The status of civilian aircraft is different when they are not in flight (nor in 
the process of taking off or landing with passengers), but parked on the 



180. Id., art. 35, at 148. 

181. See J.M. SPAIGHT, AIR POWER AND WAR RIGHTS 402 (3d ed. 1947). 

182. See Richard Baxter, The Duties of Combatants and the Conduct of Hostilities (Law of the 
Hague), in INTERNATIONAL DIMENSIONS OF HUMANITARIAN LAW 93, 115 (1988). 

183. See F.J.S. Gomez, The Law of Air Warfare, 38 INTERNATIONAL REVIEW OF THE RED CROSS 
347, 356 (1998). 

184. See Torsten Stein, No-Fly -Zones, 27 ISRAEL YEARBOOK ON HUMAN RIGHTS 193, 196 
(1997). 

185. See Horace Robertson, The Status of Civil Aircraft in Armed Conflict, 27 ISRAEL YEARBOOK 

on Human Rights 113, 125-126 (1997). 

186. On this incident, see Jose Reilly & R.A. Moreno, Commentary, in THE MILITARY 

Objective and the Principle of Distinction in the Law of Naval Warfare, supra 

note 21, at 111, 114-115. 



169 



Legitimate Military Objectives 



ground. It must be recalled that the airport in which they are parked is liable 
to be deemed a military objective, so the civilian aircraft may be at risk owing 
to its mere presence there. 187 Moreover, irrespective of where they are situ- 
ated, civilian aircraft are often viewed as constituting "an important part of 
the infrastructure supporting an enemy's war-fighting capability," since they 
can be used later for the transport of troops or military supplies. 188 

3. Strategic and "Target Area" Bombing 

The most crucial issue of air warfare is that of strategic bombing, to wit, 
bombing of targets in the interior, beyond the front line (the contact zone) . 
Conditions of air warfare have always defied the logic of the distinction be- 
tween defended and undefended sites, enshrined in the traditional law of Ar- 
ticle 25 of the 1907 Hague Regulations, although the words "by whatever 
means" were inserted into the Article with the deliberate intention of cover- 
ing "attack from balloons." 189 After all, there is no real meaning to lack of de- 
fenses in situ as long as the front line remains a great distance away. First, a 
rear zone is actually defended (however remotely) by the land forces facing 
the enemy on the front line. Secondly, the fact that a place in the interior is 
undefended by land forces while the front line is far-off is no indication of fu- 
ture events: it may still be converted into an impregnable citadel once the 
front line gets nearer. Thirdly, and most significantly for air warfare, the em- 
placement of anti-aircraft guns and fighter squadrons en route from the front 
line to the rear zone may serve as a more effective screen against intruding 
bombers than any defense mechanism provided locally. 190 

For these and other reasons, the Hague Rules of Air Warfare introduced 
the concept of military objectives, endorsed and further elaborated — with a 
new definition — by Protocol I. However, strategic bombing triggers the com- 
plementary question whether it is permissible to treat a cluster of military ob- 
jectives in relative spatial proximity to each other as a single "target area." 
The issue arises occasionally in some settings of long-range artillery bombard- 
ment. But it is particularly apposite to air warfare, in which target identifica- 
tion may be detrimentally affected by poor visibility (especially as a result of 



187. Cf. Leslie Green, Aerial Considerations in the Law of Armed Conflict, 5 ANNALS OF AIR AND 

Space Law 89, 109(1980). 

188. Robertson, supra note 185, at 127. 

189. Thomas Holland, The Laws of War on Land (Written and Unwritten) 46 
(1908). 

190. See R.Y. Jennings, Open Towns, 22 BRITISH YEAR BOOK OF INTERNATIONAL LAW 258, 
261 (1945). 

170 



Yoram Dinstein 



inclement weather), effective air defense systems, failure of electronic devices 
(sometimes because of enemy jamming), sophisticated camouflage, etc. Thus, 
when the target is screened by determined air defense, the attacking force may 
be compelled to conduct a raid from the highest possible altitudes, compro- 
mising precision bombing (especially when "smart bombs" are unavailable). 191 
The practice which evolved during World War II was that of "saturation 
bombings," aimed at large "target areas" in which there were heavy concentra- 
tions of military objectives (as well as civilian objects). 192 Such air attacks were 
designed to blanket or envelop the entire area where military objectives 
abounded, rather than search for a point target. 193 The operating assumption 
was that, if one military objective would be missed, others stood a good chance 
of being hit. This practice (entailing, as it did, immense civilian casualties by 
way of "collateral damage") was harshly criticized after the war. 194 

The World War II experience may create the impression that "target area" 
bombing is relevant mostly to sizeable tracts of land — like the Ruhr Valley in 
Germany — where the preponderant presence of first-class military objectives 
stamps an indelible mark on their surroundings, thereby creating "an indivisi- 
ble whole." 195 But the dilemma whether or not to lump together as a single tar- 
get several military objectives may be prompted even by run-of-the-mill 
objects when they are located at a relatively small distance from each other. 
The dilemma is addressed by Article 5 1 (5) (a) of Protocol I, where it is prohib- 
ited to conduct "an attack by bombardment by any methods or means which 
treats as a single military objective a number of clearly separated and distinct 
military objectives located in a city, town, village or other area containing a 
similar concentration of civilians or civilian objects." 196 

While placing a reasonable limitation on the concept of "target area" 
bombing, Article 51 (5) (a) does not completely ban it. "Target area" bombing 
is still legitimate when the military objectives are not clearly separated and 



191. It must be appreciated that "smart bombs" are not a panacea: much can go wrong even 
when they are available. See A.P.V. Rogers, Zero-Casualty Warfare, 82 INTERNATIONAL 

Review of the Red Cross 165, 170-172 (2000). 

192. See STONE, supra note 124, at 626-627. 

193. See E. Rosenblad, Area Bombing and International Law, 15 REVUE DE DROIT PENAL 
MlLITAIRE ET DE DROIT DE LA GUERRE 53, 63 (1976). 

194. See, e.g., Hans Blix, Area Bombardment: Rules and Reasons, 49 BRITISH YEAR BOOK OF 

International Law 31, 58-61 (1978). 

195. Morris Greenspan, The Modern Law of Land Warfare 335-336 (1959). 

196. Protocol I, supra note 2, at 651. 



171 



Legitimate Military Objectives 



distinct. Understandably, "the interpretation of the words 'clearly separated 
and distinct' leaves some degree of latitude to those mounting an attack." 197 In 
particular, the adverb "clearly" blurs the issue: is the prerequisite clarity a mat- 
ter of objective determination or subjective appreciation (depending, e.g., on 
the degree of visibility when weather conditions are poor)? 198 Another ques- 
tion is what a "similar concentration" of civilian objects within the "target 
area" means in practice. The ambiguities are regrettable, keeping in mind that 
"target area" bombing stretches to the limit the principle of distinction be- 
tween military objectives and civilian objects. 

Conclusion 

It is difficult to overstate the importance of establishing authoritatively the 
compass of military objectives in conformity with the jus in hello. In exposing 
military objectives to attack, and (as a corollary) immunizing civilian objects, 
the principle of distinction provides the main line of defense against methods 
of barbarism in warfare. The validity of the principle cannot be seriously con- 
tested today, and it may be regarded as lying at the epicenter of the law regu- 
lating the conduct of hostilities. Unfortunately, the Devil is in the detail. As 
this paper should amply demonstrate, the detail is far from resolved by the cur- 
rent lex scripta (specifically Protocol I). There is an evident need for further 
expounding quite a few aspects of the accepted definition of military objec- 
tives. This need becomes more urgent with the dramatic changes in the mod- 
ern techniques of combat. The jus in hello cannot afford to lag far behind the 
changing conditions of combat. 



197. See Pilloud & Pictet, supra note 23, at 613, 624. 

198. See Hamilton DeSaussure, Belligerent Air Operations and the 1977 Geneva Protocol I, 4 

Annals of Air and Space Law 459, 471-472 (1979). 

172 



Targeting 



Michael Bothe 



I 



he international legal rules which determine whether certain targets 
may or may not be lawfully attacked are based on one of the pillars of 
the international law applicable in armed conflicts, namely the distinction be- 
tween the civilian population on the one hand and the military effort of the 
State on the other. The development of this distinction is a historical and cul- 
tural achievement of the age of enlightenment. This fact needs to be empha- 
sized when there is a temptation to consider certain consequences of this 
distinction as too cumbersome for what is supposed to be a necessary military 
operation. 

Distinction 

In the centuries before the enlightenment, war was often, and then lawfully 
so, conducted in a way that made the "civilian" population suffer very drasti- 
cally. 1 It was in particular the philosopher Jean Jacques Rousseau who, in the 
second half of the 18 th century, developed the idea that war did not constitute 
a confrontation between peoples, but between States and their rulers ("sover- 
eign's war"). 2 This principle limited both the group of persons entitled to per- 
form acts harmful to the enemy (combatants) and the scope of persons and 
objects which may be the target of such acts (combatants/military objectives). 

In the 18 th and early 19 th century, this distinction corresponded to the real- 
ity of the conflicts of those days. It was possible and practicable to keep 



1. Fritz Munch, War, Laws of, History, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 
1386 et seq. (Rudolf Bernhardt ed., 2000). 

2. WlLHELM GREWE, THE EPOCHS OF INTERNATIONAL LAW 267 (2000). 



Targeting 

military activities well apart from the day-today life of the citizens, unless 
such unusual things as a levee en masse occurred. It was the technological de- 
velopments of the late 19 th and early 20 th century which created the funda- 
mental challenge to this distinction, namely the development of long-range 
weapons, in particular air warfare. The first rather comprehensive reaction to 
this challenge was an attempt at international rule making, the so-called 
Hague Rules of Air Warfare of 1923, 3 drafted by a group of experts based on a 
mandate given by the 1922 Washington Conference on Disarmament. These 
rules constituted a confirmation of the old distinction and developed its con- 
crete application to the new situation. Rules elaborated by scientific bodies 
such as the International Law Association were formulated along the same 
lines. 4 

The great practical challenge to the traditional principle of distinction oc- 
curred during the Second World War. There were so many violations of the 
traditional principle that it was quite appropriate to ask the question whether 
that rule had survived or whether it had become obsolete. 5 The biggest chal- 
lenge to the traditional rule of distinction was the development of nuclear 
weapons. It is, thus, necessary to critically analyze the attitude which States 
and other relevant actors adopted after the war in relation to that rule. 

State practice immediately following the Second World War was somewhat 
puzzled and puzzling. The definition of war crimes in the Statute of the Inter- 
national Military Tribunal is based on the assumption that the rule of distinc- 
tion was applicable ("wanton destruction of cities, towns or villages, or 
devastation not justified by military necessity"). But neither the judgment of 
the International Military Tribunal nor the judgments of the American mili- 
tary courts really address the principle of distinction as a limitation on the 
choice of targets for bombardments. 6 Furthermore, there was a kind of re- 
sounding silence of States in relation to that rule. The Geneva Conventions of 
1949, which in many ways clarify and develop the law taking into account the 
experience of the Second World War, do not address the question, yet most 



3. DOCUMENTS ON THE LAWS OF WAR 139 (Adam Roberts and Richard Guelff eds.„3d. ed. 

2000). 

4- Draft Convention for the Protection of the Civilian Population Against New Engines of War, 

adopted by the 40 th Conference of the International Law Association, Amsterdam 1938. THE 

Law of Armed Conflicts: A Collection of Conventions, Resolutions and Other 

DOCUMENTS 223 (Dietrich Schindler & Jiri Toman eds., 3d ed. 1988). 

5. For a brief analysis of the practice, see ERIK CASTREN, THE PRESENT LAW OF WAR AND 

Neutrality 402 et seq (1954). 

6. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 

CONVENTIONS OF 12 AUGUST 1949, H 1828 (Yves Sandoz et al. eds., 1987). 

174 



Michael Bothe 



writers were loath to accept that the bombing practices of the war had 
changed the law. 7 

In 1956, the International Committee of the Red Cross (ICRC) made an 
attempt to have the question of the validity of the principle of distinction clar- 
ified by what was meant to become the Delhi Rules for the Limitation of the 
Dangers Incurred by the Civilian Population in Time of War. 8 This attempt 
was based on the assumption that the traditional rule of distinction was still 
valid, but it failed. It became, so to say, the victim of the development of nu- 
clear weapons or, more precisely, of a dispute concerning their legality. The 
military establishment of the day, it appears, remained completely outside the 
legal discourse concerning the legality of those nuclear weapons, of which the 
resolution of the Institut de Droit International of 1969 9 concerning the pro- 
hibition of weapons of mass destruction is a lively testimony. 

That insulation of the legal discourse disappeared when the issue of the re- 
affirmation and development of international humanitarian law came on the 
political agenda as a consequence of the debate about the conduct of the 
Vietnam War and the issue of "human rights in occupied territory." 10 In 1968, 
the United Nations General Assembly reaffirmed the traditional principle in 
its resolution "Respect for Human Rights in Armed Conflicts," which de- 
clared: "That it is prohibited to launch attacks against the civilian population 
as such; That distinction must be made at all times between persons taking 
part in the hostilities and members of the civilian population. . . ." n 

The negotiations from 1974 to 1977 that led to the Additional Protocol I 
to the 1949 Geneva Conventions 12 and the reactions of States, including 
major military powers, after the adoption of the Protocol in 1977 are clearly 
based on the assumption that the basic content of the rule of distinction is 
part of customary international law. This is, in particular, reflected in the for- 
mulation of the declarations made by the United States and the United King- 
dom on the occasion of the signature of the Protocol. In respect of so-called 



7. CASTREN, supra note 5, at 200 et seq. 

8. The Law of Armed Conflicts, supra note 4, at 251. 

9. The Distinction between Military Objectives and Non-Military Objects in General and 
particularly the Problems Associated with Weapons of Mass Destruction, Resolution adopted by 
the Institut de Droit International at its session at Edinburg on September 9, 1969. Id. at 265. 

10. Michael Bothe in MICHAEL BOTHE, KARL PARTSCH AND WALDEMAR SOLF, NEW RULES 

for Victims of Armed Conflicts 2 (1982). 

11. G.A. Res. 2444, U.N. GAOR, 23rd Sess., Supp. No. 18, at 50, U.N. Doc. A/7128 (1969). 

12. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, 
DOCUMENTS ON THE LAWS OF WAR, supra note 3, at 422 [hereinafter Protocol IJ. 

175 



Targeting 

non-conventional weapons, they deny that the "new rules" of the Protocol ap- 
ply to those weapons, the clear implication being that the "old," i.e., custom- 
ary law rules do apply. It is made clear that the principle of distinction figures 
among these old rules. 13 

In addition, a legal discourse developed which now included military law- 
yers dealing with practical implications of this rule. Military lawyers explained 
and continued to explain that major bombing campaigns like those during the 
Vietnam 14 and 1991 Persian Gulf 15 wars were indeed conducted on the basis of 
these rules. Thus, it can safely be concluded that the rule has survived all ma- 
jor challenges; that it is still part and parcel of customary law. This, however, 
raises the question of the interpretation of the rule in the light of changing 
circumstances. 

The Two-Pronged Test of the Military Objective 

As to the selection of targets in general and in air warfare in particular, the 
basic rule that follows from the distinction between the civilian population 
and the military effort is the distinction between military objectives and civil- 
ian objects. That distinction is to be made on the basis of two interrelated ele- 
ments, namely the effective contribution the military objective makes to 
military action and the "definite military advantage" that the total or partial 
destruction, capture or neutralization of the objective offers. There is no 
doubt that this is a rule of customary international law and its binding force is, 
thus, not limited to the parties to Protocol I, which formulates this very prin- 
ciple as follows in Article 52(2): "military objectives are limited to those ob- 
jects which by their nature, location, purpose or use make an effective 
contribution to military action and whose total or partial destruction, capture 
or neutralization, in the circumstances ruling at the time, offers a definite mil- 
itary advantage." 16 



13. See inter alios Waldemar Solf, in BOTHE, PARTSCH AND SOLF, supra note 10, at 276, 282. 
14- Burrus Carnahan, "Linebacker II" and Protocol I: the Convergence of Law and Professionalism, 

31 American University Law Review 861 (1982). 

15. See Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 

American Journal of International Law 678, 681 (1994). 

16. Protocol I, supra note 12, at 450. 

176 



Michael Bothe 



The most recent practical confirmation of the customary law character of 
these principles is the experts report 17 published by the Chief Prosecutor of the 
Criminal Tribunal for the former Yugoslavia concerning the question whether 
the NATO bombing campaign against the Federal Republic of Yugoslavia 
(FRY) involved the commission of crimes which were subject to the jurisdic- 
tion of the Tribunal — a report which constitutes an important document if 
lessons are to be drawn from the Kosovo experience. 

The difficulty of the Article 52(2) definition is its general character. There 
are, of course, clear cases of "pure" military objectives: military barracks, 
trenches in a battlefield, etcetera. Where objects are used or usable for differ- 
ent, military and non-military purposes (dual-use objects), their qualification 
as a military objective or civilian object becomes more difficult. What consti- 
tutes an "effective contribution" to military action? What is a "definite" mili- 
tary advantage? What is the difference, if any, between an "indefinite" or a 
"definite" military advantage? This brings us to the crucial problems of target- 
ing. It must be realized that the application of rules formulated in general 
terms is a problem lawyers often encounter, not only in the law of war, but also 
in international law in general — even law in general. Legal rules expressed in 
general clauses need concretization for their practical application. The ques- 
tion, thus, is how to render the general principle of distinction more concrete 
in order to have secure standards for targeting. 

A standard legislative method of rendering a general rule more concrete is 
the establishment of a list of cases of application, be it exhaustive or illustra- 
tive. This approach has been proposed by Professor Dinstein. 18 It presents a 
few problems of its own. An illustrative list may be useful for certain purposes, 
but it cannot terminate the discussion because the qualification of items that 
are not on the list remains open. The exhaustive list is dangerous, because it 



17. Final Report to the Prosecutor by the Committee Established to Review the NATO 
Bombing Campaign against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL 
MATERIALS 1257 (2000), reprinted herein as Appendix A [hereinafter Report to the 
Prosecutor]. For an analysis, see, inter alia, Symposium: The International Legal Fallout from 

Kosovo, 12 European Journal of International Law 391 (2001), in particular the 

contributions by William Fenrick, Targeting and Proportionality during the NATO Bombing 
Campaign against Yugoslavia, at 489, Paolo Benvenuti, The ICTY's Prosecutor and the Revievj of the 
NATO Bombing Campaign against the Federal Republic of Yugoslavia, at 503, and Michael Bothe, 
The Protection of the Civilian Population and NATO Bombing on Yugoslavia: Comments on a Report 
to the Prosecutor of the ICTY, at 53 1. In addition, see Natalino Ronzitti, Is the non liquet of the Final 
Report Established to Review the NATO Bombing Campaign Against the Federal Republic of 
Yugoslavia Acceptable?, 82 INTERNATIONAL REVIEW OF THE RED CROSS 1017 (2000). 

18. See, e.g. Professor Dinstein's paper in this volume. 

177 



Targeting 

can exclude clear cases falling under the general rule, which were just forgot- 
ten or not foreseen when the list was drafted. Thus, there is often a tendency 
to add a catchall clause at the end of a list. 19 At that point one is for all practi- 
cal purposes back to the illustrative list. 

Despite these deficiencies of the list method, the ICRC in 1956 attempted 
to draft such a list of military objectives. 20 In relation to the difficult or contro- 
versial questions, this list shows all the problems of this method. The list is 
based on the undisputed fact that there are certain typical military objectives 
which can indeed be listed, but this is possible only to a limited extent. There 
are objects that in one context may constitute a military objective, making an 
effective contribution to military action, while in other circumstances they do 
not. This is clearly shown in the items on the list that have become quite con- 
troversial in the context of the Kosovo campaign, namely lines and means of 
communication and in particular telecommunication facilities. 

As to traffic infrastructure, the formulation of the ICRC list is as follows: 
"Those of the lines and means of communications (railway lines, roads, 
bridges, tunnels and canals) which are of fundamental military importance." 
Thus, a distinction has to be made between those lines and means of commu- 
nications that are of fundamental military importance and those that are not. 
Only those lines of communication that are of fundamental military impor- 
tance are military objectives. This is clearly stated in Article 7, Paragraph 3 of 
the ICRC Draft Rules to which the list was to be annexed: "However, even if 
they belong to one of those categories, they cannot be considered as a military 
objective where their total or partial destruction, in the circumstances ruling 
at the time, offers no military advantage." 

As a consequence, in every instance the question of the military impor- 
tance of a bridge or railway line is unavoidable. It is submitted that to ask this 
very question is the only correct application of the rule of distinction. There is 
no rule saying that railway lines and bridges are always a military objective. 
Their military importance has to be ascertained in each particular case. This is 



19. See, e.g., Article 61(a) (xv) of Protocol I ("complementary activities necessary to carry out 
any of the tasks mentioned above, including, but not limited to, planning and organization"). 

20. The list was drafted by the ICRC "as a model" to be annexed to the "Draft Rules for the 
Limitation of the Dangers Incurred by the Civilian Population in Times of Armed Conflict" (see 
note 8 supra) which the ICRC submitted in 1956 for consideration by the Red Cross Conference 
of 1957. See ICRC COMMENTARY, supra note 6, H 2002. These rules became the victim of bitter 
controversies between governments during that conference (see J. Pokstefl and Michael Bothe, 
Bericht tiber Entwicklungen und Tendenzen des Kriegsrechts seit den Nachkriegskodifikationen, 35 
ZEITSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 574, 575, 601 
(1975). 

178 



Michael Bothe 



the crucial problem of dual-use facilities. This problem applies to traffic infra- 
structure, telecommunication infrastructure and also to energy production 
and transmission facilities. 

In the traditional context of land warfare, the military importance of traffic 
infrastructure is quite obvious. This traffic infrastructure is needed in order to 
bring supplies to the front or, as the case may be, to allow a swift retreat of the 
troops which may then reorganize afterwards. The examples given by Profes- 
sor Dinstein 21 in order to prove his thesis are all taken from this context. Dur- 
ing the so-called Christmas bombing of Hanoi, it was the use of railway lines 
for logistical support that was put forward as a justification for choosing cer- 
tain targets (mainly railroads) in the very center of this city. 22 But what was 
the military importance of the many bridges crossing the Danube River that 
were destroyed during the Kosovo campaign? There was no front to which 
supplies could have been moved. It was the declared policy of the NATO 
States not to create such a front but to renounce to ground operations and to 
restrict military action to an air campaign. In such a situation, it is very hard to 
see any military importance of this traffic infrastructure. If there is no such 
military importance, these means of communication are civilian objects, not 
military objectives. 

With respect to the telecommunication network, the situation may be 
somewhat different. This network is of military importance even in the con- 
text of a conflict where one side uses the strategy of air warfare only, while the 
other side, by necessity, would have to rely on anti-aircraft defense. This de- 
fense certainly depends on telecommunications, but it remains questionable 
whether each facility using telecommunications equipment that may be found 
in the country belongs, for that reason, to a network of military significance. Is 
there a kind of presumption that telecommunication facilities are always, un- 
less the contrary is apparent, related to the military network? 

This seems to be the underlying rationale of the Report to the Prosecutor. 23 
It brings us to a question of precautionary duties, duties of due diligence in 
evaluating the military importance of certain objects and more generally the 
decision-making process to which we will revert below. This was the crucial 
problem in evaluating the lawfulness of the attack against the television facili- 
ties in Belgrade. Could the target selectors just proceed on the basis of the as- 
sumption or presumption that the technical equipment of this station was so 



21. See Professor Dinstein's paper in the present volume. 

22. Carnahan, supra note 14, at 864 et seq. 

23. Report to the Prosecutor, Appendix A, H 72. 



179 



Targeting 

closely linked to the military network that, although there was an obvious ci- 
vilian use, its military importance was significant enough that its destruction 
provided a definite military advantage? 

So far, the notion of contribution to the military effort or of military advan- 
tage has been discussed in tactical or operational terms. The question then 
arises whether this notion could also be understood in a broader sense. Can 
objects that are not related to specific military operations also "contribute to 
the military effort?" Air attacks have a definite impact on the morale of the 
entire population and, thus, also on political and military decision-makers. It 
may well be argued that it was not only the diplomatic efforts by 
Chernomyrdin and Ahtassari, but also or even mainly the impact of the bomb- 
ing campaign that finally induced Milosevic to agree to a withdrawal of the 
Serbian military and police forces from Kosovo. Did the bombing for that rea- 
son provide a "definite military advantage"? 

As is rightly pointed out by Professor Dinstein and the Report to the Prose- 
cutor, 24 this type of "advantage" is political, not military. The morale of the 
population and of political decision-makers is not a contribution to "military 
action." Thus, the advantage of softening the adversary's will to resist is not a 
"military" one and, thus, cannot be used as a legitimation for any targeting de- 
cision. If it were otherwise, it would be all too easy to legitimize military action 
which uses bombing just as a psychological weapon — and there are other 
words for this. 

The practical importance of this limitation is considerable and not new. It 
would indeed be impossible to make any meaningful distinction between civil- 
ian objects and military objectives as the psychological effect can be produced 
by an attack on any target, including entirely civilian living quarters. The mo- 
rale of the civilian population and of political decision-makers was the main 
target of the nuclear bombs dropped on Hiroshima and Nagasaki — not a legit- 
imate one. During the bombing of North Vietnamese targets, already men- 
tioned, in addition to the military significance of the traffic infrastructure as 
channels for military supplies, "forcing a change in the negotiating attitudes of 
the North Vietnamese leadership" was also recognized as a goal of the bomb- 
ing campaigns against that country. 25 The NATO bombing campaign against 
the FRY was also designed to induce the Belgrade leadership to accept a set- 
tlement of the status of the Kosovo along the lines of NATO terms. Although 



24. Professor Dinstein's paper in the present volume and Report to the Prosecutor, id., 11 55 
("civilian objects and civilian morale . . . are not legitimate military objectives") . 

25. Carnahan, supra note 14, at 867. 

180 



Michael Bothe 



the psychological impact of a certain attack may be a legitimate consideration 
in choosing between targets that are for other reasons of a military character, 
that impact alone is not sufficient to establish the qualification of a certain tar- 
get as a military objective. 

This legal situation introduces a basic ambiguity, or a fictitious character, 
into targeting decisions to be made within the framework of an armed conflict 
conducted for humanitarian purposes. As the goal of such a "war" is not the 
military defeat of an adversary, but the protection of the human rights of the 
population, the traditional notion of military advantage loses much of its sig- 
nificance. In the Kosovo campaign target selection was made on the basis of 
the fiction that military advantages and military victory in the traditional 
sense were sought, although this was not the case. The only real goal was a 
change of attitude of the Belgrade government. Thus, the question of what re- 
ally constitutes a military objective within the framework of a humanitarian 
intervention has to be asked. It would better correspond to the specific char- 
acter of that particular type of military operation if only "pure" military objec- 
tives, in the sense mentioned already above, were considered to be legitimate 
targets. 

The Environment — A Military Objective? 

An additional comment is necessary concerning the environment as a mili- 
tary objective or civilian object. The rules of Protocol I relating to the protec- 
tion of the environment, i.e., Articles 35(3) and 55, not only limit the 
permissible collateral damage to the environment caused by attacks against 
military objectives, but also limit permissible attacks where the environment 
itself constitutes a military objective, which is quite possible. Military objec- 
tives are not just persons or manmade structures: a piece of land can become a 
military objective if its neutralization offers a definite military advantage. In- 
terdiction fire is an example. This type of military action is not directly tar- 
geted at combatants. The military usefulness consists of the fact that by 
bringing a certain area under constant fire, the enemy is deterred from enter- 
ing that area. Cutting down, or defoliating, trees in order to deprive the enemy 
of cover is another example. The consequences of such actions for the envi- 
ronment may be disastrous. In such cases, for the reasons indicated, the rules 
of Articles 35(3) and 55 protect the environment when it is a military 
objective. 

An attack against the environment, however, is unlawful only where the 
damage caused or expected is "widespread, long-term and severe." These 

181 



Targeting 

three conditions are cumulative. All three must be met for there to be a viola- 
tion. Therefore, we are back to the problem of general clauses and their 
concretization. It is true that many of the delegations present at the confer- 
ence in Geneva that drafted Protocol I favored a very high threshold. 26 It ap- 
pears that the Kosovo campaign has not really given any new impetus to 
concretize this threshold, as the actual environmental damage remained be- 
low that limit. The threshold is still an open question, but the very fact that 
the Report to the Prosecutor starts its legal assessment of the bombing cam- 
paign by analyzing the question of environmental destruction 27 shows that en- 
vironmental considerations have indeed become an important restraint on 
military activities, although the legal reasoning of the report in this respect is 
highly questionable. 28 

In a first approach, the Report to the Prosecutor uses Articles 35(3) and 55 
of Protocol I as the basic yardstick to determine the legality of any damage 
caused to the environment. It does not give a final answer to the question 
whether these provisions have become a rule of customary international law. 
The report simply finds that the damage caused by the NATO air campaign 
does not meet the triple cumulative threshold established by these provisions 
of being "widespread, long-term and severe." 

If one takes the factual findings of the Balkan Task Force established by, the 
United Nations Environment Programme, this conclusion is probably un- 
avoidable. What is interesting, however, is that the assessment made by the 
committee does not stop at this point. It also analyses environmental damage 
in the light of the proportionality principle which is the usual test for the ad- 
missibility of collateral damage caused by attacks against military targets. This, 
as a matter of principle, is a valid point. This line of argument could be used as 
a means to lower the difficult threshold of Articles 35 and 55. Once it was es- 
tablished that collateral environmental damage was excessive in relation to a 
military advantage anticipated, it would also be unlawful even it was not wide- 
spread, long-lasting and severe. 

A systematic interpretation of Protocol I would lead to the conclusion that 
the environment is protected by the combined effect of the general provision 
limiting admissible collateral damage and the particular provision on environ- 
mental damage. It would mean that in a concrete case, the stricter limitation 



26. BOTHE, PARTSCH AND SOLF, supra note 10, at 346 et seq. 

27. Report to the Prosecutor, Appendix A, 1iH 14-25. 

28. Bothe, supra note 17, at 532 et seq.; Thilo Marauhn, Environmental damage in times of armed 
conflict - not "really" a matter of criminal responsibility?, 82 INTERNATIONAL REVIEW OF THE RED 

Cross 1029 (2000). 

182 



Michael Bothe 



would apply. Unfortunately, the report does not draw this conclusion. Instead, 
it refers to the formulation of Article 8(2) (b) (iv) of the International Criminal 
Court (ICC) Statute as "an authoritative indicator of evolving customary in- 
ternational law." 29 This provision, which is quite unfortunate from the point 
of view of environmental protection, creates a different type of cumulative ef- 
fect of the rules on the protection of the environment and the proportionality 
principle. Causing environmental damage is only a war crime if it goes, first, 
beyond the threshold established by the triple cumulative conditions and, sec- 
ond, beyond what is permissible according to the proportionality principle. In 
the light of the reservations which the military establishment shows vis-a-vis 
taking into account environmental concerns as a limitation on military vio- 
lence, this is probably as far as one could go in the definition of a war crime. It 
should be stressed, however, that this stance can be accepted only for the defi- 
nition of the war crime, not as far as the interpretation of the primary rules of 
behavior relating to the protection of the environment in times of armed con- 
flicts are concerned. The damage caused to the environment is unlawful if it is 
either excessive or widespread, long-term and severe. Causing the damage, 
however, is a war crime only if damage fulfils both criteria. 

Decision-Making: Ascertaining Relevant Facts 

As already pointed out, a targeting decision must involve a certain factual 
evaluation of the actual or potential use of specific objects as to whether they 
make or do not make a contribution to military action. Protocol I prescribes 
that efforts have to be made in order to ascertain the military character of an 
objective. 30 On the other hand, the targeting decision is certainly one which 
has to be taken in a context of uncertainty. It is unrealistic to require absolute 
certainty concerning the military importance of a specific object before it can 
be lawfully attacked, but not requiring absolute certainty is not the same as 
permitting disregard of the facts. 

Whatever the actual standard of due diligence, there is an obligation of due 
diligence in ascertaining the character of a proposed target. This question 
arises, in modern decision making, on two different levels, that of target selec- 
tion at the command level and that of launching the actual attack, which is 
not the same, as the case of the attack on a bridge which also hit a civilian 



29. Report to the Prosecutor, Appendix A, H 21. 

30. Article 57(2)(a)(i). 



183 



Targeting 

train (not a selected target) demonstrates. 31 A violation of this duty of due dil- 
igence is a violation of the law of armed conflict. In such cases as the attack 
against the Chinese Embassy in Belgrade, there are reasons to believe that in- 
deed the selection of that particular building as a target was due to a violation 
of this obligation of due diligence and therefore a negligent violation of the 
law of armed conflict. 

Decision-Making: Balancing Processes and Value Judgments 

The evaluation of the military advantage to be derived from an attack is not 
only a matter of the relevant facts, but also a matter of value judgments. What 
constitutes an advantage is a matter of subjective evaluation. This raises the 
question of "whose values matter?" In a somewhat different context, namely 
the value judgment involved in the assessment of proportionality, the Report 
to the Prosecutor states that this must be the judgment of the "reasonable mil- 
itary commander." 32 This statement, plausible as it may appear at a first 
glance, is problematic. In a democratic system, the value judgment which 
matters most is that of the majority of the society at large. The military cannot 
and may not constitute a value system of its own, separated by waterproof 
walls from that of civil society. Such separation would be to the disadvantage 
of both the military and civil society. A dialogue between the two, critical and 
constructive in both directions, is needed. 

This is essential for a number of reasons. There is no denying the fact that 
public opinion in many countries views the military with a critical eye. This is 
particularly true for certain organizations of civil society engaged in the pro- 
motion of human rights. It is certainly in the interest of both the military and 
civil society organizations to avoid a situation where such critique is based on 
a lack of understanding and on misconceptions. 33 Furthermore, the practice 
observed in recent conflicts indeed recognizes that targeting decisions have 
political implications. This is why certain decisions are reserved to persons 



31. Report to the Prosecutor, Appendix A, 1111 58-62. 

32. Id., 11 50. 

33. A good example for the problem was the case of a German organization for the preservation 
of the language which chose "collateral damage" as the "bad expression of the year" for 1999. See 
the Unwort des Jahres website at http://www.unwortdesjahres.org. The mistake was on both 
sides. The organization was unaware of the technical character and meaning of the term, and the 
NATO spokesmen who had used it did not realize that the term transported a wrong message to 
the public, namely that damage to the civilian population and civilian objects were something 
which was unimportant and negligible for those who decided on targets in the Kosovo conflict. 

184 



Michael Bothe 



that are very high in the governmental hierarchy. Targeting decisions engage 
the political responsibility to the electorate, i.e., civil society, of those holding 
high governmental offices. Therefore, these decisions have to be understand- 
able and acceptable to civil society; hence the need for a dialogue. 

The Problem of Errors 

The question of values or value judgments leads to the problem of error or 
mistake in judgment. Such an error may relate to the facts or to the law. In the 
case of the Chinese Embassy, it was an error of fact. When the decision was 
made to attack a particular building, the decision-makers thought, or at least 
this is what we were told, that the building had a military use. The deci- 
sion-makers did not know that it was the Chinese Embassy, which was obvi- 
ously not a military objective. 

In relation to attacks against railways and bridges, another question arises, 
namely the error of law. In this case, there was probably no erroneous evalua- 
tion of the actual use of those bridges and railway lines as a matter of fact. The 
essential error, if the view submitted by this paper is correct, consisted in a 
mistaken view of the law that considered traffic infrastructure as military ob- 
jectives without asking the question of their military importance in the con- 
crete context. As a matter of principle, an error of law does not exclude 
responsibility. Ignorantia iuris is no excuse or even circumstance excluding the 
wrongfulness of the behavior. 

What are the consequences of these problems of due diligence and error on 
criminal accountability? The definition of war crimes contained in the statute 
of the permanent International Criminal Court 34 requires intent. 35 Violations 
of the laws of war committed by negligence are not subject to the jurisdiction 
of that court. The situation is, however, different with respect to the ad hoc 
International Criminal Tribunal for the former Yugoslavia (ICTY) . Any viola- 
tion of the laws and customs of war comes within the jurisdiction of that court 
according to Article 3 of its statute. 36 Thus, the ICTY would have had juris- 
diction to prosecute and punish negligent violations of the laws of war which, 
as indicated, appear to be quite possible in this case. It is in this context that 
the question of error becomes most relevant. An error concerning the facts 



34. U.N. Doc. A/CONF/183/9, July 17, 1998, DOCUMENTS ON THE LAWS OF WAR, supra note 
3, at 667. 

35. Id., art. 30, at 690. 

36. Statute of the International Tribunal, U.N. Doc. S/25704, May 3, 1993. The text of the 
Statute is reprinted in 32 INTERNATIONAL LEGAL MATERIALS 1 192 (1993). 

185 



___ Targeting 

may entail a negligent violation of the respective rule, an error concerning the 
law, as a rule, does not constitute a valid defense. 

The Law of War and Humanitarian Intervention — Some General 

Reflections 

It must be stressed that all these considerations concerning lawful means 
and methods of combat are independent from the question whether the 
Kosovo air campaign was or was not a violation of the rules of the United Na- 
tions Charter prohibiting the use of force. Jus ad helium and jus in hello have to 
be kept separate. This is the essential basis for a realistic approach to the law of 
armed conflict that has to treat both parties to a conflict on an equal footing. 
Questions of the legality or illegality of the use of force in a particular context 
have to be raised in other contexts, not in that of the application of the jus in 
hello. The equality of the parties in relation to the jus in hello is an essential pre- 
condition to the effective functioning of this body of law. This is why the 
Preamble to Protocol I reaffirms this principle in no uncertain terms: "Reaf- 
firming that the provisions of the Geneva Conventions of 12 August 1949 and 
of this Protocol must be fully applied in all circumstances . . ., without any ad- 
verse distinction based on the nature or origin of the armed conflict or on the 
causes espoused by or attributed to the Parties to the conflict." 

The principle of the equality of the parties to a conflict does not exclude the ' 
need to consider the entire context of a conflict, its intrinsic character, when 
determining the concept of military objective. Military advantage, as already 
pointed out, is a contextual notion. Where the declared purpose of a military 
action is limited from the outset, where the goal pursued is not just victory, but 
something else, it is difficult to ignore this limitation when it comes to the 
question what constitutes an advantage in that particular context. Thus, 
where the exclusive purpose of a military operation is to safeguard the human 
rights of a certain population, this very context excludes, it is submitted, a legal 
construction of the notion of military advantage or contribution to the military 
effort which disregards the life and health of this very population. In other 
words, in this context, the notion of military objective has to be construed in a 
much narrower way than in other types of conflict. 

This contextual concept of military advantage is, it is submitted, lex lata. It 
must not be confused with proposals de legeferenda demanding special rules for 
the conduct of so-called humanitarian interventions. If such rules were to be 
adopted, they could only mean an additional unilateral restraint imposed on 
those States or organizations which intervene for the sake of safeguarding the 

186 



Michael Bothe 



human rights of a certain population. Such rules could not and should not af- 
fect the rights and duties of the other party to the conflict. 

More critical review of the notion of military advantage is needed. If the 
law were to be developed by a specific legal instrument relating to humanitar- 
ian intervention, why not impose on the forces maintaining the rule of law and 
human rights, obligations that are stricter than the usual rules of targeting 
valid for any belligerent? 



187 



Legal Perspective from the EUCOM 
Targeting Cell 



D 



Tony Montgomery 

The Beginnings 



uring Operation Allied Force I was assigned to Headquarters, US Eu- 
ropean Command (EUCOM) as the Deputy Staff Judge Advocate and 
Chief, Operations Law. My responsibilities included being the legal member of 
the group that reviewed all fixed targets. In early July 1998, I attended one of 
the first meetings of the Kosovo Planning Group. This cross-functional group 
of officers was formed to evaluate the situation in Kosovo and make recom- 
mendations on possible courses of action (CO As). As the months passed, and a 
military confrontation seemed more likely, sets of targets were developed to 
support each of the various CO As. Target sets were refined, modified and dis- 
cussed along with each COA. 

The legal advisor's role/responsibility in this process is to offer well-rea- 
soned advice, based on relevant data, in accordance with existing law and pol- 
icy guidance. In the target development process, legal advisors help to ensure 
that a decision to attack a target or set of targets is based on known facts or 
reasonable assumptions. Usually, only after sifting through the facts do the as- 
sumptions come to light. There are always assumptions: about the weather, 
weapon effectiveness, absence or presence of people, impact on the enemy 
and others. Legal advisors identify and then voice concerns when the assump- 
tions being made go beyond the reasonable person standard. This requires 
knowing the law, awareness of other restrictions, understanding of the mili- 
tary and political objectives, familiarity with the methods of achieving those 



Legal Perspective from the EUCOM Targeting Cell 

objectives and, finally, the ability to synthesize and make a recommendation 
on a target or set of targets. 

Actions at the time of the attack will be held to the standard of reasonable- 
ness; based on the evidence available at the time, factoring in the situation, 
time to attack and enemy actions. A commander must be reasonable in un- 
covering facts but clairvoyance is not a requirement. The legal advisor — if do- 
ing their job — will point out where in the rush for victory the line of 
reasonableness appears about to be crossed. Legal advisors provide recom- 
mendations on whether the proposed use of force abides by the law of war and 
do this by offering advice on both restraint and the right to use force. 

Oi course, the final decision on attacking a target is the subjective one of 
assessing the value of innocent human lives against the value of capturing/de- 
stroying a particular military objective. To assist a commander in making this 
subjective determination, a legal advisor — just like anyone involved — can 
provide an opinion and, a recommendation on a target or any other aspect of 
the operation. However, the final decision will always be the commander's. 
Legal advisors do not set the political or military objectives of a campaign, nor 
do they approve or disapprove targets. 

Targeting — Some Basics 

> 
For those with no personal experience, it may come as a surprise to know 

that targeting is more than just looking at some "things" and deciding that to- 
day those will be destroyed. Objects are selected as targets based on campaign 
goals, intent, guidance, military objectives, and compliance with the law of 
war. Targeting is the process that identifies, detects, selects, and prioritizes 
targets in order to achieve a specific result based on the commander's objec- 
tives, guidance, and intent, then matches weapons systems to achieve that re- 
sult, and finally assesses the results. Target selection is not at all 
haphazard — at least not at the planning level. 

The current theory around which targets were developed during Operation 
Allied Force is known as "effects based targeting." Effects based targeting the- 
orizes that by attacking specific links, nodes, or objects the effect or combina- 
tion of effects will achieve the desired objective. If the theory is correct, 
following this approach will conserve resources, reduce the overall risk to 
friendly forces and civilians and, ultimately, shorten the conflict. However, 
the increasing ability to routinely hit targets with great accuracy has not been 
matched by a commensurate understanding of exactly which targets must be 
hit to achieve specific outcomes. Establishing a causal link between targeting 

190 



Tony Montgomery 



some "thing" and achieving the desired ultimate political outcome is still the 
challenge. 

I say "challenge" because once a decision to use force has been made, un- 
derstanding the enemy well enough to accurately predict the enemy's reaction 
to being bombed is key to the overall efficacy of effects based targeting. Ulti- 
mately the goal of Operation Allied Force was to coerce Milosevic to comply 
with the demands of NATO. Without Milosevic explicitly telling us why he 
yielded when he did, we simply do not know for sure. We know NATO did 
achieve its principal military objective of a Serbian withdrawal from Kosovo; 
however, we were not able to halt ethnic cleansing before it was essentially 
complete. 



The Mechanics of the Operation Allied Force Targeting Process 



CINC 



-Campaign 
Objectives 



EUCOM 



JCS/J2T 



Targeting 
Strategy 



- Task IC to Develop 
Tgt Materials 




-J3/DC1NC Review 



CINC 



- Approves Tgt 

- Some on to NCA 




Review and 
Forward to NCA 



EUCOM 



"Prioritizes Tgts 
-Tasks Execution _ Forward for 
execution 



EUCOM S ! CINC 



- Forward for execution 

or NAC approval 

Gains NAC Approval 
(As Required) 



Figure 3.1 

Recognizing the acronyms in Figure 3.1 is not as important as knowing that 
each fixed target basically followed the above route to approval. During Allied 
Force, those who had authorized the use of force very much wanted to limit 
the consequences and this process helped achieve that objective. Legal input 
was embedded throughout the process, with issues being addressed at the 
point where they were identified. However, this paper will focus on the efforts 



191 



Legal Perspective from the EUCOM Targeting Cell 

related to obtaining the approval of the commander of the United States Eu- 
ropean Command (EUCOM/CINC). 

Once the air campaign began, a daily list of proposed new targets (or targets 
that had been previously reviewed, but additional information had been ob- 
tained on) was provided to those working within the targeting group. All tar- 
get nominations were maintained on a spreadsheet that was electronically 
updated and available for review on a classified website. I would review the in- 
formation on the new targets using this list. 

Early and unfettered access to data is critical for an effective and efficient 
target review. During Operation Allied Force, target data was stored on and 
accessed through our classified computer system. Those with access to the 
system had the ability to have most of the data on any individual target avail- 
able for review with just a few keystrokes and mouse clicks. This information 
consisted of imagery, descriptions of the facility and its functions, analysis on 
impact (military advantage anticipated) if destroyed, possible collateral dam- 
age concerns, and historical information on the target. There, literally at my 
fingertips, was all the data needed to make a good initial legal evaluation of 
the target. 

The results of the legal reviews were inputted into the targeting process 
using two primary methods. A spreadsheet format that was provided to those 
working within the targeting group and updated as new targets were proposed. 
This spreadsheet contained the target identification information, collateral 
damage concerns, justification for attack, and a law of war determination or 
recommendation. This method ensured a permanent record for each target re- 
viewed and provided an easy means of recalling inputs on each target. 

The second method of input was through the collaborative targeting 
(CTT) sessions. These sessions were an outgrowth of Serbia's failure to acqui- 
esce as quickly as some had hoped would happen. Continuing the conflict 
translated into a demand for more and better targets, and faster identification. 

Increasing the pace of target development meant, in part, more people de- 
voted to the task. Throwing more people into the mix initially created addi- 
tional problems. Groups worked and coordinated target products in a serial 
fashion. One group would forward its work as e-mail attachments, message 
traffic, fax, and/or phone calls to others with responsibility for different por- 
tions of the process. The next group would make changes and forward (or, de- 
pending on the changes, return to the first group for reconsideration) to other 
groups involved in the process. This process continued until the lead group 
believed the proposed target was ready for decision-maker review. Deci- 
sion-makers would receive an e-mail with the attached product information 

192 



Tony Montgomery 



and would either accept the product information or send it back for further 
development. 

The disadvantages of this early process were information overload, uncer- 
tainty, and duplication of effort. Using a serial workflow extended the process 
timeline and provided more opportunities for confusion, ambiguities and er- 
rors. There was no consensus among the participants on the rationale for at- 
tacking targets. While no illegal targets were attacked during this period, 
others and myself were concerned that as the tempo increased our ability to 
provide the necessary oversight would continue to degrade. 

The solution to this serial process was the development of the collaborative 
targeting sessions. The CTT sessions ensured ail targeting organizations had a 
common understanding of objectives and guidance, built consensus, validated 
targeting assessments and integrated operational and legal concerns early into 
the targeting process. Using NetMeeting, a Microsoft product, on the classi- 
fied internet system, the sessions "virtually" united representatives from com- 
mands throughout the theatre and the United States. Similar in concept and 
format to an internet "chat room" conducted over our classified computer sys- 
tem, these sessions brought all of the players into the same "virtual" room at 
the same time. All participants could see the proposed target on their com- 
puter monitor, could talk via headsets in real time to each other, and could 
ask questions and resolve issues. This format enabled everyone's input — in- 
cluding legal — to get to all those involved at the same time. With all the rele- 
vant functional experts gathered together, questions could be asked and 
resolutions made in minutes rather than days. What might have taken a week 
before could be done in one night's session. 

Collaborative targeting sessions were generally conducted every night. 
During a CTT session, the group reviewed proposed targets to determine 
whether they could be forwarded for approval. For each target, discussion re- 
volved around three issues: 1) the linkage to military effects — the key to gain- 
ing legal approval, 2) the collateral damage estimate, and 3) the unintended 
civilian casualty estimate. The one aspect of this process that consumed most 
of the time was the collateral damage estimate. Whether it was the nature of 
the conflict, an outgrowth of the ever increasing visibility of the results of mili- 
tary actions, over sensitivity by political authorities, the desire to make a deci- 
sion based on some objective "number" (no matter how unscientifically 
reached or misunderstood) rather than a subjective "value," or a combination 
of the above, the collateral damage estimate quickly became central to much 
of the targeting process. An integral part of this estimate was the Tier System. 

193 



Legal Perspective from the EUCOM Targeting Cell 

The Tier System was developed prior to Operation Allied Force as an effort 
to standardize the methodology to be used for estimating collateral damage. 
Though some aspects of this methodology are classified, the unclassified infor- 
mation provides a general understanding. The system currently has four tiers 
or levels. Each tier represents an ever-increasing level of analysis. Tier 1 con- 
sists of a 1500-foot circle drawn around the outer boundary of a proposed tar- 
get. If there is no collateral damage concern within that circle, then there is no 
need to move on to the next tier. Tier 2 involves applying fragmentation data 
of a specific munition to the actual target. This results in a smaller circle being 
drawn around the target. If a collateral damage concern still exists, then Tier 3 
is used. This involves taking a specific munition, applying its record of accu- 
racy, along with the possibility of error, and determining the probable or possi- 
ble extent of collateral damage. Finally, if the level of possible collateral 
damage is still viewed as unacceptable; and the target in question is deemed of 
sufficient value, then a Tier 4 analysis, involving computer simulation and 
modeling can be conducted. 

Here is an illustrative analogy: Tier 1 is like looking at an object with the 
naked eye, Tier 2 is like using a hand held magnifying glass, Tier 3 is like using 
a microscope, while Tier 4 is like using a high-powered electron microscope. 
The tier system is a useful tool that provides a methodology for evaluating the 
structural collateral damage and possible effects upon any human within the 
target area. However, it does not provide the actual number of injuries. Also, 
just because a target is Tier 1 or Tier 4 does not tell the reviewer anything 
about the actual value of striking that target within the context of the ongo- 
ing campaign. Whether or not destroying a particular target is going to 
achieve the stated military or political objective is not a part of the tier system 
analysis. 

A target may have zero possibility of collateral damage, but if it also has zero 
impact on the campaign, then bombing that target is wasting resources, putt- 
ing aircrews and civilians in danger, and possibly violating the law of war. Still, 
it is very tempting to point to the tier level of some target and make a value 
judgment solely on those criteria. 

Returning to the target approval process, once a collaborative targeting ses- 
sion approved a target, it was sent forward to the decision authority. Ob- 
taining approval from both the appropriate authorities within the United 
States and NATO was required before any target could be attacked. (Note 
that as I was not involved in the NATO process, my discussions are focused 
exclusively on the US process.) Upon this final approval, the Joint Task Force 
(JTF) could add the target to the master list and schedule it for attack. 

194 



Tony Montgomery 



However, approval to strike meant much more than just satisfying the rather 
low thresholds set out by the law of war. The intense concern over the issue of 
collateral damage meant that targets were approved for strike only at a certain 
tier level. To achieve that level often meant that only a certain type of muni- 
tion could be used or the target could only be attacked at certain times of the 
day. Thus, something as simple as a change in munition could raise the level of 
collateral damage above what had been approved and, thus, remove a target 
from the "approved for strike" category. 

As a result, though not listed as an official step in the targeting process, re- 
viewing the daily list of proposed strikes for the next two days became a part of 
the process. This review was simply a quality check — not because people 
would intentionally ignore orders, but because people enter the data into the 
computers, people hit the wrong keys and people make mistakes. A single 
wrong entry or a miscommunication to the personnel who actually had to exe- 
cute the mission could mean an attack occurring that had not been approved. 
This is not saying that a law of war violation would occur, just that a target 
would be struck in a manner that our civilian authorities had not authorized. 

In contrast to the hi-tech world of the collaborative targeting sessions, this 
review was a simple line-by-line comparison of the strike list to the approved 
target list and the legal review. Usually, this review found no discrepancies; 
however, on occasion targets listed as approved for attack had not yet been 
approved at the appropriate level or were being attacked with a munition that 
raised the possible collateral damage above that approved for the target. 
When such discrepancies were found, the target would be expedited through 
the approval process if possible, or the munition would be changed to bring 
the collateral damage estimate back down. Sometimes this necessitated can- 
celing a strike. After this quality review, the proposed new list of targets would 
arrive and the process would begin for another day. 

Conclusion 

After giving this presentation to various audiences, I have found that 
there is generally surprise at how the targeting process worked. People are 
surprised to hear that such effort was devoted to each individual target. Of 
the nearly 2000 fixed targets that were reviewed, each received an inde- 
pendent evaluation within the requirements of the law of war. Is the target 
a military objective? What military value or advantage is gained from de- 
stroying this target? Are we being proportional? Are there any issues with 
distinction/discrimination? 

195 



Legal Perspective from the EUCQM Targeting Cell 

For those who disagree with the decisions to attack individual targets, I 
would simply suggest that the laws of war are certainly subject to different in- 
terpretations. It is easy to state that there must be an acceptable relation be- 
tween the legitimate destructive effect and undesirable collateral effects. In 
reality, whether a specific set of results is "acceptable" is going to depend on 
the objectives being sought, as well as both the military and political risk those 
in charge are willing to take. Human rights activists and experienced combat 
commanders will often not agree on individual targeting decisions. The legal 
advisor must keep both views in mind and still be able to make a recommenda- 
tion on a target without losing perspective. 

Legal involvement in the targeting process was not limited to just my level. 
Just as each level of command has its own operators and intelligence officers, 
so too do they have their own legal advisor. The legal advisors were in con- 
stant contact discussing both the broad impact of changes in guidance, as well 
as specific issues on individual targets. 

Operation Allied Force had its share of mistakes, errors, miscalculations 
and systems malfunctions. Those usually made the evening news and are the 
subject of continuing, intense discussion and condemnation. The literally 
thousands of decisions that were made in order to reduce casualties, to limit 
effects and to deflect the impact do not make the news. The result can be that 
those who are listening or watching come away with a very one-sided view of 
the events. 

This, in my own view, was — and still is — our biggest miscalculation. Failing 
to explain before, during and after the fact the efforts that went into the 
bombing campaign allowed others to interpret it as they saw fit. It did not take 
being clairvoyant to know that no matter how "just" our cause (at least in the 
minds of some), our actions would be scrutinized. No one liked what was go- 
ing on in Kosovo but no one wanted Serbia bombed to oblivion either. This 
simple truth apparently came as a surprise when the International Criminal 
Tribunal for the former Yugoslavia — in compliance with its charter — asked 
questions about the bombing. 

Even when we make some feeble attempt at explaining our efforts, we do 
not provide the depth or detail necessary. Saying we will comply with the law 
of war is a conclusion that does not do justice to the efforts expended. Further, 
as a conclusion, there is nothing for people to evaluate and judge. What does 
the statement "we will comply with the law of war" actually mean? What steps 
are in place, what guidelines, what processes to ensure compliance? 

The assumption that just because we think our cause is "just" that people 
are going to blindly accept everything we do is born out of arrogance. The 

196 



Tony Montgomery 



price paid for that arrogance is a lack of trust, a disbelief, a lingering disquiet 
that may be kept at bay only so long as those being opposed can be viewed as 
the "bad" guy. If we care about our obligations under the law of war, then 
learning the lesson from Kosovo means that the next time we will do a better 
job of educating people about the process ahead of time. I am confident that 
this lesson has not been learned. 



197 



Commentary 



Harvey Dalton 



A 



s I am standing in for Admiral Michael Lohr, I want to approach this 
from the standpoint of the legal counsel to the Chairman of the Joint 
Chiefs of Staff — the position that then Captain Lohr held during Operation 
Allied Force. I will explain the process he employed in providing legal advice to 
the Chairman and to the General Counsel of the Department of Defense with 
respect to targeting in Kosovo. We have heard from the former General Coun- 
sel, Ms. Judy Miller, from Judge Jamie Baker who provided the National Secu- 
rity Council point of view, and from Lieutenant Colonel Tony Montgomery 
who provided the US European Command point of view. So this is another link 
in the legal chain in terms of targeting and the approval of targets at the na- 
tional level. 

At the outset of the conflict, it was expected that Operation Allied Force 
was going to be quick and easy. There were about fifty to seventy-five pre- 
designated targets approved in advance. These were very traditional targets 
that were chosen for immediate military impact. They involved command and 
control, integrated air defense system, airfields, and aircraft — thoroughly tra- 
ditional military targets. But Operation Allied Force was not quick and short 
lived. We realized very quickly that the Serbs were not going to leave Kosovo 
easily. This caused two things to happen: there was a need for more targets, 
and there was a need to move to different type of targets other than just the 
traditional military targets. 

The requirement for more targets led to two routes for approval. Most tar- 
gets, mainly the traditional military targets, were approved in the theater by 
the US European Command. These targets did not come up to the Joint Staff 
level, or up to the General Counsel level, or to the Secretary of Defense or 



Commentary 

president. So this idea that the president approved each and every target is 
simply not true. The vast majority of targets were approved in-theater. Some 
targets did have to come back to the Pentagon for review and approval. The 
military industrial targets, the electric power grids, certain infrastructure, any 
targets within Belgrade, and those targets that were assessed to have a high 
potential for collateral damage did have to be reviewed by the Pentagon. 

When a target came to the Pentagon, and this is a little bit different from 
what happened at the European Command, two things happened. The J2, 
which is our intelligence division, and the Joint Staff immediately began an in- 
dependent assessment of the target. Aside from what the European Command 
had done in-theater, the Joint Staff intelligence division started an immediate 
assessment of the target. This included what Lieutenant Colonel Montgomery 
referred to as the four- tier assessment. That is a refined assessment that tries 
to determine as accurately as possible the potential collateral damage that 
might be sustained in attacking a target. Slides were then produced for brief- 
ing the Chairman of the Joint Chiefs of Staff and, if necessary, the secretary of 
defense and the president. The contents of the slides showed the objective or 
military linkage of the target. Was it command and control, was it integrated 
air defense, was it industrial-military, and what was the collateral damage esti- 
mate? The assessment might include "high collateral damage," or it might in- 
clude a specific number of anticipated unintended civilian casualties. The 
slide would also have a casualty estimate which would include sometimes both 
the combatants and the noncombatants. 

The Joint Staff then produced a matrix, which I don't think they did at Eu- 
ropean Command. This matrix rated the military significance of the particular 
target, i.e., whether it was so important that it might cause the termination of 
hostilities or whether it was a target that merely sustained the military or sus- 
tained the Serbian operations in Kosovo. Collateral damage was given a rating 
of high, medium, or low. 

Next came the risk assessment of outliers — the potential for a bomb or mis- 
sile to miss its target and land somewhere else. This assessment was particu- 
larly important where we were using bombs or missiles and where there was a 
heavily built-up area with large urban structures around the target. There was 
a greater risk of outliers in those situations. Finally, the matrix would indicate 
whether the recommendation was to approve the target, disapprove the tar- 
get, ask for more information, or hold it while we received additional 
information. 

Based upon this information, and based upon the target folders that were 
received by the Joint Staff, the legal counsel would conduct a legal assessment. 

200 



Harvey Dalton 



This was a basic law of armed conflict legal assessment: operations may be di- 
rected only against military objectives, the civilian population is not to be the 
object of attack, there can be no intent to spread terror among the civilian 
population, indiscriminate attacks are prohibited, and the damage to civilian 
property cannot be excessive in light of the anticipated military advantage. 
Military objectives were those objectives which by their nature, location, 
purpose or use make an effective contribution to the military action and 
whose destruction in the circumstances ruling at the time offered a definite 
military advantage. That was the rule that was employed in terms of what is a 
military objective. Take all precautions in means and methods of attack to 
avoid and minimize incidental injury and death and damage to civilians. This 
in many cases influenced the aim points of the weapons to try to direct the 
weapons and the effects of the weapons away from civilians, civilian objects, 
civilian places. 

A number of targets were sent up for further review by the secretary of de- 
fense and, occasionally, the president. The four-tier analysis was part of those 
target packages. The four-tier analysis tried to estimate the damage by frag- 
mentary blast, skin piercing fragments from the blast, window breakage (be- 
cause that could create a lot of damage and incidental injury), building 
collapse (the possibility of building collapse or which buildings would be ex- 
pected to collapse), and eardrum rupture, which obviously causes civilian in- 
juries. Those were the four types of injuries that were modeled and simulated 
by computer with each type of weapon that was considered as a possible 
weapon to be employed. This made a lot of difference. It was all visualized, dis- 
played, and we could actually determine to a reasonable degree the extent of 
collateral damage. 

This was the type of analysis that was done by the lawyers, the intelligence 
community, and the operators. .This is what went to the Chairman of the Joint 
Chiefs of Staff. There may have been ten targets every four or five days that 
were carried to the president. The chairman would brief those targets to the 
president, and the president would make the decision to approve, disapprove, 
request more information, or hold the target. That was essentially the process 
that the chairman's legal counsel was involved in. 

Of course the military objective overall was to force the Serbs to withdraw 
from Kosovo. NATO in no way unleashed an unlimited war; it was very 
tightly controlled. There was always some element of political control at all 
times, which was necessary because we had to hold the coalition together. We 
did target some of the propaganda capabilities of the Serbs primarily through 
information operations — non-lethal type attacks. We hit military industrial, 

201 



Commentary 

dual-use electric power, petroleum because petroleum always supplies the mil- 
itary and the military runs on petroleum products, and infrastructure. 

Note the comments by Professor Bothe about the type of infrastructure that 
can be targeted. In our targeting and in our legal review there were a number 
of bridges, roads, infrastructures that had no military value whatsoever. We 
had a couple of targets nominated that were two-lane wooden bridges across 
drainage ditches. They had no military value whatsoever, and those targets 
were not approved. So even though it was hostilities, we did not go after all 
military objects. We went after those that counted, or least the ones we 
thought counted. 

One final comment — I hope you don't get the impression that we are pat- 
ting ourselves on the back. We did not come here to talk about the wonderful 
job we did. We came to talk about the process that we went through, and the 
process that we will hopefully go through and approve each time we employ 
the use of force. I do think it is necessary that people are aware of the great 
care and the great effort that goes into targeting, including its legal analysis. 



202 



Commentary 



Wolff H. von Heinegg 



I must congratulate our presenters for their most remarkable contributions; 
however, congratulation does not mean agreement. This again does not 
mean that I'm in complete disagreement with all three of them, rather to say 
that my agreement varies. I will not be able to touch upon all the issues ad- 
dressed. Hence, I will briefly refer to some details, and then I will close with 
some more general remarks on some fundamental issues that I'm afraid are too 
often left out of sight. I will not go into the question of the relevance of Hague 
Convention IX. I will start with the natural environment. 

Professor Bothe is seemingly willing to apply the rules contained in Protocol 
I 1 on the natural environment as customary international law. First, it needs 
to be emphasized that Articles 35(3) and Article 55 of Protocol I are so-called 
"new rules" and, thus, binding only upon States parties to the Protocol. But 
even when Protocol I is formally applicable, in an international armed con- 
flict, the question remains as to the possible practical impact of these provi- 
sions. Remember, they merely prohibit the employment of methods and 
means of warfare that do or may inflict damage to the natural environment 
that is "widespread, long-term and severe." 2 There is no conventional method 
or means of warfare the use of which will clearly be illegal under this prohibi- 
tion. Even the sinking of an oil tanker cannot always be subsumed under those 
rules. Moreover, I still have not seen a convincing definition of natural envi- 
ronment. The often-used term "ecosystem" is not a definition, but merely a 



1. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, DOCUMENTS 
ON THE LAWS OF WAR 422 (Adam Roberts & Richard Guelff eds., 3d ed. 2000). 

2. U, arts. 35(3) and 55. 



_____ Commentary 

substitute and not of much help. Hence, the only fairly secure statement on 
the legal status of the natural environment during international armed con- 
flict is that which is contained in the United States Navy's Commander's 
Handbook. 3 Please note that while the wanton destruction of the natural en- 
vironment is illegal because it cannot be justified by reason of military neces- 
sity, it is of course never a war crime entailing individual criminal 
responsibility. 

Secondly, I would like to address the list approach. The combined list ap- 
proach suggested by Professor Dinstein seems to be based on quite a condens- 
ing logic. Professor Dinstein correctly referred in his paper to the San Remo 
process and the very intense discussion on whether it was preferable to merely 
have an abstract definition of military objectives or to also have a non-exhaus- 
tive and merely illustrative list of objects that would usually qualify as military 
objectives. 4 1 believe that the decision of the Round Table to be satisfied with 
an abstract definition was correct. Such lists would be counterproductive be- 
cause in the eyes of many, the exclusion of certain objects will mean that they 
may be attacked in exceptional cases only. All legal methodology will not pre- 
vent them from such a misunderstanding. I cannot imagine two or more inter- 
national lawyers, not to speak of government officials, who could reach an 
agreement on such a list. The papers presented by Professors Bothe and 
Dinstein illustrate this point. 

Thirdly, let us come to the definition of military objectives. First the ques- 
tion of effective contribution to military action. I fully agree with Professor 
Dinstein that the concept of war-sustaining capability is much too wide, and 
more importantly has no foundation in international law. This follows from 
the simple truth that objects such as raw cotton or, to take a more contempo- 
rary example, oil, only under exceptional preconditions and circumstances are 
subject to military measures, i.e., only if they are used for military purposes. In 
naval warfare, to give but one example, oil exports are not subject to capture if 
transported on neutral vessels. Only in the case of a breach of a blockade is 
there the opportunity to capture it. Capture, however, has to be strictly distin- 
guished from targeting even though I must admit that the dividing line is not 
always so clear. 



3. Annotated Supplement to the Commander's Handbook on The Law of Naval 

OPERATIONS 405 (A.R. Thomas and James Duncan eds., 1999) (Vol. 73, US Naval War 
College International Law Studies). 

4. See Professor Dinstein's paper in this volume. 

204 



Wolff H. von Heinegg 



Professor Bothe also maintains in his paper that there are no standing or 
permanent military objectives. 5 1 am unable to agree with such a statement if 
made in such an absolute form. It is beyond any doubt that there are quite an 
impressive number of objects that always qualify as legitimate military objec- 
tives because by their nature, and by their very nature, they effectively con- 
tribute to military action. To give but one example, take a warship or a 
military airplane. A discussion like that following the sinking of the General 
Belgrano in the Falklands War should not be repeated, and that discussion 
should not contribute to casting doubt upon this fact of law and life. 

Let me shortly refer to the definite military advantage and the circum- 
stances ruling at the time. Here as with regard to the effective contribution to 
military action, Professors Bothe and Dinstein have presented quite different 
positions. I must confess that I'd rather follow the Dinstein approach because 
of fundamental considerations. To start with the details and by concentrating 
on the broadcasting station, I would like to add and emphasize that we must 
admit that under the laws of war, enemy means of communication have al- 
ways been and always will be considered legitimate military objectives. It must 
also be emphasized that this is true regardless of the overall aim of the war or 
of the armed conflict. Professor Bothe maintains that tradition should not be 
overestimated, but, in my opinion, tradition has a lot to do with State practice, 
which is not only of significance when it comes to the formation of rules of 
customary international law. 

Let me finally turn to some fundamental issues. Even though Professor 
Bothe correctly holds that the jus in hello and the jus ad bellum have to be dis- 
tinguished and kept apart from each other, I wonder whether he doesn't pay 
just lip service to that distinction. In view of his further thesis, I have some 
doubts. In any event, the distinction may not be brushed aside. Moreover, the 
overall aim that led one of the parties to an armed conflict to resort to use of 
armed force is irrelevant when it comes to the question whether certain ob- 
jects effectively contribute to military action of the adversary or whether their 
neutralization offers a definite military advantage. Apart from the problem 
that such aims will be merely political, the actual or potential tactics and 
strategies taken by the adversary or the attacker are decisive. We should not 
forget that the law of armed conflict is designed as a order of necessity that comes 
into operation if for whatever reasons States are unwilling or unable to refrain 
from the use of armed force. It is, so to speak, the ultimate legal yardstick that 
customary international law is willing to accept. 



5. See Professor Bothe's paper in this volume. 

205 



Commentary 

The law of armed conflict does not ask for motives, political aims, or the le- 
gality of the first use offeree. It takes as a fact that the jus ad bellum has failed 
to function properly. Thus, it accepts that the parties to an international 
armed conflict do apply certain methods and means of warfare in order to 
harm the respective enemy and by keeping to a minimum one's own losses. 
This means that the law of armed conflict sets up certain limits, but it has 
never been designed to prevent armed conflict. 

We as international lawyers should never forget that international law is 
made by States - that means by those who are bound by it. But if the consen- 
sus of States can only be verified, let us say to have reached a certain level, we 
are not allowed as international lawyers to ignore this and to replace the miss- 
ing basis by pure hermeneutics or to equate what we wish the law to be with 
the existing law. 



206 



Commentary 



Henry Shue 



7T7* 

r<| ocusing on dual-purpose targets, I would like to do two things. First, I 
J-L want to do a little bit of abstract worrying, which is inconclusive and re- 
ally just a plea for other people to tell me whether there is a real issue here or 
not. Secondly, I want to go onto something that is fairly concrete. When Pro- 
fessor Dinstein began, he made the traditional point that today we are talking 
about discrimination and tomorrow we will talk about proportionality. 
Normally that is how we think about things. It seems to me that it is not abso- 
lutely clear that proportionality is as separate in the case of dual-purpose tar- 
gets as it is in the case of other targets although maybe that is so. 

I would just like to raise this question. In the really clear case where you 
have an object, and you ask if this thing is civilian or military and the answer 
is that this thing is clearly military, so it is eligible to be a legitimate target. 
Now we ask if we can destroy this thing without causing collateral damage to 
some other objects which are civilian. So there is a military object, there are 
other civilian objects located nearby, and so we ask how much damage will 
there be to the co-located civilian objects? That is the discussion about pro- 
portionality. But the thing about dual-purpose targets is that they are un- 
doubtedly military, but they are also undoubtedly civilian. So rather than 
having two different objects, we have one object that has two different pur- 
poses. Now maybe there is no reason not to treat this in essentially the same 
way, but I am sort of bothered by that. That is, you can say just as we first ask 
is this object military, and then we go and look at whether the damage to ci- 
vilian objects will be disproportionate — why can't we just say okay, here we 
have a military purpose. 



Commentary 

Now let's talk about whether the frustration of the civilian purpose, which 
this same object also plays, is proportional. But because this is after all only 
one object, I wonder whether the proportionality shouldn't come up a bit 
sooner. One way of raising the question is to ask something about Professor 
Dinstein's list. I do not think I am actually disagreeing with him, but the ques- 
tion is what does it mean to say a certain object is, for example, by nature a 
military objective. If that just means it's over the first hurdle — that it's now el- 
igible for consideration of whether destroying it will cause proportional dam- 
age or not — then that's fine. That is, if all we're saying is that everything that's 
on the list are military objects about which we now need to ask about propor- 
tionality, then that's okay. 

It seems to me there's some danger — though maybe this is just an unfair 
reading of the list — that when one says that all the main railroad lines are by 
nature military objectives, then one may think that the burden of proof lies 
especially on proportionality. In order to establish that the civilian damage 
will be disproportional, one somehow has to show more than one would have 
had to show if this thing was not already on the list. I hope that's just a mis- 
reading of what Professor Dinstein is saying. If not, then I would be a bit 
worried. 

I wonder about the role of proportionality with respect to dual-purpose tar- 
gets in particular. Now to get a little more concrete and specific, I ask this be- 
cause it does seem to me that in the case of the dual-purpose . targets, 
everything really turns on proportionality. Academic theorists tend to think 
that proportionality is not much of a task — that it's so vague that it's not going 
to really do much work. I want to say two things. The first is that I do take 
some comfort from what has been said by Lieutenant Colonel Montgomery, 
Ms Judith Miller and Colonel Sorenson. Based on their testimony anyway, it 
does appear that in the case of the Kosovo bombing campaign proportionality 
really did do serious work. To the extent that this is true, I guess I do disagree 
with Professor Dinstein's comment that World War II would still be going on 
if the same review had been applied. 

I certainly don't think we should take the targeting in World War II as any 
kind of example of acceptable targeting. There was a lot of targeting in World 
War II that was completely disproportionate. My understanding is that the 
war might have ended a lot sooner if we had wasted less stuff trying to break 
civilian morale and used it in more militarily useful ways. So whether or not 
this whole process, which I don't pretend I actually understood, is needed, I 
don't know. That there is some such process seems to me to be actually quite a 
good thing. 

208 



Henry Shue 

Why do we have the jus in bellol We have it because we're trying to avoid 
having total war. The point of jus in hello is that some semblance of normal 
civilian life should continue even during the war, even while the fighting is 
occurring on the land and the sea and in the air. Babies are to be born. Old 
people should be able to finish out their lives. People who need medical atten- 
tion should be able to get medical attention. There has to be at least some civil- 
ian life that is protected from the war. So one of the questions about propor- 
tionality is "would the elimination of a particular target make it impossible for 
even elemental civilian processes to continue?" It seems to me that if it would, 
the answer is that damage is not proportional unless the military value is of 
some extraordinary significance of a kind rarely found. It seems to me that this 
is almost always true of the basic energy sources of the society and especially 
the electrical grid, the destruction of which makes it impossible to purify the 
water so children will get waterborne diseases and hospitals are put out of 
business. It is going to be a rare military advantage that is actually proportional 
to that. 

I am not saying we did the contrary in Kosovo. Maybe not. I worry a little 
bit about the change in the way we bombed electrical facilities toward the end 
of the war, but I'm not even sure that there's any objection there. It does 
sound as if we pretty much made a point of not permanently causing pro- 
longed damage. 

Just one final point. I have not seen the RAND study Ms. Judith Miller was 
talking about this morning that apparently argues that a fear about the extent 
of the civilian damage was part of the reason that Milosevic conceded. 1 I am 
very impressed with the argument in Robert Pape's Bombing to Win book that I 
am sure many of you know. His thesis is basically that strategic bombing has 
never succeeded. 2 That is that the attempt to break the will has never suc- 
ceeded. Pape's argument mainly being that there is a missing mechanism. The 
argument is that if you caused the civilians enough pain, then they will want 
to change the government or end the war, so they will. But the "so they will" 
part is what is usually not there. In the case of many governments if they could 
have done that, they might have done it a long time ago. It's especially un- 
likely they'll be able to do it under the conditions of a national security 
emergency. 

So I doubt very much that that was true in the case of Serbia, although ob- 
viously I need to look at that report. If so, of course, that is very different from 



1. See Ms. Miller's commentary in this volume. 

2. Robert Pape, Bombing to Win: Air Power and Coercion in War (1996). 

209 



Commentary 

the position that says the civilian damage is unintended but proportional. If 
you're hoping for this effect, then you are hoping for the civilian damage. That 
then has become strategic bombing of the World War II sort, not an example 
of unintentional civilian damage that might then be proportional. That is a 
very different matter and, as far as I can see, an unacceptable way to proceed. 



210 



Discussion 



Reasonable Military Commanders and Reasonable Civilians 

Charles Dunlap: 

I found Professor Bothe's comment about the reasonable military com- 
mander and that we ought to have reasonable civilians very interesting. What 
kind of training regime would you suggest for the civilians to have the compe- 
tence of the reasonable military commander? Because we find it very difficult 
to teach even lawyers the art of war sufficiently so that they can render appro- 
priate legal advice. 

Michael Bothe: 

The point with the "training," I think is not well taken. What is required in- 
deed is a dialogue. This is a two-way street, of course, but "training" implies 
that I know better and I have to teach the others. That's not the point in a 
democratic system. We have to have two-way communications and to start a 
dialogue on that assumption. "I know better" is just the wrong way. I am quite 
well prepared to tell the same story to some of the human rights organizations 
who think they know better. This is a lesson I think that both sides should 
learn. 

Harvey Dalton: 

I'm a bit worried about that answer. A military commander knows how to 
employ the Tomahawk land attack missile (TLAM) better. I'm going to defer 
to his judgment in terms of weaponizing and employing TLAM. I may provide 
him my legal advice in respect to targeting, but he knows better in terms of 
that weapon. 

Leslie Green: 

I, too, am worried about this "reasonable civilian" — this idea of the ordi- 
nary civilian and the ordinary soldier. It reminds me of the attitude sanctioned 



Discussion 

by too many war crimes tribunals. What was the thought of a reasonable man? 
A reasonable man is the man on a downtown bus; that is not the reasonable 
soldier. One of the reasons that I don't like civilian judges trying military of- 
fenses is that they don't know the circumstances that were prevailing at the 
time that led to the soldier's actions. The question of what is reasonable in 
times of conflict depends on what is reasonable in the eyes of the man who is 
involved in that conflict. That would only be accepted by those who have sim- 
ilar background knowledge, not by one who has been securely moved up in 
some Inn of Court. 

Michael Bothe: 

Maybe I'm too much under the impact of the constitutional development 
of my country after the war. One of the lessons that the persons who drafted 
the German constitution after the war wanted to draw from historic experi- 
ence was to integrate the military into a civilian system of values, not to have 
the military as a state within the State. Arguing that military matters are 
something which the military knows and the civilian doesn't is utterly a step in 
the wrong direction. 

Natalino Ronzitti: 

Ruth Wedgwood and Admiral Robertson have advocated the wisdom of 
having military people sitting on courts that apply international humanitarian 
law. I have mixed feelings on this point because you are referring to your 
American tradition. You have military people with the necessary knowledge 
of international humanitarian law, but I don't know if in other countries there 
are military people or military judges who have a good knowledge of interna- 
tional humanitarian law. 

I guess I'm more concerned because not all wartime crimes are battlefield 
crimes. There are courts such as the ICC and ICTY that, are competent to try 
not only war crimes, but also crimes against humanity and genocide. Genocide 
is very, very hard to establish. It is easy to define, but it is really difficult to 
prove that the person, the head of State, has committed genocide. So I believe 
that civilian judges can play a role, but you can have special chambers to deal 
with battlefield crimes. In those cases it would be best to rely on the opinion of 
the experts. 



212 



Discussion 

Legal Advisors and Time*Sensitive Targets 

Charles Dunlap: 

Kosovo was in many ways a sort of a set-piece operation where you had the 
luxury of multilevel reviews of targets and so forth, but we are building tech- 
nological systems to try to close the decision loop in the Air Operations Cen- 
ter to literally minutes where, at best, we are going to be able to have a JAG at 
the table to try to provide some instantaneous advice regarding targets of op- 
portunity. I'm not sure how these processes will be able to work except by hav- 
ing the JAG being able to make some kind of instantaneous judgment, but this 
again reflects back on training and the need to know the operational art. 

Harvey Dalton: 

The dynamic during Kosovo was that we would get these nominations 
maybe two to three days in advance and we had a constant input of nominated 
targets. So what we reviewed and approved would be the targets two days 
down the road. Your point is well taken about the timeline and the fact it's go- 
ing to get faster. My only suggestion would be that we're going to have to have 
a lawyer in the loop twenty-four hours a day, seven days a week. It will be a 
continuous review process and the lawyer can be there for the targets of op- 
portunity. But for the most part this process is a revolving process that may be 
two days ahead of when you actually use the weapon. 

Tony Montgomery: 

For time-sensitive targeting in Kosovo, these issues did not even come up 
to the European Command, much less go to the Joint Staff. Time-sensitive 
targets or mobile targets were delegated down and the guys on the ground 
could address those using the same practices they've always used, which are 
basically using their best judgment. There were people in the Combined Air 
Operations Center that provided legal advice to General Short. 

What the targeting process that everyone and I have been talking about re- 
lates to what we think of as strategic targets, not the ones that pop up and we 
hit opportunistically. Though I will say that the issue of dealing with the tanks 
and artillery in houses and how to deal with that from a political level as op- 
posed to just if you see a tank in the house you go and whack it, that did get up 
to the higher levels just because of the consequences that would fall from 
NATO forces being seen to go in and take down some houses that supposedly 
had tanks inside of them. 

213 



Discussion 

Coalition Approval of Targets 

Charles Kogan: 

It appears that there was a certain dissatisfaction on the part of the Europe- 
ans with some aspects of their input into the target approval process. This, I 
believe, came out in the French after-action report by their defense ministry 
stating that the B- 1 raids from Missouri were conducted outside the NATO 
chain- of-command. I wonder if Lieutenant Colonel Montgomery could com- 
ment on that? 

Tony Montgomery: 

As far as I know, and I have to qualify it in that way, there was no target 
struck unilaterally by the United States. What I mean is that everything that 
was struck had some approval by NATO. Now that does not necessarily mean 
that each of the nineteen countries sat down and approved each of the indi- 
vidual targets. The Supreme Allied Commander for Europe (SACEUR) had 
been delegated certain authority. The NATO Secretary-General had been 
delegated certain authority. Since the US European Command (EUCOM) 
was not in that chain of command, I have never seen and I have no real idea 
just how much authority SACEUR had been delegated. I am aware of the 
French after-action report. I have read it. I am just not aware of any instance 
where there was a unilateral attack by the United States. I would be surprised 
if there had been one. 

There was a great deal of effort made to do as much as possible to provide 
information, but EUCOM did not work for NATO. All of my efforts and all of 
the efforts of the EUCOM targeting cell were directed solely towards satisfying 
the US desire for information on the targets. We did not provide that target- 
ing data directly to NATO. We were never authorized to do that and we did 
not take that step. Our data went to the Joint Staff. It went to our political au- 
thorities and our military authorities. We were aware that there was some dis- 
satisfaction within certain NATO channels concerning the targeting process, 
but we could not fix that ourselves. 

When Civilian Objects Become Military Objectives 

Charles Garraway: 

I would like to discuss objects because there has been considerable confu- 
sion over the definition of military objective in Article 55(2) of Protocol I. I 
think the problem has been slightly expanded by some of the language used 

214 



Discussion 

today such as "traditional military objects" and "dual-use facilities." The 
problem with the definition is between military objectives and civilian ob- 
jects. Civilian objects are defined as anything that is not a military objective. 
Not all military objects are military objectives. I would suggest that the USS 
Constitution in Boston Harbor is a military object, but not necessarily a military 
objective. Similarly, a civilian house, which may not be being used by the mili- 
tary in any way but may be interrupting a tank advance, can by its location be a 
military objective. So certainly on the European side of the pond, there is a lot 
of confusion about military objects and civilian objects with people saying that 
civilian objects cannot ever be attacked, forgetting about the distinction be- 
tween civilian objects as defined in Protocol I and civilian objects as used in the 
ordinary common sense term. Would the panel have anything to say on that? 

Yoram Dinstein: 

A few words about defended and undefended localities on the frontline. It 
must be understood that in a frontline situation, as a rule, the pertinent issue 
is less whether an object constitutes a military objective and more whether it is 
part of a defended locality. The term "locality" (introduced in Protocol I) is 
narrower than the expression "village, town or city" originally employed by the 
Hague Regulations. Whatever language is used, the point is that if a pre- 
scribed area is defended, any building within the area (other than an assembly 
point for the collection of wounded, marked as such) would be exposed to at- 
tack, irrespective of its ostensible status as a civilian object. 

This is particularly relevant to scenario of house-to-house fighting epito- 
mized by Stalingrad. If house-to-house fighting goes on in a particular city 
block, there is no need to evaluate the legal standing of every edifice within 
the block. Any such edifice can be shelled, bombed or otherwise attacked not- 
withstanding the fact that for the moment it does not serve a military func- 
tion. The reason is the underlying expectation that the tide of house-to-house 
fighting will ultimately engulf it although, as yet, this has not come to pass. 
Obviously, the result can be grave collateral damage to civilians. 

The issue of collateral damage to civilians is tied in with that of propor- 
tionality. The phrase proportionality is often misunderstood. Protocol I does 
not mention proportionality at all. The only expression used there is "exces- 
sive." The question is whether the injury to civilians or damage to civilian 
objects is excessive compared to the military advantage anticipated. Many 
people tend to confuse excessive with extensive. However, injury/damage to 
non-combatants can be exceedingly extensive without being excessive, simply 
because the military advantage anticipated is of paramount importance. 

215 



___________ Discussion 

Consider the rudimentary example of the bombing of a major munitions fac- 
tory. The factory may have thousands of civilian employees who are liable to 
be injured in an air raid. Notwithstanding the enormous civilian casualties 
likely to ensue, the enemy air force is allowed to strike the factory. 

A related point is that of shielding combatants with civilians. A belligerent 
party shielding a military objective with civilians is acting in breach of the law 
of armed conflict, and it bears full responsibility for the civilian blood shed by 
an enemy attack against that military objective. Coming back to my Stalin- 
grad example, once the Soviets decided to turn the city into a battlefield, it 
was their responsibility to remove civilians from the line of fire. A residential 
locality on the frontline can be saved from destruction by being declared 
non-defended. But a belligerent party cannot eat the cake and have it. Logic 
and experience militate against an attempt to defend a place to the hilt and at 
the same time expecting the civilian population in situ to be protected from 
the ravages of war. 

Relating the Permissible Mission to the Military Advantage 

Christopher Greenwood: 

There is surely a difference between taking into account what a belligerent 
is seeking to achieve and trying to determine whether a particular attack will 
give it a military advantage. Professor Bothe seemed to suggest that we must 
account for what the belligerent is entitled to seek to achieve. Now it seems to 
me that an attack does not offer a military advantage if you will destroy some- 
thing, when its destruction is not going to make the blindest difference to your 
own military tactics, or to what you expect the enemy's military tactics to be. 
To say that a State must not destroy something that does indeed interfere with 
its game plan because that should not have been its game plan in the first 
place because, for example, it is acting out of humanitarian motives, that 
seems to me to be an entirely different matter. I would be grateful to see some 
clarification of the distinction between the two. 

Michael Bothe: 

This is of course the fundamental issue: how far does the context of the mil- 
itary operation have an impact on the notion of military advantage? I think 
that the overall context of a military operation has an impact on what can be 
considered as advantage in this particular context. What you are suggesting is 
that any conflict is like any other conflict. This is also the basis of the objec- 
tion of Professor von Heinegg in his Commentary. You say for the purposes of 

216 



Discussion 

the jus in hello, any armed conflict is like the other. There is no distinction. I 
recognize that if I try to make distinctions, then I am very close to mixing jus in 
hello and jus ad helium. I repeat that is something I do not want to do because it 
means foregoing one of the essential bases of the application of the jus in hello, 
which is reciprocity. Anything which risks negatively affecting reciprocity, I 
think, should be out. 

There, I agree with all the objections that have been made. But this being 
so, I am still not convinced that you can take the notion of military advantage 
out of its context. If the declared purpose of a military operation is limited, as 
it was in Kosovo, you cannot divorce the notion of advantage from that pur- 
pose. It is not just the subjective intent; it is the objective character of the 
entire mission. The Independent Commission on Kosovo comes up with 
something similar and even goes a little further. They say there should be a 
protocol three on humanitarian intervention, because it is not appropriate to 
have the whole spectrum of otherwise lawful means of combat for an exclu- 
sively humanitarian intervention. I am not sure whether I would go that far, 
but I think that without changing the law, my interpretation of military ad- 
vantage is a possible restraint. 

This brings me to the more fundamental question which was asked by 
Wolff von Heinegg. Is it wishful thinking? Or is it a real development of the 
law? This is a distinction that sometimes is hard to make if we are in a situa- 
tion of transition. We do not yet know whether Kosovo is transition or not. 
Operation Allied Force was for some something novel. It is a part of a process, 
as the United Nations Secretary-General put it, of redefining sovereignty and 
drawing different conclusions from the requirements of sovereignty than we 
did before. I am not so sure whether this is the case, but we are entering the 
question of the jus ad helium here, and I refrain from commenting on that. If 
new types of military operations are developing, having completely different 
purposes from traditional war, then it is not only a matter of the jus ad helium. 
It's also a matter of the means how these conflicts are conducted. 

This also goes into the question of the ethical considerations which are dis- 
cussed in relation to Kosovo. The standard objection from the moral point of 
view is from the traditional helium iustum theory (there was a just cause but 
not a just means). This is standard in the literature on that subject. So these 
things are linked. And the relationship between jus ad helium and jus in hello is 
not one watertight compartment. That is wishful thinking. We are at a point 
where the law might change, and I think it's absolutely legitimate to think 
about the direction in which it changes. My conclusion is formulated farther 
in terms of the question than in terms of a statement of lex lata. 

Ill 



Discussion 

Yoram Dinstein: 

I have already tried to underscore in my paper the relativistic nature of a 
military advantage. Let me add here that often, whereas you do not know for 
sure what's good for you, you clearly perceive what you would like to deny to 
the other side. Thus, a military advantage to one belligerent party would sim- 
ply be a mirror image of a military disadvantage to the adverse side. This brings 
me to my disagreement with Professor Bothe regarding the issue of bridges and 
railroads. At a certain juncture in the course of hostilities a bridge may just be 
standing there, without anyone appreciating its military value. It is only when 
a belligerent party calculates of what value the bridge could be to the enemy at 
a later stage that it dawns on military commanders that they'd better do some- 
thing to eliminate the risk. The issue is not always destruction or capture: neu- 
tralization of a bridge to the enemy is another form of military advantage. 

The momentous significance of some bridges should be manifest to all 
when it is borne in mind that World War II may have been prolonged by some 
six months only because of a British failure to capture a crucial bridge on the 
Rhine ("a bridge too far") . And it may as well be added that, had not the US 
Army captured intact the rail bridge at Remagen, the issue of the crossing of 
the Rhine might possibly have plagued the Allies a lot longer than it did. 

What is true of bridges may also be true of railroads. The Panzer divisions in 
the Battle of Normandy fought superbly. But since the rail system had been 
paralyzed by Allied bombings, the Panzers had to reach the frontline — some- 
times from the other side of France — on their own power. This took a long 
time (in some cases, up to two weeks), denying the Germans the opportunity 
to stop the Allied forces at the beaches. Moreover, by the time that the Ger- 
man armored units arrived at the frontline, they were (1) out of fuel, (2) in 
dire need of repair of many machines (while lacking the facilities to undertake 
the repair), and (3) the crews were tired and in some instances expecting de- 
feat. In all, the dramatic Allied victory in June 1944 probably owes more to the 
systematic bombings of the French railroads than to the actual matching of 
tanks against tanks. 

"DuaLPurpose" Targets 

Yoram Dinstein: 

A question was posed to me about "dual purpose" targets. I am not enam- 
ored of this phrase and have not used it in my paper. It appears neither in Pro- 
tocol I nor in any other LOAC instrument that I am familiar with. I do not 
know where "dual use" comes from, and can only surmise that it has 

218 



Discussion 

penetrated the lingo through articles published by human rights (rather than 
law of armed conflicts) scholars. To the best of my knowledge, references to 
"dual use" started with ill-founded criticisms of coalition bombings of the 
electric grid in Iraq in 1991. Since the electric grid in Iraq was totally inte- 
grated, attacks against it — and its installations — resulted not only in a tre- 
mendous military advantage (shutting down radar stations, military 
computers, etc.), but also extensive damage to civilians: hospitals stopped op- 
erating, water pumping and filtering facilities came to a standstill, etc. From a 
legal viewpoint, a "dual use" of Iraq's electric grid did not alter its singular and 
unequivocal status as a military objective. There was, as usual with military 
objectives, the question of proportionality where collateral damage to civil- 
ians is concerned. But the extensive damage to civilians was not excessive in 
relation to the military advantage anticipated. What was true of Iraq is 
equally true of Kosovo. 

One has to constantly bear in mind that war is war; not a chess game. There 
is always a price-tag in human suffering. Admittedly, Kosovo is not a very ap- 
propriate backdrop for such a point to be made, inasmuch as the war was con- 
ducted on NATO's part on the assumption of zero casualties (although that 
meant zero casualties to NATO). In any event, no serious war can be founded 
on such an assumption. Some wars are more unfortunate than others in terms 
of actual bloodshed, but in the long run civilian suffering cannot be utterly 
avoided. 

John Murphy mentioned that in present-day wars it may paradoxically be 
safer to be a combatant than a civilian. This shocking truth has become a gov- 
erning factor of modern hostilities only since the outbreak of World War II. 
Earlier, the situation was entirely different. As late as World War I, in the 
Western Front at least, civilian casualties were mild while a whole generation 
of young combatants was destroyed in the trenches. 

The current disproportion of the civilian/combatant ratio of casualties is 
totally unacceptable. Anyone even mildly interested in international humani- 
tarian law must strive to bring about a better world in which civilized losses in 
war are minimized. Nevertheless, the realistic goal is to minimize civilian casu- 
alties, not to eliminate them altogether. There is no way to eliminate civilian 
deaths and injuries due to legitimate collateral damage, mistake, accident and 
just sheer bad luck. 



219 



Discussion 

Targeting Regime Elites 

John Norton Moore: 

As we seek to stop aggressive war and to end the all too frequent slaughter 
of civilian populations as we saw in Bosnia and had begun to see in Kosovo be- 
fore the NATO intervention, there has been increasing theoretical interest in 
the focusing of deterrents, including intra-war deterrents, on the regime elites 
who were ordering the aggressive war or the genocide in the first place. From 
that observation, I have a couple of questions for any member of the panel 
who would like to respond. First, did NATO in fact consider that in relation 
to targeting Milosevic or his assets or his principal henchmen? Second, did the 
laws of war constrain NATO in any way from targeting the regime elites in 
Serbia if NATO had wanted to do so? And third, if there were any such con- 
straints, do you believe that it is necessary to modify the law of war to permit 
the kinds of targeting of assets of regime elites or at least those that are order- 
ing the continuation of such wars? And if so, what kinds of constraints or re- 
straints if any would you put on them? 

Michael Bothe: 

Well, I cannot of course comment on what NATO considerations in this 
respect were, as these were not privy to me. As far as the law of war is con- 
cerned, targeting the elite is perhaps not the right term in this respect. It mat- 
ters whether the persons in question are combatants or military commanders. 
If the president happens to be the military commander, as said earlier today, 
he or she can be targeted. If not, no. This is of course a certain constraint. I 
think it is a healthy constraint if you ask me. I would not like to see the laws of 
war modified in this respect because that would really open the door to do 
away with the distinction which I think is a healthy one. 

Robert F. Turner: 

We are trying to distinguish jus ad bellum and jus in bello, but the modern 
view is (at least when you're dealing within the setting of aggression) that the 
prevailing responsibility of States is not to be neutral but to be in opposition to 
aggression. You are not obliged to send troops, but you are not supposed to be 
in favor of the aggressor. If you are in a setting where international law allows 
the use of lethal force in self-defense or collective self-defense in response to 
the aggression, then the question becomes not are you assassinating a leader, 
which is by definition murder, but rather which target do you use lethal force 
against. If one of your choices in your best professional judgment is that we 

220 



Discussion 

can stop this aggression by taking out the head aggressor, the head war crimi- 
nal — even if he doesn't wear a uniform, but is the person who made the deci- 
sion to commit the aggressive act — are you saying that it is in every instance 
preferable to say no, we would rather slaughter twenty or thirty thousand sol- 
diers out on the field who may have had nothing to do with the policy and may 
have had no chance of going to Canada? Saddam Hussein, for example, was 
rough on his deserters. How do you deal with the doctrine of proportionality 
when you say it is better to kill thirty thousand innocent soldiers than to en- 
danger the key war criminal who started the entire attack? Does that change 
anybody's attitude? 

Wolff H. von Heinegg: 

What you just asked only at first glance seems to be logical, because it does 
not matter. What the law of armed conflict has achieved from 1977 and be- 
yond is something that we should not underestimate. There is the principle of 
distinction not only with regard to targeting, but also with regard to the ques- 
tion of distinction between combatants and noncombatants. So if there is a 
person that is not a combatant, a noncombatant I must say, then this person 
may not be attacked — period. It doesn't matter whether this decision will lead 
to twenty thousand deaths in the field, because those who are dying in the 
field or in the air or in the sea are combatants. They are legitimate military 
targets. 

If we are trying to modify the existing law by such considerations, then what 
we have achieved until now will be destroyed very easily. As soon as you ac- 
cept that jus ad bellum considerations play a role when it comes to the question 
of applicability of the jus in hello, the jus in hello is lessened. It is being de- 
formed. Suddenly it doesn't depend only on the parties to the conflict, but on 
somebody else (like Her Majesty's government, for example) to determine 
whether certain measures taken during armed conflict by the parties to the 
conflict are legal or not under the laws of war. I say we must rather leave the 
laws of war and leave the law of armed conflict as it is with the principle of dis- 
tinction between combatants and noncombatants and not modify it with any 
considerations taken from outside the law of armed conflict. 

Robert F. Turner: 

The concept of the noncombatant was one of innocence. It was that this 
person's life has no effect on the outcome of the war, and therefore they 
should not be harmed. If you trace the history of the law or the rule that says 
you cannot touch the other guy's king, Vattel and Grotius and others point 

221 



Discussion 

out this is not the logical rule of law. This is an agreement that the leaders 
made to protect their own safety in an era where waging aggressive war was 
the sovereign prerogative of kings. What I am saying is now that we have 
moved on to make waging aggressive war a war crime, why do we still decide 
that the head war criminal is an innocent party who should be given the same 
protection as a Red Cross worker at the expense of all these young kids that 
get sent out there and slaughtered? 

Harvey Dalton: 

The study that Judith Miller cited this morning did conclude that there was 
an effort to impose pressure on the elites of Yugoslavia so as to have them im- 
pose pressure on Milosevic to terminate the conflict. That was done by target' 
ing military-industrial plants and facilities owned or run by these elites and, as 
Ms Miller mentioned this morning, the Rand Study found that that was in fact 
more effective than the attacks on the military objectives. Now that is a very 
disturbing conclusion. I think it is very disturbing, because I do think the laws 
of armed conflict still apply. At least from our standpoint in targeting and ap- 
proving these targets, there had to be a very clear military link between these 
industrial facilities and the war effort. We required that, but the pressure later 
on may be otherwise. 

John Norton Moore: 

I think this does raise some very important questions because all that we 
have and all that we do and all that we should do in the law of war, as in any 
other area of law, needs to serve a variety of important goals. We are trying to 
serve the humanitarian goals of preventing aggressive war, of minimizing casu- 
alties and preventing genocide. If, in fact, we discover as a significant body of 
newer information such as the Rand study is suggesting that a focus on regime 
elites, including the head of the State if necessary, is more effective than a va- 
riety of other applications, then it seems to me that is something that deserves 
very careful consideration. 



222 



PART IV 



COLLATERAL DAMAGE 



Introduction 



John Norton Moore 



W; 



e have a distinguished panel of experts addressing issues associated 
with collateral damage. That general rubric would include issues 
that are dealt with in Protocol I, referred to as excessive civilian damage in at- 
tacks on otherwise lawful targets, and issues regarding feasible precautions in 
attacking. 

I have three brief points that I would like to put before us before turning to 
the panelists. The first is for us to consider just how far we have come in rela- 
tion to the systematic inclusion of the laws of war in military operations and to 
reflect for a moment on the creation of the field called operational law in the 
United States. As I think everyone in this room knows full well, the United 
States and particularly the US military had a sorry experience in Vietnam. 
When the war was over and we looked back and sought to look at the lessons 
learned about Vietnam, a number of things emerged that were very important 
in relation to the laws of war. The first of those is that we had not trained as 
adequately in the laws of war as we should have. The result was a My Lai 
which had enormous cost for the United States in that war. We also found 
that one of the problems was a series of areas of advice given and constraints 
placed on the United States military ostensibly designed for ethical and law of 
war reasons, but in fact uninformed about proper targeting and correct opera- 
tion of the law of war. The result was a series of inhibitions that were not re- 
quired by the law of war and which dramatically stretched out the war and 
perhaps in the end cost the United States the war in Vietnam. 

After Vietnam there was a review, led for the most part by the US military, 
that said in effect "We're going to have to in the future have a cadre of people 
that are extraordinarily well trained in the law of war so that we won't be 



Introduction 



making the mistakes on either side of this equation — either unnecessarily pro- 
hibiting targeting that is essential for warfighting, or on the other hand not 
controlling activities that are violations of the laws of war." The result has 
been an extraordinary input of good legal advice regarding US military activi- 
ties. Indeed I think we can say that the first real test of this came during the 
Gulf War in which we saw extremely careful vetting of virtually every target 
with equal emphasis on both sides of the equation — permitting effective 
warfighting on the one hand, and on the other hand preventing problems that 
could be serious humanitarian violations that would undermine the war effort. 

It seems to me that the same thing has happened again in Kosovo. As we 
put this in perspective, the real starting point is to notice that there has never 
been a military campaign in the history of the world that has had such a care- 
ful input and consideration of targeting, proportionality and all of the other is- 
sues than in the Gulf War and again in the Kosovo operation under NATO. It 
is a sea change. 

My second point is that while this colloquium is quite properly focused on 
the issue of lessons from the NATO campaign in Kosovo, let us at least re- 
mind ourselves that there is — quite apart from NATO activities — a very seri- 
ous enforcement problem in relation to massive noncompliance with the laws 
of war by the opponents that we were facing. We can go all the way back to 
Vietnam and the massive violations of the laws of war by North Vietnam, not 
unintended by the government as in the case of My Lai, which was carried out 
by an out-of-control second lieutenant who was poorly trained. We saw the 
same problem in Bosnia with the slaughter of people in that conflict. We saw 
it in Kosovo, and we saw it in Rwanda. It has not gone away. It is still with us 
in the modern world. So one of the jobs for us as academics and members of 
the government and those that are interested seriously in humanitarian law is 
never to forget that we have a fundamental enforcement problem in relation 
to the non-democratic governments that are still committing democide, geno- 
cide and other massive insults in relation to the laws of war. 

The third and final context point I would like to make is simply to remind 
us that as with all law, the laws of war are intended to serve important goals. 
They must be judged in the end by their effectiveness in serving those goals. In 
this context of the laws of war, all of us know that there is in fact a careful bal- 
ance that has to be met. For a variety of ethical, moral and other reasons we 
want to make sure that we protect against unnecessary and excessive damage. 
All of us are very aware of principles of discrimination, of proportionality, of 
avoidance of unnecessary suffering and other important principles of the laws 
of war that lead in that direction. Let me just suggest that there is another 



226 



Introduction 



critical reason for democracies to support such laws. That is for democracies it 
is essential that they comply with humanitarian objectives in wartime. To fail 
to do that has extraordinary cost for the democracies and the entire politi- 
cal-military effort. If we learned anything from the Vietnam context, it is the 
great importance of democracies fighting wars in strict compliance with hu- 
manitarian objectives. 

There is another consideration that makes the issue far more complex and 
far more difficult because we also learned in the Vietnam context that exces- 
sive constraints can be highly costly. If all we had was the one side of the equa- 
tion, it would be tempting simply to say that we can always keep placing more 
and more constraints on the warfighting effort. Unfortunately we know in the 
real world that if we place too many constraints on that effort it will have costs 
that will undermine the very goals that we seek to support through the laws of 
war. We can endanger our own military when we have constraints that are too 
great. In addition, we may end up prolonging the war — mitigating the shock 
value necessary to promptly end the conflict — and as a consequence end up 
with many, many more combatants and civilians killed than if the war had 
been properly fought and ended at an early time. 

I was the Counselor on International Law to the US Department of State 
during the Vietnam War and I witnessed with great interest what happened 
in a three-week period when the President of the United States, President 
Nixon, suddenly decided to fight the war the proper way — not by violating 
the laws of war or engaging in carpet bombing or anything of that sort — but 
instead by doing what the Joint Chiefs had suggested that he do many years 
before. He simply mined Haiphong Harbor, which as far as I know had zero 
casualties on all sides but suddenly prevented 90% to 95% of all the importa- 
tion of war supplies into North Vietnam. In addition to that, he carried out 
the "Christmas" bombing, which was not an area bombing of Hanoi or 
Haiphong, but was instead a careful attack on rail lines in the Hanoi area. 
The result was North Vietnam came to the table for the first time in the en- 
tire history of the war seriously seeking the end of the war. Within three 
weeks, the Paris accords were agreed and the United States decided the war 
was over and came home. The point is this could have been done at any point 
in the preceding years of the war and casualties on all sides would have been 
reduced very dramatically. 

There is yet another problem if the constraints are too excessive. At some 
point if the cost of war fighting by the democracies in resisting aggression, 
genocide and democide is too high, we will in fact discourage the democracies 
from undertaking those efforts. That of course in the end is what happened in 

227 



Introduction 



Vietnam when the United States finally came home. The other party then 
simply had a regular army invasion of the south and the result was a blood' 
bath, which we now know resulted in at least one hundred thousand killed in 
the south, a million boat people, with a half million dying at sea, and some- 
where between one and three million dying in Cambodia. So what we do in 
relation to advice on the laws of war is important in terms of the real world 
and real human lives and real effectiveness in preventing aggression, stop- 
ping aggression and in fact stopping genocide as well. I simply place these 
points in front of you as context as we move forward to our discussion on col- 
lateral damage. 



228 



Some Legal (And A Few Ethical) 

Dimensions Of The Collateral Damage 

Resulting From NATO's Kosovo Campaign 



John F. Murphy 

Introduction 



A 



ny analysis of the legal dimensions of NATO's Kosovo campaign 
should first distinguish between the jus ad helium, the law of resort to 
the use of armed force, and the jus in hello, the law regulating the way the armed 
force is employed, of that conflict. To be sure, there is no "Chinese wall" sepa- 
rating the jus ad helium and jus in hello aspects of the Kosovo campaign. For ex- 
ample, assuming arguendo, as some have argued, 1 that international law 
recognizes a doctrine of humanitarian intervention, and this doctrine serves as 
a justification for NATO's resort to armed force in the Kosovo campaign, it is 
arguable that the military action undertaken must be designed to prevent the 
humanitarian catastrophe unfolding. 2 Nonetheless, the focus of this paper is 
not the effectiveness, or lack thereof, of the bombing to prevent or minimize 
Serbian "ethnic cleansing" or other war crimes in Kosovo. Rather, it is on the 
collateral damage to civilians caused by this bombing. 

According to the organizers of this colloquium, this panel is to address in 
particular the following issues: 



* The author would like to thank Kevin Jarboe, a graduate of Villanova University School of Law 
and Andrew Kenis, a third year student at the Law School, for research and assistance on this paper. 

1. See, e.g., Michael Glennon, The New Interventionism: The Search for a Just International Law, 

78 Foreign Affairs 2 (May-June 1999). 

2. I have so argued in my chapter on Kosovo Agonistes, in TRILATERAL PERSPECTIVES ON 
INTERNATIONAL LEGAL ISSUES (Chi Carmody, Yuji Iwasawa, and Sylvia Rhodes eds., 2002). 



Legal and Ethical Dimensions of Collateral Damage 

(1) Does the use of precision- guided munitions (so-called "smart bombs") 
lead to a duty to use those types of weapons exclusively in future 
conflicts? 

(2) If so, does it mean that two adversaries may be subjected to differing 
legal and ethical regimes, dependent on their relative level of 
technological sophistication? 

(3) What degree of injury and damage to civilians can be regarded as 
excessive, and consequently disproportionate, as compared to the 
military advantage gained? 

(4) What are the legal and ethical implications of NATO's apparent 
efforts to minimize its own combat casualties through high-altitude 
bombing and avoidance of a ground campaign, and did this greatly 
increase the risk of civilian casualties? 

Each of these issues, along with issues related thereto, will be addressed 
seriatim in this paper. 

Precision-Guided Munitions and International Law 

Before turning to the issue of whether international law does or should re- 
quire the use of precision-guided munitions in future conflicts, we need to de- 
fine a few terms. The US Department of Defense defines precision-guided 
munitions as "a weapon that uses a seeker to detect electromagnetic energy 
reflected from a target or reference point, and through processing, provides 
guidance commands to a control system that guides the weapon to the tar- 
get." 3 Like Stuart Belt, in his extensive treatment of the subject, 4 this paper 
does not discuss the use of air-to-air missiles, because they normally do not 
produce collateral damage. Rather, the focus of the paper is on air-to-ground 
munitions. Again like Belt, this paper does not distinguish between smart, ac- 
curate, or precision weapons but instead groups them together as precision- 
guided weapons. It does distinguish the precision-guided weapon from an 



3. Precision Weapons, available at http://www.dtic.mi1/doctrine/jel/doddict/data/p/ 04864.html, 
last visited Dec. 27, 1999, and quoted in Stuart Belt, Missiles Over Kosovo: Emergence, Lex Lata, of 
a Customary Norm Requiring the Use of Precision Munitions in Urban Areas, 47 NAVAL LAW 
REVIEW 115, 118(2000). 

4. Belt, supra note 3, at 118. 



230 



John F. Murphy 



unguided weapon by noting that the former has some type of in-flight guid- 
ance system. This in-flight guidance system may or may not be powered. The 
so-called Paveway series of weapons, for example, are laser guided. 5 For a de- 
tailed discussion of various kinds of precision-guided munitions, the reader 
should consult Belt's article. 

In his article, Belt notes that US military operations or US-led military op- 
erations have seen a dramatic increase in the use of precision-guided muni- 
tions from the "opening salvo of Operation Desert Storm" to the "closing shot 
of Kosovo" 6 — a five-fold increase to be precise. Between the Desert Storm 
and Kosovo campaigns, Belt points out, there was Operation Desert Fox, an 
intensive four-day US bombing campaign against Iraq, with the stated goal 
"to degrade Saddam's capacity to develop and deliver weapons of mass de- 
struction, and to degrade his ability to threaten his neighbors." 7 According to 
Belt, Operation Desert Fox offered the US military an opportunity to "battle- 
test some new smart weapons and reaffirm lessons learned in Desert Storm." 8 
Belt quotes David Isby, writing for Jane's Missiles and Rockets, who report- 
edly stated: "Operation Desert Fox was the largest air offensive to be waged 
largely with guided weapons rather than 'dumb' munitions that [had] pre- 
dominated in all previous major offensive uses of air power, including the 
1991 Gulf War." 9 

As elaborately detailed by Belt, there seems to be no question that the 
United States has made increasingly heavy use of precision-guided munitions 
in recent military operations. Whether it now has an obligation under interna- 
tional law to do so in future conflicts is the issue to which we now turn. 

Does International Law Now Require the Use of Precision~Guided 
Munitions in Future Conflicts? 

It is clear that there is no requirement under international law that preci- 
sion-guided munitions be used exclusively in future conflicts. A strong advo- 
cate of the use of precision-guided munitions, Belt admits that they have their 
limitations: 



5. Id. at 118-19. 

6. Id. at 126. 

7. Statement by President William Clinton, quoted by Richard Newman, in Bombs over Baghdad, 
U.S. NEWS AND WORLD REPORT, Dec. 28, 1998, at 32, cited in id. at 131 n.108. 

8. Belt, supra note 3, at 131. 

9. David Isby, Cruise Missiles Flew Half the Desert Fox Strike Missions, JANE'S MISSILES AND 
ROCKETS (1999), cited in id. at 132 n.l 10. 

231 



Legal and Ethical Dimensions of Collateral Damage 



The function of the precision-guided weapon, however, has its limitations. 
There are limitations on its efficacy and missions that are clearly better suited 
for mass bombing. Large maneuvering units in the field are excellent targets for 
unguided, gravity bombs (carpet bombing) and much less so for 
precision-guided weapons. Not only does the carpet -bombing produce favorable 
psychological impact, but also the number of precision-guided weapons 
required to hit the large number of open field targets would be prohibitively 
expensive. This idea was confirmed by W. Hays Parks, who concluded that 
B-52s were the right platform to use because they were able to drop a large 
number of bombs into an area where no protected objects existed and where 
Iraqi troops were entrenched in the desert and difficult to attack. In essence, the 
use of precision-guided weapons and that of unguided, en masse bombs have a 
complementary role. Precision-guided weapons are particularly useful against 
strategic targets that often times have a locus near heavily populated civilian 
areas whereas en masse bombing is useful for targets where the goal is 
widespread damage and the demoralization of troops. This was the practice 
during Operation Desert Storm. 10 

Accordingly, the issue should be restated as whether there is an obligation 
under international law to use precision-guided munitions in attacks on urban 
areas. Belt is of the opinion that there is. 

At the risk of oversimplification, one may say that treaties and norms of 
customary international law are the primary sources of international law, as 
reflected in the Statute of the International Court of Justice. 11 Both sources 
have played a major role in the law of armed conflict. We begin with norms of 
customary international law. 



10. Id. at 130. 

11. Article 38(1) of the Statute of the International Court of Justice, 59 Stat. 1055, T.S. 993, 3 
Bevans 1179, provides: 

1 . The Court, whose function is to decide in accordance with international law such disputes 
as are submitted to it, shall apply: 

(a) international conventions, whether general or particular, establishing rules 
expressly recognized by the contesting states; 

(b) international custom, as evidence of a general practice accepted as law; 

(c) the general principles of law recognized by civilized nations; 

(d) subject to provisions of article 59 [which states that "The decision of the Court has 
no binding force except between the parties and in respect of that particular case"], 
judicial decisions and the teaching of the most highly qualified publicists of the various 
nations, as subsidiary means for the determination of the rules of law. 

232 



John F. Murphy 



A. Customary International Law 

Parenthetically, it should be noted that the basic concept of customary in- 
ternational law has recently come under attack, and one commentator has 
gone so far as to call for its elimination as a source of international law. 12 Be 
that as it may, the law of armed conflict has long recognized the importance of 
customary international law through the so-called "Martens Clause," which 
appears in the preambles to both the 1899 and 1907 Hague Conventions on 
Laws and Customs of War on Land, as well as in Article 1 (2) of the 1977 Pro- 
tocol I Additional to the Geneva Conventions of 12 August 1949, and which 
provides in pertinent part: "In cases not included in the Regulations . . . the in- 
habitants and belligerents remain under the protection and the rule of the 
principles of the law of nations, as they result from the usages established 
among civilized peoples, from the laws of humanity, and the dictates of the 
public conscience." 13 The practical significance of the Martens Clause is that 
"it contains a built-in mechanism to fill in the lacunae existing in the law of 
war at any particular time." 14 For the United States, the Martens Clause may 
take on added importance at the present time, since it is not a party to either 
of the 1977 Additional Protocols. 

The classic description of the process of creating customary international 
law is that of Manley O. Hudson, a Judge on the International Court of Justice 
and an eminent authority on international law. According to Hudson, the es- 
sential elements of the customary international law process include: 

1. concordant practice by a number of States with reference to a type of 
situation falling within the domain of international relations; 

2. continuation or repetition of the practice over a considerable period of 
time; 

3. conception that the practice is required by, or consistent with, prevailing 
international law; and 

4. general acquiescence in the practice by other States. 15 



12. J. Patrick Kelly, The Twilight of Customary International Law, 40 VIRGINIA JOURNAL OF 

International Law 449 (2000). 

13. For a brief discussion of the Martens Clause, see Howard Levie, The Laws of War and 
Neutrality, in NATIONAL SECURITY LAW 307 (John Moore, Frederick Tipson, and Robert 
Turner eds., 1990). 

14. Edward Kwakwa, The International Law of armed Conflict: Personal and 
Material Fields of Application 12 (1992). 

15. Manley Hudson, [19501 2 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 26, 
U.N. Doc. A/CN.4/Ser.A/Ser. A/1950/Add.l. 



233 



Legal and Ethical Dimensions of Collateral Damage 

There is general agreement that the first, third and fourth of Hudson's ele- 
ments are the most crucial under modern approaches to the customary inter- 
national law process. At the same time, however, each of these three elements 
has been subject to critical scrutiny and debate. 

There is, for example, no agreement on what constitutes State practice. 16 
The US Department of State emphasizes the acts of governments but not UN 
resolutions. This approach supports the claims of States, such as the United 
States, with strong centralized governments. In contrast, some scholars and 
less powerful States would include as State practice normative statements in 
drafts of the International Law Commission, resolutions of the United Na- 
tions General Assembly, and recitals in international instruments. 17 

Hudson's requirements that States engage in a practice with an under- 
standing that it is required by, or consistent with, prevailing international law 
and that there be general acquiescence in the practice by other States raises 
the complex issue of opinio juris, which is the general acceptance of a norm as a 
legal obligation by the world community. The concept of opinio juris intro- 
duces a subjective element in the customary international law process because 
it requires that States when engaging in or refraining from a particular practice 
do so under an understanding that they have a legal right to engage in the 
practice or a legal obligation to refrain from engaging in the practice. 

With respect to the methodological problem of determining opinio juris y 
Professor Anthony D'Amato has suggested that, as a requirement for a finding 
of opinio juris, an objective claim of legality be articulated in advance of, or 
concurrently with, the State practice allegedly required or permitted by cus- 
tomary international law. 18 Interestingly, under D'Amato's approach, the artic- 
ulation of a claim of legality could be made either by a State, a recognized 
writer, or a court. 19 To others, however, this "'claims approach' defines away 
the requirement of the normative conviction of the community." 20 Moreover, 
D'Amato concedes that it is not possible to determine if a majority of States 
are conscious of any international obligation. 21 

Other commentators would dismiss or at least minimize the importance of 
an articulation of a claim of legality on the ground that the "best evidence of 



16. See Kelly, supra note 12, at 500-07. 

17. Id. at 501. 

18. ANTHONY D'AMATO, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 77, 85 
(1971). 

19. Id. 

20. See, e.g., Kelly, supra note 12, at 479. 

21. D'AMATO, supra note 18, at 82-85. 

234 



John F. Murphy 



opinio juris is actual practice consistently and generally followed." 22 According 
to this view, a record of consistent and widespread practice raises strong infer- 
ences of opinio juris without need of further evidence. Before turning to a con- 
sideration of whether customary international law requires the use of 
precision-guided munitions in aerial attacks on urban or other highly popu- 
lated areas, it may be appropriate to keep in mind a famous statement of the 
Permanent Court of International Justice in the Lotus case: 

International law governs relations between independent States. The rules of 
law binding upon States therefore emanate from their own free will as expressed 
in conventions or by usages generally accepted as expressing principles of law 
and established in order to regulate the relations between these co-existing 
independent communities or with a view to the achievement of common aims. 
Restrictions on the independence of States cannot therefore be presumed. 23 

Although the Lotus case has been "strongly criticized for its 'extreme posi- 
tivism' and especially for asserting that restrictions on the freedom of states 
cannot be presumed," 24 it has never been repudiated by the International 
Court of Justice. Moreover, its positivist approach may be particularly well 
suited to issues of the law of armed conflict, which, by their very nature, impli- 
cate the vital interests of States. 

Let us turn then to State practice regarding the use of precision-guided mu- 
nitions. As noted previously, the United States has made increasingly heavy 
use of precision weapons in aerial attacks on targets in urban or other heavily 
populated areas, and this was especially the case in the Kosovo campaign. 
What is less clear is the extent to which other States have made use of precision- 
guided weapons in armed conflict. Belt reports that more than 34 countries 
are using or have access to the Paveway laser guided bomb series and gives 
other examples of precision-guided weapons used by various countries. 25 His 
study is extremely thin, however, on the extent of actual use by countries of 
precision weapons in armed conflict. On the contrary, Belt admits that Russia 
has made relatively little use of precision weapons in Chechnya, although he 
attempts to explain this away by noting that there has been some Russian use 
of such weapons in the conflict and that Russia has never asserted the right to 



22. Oscar Schachter, Entangled Treaty and Custom, in INTERNATIONAL LAW AT A TIME OF 
PERPLEXITY: ESSAYS IN HONOR OF SHABTAI ROSENNE 7 17, 731 (YoramDinsteined., 1989). 

23. The S.S. Lotus (Fr v. Turk.), P.C.I.J. (Ser. A) No. 10, at 18 (Sep. 7). 

24. Louis Henkin et al, International Law 70 ( 3d ed., 1993). 

25. Belt, supra note 3, at 125. 

235 



Legal and Ethical Dimensions of Collateral Damage 

use non-precision bombs indiscriminately near civilian areas. 26 The limited 
evidence of use of precision-guided munitions to date would seem to indicate 
an absence of any widespread State practice. Significantly, the International 
Court of Justice has stated that: "Although the passage of only a short period 
of time is not necessarily ... a bar to the formulation of a new rule of custom- 
ary international law . . . State practice . . . should have been both extensive 
and virtually uniform. . . ," 27 

Assuming arguendo the existence of sufficient State practice to support the 
existence of a norm of customary international law requiring the use of preci- 
sion weapons in attacks on urban or other heavily populated areas, even Belt 
admits that the "harder issue" is whether opinio juris is present. 28 In his attempt 
to prove the existence of opinio juris, Belt cites statements by US officials or 
statements in US government documents that confirm the US desire to con- 
duct the Gulf War in a manner consistent with international legal obligations 
or that recognize the long-standing customary law of armed conflict principle 
of distinction or discrimination that commanders and others planning an at- 
tack take all possible feasible steps, consistent with allowable risk to aircraft 
and aircrews, to minimize the risk of injury to noncombatants. 29 He fails to 
cite any statements by US officials regarding the Gulf War, Desert Fox, or 
Kosovo campaigns that in any way recognize a legal obligation to use preci- 
sion-guided munitions. To be sure, with respect to the Kosovo campaign, Belt 
is able to quote Lord Robertson, who, when serving as NATO Secretary- 
General, said that "international law and public opinion" required the use of 
precision weapons in the Kosovo campaign. 30 With respect, this appears to be 
a weak reed upon which to lean. 



26. Id. at 161. 

27. North Sea Continental Shelf (F.R.G. v.Den./F.R.G. v.Neth.), 1969 I.C.J. 3, 43 (Feb. 20). 

28. Belt, supra note 3, at 163. 

29. Id. at 163-64. Belt quotes from a study of the Gulf War commissioned by the Department of 
Defense that concluded: 

Coalition forces took several steps to minimize the risk of injury to noncombatants. To 
the degree possible and consistent with allowable risk to aircraft and aircrews, aircraft 
and munitions were selected so that attacks on targets within populated areas would 
provide the greatest possible accuracy and the least risk to civilian objects and the 
civilian population. 

30. Vago Muradian, Robertson: Europe Must Spend More Wisely to Achieve Gains, DEFENSE 
DAILY, Dec. 8, 1999, at 6, quoted and cited in id. at 165 nn.294, 295. 

236 



John F. Murphy 



B. Treaties and Conventions 

A major problem one faces in analyzing treaty law to determine whether 
the United States has an international obligation to use precision weapons is 
that the United States is not a party to Additional Protocol I, the most recent 
major treaty on the law of armed conflict. Nonetheless, in the section of his ar- 
ticle discussing the relevance of treaty law to precision weapons, Belt focuses 
his primary attention on Protocol I. Obviously, for the United States, Protocol I 
would be apposite only if its relevant provisions represent a codification of 
customary international law. Belt appears to assume sub silentio that they do, a 
highly debatable proposition, as we shall see. Before turning to this issue, how- 
ever, we need to examine briefly some treaties and conventions that the 
United States has ratified. 

A primary premise of the 1907 Hague Convention IV Respecting the Laws 
and Customs of War on Land 31 is that "the right of belligerents to adopt means 
of injuring the enemy is not unlimited." 32 Although the 1907 Hague Conven- 
tion is a relatively (for the time) comprehensive codification of laws governing 
land warfare, Articles 25 and 27 apply as well to aerial bombardment. 33 Article 
25 provides that "the attack or bombardment, by whatever means, of towns, 
villages, dwellings, or buildings which are undefended is prohibited." Article 
27 states that 

In sieges and bombardments all necessary steps must be taken to spare, as far as 
possible, buildings dedicated to religion, art, science, or charitable purposes, 
historic monuments, hospitals, and places where the sick and wounded are 
collected, provided they are not being used at the same time for military 
purposes. 

For its part, Article 2 of Hague Convention IX of 1907 Concerning Bom- 
bardment by Naval Forces in Time of War 34 built upon and improved the 



31. Hague Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 
36 Stat. 2277, DOCUMENTS ON THE LAWS OF WAR 69 (Adam Roberts and Richard Guelff eds., 
3d. ed. 2000). 

32. Id., art. 22. 

33. Much of this discussion of the 1907 Hague Convention draws from Danielle Infeld, 
Precision-Guided Munitions Demonstrated Their Pinpoint Accuracy in Desert Storm; But is a Country 
Obligated to use Precision Technology to Minimize Collateral Civilian Injury and Damage?, 26 

George Washington Journal of International Law & Economics 109 (1992). Ms. 

Infeld in turn relies heavily on the magisterial examination of applicable law in W. Hays Parks, 
Air War and the Law of War, 32 AIR FORCE LAW REVIEW 1 (1990). 

34. Hague Convention (IX) concerning Bombardment by Naval Forces in Time of War, Oct. 
18, 1907, 26 Stat. 2351, DOCUMENTS ON THE LAWS OF WAR, supra note 31, at 122. 

237 



Legal and Ethical Dimensions of Collateral Damage 

approach taken by Hague Convention IV in that it "identified particular mili- 
tary objects that could be attacked, and recognized the inevitability of collat- 
eral damage in the execution of such attacks." 35 In addition, Article 2 
explicitly absolved the attacker of responsibility for "unavoidable" collateral 
damage resulting from the attack of such military objects. 36 Also, as Hays 
Parks has noted, these and other provisions in the two Hague Conventions 
placed primary responsibility for collateral damage on the defender because it 
had the superior ability to control the civilian population. 37 The civilian popu- 
lation itself also had, to the extent possible, to take steps to remove itself from 
the conflict. Only if he engaged in an indiscriminate attack would the com- 
mander be responsible for collateral damage. In Parks' view, "responsibility for 
avoidance of collateral civilian casualties or damage to civilian objects ... is a 
shared obligation of the attacker, defender, and the civilian population." 38 

This "shared obligation" approach continued under subsequent treaty de- 
velopments in the law of armed conflict. In particular, the Geneva Conven- 
tion Relative to the Protection of Civilian Persons in Time of War (Geneva 
Convention IV) 39 defines a person protected by the Convention as anyone 
who, during a conflict or occupation, is "in the hands of a Party to the conflict 
or Occupying Power of which they are not nationals." 40 Any person suspected 
of, or engaged in, activities hostile to the security of the State will not be af- 
forded protection as a civilian. 41 For their part, States are required to take 
steps to ensure that their private citizens do not take part in hostilities in a way 
that could endanger innocent civilians. 42 

According to Hays Parks, however, this tradition of shared obligation was 
broken with the adoption of Additional Protocol I. In a lengthy exegesis of the 
Protocol, especially Articles 48 through 58, the articles most directly relating 
to combat operations, Parks demonstrates that these provisions shift the 



35. Parks, supra note 33, at 17. 

36. The second paragraph of Article 2 of Hague Convention IX provides that the commander 
"incurs no responsibility for any unavoidable damage which may be caused by a bombardment 
under such circumstances." 

37. Parks, supra note 33, at 28-29. 

38. Id. 

39. Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, Aug. 12, 
1949, 6 U.S.T. 3516, 75 U.NT.S. 287, DOCUMENTS ON THE LAWS OF WAR, supra note 31, at 
301. 

40. Id., art. 4. 

41. Id., art. 5. 

42. Parks, supra note 33, at 118. 

238 



John F. Murphy 



responsibility for the protection of the civilian population away from the de- 
fender almost exclusively to the attacker. 43 He concludes: 

Customary international law requires that an attacker exercise ordinary care in 
the attack of military objectives located near the civilian population, to 
minimize injury to individual civilians or the civilian population as such 
incidental to the attack. The defender's responsibility is to exercise an equal 
degree of care to separate individual civilians and the civilian population as such 
from the vicinity of military objectives. Where a defender purposely places 
military objectives in the vicinity of the civilian population or places civilians in 
proximity to military objectives, in either case for the purpose of shielding 
military objectives from attack, an attacker is not relieved from his obligation to 
exercise ordinary care. Responsibility for death or injury resulting from the 
illegal action of the defender lies with the defender, however. The language of 
Protocol I — particularly as it has been interpreted by the ICRC and many of the 
nations known in the course of the Diplomatic Conference as the Group of 
77 — casts doubt upon whether the limited credibility of the law of war relating 
to war-fighting per se will survive any serious challenge. 44 

Interestingly, in his discussion of relevant provisions of Protocol I, Belt does not 
acknowledge, in text or footnotes, Parks' critique or that dissatisfaction with 
Articles 48 to 58 was a primary reason for the US decision not to ratify the Pro- 
tocol. 45 Nonetheless, he concludes that 

The language in Protocol I was not specific enough, either in form or from a 
review of travaux preparatories, to mandate the exclusive use of precision-guided 
munitions (PGMs) in urban areas. Therefore, even if it were declaratory of 
customary international law norms at the time of its signing in 1977, it would 
not be dispositive as to use of PGMs. 46 

Accordingly, Belt and Parks appear to be in agreement that treaty law does 
not require the use of precision-guided munitions in future conflicts. They dis- 
agree as to whether customary international law requires the use of 



43. Id. at 112-202. 

44. Id. at 168. 

45. Belt, supra note 3, at 145-5 1. For other commentary on why the United States decided not 
to ratify Protocol I, see Michael Matheson, Session One: The United States Position on the Relation 
of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 

American University Journal of International Law & Policy 419 (1987); Abraham 

Sofaer, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the 
Protections of War Victims, 82 AMERICAN JOURNAL OF INTERNATIONAL LAW 784 (1988). 

46. Belt, supra note 3, at 167. 



239 



Legal and Ethical Dimensions of Collateral Damage 

precision-guided weapons in attacks on urban or other highly populated areas. 
Belt, as we have seen, believes that it does. Parks has indicated that he agrees 
with Danielle Infeld that it does not. 47 Previously in this paper, I have ex- 
pressed my agreement with the Parks/Infeld position as to the lex lata (existing 
law). Still to be considered, however, is whether the Belt position has merit as 
a lex ferenda (law in formation) proposition. 

C. Should International Law Require the Use of Precision-guided Munitions in 
Urban or Other Highly Populated Areas? 

There seems to be little disagreement that, as a policy matter, precision- 
guided weapons should normally be used in aerial attacks on urban or other 
highly populated areas. Under many, perhaps most, circumstances, there is a 
happy congruence between the needs of military efficiency and the avoidance 
of unnecessary injury to civilian persons or property. 48 That is, the use of 
precision-guided weapons will more thoroughly destroy the target, while 
avoiding or minimizing collateral damage, than will so-called "dumb" bombs. 
In such cases, the attack is being conducted in complete accord with Article 
57(2) (a) (iii) of Additional Protocol I, which requires commanders and others 
planning an attack to "take all feasible precautions in the choice of means and 
methods of attack with a view to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians and damage to civilian ob- 
jects." The problem is that in some circumstances this happy congruence is 
not present. 

Belt admits that precision-guided weapons are not suitable for all circum- 
stances, and indeed cites Hays Parks in acknowledging this fact. 49 His ac- 
knowledgment, however, appears to be limited to attacks on targets far from 
heavily populated areas, such as large maneuvering units in the field. In con- 
trast, Parks has discussed in detail several circumstances when the use of 
precision-guided weapons might not be suitable, even in attacks on highly 
populated areas. 50 These circumstances include, in particular, adverse 
weather conditions, technological malfunction, human error, or heavy 
anti-aircraft fire that requires pilots to zigzag, which decreases the accuracy of 
an attack. 51 When such circumstances are present, an attacker might reason- 
ably conclude that the use of precision-guided weapons would not be 



47. See W. Hays Parks, The Protection of Civilians from Air Warfare, 27 ISRAEL YEARBOOK ON 

Human Rights 65, 85-86 n.57 (1998). 

48. For examples, see Belt, supra note 3, at 117-37. 

49. Id. at 130. 

50. Parks, supra note 33, at 185-202. 

51. For further discussion, see Infeld, supra note 33, at 131-33. 

240 



John F. Murphy 



appropriate. A hard and fast "black letter rule" requiring the use of precision- 
guided weapons in any attack on an urban area would be dysfunctional under 
such circumstances. Better perhaps to rely on the judgment of the commander 
in such cases. Hays Parks emphatically states his view: 

Article 57, paragraph 2 (a) (iii) [of Protocol I] requires commanders and others 
planning an attack to "take all feasible precautions in the choice of means and 
methods of attack with a view to avoiding, and in any event to minimizing, 
incidental loss of civilian life, injury to civilians and damage to civilian objects." 
An inevitable question is, "If a commander has a choice between two means for 
attacking a target, one less accurate than the other, is he obligated to use the 
most precise means?" Common sense, the definition of feasible by many States in 
the process of their respective ratification or accession — a definition 
subsequently adopted by the community of nations in their drafting of Protocol 
III on Incendiary Weapons to the 1980 United Nations Conventional Weapons 
Convention — and a reading of the relevant punitive provisions of Additional 
Protocol I clearly indicate that not to be the case. A commander's good faith 
judgment remains essential to effective implementation of this provision. 52 

The definitions of feasible referred to by Parks lend substantial support to 
his position. In a footnote, he quotes the statement of Italy accompanying its 
ratification of Protocol I that it "understands . . . that the word 'feasible' is to 
be understood as practicable or practically possible, taking into account all 
circumstances ruling at the time, including humanitarian and military consid- 
erations." 53 Similarly, Article 1(3) of Protocol III on Incendiary Weapons to 
the 1980 United Nations Conventional Weapons Convention defines "feasi- 
ble precautions" as "those precautions which are practicable or practically 
possible taking into account all circumstances ruling at the time, including 
humanitarian and military considerations." 54 This recognition that combat 
decisions vary depending on the "humanitarian and military considerations" 
existing at the time argues in favor of maximizing the discretion of the com- 
mander rather than imposing a hard and fast rule. Finally, Article 85(3) (b) of 
Protocol I, which classifies an action as a grave breach only if it involves 
"launching an indiscriminate attack affecting the civilian population or civil- 
ian objects in the knowledge that such attack will cause excessive loss of life, 



52. Parks, supra note 47, at 85-86. 

53. Id. at85n.54. 

54. Id. at86n.55. 



241 



Legal and Ethical Dimensions of Collateral Damage 

injury to civilians or damage to civilian objects," 55 lends a measure of support 
to this thesis. 

To this commentator, Parks and Infeld have the better of the argument. It 
appears to be the case that the use of precision-guided weapons is not always 
suitable, even with respect to targets in heavily populated areas. Moreover, it 
also appears to be impossible to predict in advance of an attack what circum- 
stances might arise that would make the use of precision-guided weapons in- 
appropriate. If these two propositions are correct, it would make no sense to 
have a "black letter" rule requiring the use of precision-guided weapons, since 
this would introduce a degree of undesirable rigidity into the law of armed 
conflict. The better approach is to leave the decision whether to employ 
precision-guided weapons to the individual commander whose decision turns 
on the particular circumstances he faces at the time of armed conflict. 

Since he contends that present customary international law requires the 
use of precision-guided weapons in attacks on urban areas, Belt recognizes 
that this raises the second issue the organizers of the colloquium have posed: 
whether two adversaries may be subjected to differing legal and ethical re- 
gimes, dependent upon their relative level of technological sophistication. 
Belt contends that they may. 56 He suggests that the problem may be mini- 
mized if not eliminated by technology transfer that narrows the gap between 
the level of technological sophistication of developed countries and that of 
developing countries, quoting one writer who urges that developed countries 
provide subsidies to developing countries to enable them to acquire precision 
weapons. 57 In Belt's view, however, the "most balanced approach" is: 

The one similar to the environmental stance of "common but differentiated 
responsibilities." This has been coined in the law of war arena as "normative 
relativism." As the divide between countries grows in regard to military prowess 
and capability, "there will be subtle stressors that encourage an interpretation of 
the law of armed conflict relative to the state to which it is applied." In the end 
the same standard applies to both states (developed vs. less developed) — that is 
the need to minimize collateral damage — but there will be a higher standard on 
the developed state. The theory of normative relativism essentially supports the 
conclusion that "belligerents are held to the standards to which they are capable 
of reasonably rising." 58 



55. Id.at86n.56. 

56. Belt, supra note 3, at 167-73. 

57. R. George Wright, Noncombatant Immunity: A Case Study in the Relation Between International 
Law and Morality, 67 NOTRE DAME LAW REVIEW 335, 336-37 (1991), quoted in id. at 172. 

58. Belt, supra note 3, at 172-73. 



242 



John F. Murphy 



In sharp contrast, Michael Schmitt has contended, "[i]t is simply beyond 
credulity to suggest that the acceptability of striking a particular type of target 
or causing a certain amount of collateral damage or incidental injury might 
one day depend on the characteristics of the attacking state." 59 For his part, 
Hays Parks has observed that: "Lawful combat actions are not subject to some 
sort of 'fairness doctrine,' and neither the law of war in general nor the con- 
cept of proportionality in particular imposes a legal or moral obligation on a 
nation to sacrifice manpower, firepower, or technological superiority over an 
opponent." 60 It might be suggested further that Belt's reliance on "common 
but differentiated responsibilities" in the field of international environmental 
law seems misplaced. It is one thing to suggest that developed States should be 
subjected to more onerous standards than developing countries in protecting 
or cleaning up the environment. It is quite another to propose that developed 
countries should accept standards that could disadvantage them in armed 
conflict. Since many, perhaps most, developing countries would be unable to 
comply with a rule requiring the use of precision weapons in attacks on urban 
areas, this is a good reason not to have such a rule in the first place. 

What Degree of Injury and Damage to Civilians Can be Regarded as 
Excessive, and Consequently Disproportionate, as Compared to Military 

Advantage Gained? 

The question of what degree of injury to civilians is "excessive" and there- 
fore "disproportionate" to the military advantage gained by an armed attack 
cannot, of course, be answered in the abstract. It raises in sharp relief, how- 
ever, the issue of the role the principle of proportionality does or should play in 
the law of armed conflict. Judith Gail Gardam has suggested that proportion- 
ality is a "fundamental" component of the jus in hello and described it as "the 



59. Michael Schmitt, The Principle of Discrimination in 21 st Century Warfare, 2 YALE HUMAN 

Rights & Development Law Journal 143, 176 (1999). 

60. Parks, supra note 33, at 169-70. As an egregious example of the misuse of the concept of 
proportionality, Parks sets forth the following hypothetical that was presented by an 
inexperienced Army instructor at The Judge Advocate General's School of the U.S. Army: 

An enemy platoon of forty men is in a defensive position on a hill, armed only with small 
arms. You have been assigned the mission of capturing the hill. You have the capability 
of attacking the hill with a company of two hundred men, supported by artillery, tanks, 
helicopter gunships and close air support fixed-wing aircraft. The "rule"of 
proportionality requires you to eschew the use of anything more than an infantry 
platoon armed with small arms. 

243 



Legal and Ethical Dimensions of Collateral Damage 

balance to be struck between the achievement of a military goal and the cost 
in terms of lives." 61 Although she acknowledges that some civilian casualties 
have always been accepted as the inevitable consequence of a military attack, 
she contends that "the concept of proportionality . . . has assumed the pivotal 
role in determining the extent to which civilians are entitled to be protected 
from the collateral effects of armed conflict." 62 

Hays Parks is much more skeptical. He reports that the American military 
review of Protocol I concluded that the concept of proportionality is not a rule 
of customary international law and argues that, judged by US domestic law 
standards, "the concept of proportionality as contained in Protocol I would be 
constitutionally void for vagueness." 63 To support his "void for vagueness" ar- 
gument, Parks further contends that 

[F]ollowing more than a decade of research [as of 1990] and meetings of 
international military experts who are anxious to implement the language 
contained in Protocol I to the extent it advances the law of war and the 
protection of the civilian population, there remains a substantial lack of 
agreement as to the meaning of the provisions in Protocol I relating to 
proportionality. This is a rather disconcerting situation given that other lawyers 
are claiming that the concept of proportionality is customary international 
law. 64 

For her part, Gardam acknowledges the significant juridical impact the US 
position has had on the role the concept of proportionality plays in the law of 
armed conflict. She concludes: 

In the final analysis, it appears that the interpretation by the United States and 
its allies of their legal obligations concerning the prevention of collateral 
casualties and the concept of proportionality comprehends only two types of 
attacks: first, those that intentionally target civilians; and second, those that 
involve negligent behavior in ascertaining the nature of a target or the conduct 
of the attack itself, so as to amount to the direct targeting of civilians. The 
conduct of hostilities in the Gulf conflict indicates that the concept of 
"excessive casualties" was restricted to that context; the military advantage 
always outweighed the civilian casualties as long as civilians were not directly 



61. Judith Gardam, Proportionality and Force in International Law, 87 AMERICAN JOURNAL OF 

International Law 391 (1993). 

62. Id. at 398. 

63. Parks, supra note 33, at 173. 

64. Id. at 175. 



244 



John F. Murphy 



targeted and care was taken in assessing the nature of the target and the carrying 
out of the attack itself. 

The impact of the practice of states such as the United States and its coalition 
partners on the formation of custom is considerable and cannot be overlooked. 
It seems inevitable that the concept of proportionality as a customary norm is 
currently limited to the situations outlined above. Moreover, it seems likely that 
the interpretation of the conventional requirements of Articles 51 and 57 with 
respect to "excessive casualties" may be similarly limited. 65 

Michael Schmitt approaches the problem of "excessive casualties" with a 
focus on the principle of discrimination that mandates discrimination be- 
tween civilians and their property and legitimate targets. 66 He suggests that 
the principle of discrimination comprises two primary facets. The first facet 
limits or prohibits the use of weapons that are by their nature indiscriminate. 
One example he gives is "biological weapons that spread contagious diseases, 
for such weapons are incapable of afflicting only combatants and difficult to 
control." 67 The second facet of the principle prohibits the indiscriminate use 
of weapons, regardless of their innate ability to discriminate. As an example, 
he cites Iraq's use of SCUD missiles against Israel during the Gulf War. This 
second facet of discrimination, he suggests, in turn consists of three compo- 
nents: distinction, proportionality, and minimizing collateral damage and in- 
cidental injury. 

The concept of distinction, which prohibits direct attacks on civilians or ci- 
vilian objects, finds its primary expression in Article 48 of Protocol I, which 
provides that parties to a conflict must "distinguish between the civilian popu- 
lations and combatants and between civilian objects and military objectives 
and accordingly direct their operations only against military objectives." Un- 
der Article 52(2), military objectives are "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 neutralization, in the circum- 
stances ruling at the time, offers a definite military advantage." 



65. Gardam, supra note 61, at 410. In footnote 102 Gardam recognizes that there is 
disagreement among scholars as to whether the practice of specially affected States is more 
important in the formation of custom from conventional norms than that of other States but 
suggests that it "may, however, be more influential in reality by virtue of being more frequent and 
better publicized." 

66. Schmitt, supra note 59. 

67. Id. at 147. 

245 



Legal and Ethical Dimensions of Collateral Damage 

Seemingly straightforward and unobjectionable as an abstract proposition, 
the concept of distinction has given rise to considerable controversy. For ex- 
ample, the International Committee of the Red Cross (ICRC) defines the 
terms "effective" and "definite" narrowly. In the ICRC's Commentary on Pro- 
tocol I, effective contribution includes objects "directly used by the armed 
forces" (e.g., weapons and equipment), locations of "special importance for 
military operations" (e.g., bridges), and objects intended for use or being used 
for military purposes." 68 The Commentary also interprets the phrase "definite 
military advantage" to exclude those attacks offering only "potential or in- 
determinate advantages." 69 Under Article 51(3) of Protocol I, civilians are 
legally protected from attack unless they take a "direct part in the hostilities." 
According to the ICRC Commentary, such participation is limited to "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." 70 Under Article 50(1) 
of Protocol I doubts as to the character of an individual are resolved in favor of 
finding civilian status, and Article 52(3) provides the same presumption for 
civilian objects. 

The ICRC interpretation has been subject to scathing criticism. 71 In tem- 
perate tones, Schmitt has noted: 

Others take a less protective approach to the limitations. The United States, for 
example, would include economic facilities that "indirectly but effectively 
support and sustain the enemy's war-fighting capability" within the ambit of 
appropriate targets. Similarly, some have cited mission-essential civilians 
working at a base during hostilities, even though not directly engaging in acts of 
war, as legitimate targets. Thus, while there is general agreement that the 
Protocol accurately states customary international law principles, notable 
disagreement persists over exactly what those standards are. 72 

Schmitt goes on to suggest that proportionality differs from distinction in 
terms of scienter, i.e, the issue of proportionality arises in situations where the 
attacker knows that an attack on a legitimate military target will result in in- 
jury to civilians or civilian property. To Schmitt, this 



68. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 

CONVENTIONS OF 12 AUGUST 1949, at 636 (Yves Sandoz et al. eds., 1987), cited and quoted in 
id. at 148. 

69. Id., quoted and cited in Schmitt, supra note 59, at 149. 

70. Id. at 619, quoted and cited in Schmitt, supra note 59, at 149. 

71. See especially Parks, supra note 33, at 1 13-45. 

72. Schmitt, supra note 59, at 150. 

246 



John F. Murphy 



[R]enders the discrimination decision matrix much more complex. With the 
first tier of discrimination analysis, the question is: 'May I lawfully target an 
object or person?' With proportionality, an additional query must occur: 'Even if 
I conclude that targeting the person or object is unlawful, may I nevertheless 
knowingly cause him or it injury or damage in my attack on a legitimate 
objective?' 73 

The difficulty of answering the additional query arises in particular because 

[T]he actor must not only struggle with issues of inclusiveness (what are the 
concrete and direct consequences?), but he must also conduct a difficult 
jurisprudential balancing test. Optimally, balancing tests compare like values. 
However, proportionality calculations are heterogeneous, because dissimilar 
value genres — military and humanitarian — are being weighed against each 
other. 74 

To be sure, in some cases the proportionality calculation would be rela- 
tively simple. Hays Parks cites as the "classic example" of a disproportionate 
action the destruction of a village of 500 persons simply to destroy a single en- 
emy sniper or machine gun. 75 But what if the likely cost in civilian lives lost 
were five? Would (should) this be regarded as "excessive" and disproportion- 
ate to the military advantage gained? In such a case, a clash between the mili- 
tary and humanitarian "value genres" referred to by Schmitt might well arise. 

Moreover, Parks has suggested three "fundamental" problems with imple- 
mentation of the concept of proportionality. 76 The first is the definition of mil- 
itary advantage, and the level at which a determination should be made 
(tactical or strategic) , the second is who should be responsible for the probable 
civilian losses resulting from the attack (the attacker, defender, or the civil- 
ians themselves), and the third concerns what Parks calls the "friction of war." 
To Parks, this friction is caused in large measure by uncertainty, and he quotes 
Clausewitz's observation that "War is the realm of uncertainty; three quarters 
of the factors on which action in war is based are wrapped in a fog of greater or 
lesser uncertainty." 77 This uncertainty is based in considerable part on a lack 
of information regarding the enemy and greatly complicates the decision mak- 
ing process. To Parks, it also counsels against any attempt "to establish an 



73. Id. 

74. Id. at 151. 

75. Parks, supra note 33, at 168. 

76. Id. at 175. 

77. CLAUSEWITZ, ON WAR 1 19-20 (M.Howard & P. Paret trans., 1976), quoted in id. at 183. 

247 



Legal and Ethical Dimensions of Collateral Damage 

unrealistic form of accountability for civilian casualties that occur incidental 
to legitimate military operations." 78 In his view, this is what Protocol I, espe- 
cially as interpreted by the ICRC, attempts to do. 

In my view, it is not necessary to decide whether "proportionality" is part of 
customary international law or simply a policy consideration or a "principle" 
that commanders should take into account during the course of armed con- 
flict. The conscientious commander will make every effort to avoid launching 
an armed attack when the likely outcome is a clearly disproportionate amount 
of collateral damage. Under any other than the easy case scenario, however, as 
Parks and especially Schmitt have noted, the calculation of whether a particu- 
lar attack will result in proportionate or disproportionate collateral damage 
becomes exceedingly difficult and problematic. It must also be remembered 
that a mistaken calculation of proportionality could result in individual liabil- 
ity for a war crime for the commander or in liability for a violation of the law of 
armed conflict by the commander's country. Accordingly, it would seem best 
to limit such liability to the circumstances summarized by Gardam as the US 
position: where civilians are deliberately targeted or there is negligent behav- 
ior in ascertaining the nature of a target or the conduct of the attack itself that 
amounts to the direct targeting of civilians. Any other standard would pose an 
unacceptable dilemma for the commander operating under exceedingly stress- 
ful conditions. 

To return to the point made at the beginning of this section of the paper, 
the question of what degree of injury to civilians is excessive and therefore 
disproportionate to the military advantage gained by an armed attack cannot 
be answered in the abstract. Accordingly, in the next section we turn to the 
legal and ethical implications of NATO's apparent efforts to minimize its 
own combat casualties through high-altitude bombing and avoidance of a 
ground campaign. 

What Are the Legal and Ethical Implications of NATO's Apparent Efforts 
to Minimize Its Own Combat Casualties Through High-Altitude Bombing 
and Avoidance of a Ground Campaign and Did This Greatly Increase the 

Risk of Civilian Casualties? 

At the outset of our discussion in this section, it should be noted that there 
is a crucial factual issue to be addressed: did NATO's high-altitude bombing 
and avoidance of a ground campaign in fact greatly increase the risk of civilian 



78. Parks, supra note 33, at 202. 

248 



John F. Murphy 



casualties? Some critics of the Kosovo campaign have so alleged. 79 Charles 
Dunlap, however, has challenged this thesis. 80 According to Dunlap, lower al- 
titude attacks were attempted but did not prove very effective. On the con- 
trary^ he contends, the nature of precision-guided munitions is such that they 
are often optimally targeted at the altitudes NATO employed. He further sug- 
gests that flying at lower altitudes would have increased the chances of suc- 
cess for Serbia's antiaircraft and short range missile systems and that "[a] 
crippled twenty or thirty- ton airplane loaded with fuel and high explosives 
crashing out-of-control into an urban neighborhood can create as much or 
more devastation among civilians as any errant bomb." 81 Similarly, in his 
view, a ground assault would have increased the risk of civilian casualties 
because the weapons of land warfare — artillery, multiple rocket launchers, 
and machine guns and other small arms — lack the precision quality of high- 
altitude bombing, and ground combat in an urban environment is a casualty- 
intensive affair for both combatants and civilians. Finally, Dunlap notes that 
reportedly, out of the more than 25,000 weapons used in Kosovo, only twenty 
resulted in collateral damage incidents, "a phenomenal record in the history 
of warfare." 82 

Let us assume arguendo that the critics are right and the high-altitude 
bombing and the avoidance of a ground campaign did increase the risk of 
civilian casualties. What, if any, are the legal and ethical implications of these 
decisions? We turn to the legal implications first. 

A. Legal Implications 

There seems to be little question that the decision to engage in high-altitude 
bombing did not by itself constitute a violation of the law of armed conflict. As 
Dunlap points out, although the law of armed conflict seeks to protect non- 
combatant civilians from the adverse effects of war, there is "nothing in that 



79. See, e.g., HUMAN RIGHTS WATCH, CIVILIAN DEATHS IN THE NATO AIR CAMPAIGN 2 
(2000), available at http://www.hrw.org/reports/2000/nato/; AMNESTY INTERNATIONAL, 
NATO/Federal Republic of Yugoslovia: "Collateral Damage" or Unlawful Killings?, Violations 

of the Laws of War by NATO during Operation Allied Force 17 (2000), available at 

http://www.amnesty.org/ailib/intcarn/kosovo/docs/natorep_all.doc; Richard Bilder, Kosovo and 
the New lnterventionism: Promise or Peril?, 9 JOURNAL OF TRANSNATIONAL LAW & POLICY 153, 
171 (1999); Ved Nanda, NATO's Armed Intervention in Kosovo and International Law, 10 US AIR 

Force Academy Journal of Legal Studies 1, 9 (1999/2000). 

80. Charles Dunlap, Kosovo, Casualty Aversion, and the American Military Ethos: A Perspective, 10 

US Air Force Academy Journal of Legal Studies 95 (1999/2000). 

81. Id. at 97. 

82. Id. at 103. 

249 



___ Legal and Ethical Dimensions of Collateral Damage 

legal regime [that] expressly requires an assumption of more risk by a combat- 
ant than a noncombatant." 83 Similarly, the Final Report to the Prosecutor by 
the Committee Established to Review the NATO Bombing Campaign 
Against the Federal Republic of Yugoslavia (hereinafter ICTY Final Report) 
concluded "there is nothing inherently unlawful about flying above the height 
which can be reached by enemy defenses." 84 To be sure, the Committee recog- 
nized that the principle of distinction required NATO air commanders to 
"take practicable measures to distinguish military objectives from civilians or 
civilian objectives," and that the 15,000 feet minimum altitude adopted for 
part of the campaign may have meant the target could not be verified by the 
naked eye. But it concluded that "with the use of modern technology, the ob- 
ligation to distinguish was effectively carried out in the vast majority of cases 
during the bombing campaign." 85 Lastly, the Report of the Independent Inter- 
national Commission on Kosovo, established at the initiative of the Prime 
Minister of Sweden, Mr. Goran Persson, concluded that the "high-altitude 
tactic does not seem to have legal significance. . . ." 86 

The legal issue, then, would seem to be whether the bombing campaign re- 
sulted in injury and damage to civilians that can be regarded as excessive and 
therefore disproportionate to the military advantage gained — more or less the 
same issue we considered in the abstract in the previous section of this paper. 
Any determination as to whether injury and damage to civilians is "excessive" 
in relation to the military advantage gained by the bombing necessarily in- 
cludes a measure of subjectivity that may lead reasonable persons to differ 
over the proper conclusion to be reached. It is accordingly noteworthy that 
the Independent International Commission on Kosovo was 

[I] impressed by the relatively small scale of civilian damage considering the 
magnitude of the war and its duration. It is further of the view that NATO 
succeeded better than any air war in history in selective targeting that adhered 
to principles of discrimination, proportionality, and necessity, with only 
relatively minor breaches that were themselves reasonable interpretations of 
'military necessity' in the context. 87 



83. Id. at 99. 

84. Final Report to the Prosecutor by the Committee Established to Review the NATO 
Bombing Campaign against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL 
MATERIALS U 55 (2000), reprinted herein as Appendix A [hereinafter Report to the Prosecutor]. 

85. Id. 

86. The Independent International Commission on Kosovo, The Kosovo Report 
181 (2000). 

87. Id. at 183-84. 



250 



John F. Murphy 



For its part, the ICTY Final Report noted that the NATO bombing campaign 
involved 38,400 sorties, including 10,484 strike sorties, and the release of 
23,614 air munitions, yet only approximately 500 civilians were killed during 
the campaign. The conclusion of the Report was that "[t]hese figures do not in- 
dicate that NATO may have conducted a campaign aimed at causing substan- 
tial civilian casualties either directly or incidentally." 88 

One of the allegations that led to the establishment of the Committee that 
issued the ICTY Final Report was that NATO forces "deliberately or reck- 
lessly caused excessive civilian casualties in disregard of the rule of propor- 
tionality by trying to fight a 'zero casualty war' for their own side." 89 
Interestingly, in its discussion of the "principle [not rule] of proportionality," 
the Committee expressed some of the same concerns and reservations that 
have troubled Hays Parks and the US military in their review of Protocol I. 
They are worth quoting at length. 

48. The main problem with the principle of proportionality is not whether or not 
it exists but what it means and how it is to be applied. It is relatively simple to 
state that there must be an acceptable relation between the legitimate 
destructive effect and undesirable collateral effects. For example, bombing a 
refugee camp is obviously prohibited if its only military significance is that 
people in the camp are knitting socks for soldiers. Conversely, an air strike on an 
ammunition dump should not be prohibited merely because a farmer is plowing 
a field in the area. Unfortunately, most applications of the principle of 
proportionality are not quite so clear-cut. It is much easier to formulate the 
principle of proportionality in general terms than it is to apply it to a particular 
set of circumstances because the comparison is often between unlike quantities 
and values. One cannot easily assess the value of innocent human lives as 
opposed to capturing a particular military objective. 

49. The questions which remain unresolved once one decides to apply the 
principle of proportionality include the following: 

(a) What are the relative values to be assigned to the military advantage gained 
and the injury to noncombatants and/or the damage to civilian objects? 

(b) What do you include or exclude in totaling your sums? 

(c) What is the standard of measurement in time or space? and 



88. Report to the Prosecutor, Appendix A, 11 54. 

89. Id., 11 2. 



251 



Legal and Ethical Dimensions of Collateral Damage 

(d) To what extent is a military commander obligated to expose his own forces 
to danger in order to limit civilian casualties or damage to civilian objects? 

50. The answers to these questions are not simple. It may be necessary to resolve 
them on a case by case basis, and the answers may differ depending on the 
background and values of the decision maker. It is unlikely that a human rights 
lawyer and an experienced combat commander would assign the same relative 
values to military advantage and to injury to noncombatants. Further, it is 
unlikely that military commanders with different doctrinal backgrounds and 
differing degrees of combat experience or national military histories would 
always agree in close cases. It is suggested that the determination of relative 
values must be that of the "reasonable military commander." Although there 
will be room for argument in close cases, there will be many cases where 
reasonable military commanders will agree that the injury to noncombatants or 
the damage to civilian objects was clearly disproportionate to the military 
advantage gained. 

51. Much of the material submitted to the OTP [Office of the Prosecutor] 
consisted of reports that civilians had been killed, often inviting the conclusion 
to be drawn that crimes had therefore been committed. Collateral casualties to 
civilians and collateral damage to civilian objects can occur for a variety of 
reasons. Despite an obligation to avoid locating military objectives within or 
near densely populated areas, to remove civilians from the vicinity of military 
objectives, and to protect their civilians from the dangers of military operations, 
very little prevention may be feasible in many cases. Today's technological 
society has given rise to many dual-use facilities and resources. City planners 
rarely pay heed to the possibility of future warfare. Military objectives are often 
located in densely populated areas and fighting occasionally occurs in such 
areas. Civilians present within or near military objectives must, however, be 
taken into account in the proportionality equation even if a party to the conflict 
has failed to exercise its obligation to remove them. 

52. In the Kupreskic Judgement (Case No: IT-9546-T 14 Jan 2000) the Trial 
Chamber addressed the issue of proportionality as follows: 

"526. As an example of the way in which the Martens clause may be 
utilized, regard might be had to considerations such as the cumulative 
effect of attacks on military objectives causing incidental damage to 
civilians. In other words, it may happen that single attacks on military 
objectives causing incidental damage to civilians, although they may 
raise doubts as to their lawfulness, nevertheless do not appear on their 
face to fall foul per se of the loose prescriptions of Articles 57 and 58 (or of 
the corresponding customary rules). However, in case of repeated 

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John F. Murphy 



attacks, all or most of them falling within the grey area between 
indisputable legality and unlawfulness, it might be warranted to conclude 
that the cumulative effect of such acts entails that they may not be in 
keeping with international law. Indeed, this pattern of military conduct 
may turn out to jeopardize excessively the lives and assets of civilians, 
contrary to demands of humanity." 

This formation in Kupreskic can be regarded as a progressive statement of the 
applicable law with regard to the obligation to protect civilians. Its practical 
import, however, is somewhat ambiguous and its application far from clear. It is 
the committee's view that where individual (and legitimate) attacks on military 
objectives are concerned, the mere cumulation of such instances, all of which are 
deemed to have been lawful, cannot ipso facto be said to amount to a crime. The 
committee understands the above formulation, instead, to refer to an overall 
assessment of the totality of civilian victims as against the goals of the military 
campaign. 90 

One may assume that the Committee's acknowledgment of the ambiguous 
and controversial nature of the principle of proportionality contributed to its 
conclusion that NATO had not conducted "a campaign aimed at causing sub- 
stantial civilian casualties either directly or indirectly." 

For its part, the Independent International Commission on Kosovo ac- 
cepted "the view of the Final Report of the ICTY that there is no basis in avail- 
able evidence for charging specific individuals with criminal violations of the 
laws of war during the NATO campaign." It did add, however, rather crypti- 
cally, that "some practices do seem vulnerable to the allegation that violations 
might have occurred, and depend for final assessment upon the availability of 
further evidence." 91 

Pending the presentation of further evidence, one may safely conclude that 
the injury and damage to civilians caused by the NATO bombing campaign 
were not excessive but rather proportionate to the military advantage gained. 
Hence the bombing did not violate the law of armed conflict merely because it 
resulted in collateral damage. 

B. Ethical Implications 

There remains the issue of the ethical implications of the high-altitude bomb- 
ing and the avoidance of a ground campaign. According to the Independent 



90. Id., MI 48-52. 

91. The Independent International Commission on Kosovo, supra note 86, at 184. 



253 



Legal and Ethical Dimensions of Collateral Damage 

International Commission on Kosovo, although the high-altitude bombing 
lacked legal significance, "it does weaken the claim of humanitarianism to the ex- 
tent it appears to value the lives of the NATO combatants more than those of the 
civilian population in Kosovo and Serbia. . . ." 92 If, however, Charles Dunlap's 
claim that the high-altitude bombing was more protective of civilians than lower 
level bombing would have been is correct, the suggestion of the Commission is 
clearly invalid. Moreover, even if he is incorrect and the high-altitude bombing 
and the avoidance of a ground war resulted in a higher number of civilian casual- 
ties than would have been the case if low level bombing and a ground campaign 
had been launched, it does not necessarily follow that such a decision violated 
ethical or moral precepts. As Dunlap points out, "Americans do not instinctively 
draw a distinction that finds its soldiers' lives less precious than those of the citi- 
zens of an enemy state. This is traceable to the American concept of who com- 
poses its military: citizens with just as much right to life as enemy citizens." 93 
Reasonable persons may disagree with Dunlap's reasoning and the values it 
reflects. But at a minimum the ethical and moral case against NATO's 
high- altitude bombing and avoidance of a ground campaign on the ground that 
they caused excessive collateral damage is debatable. 

A Few Concluding Thoughts 

Regardless of whether they have an international law obligation to do so, it 
is likely that the United States, other NATO members, and developed States 
in general will make greater and greater use of precision-guided munitions in 
future conflicts because as the technology develops — in Michael Schmitt's 
words, "the weapons of future wars will be more than smart — they will be 'bril- 
liant'" 94 — the "happy congruence" between the needs of military efficiency 
and the avoidance of unnecessary injury to civilian persons or property will in- 
creasingly be present. At the same time, however, as also noted by Schmitt, 
the protections the law of armed conflict affords to civilian persons and prop- 
erty are likely to be less and less effective in practice. This is because the tech- 
nologically weaker States, as well as terrorists or other non-governmental 
actors, may increasingly conclude that they must attack the civilian 



92. Id. at 181. 

93. Dunlap, supra note 80, at 100. 

94. Schmitt, supra note 59, at 164. 



254 



John F. Murphy 



population of the enemy State to offset the latter's great advantage in fire- 
power. As Schmitt puts it, 

[I]n many cases, their only hope is not to prevail in combat, but rather to raise 
the costs for their opponents to an unacceptable level. The fewer targets the 
States with lesser technology are permitted to strike, the less opportunity they 
will have to impose costs on their advantaged opponents. By the same token, 
the more limits placed upon their opponents, the greater the advantage to these 
States. 95 

This "normative relativism," Schmitt suggests, bodes ill for the principle of dis- 
crimination in the future. 96 

To this observer, it is ironic that so much attention has been devoted to the 
issue of whether NATO complied with the jus in hello in its Kosovo campaign. 
For when one looks at practices in other armed conflicts around the 
world — Chechnya, Afghanistan, the Sudan, the Congo, and Sierra Leone, to 
name just a few — one sees not only no effort to comply with the jus in hello but 
barbaric practices that flout even the most elementary dictates of humanity. 
Accordingly, the most strenuous efforts should be made to induce States and 
other combatants to adhere to at least the ethical and moral dimensions of in- 
ternational humanitarian law, regardless of the presence or absence of a for- 
mal legal obligation to do so. Steps that might be taken to this end are beyond 
the scope of this paper. 97 



95. Id. at 171. 

96. Id. at 172. 

97. For discussion of some steps that might be taken, see my chapter on Kosovo Agonistes, supra 
note 2. 

255 



International Humanitarian Law After 
Kosovo: Is Lex Lata Sufficient? 



T 



Ove Bring 



his presentation will build on the earlier discussion of relevant interna- 
tional humanitarian law principles as they relate to what happened in 
Kosovo. My approach will be a functional one: did the generally recognized 
combat rules of international humanitarian law function during the conflict? 
Were they complied with? Did they prove to be adequate for the Kosovo inter- 
vention type of armed conflict? Is there a need for a de lege ferenda discussion 
on rules protecting the civilian population in interventionist types of conflicts? 
These are the issues I would like to address. 

The Additional Protocol I of 1977 1 has codified three somewhat overlap- 
ping principles of customary law in the field of targeting and the protection of 
civilians: the principle of distinction, the principle of proportionality and the 
principle of feasible precautions. The principle of distinction is closely linked 
to the definition of military objectives. In fact, the principle would be mean- 
ingless if it were not substantiated by a set of norms clearly indicating where 
the line should be drawn between protected civilian lives and objects on the 
one hand, and legitimate military objectives on the other. This issue should be 
addressed first since much of the criticism directed against NATO's methods 
of warfare in Kosovo was based on the perception that many of the attacks 



1. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, 
DOCUMENTS ON THE LAWS OF WAR 422 (A. Roberts and R. Guelff eds., 3d. ed. 2000) 
[hereinafter Protocol I]. 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

were directed against people, houses and materiel that were protected under 
international humanitarian law. 

Another focal point of criticism, both during and after the conflict, was the 
extent of damage caused incidentally by attacks against military objec- 
tives — the issue of collateral damage. This issue, as an element of the over- 
arching principles of proportionality and feasible precautions, will be discussed 
later in this paper. 

Distinction 

The principle that a distinction shall always be made in military operations 
between protected and non-protected values is found in Article 48 of Protocol 
I. It includes the following language: "In order to ensure respect for and pro- 
tection of the civilian population and civilian objects, the Parties to the con- 
flict shall at all times distinguish . . . and accordingly shall direct their 
operations only against military objectives." During the Kosovo air campaign, 
NATO complied with this principle in the sense that it attempted to attack 
only objectives that it perceived to be of a military nature. In other words, 
NATO tried to distinguish. 

Basically, a violation of the principle of distinction implies action mala fide, 
an intentional disregard for civilian values (e.g., attacks of terror against civil- 
ians) or a reckless disregard for such values (e.g., attacks of a nature to strike 
military objectives and civilians without distinction). The latter aspect — the 
prohibition against indiscriminate attacks — is covered by Article 5 1 (4) of Pro- 
tocol I. This prohibition flows from the principle of distinction and could in- 
clude both intentional violations and reckless behavior. The Gulf War offers 
some examples on mala fide behavior in this respect. Saddam Hussein was not 
sensitive to the prohibition of Article 51(4), outlawing, inter alia, attacks 
"which employ a method or means of combat which cannot be directed at a 
specific military objective." Iraq fired SCUD missiles into Saudi Arabian and 
Israeli territory, well knowing that these missiles could hit military targets only 
through sheer luck. Clearly, NATO did not act in this way during the Kosovo 
conflict. Nevertheless, the media reporting that came out of Belgrade gave the 
impression that NATO was not in compliance with the prohibition against in- 
discriminate attacks. The alleged compliance or collateral damage problems 
that were at issue were not linked to the principle of distinction as such, but 
rather to the definition of military objectives. 



258 



Ove Bring 

Definition of Military Objectives 

As has been stated already, the definition of military objectives is a corol- 
lary to the principle of distinction. Article 52(2) of Protocol I states that: 

Attacks shall be limited strictly to military objectives. In so far as objects are 
concerned, 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 neutralization, in the 
circumstances ruling at the time, offers a definite military advantage. 1 

Thus, the requirements of "effective contribution" and "definite military ad- 
vantage" are of crucial importance. As the ICRC Commentary to Protocol I 
points out: "Whenever these two elements are simultaneously present, there is 
a military objective in the sense of the Protocol." 3 Together the two elements 
seem to produce quite a strict rule. However, the current interpretation of the 
rule is not so strict. It includes the right to attack objectives that have a potential 
of being militarily useful at some point in the future. This does not explicitly 
follow from the text, although the ICRC Commentary has indicated that the 
phrase "objects which by their nature, location, purpose or use" should be given 
the following interpretation: "The criterion of purpose is concerned with the in- 
tended future use of an object, while that of use is concerned with its present 
function." 4 This may be true, but even so the quoted phrase is subordinate to 
the proviso that the objects so defined shall "make" (in the present tense) "an 
effective contribution to military action," and it is further required that their 
destruction "offers" (in the present tense) "a definite military advantage." The 
Protocol's definition of military objectives has often been perceived as a codifi- 
cation of traditional customary law applied during World War II and earlier. 
This perception is probably correct, but it brings with it this flexible and fu- 
ture-oriented interpretation of legitimate military targets that does not explic- 
itly follow from the text of Article 52(2). 



2. Emphasis added. 

3. Commentary on the Additional Protocols of 8 June 1977 to the Geneva 

Conventions of 12 August 1949, at 635 (Y. Sandoz, C. Swinarski and B. Zimmerman eds., 1987) 
[hereinafter ICRC COMMENTARY]. 

4. Id. at 636, H 2022. See also Anthony Rogers who accepts the ICRC view that "purpose" means 
future intended use of an object. He adds, however, "[i]t is hard to think of an example or a case 
where 'purpose' will be the deciding factor, especially given the limitation of 'in the 
circumstances ruling at the time'." A.P.V. ROGERS, LAW ON THE BATTLEFIELD 35-36 (1996). 

259 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

The future-oriented approach was clearly manifested during the Kosovo 
crisis. At a NATO press conference on March 26, 1999, it was said that the 
armed attacks were directed against the adversary's "ability to coordinate his 
military forces in the field, his ability to attack innocent civilians" and "his abil- 
ity to command and control his military forces." 5 This liberal view on what 
constitutes legitimate military objectives was as typical for the NATO air 
campaign as it was typical for World War II. In Kosovo it tended to include a 
large number of dual-use targets, i.e., objects which besides their ordinary ci- 
vilian use had a military potential. A few of these targets were controversial as 
to their military potential and it was sometimes argued that they were not to 
be considered as legitimate military objectives. 

The requirements of "effective contribution" and "definite military advan- 
tage" have to be met no less with regard to attacks against dual-use or 
dual-purpose objects. Typical dual-use objects are transportation systems like 
roads, bridges and railway lines, oil and other power installations, and commu- 
nication installations like radio, television, telephone and telegraph stations. 
Although it is clear that broadcasting facilities could have a military function, 
NATO's bombing on April 23, 1999 of the Serb Radio and Television Station 
(RTS) in Belgrade seems difficult to justify under the circumstances ruling at 
the time. The Serb media was hardly — to quote from the Report to the ICTY 
Prosecutor — "the nerve system that keeps a war-monger in power and thus 
perpetuates the war effort" nor was it "used to incite crimes, as in Rwanda." 6 
Any or both of these things could of course have materialized later, but at the 
time of the attack on April 23, when 10-17 civilians were killed, the military 
nature of the RTS was in some doubt. At a press conference on April 27, 
NATO officials justified the attack with the need to disrupt and degrade the 
Yugoslav command, control and communications (C3) network The argu- 
mentation was partly of a general nature: "everything is wired in through dual 
use. Most of the commercial system serves the military and the military system 
can be put to use for the commercial system." 7 It was not clear, in concrete 



5. Emphasis added. See www.nato.int/kosovo/press/p990326a.htm. 

6. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 
Campaign against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL MATERIALS, 
11 55 (2000), reprinted herein as Appendix A [hereinafter Report to the Prosecutor]. C/. also the 
comment by William Fenrick that it is "highly debatable that the media in the FRY, which was 
state -controlled to a degree, constituted a legitimate military objective even if it was re-labeled as 
a propaganda source. To be a military objective, it must be more than a symbol of the regime." 
William Fenrick, Targeting and Proportionality during the NATO Bombing Campaign against 
Yugoslavia, 12 EUROPEAN JOURNAL OF INTERNATIONAL LAW 497 (2001). 

7. Report to the Prosecutor, Appendix A, 11 72. 

260 



Ove Bring 

terms, the degree to which the attack against the RTS was militarily useful. 
The ICRC Commentary states with regard to Article 52(2) of Protocol I that 
the destruction in question: 

[MJust offer a definite military advantage in the circumstances ruling at the time. 
In other words, it is not legitimate to launch an attack that only offers potential 
or indeterminate advantages. Those ordering or executing the attack must have 
sufficient information available to take this requirement into account; in case of 
doubt, the safety of the civilian population, which is the aim of the Protocol, 
must be taken into consideration. 8 

Another dual- use discussion during and after the Kosovo bombings focused 
on whether or not different bridges in Serbia that were attacked by missiles re- 
ally made an effective contribution to military action. NATO spokesmen 
have said that bridges and roads were used to send military forces into Kosovo 
and that those put on the target lists had been thoroughly screened and found 
militarily useful. Some bridges may have been selected because they were con- 
duits for communication cables. 9 Nevertheless, in order for the attacks to be 
lawful the objects in question had to make — in each instance — an "effective 
contribution to military action." Was this really the case in Kosovo? Human 
Rights Watch reported in February 2000 that seven of the bridges that were 
attacked had no military functions at the time and could not be classified as 
military targets. 10 

With regard to dual-purpose objects, Article 52(3) of Protocol I adds the 
following to the definition of military objectives: "In case of doubt whether an 
object which is normally dedicated to civilian purposes ... is being used to 
make an effective contribution to military action, it shall be presumed not to 
be so used." In other words, in case of doubt there is a presumption of civilian 
status. It is more than doubtful whether NATO always complied with this rule 
of doubt or principle of presumption. On the other hand, it is also doubtful 
whether this rule of doubt has the status of customary law and thus is binding 
for non-parties to the Protocol. 



8. ICRC Commentary, supra note 3, at 636. 

9. Human Rights Watch, Civilian Deaths in The NATO Air Campaign 10-11 (2000), 

available at http://www.hrw.org/reports/2000/nato/. 

10. Id. at 1. 

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International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

Proportionality and Collateral Damage 

A general impression conveyed by the media during the Kosovo crisis was 
that there was a lot of collateral damage. Amnesty International's report on 
Kosovo of June 2000 is titled "Collateral Damage or Unlawful Killings? Viola- 
tions of the Laws of War by NATO during Operation Allied Force." Amnesty 
International believed that in the course of the operation "civilian deaths 
could have been significantly reduced if NATO forces had fully adhered to 
the laws of war." 11 Some collateral damage — even extensive damage in cer- 
tain case — is permitted under the principle of proportionality, but the propor- 
tionality issue was not discussed as such in relation to the media coverage at 
the time. The impression of unnecessary civilian losses during the spring of 
1999 has to be tested against the frequent (but occasionally politically biased) 
accusations that NATO was not acting in compliance with basic international 
humanitarian law principles. 

The principle of proportionality flows from the prohibition against indis- 
criminate attacks. In fact, in Protocol I it is presented as a part of that prohibi- 
tion. Article 5 1 (5) (b) prohibits "an attack 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." Although the term "proportional- 
ity" is not used, the text clearly conveys a proportionality message. The princi- 
ple expressed here is arguably a codification of traditional customary law. In 
this context the concept of "collateral damage" is always referred to, although 
that terminology is not used either in the Protocol. The language of Article 5 1 
focuses on what may be called "incidental damage," a certain amount of which 
is legally accepted as it is unintended and perhaps unavoidable in the circum- 
stances at the time. 

Another way of describing the principle of proportionality is to start with a 
presumption that the attacker is complying with the principle of distinction. 
In fact, the principle of proportionality rests on that presumption. So, even 
when military planners make sure that an attack is directed against a military 
objective, the commanders must avoid an attack where the military advantage 
cannot outweigh the civilian damage that can be expected from the attack. In 



11. Amnesty International, NATO/Federal Republic of Yugoslavia, "Collateral 
Damage" or Unlawful Killings? Violations of the Laws of War by NATO during 

OPERATION ALLIED FORCE 29 (2000), available at http://www.amnesty.org/ 
ailib/intcam/kosovo/docs/natorep_all.doc. 

262 



Ove Bring 

other words, decision-makers should ensure that civilian casualties should not 
be disproportionate in relation to the military advantage anticipated. 

Although the principle of distinction was complied with during the NATO 
campaign over Kosovo, it is submitted that this was perhaps not always the 
case with regard to the principle of proportionality. In comparison, the propor- 
tionality requirements were not always complied with during the Gulf War, 
e.g., when coalition attacks deprived Iraqi hospitals of electricity and gener- 
ated adverse cumulative effects on civilians in those hospitals. Proportionality 
assessments are difficult to accomplish. To the extent things went wrong in 
Kosovo, these things may be easier to grasp and discuss under a heading of 
"the principle of feasible precautions," rather than under the principle of 
proportionality. 

Feasible Precautions 

The principle of feasible precautions requires that military commanders 
plan their attacks in such a way that constant care is taken to spare the civil- 
ian population, civilians and civilian objects. A summary of Article 57(2) of 
Protocol I has to focus on the following requirements that were all of special 
relevance during the Kosovo operation: 

Those who plan or decide upon an attack shall: 

(1) do everything feasible to verify that the objectives to be attacked are 
military objectives; 

(2) take all feasible precautions in the choice of means and methods of attack 
with a view to avoiding, and in any event minimizing, incidental loss of 
civilian life; 

(3 refrain from deciding to launch an attack that may be expected to cause 
such incidental loss, which would be excessive in relation to the concrete 
and direct military advantage anticipated; 

(4) suspend an attack if it becomes apparent that it may be expected to cause 
incidental loss of civilian life, damage to civilian objects, or a combination 
thereof, "which would be excessive in relation to the concrete and direct 
military advantage anticipated;" and 

(5) in addition, "effective advance warning shall be given of attacks which may 
affect the civilian population, unless circumstances do not permit." 



263 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

Since there were a number of mistakes in targeting in Kosovo, the principle 
of feasible precautions seems to be the one most clearly deviated from during 
the air campaign. The mistakes included the two air strikes hitting a train on 
the Grdelica bridge in southern Serbia on April 12; an attack on vehicles in a 
convoy of refugees near Djakovica in Kosovo on April 14; an attack south of 
Belgrade on April 28 hitting a residential area instead of army barracks; an at- 
tack against the Lusana Bridge north of Pristina on May 1 hitting a civilian 
bus; a cluster bomb attack against the Nis airfield on May 7 hitting a market 
place and a hospital; and the attack on the Chinese Embassy in Belgrade on 
May 8. In the case of the Embassy, NATO used inaccurate intelligence infor- 
mation and believed that it was attacking the Federal Directorate of Supply 
and Procurement for the Yugoslav Army. Further cases where there may have 
been a lack of necessary precautions are the bombing of the village of Korisa in 
Kosovo on May 13, the attack on the Varvarin bridge in Serbia on May 30, 
and the attack against military barracks in Surdulica on May 30 in which a 
hospital was struck. In all these attacks there were civilian casualties. 12 

When evaluating these and other mistakes in targeting, however, they 
must be related not only to the number of civilian casualties, but also to the 
total number of air strikes, and to the military efficiency of these strikes. In 
that regard, between March 24 and June 9, 1999, 10,484 strike sorties were 
flown by NATO aircraft and 23,614 munitions were released. No NATO ca- 
sualties were reported arising out of these strikes. The damage caused to the 
Yugoslav forces in Kosovo alone was reported to include 181 tanks, 317 ar- 
mored personnel carriers, 600 military vehicles and 857 artillery and mortar 
pieces. 13 

When in February 2000 Human Rights Watch published its report "Civil- 
ian Deaths in the NATO Air Campaign," it became clear that about 500 civil- 
ian lives were lost as a consequence of the campaign, a much higher figure 
than NATO had previously admitted. By comparison, the numbers of civilian 
deaths given by the authorities in Belgrade varied between 1,200 and 5,000. 
Even the lower number of 500 civilian deaths raises questions of efficiency 
with regard to precautionary measures. It could also be argued that, even if 
500 civilian casualties is not a high figure for an international armed conflict 
lasting about three months, it is arguably too high a figure for a military opera- . 
tion with humanitarian motives; for an operation that many would classify as a 
"humanitarian intervention." 



12. See the case studies in id. at 33-74. 

13. NATO Press Conference held on 16 September 1999. 



264 



Ove Bring 

The Human Rights Watch report claimed that the casualties had occurred 
during 90 separate occasions, and that 50% of the victims died in circum- 
stances where the identification of targets as military was questionable. Con- 
troversial cases included the attacks on the New Belgrade heating plant and 
the Serb TV and Radio Station (RTS) in Belgrade. With regard to the latter, 
it has already been indicated that no assessments seem to have been made to 
clarify to what extent the RTS dual- use facility actually was contributing to 
the Yugoslav military effort. An indirect early warning of the attack seems to 
have been communicated to the authorities in Belgrade, but since the attack 
did not occur shortly thereafter, the warning was not effective. Civilian em- 
ployees working the night shift, who had emptied the building at an earlier 
point in time, had during the night of the attack returned to the building. 14 In 
this case, it seems far from clear that NATO, in accordance with Article 
57(2) (c), communicated an "effective advance warning." 

The RTS case signifies a mix of intentional damage (the building) and col- 
lateral damage (the 10 or more civilian casualties). Like in some of the other 
cases that resulted in civilian casualties, it is not clear whether there was com- 
pliance with the precautions in attack required by Article 57. There seem to 
be enough dubious cases to warrant a conclusion that violations of interna- 
tional humanitarian law precautionary standards did in fact take place. 

The Moral Dimension: "Ready to Kill But Not to Die" 

In London, the Foreign Secretary admitted during the Kosovo conflict that 
only a small number of the aircraft available to NATO had a precision-bomb- 
ing capability. In Kosovo, as in the Gulf War, events have shown that even 
with smart bombs and missiles, air attacks do result in unplanned damage and 
loss of civilian life. High-tech developments increase the possibilities for suc- 
cessful target discrimination and better protection of the civilian population, 



14. According to the committee which prepared the Report to the Prosecutor, 

[I] t would . . . appear that some Yugoslav officials may have expected that the building 
was about to be struck. . . . Although knowledge on the part of Yugoslav officials of the 
impending attack would not divest NATO of its obligation to forewarn civilians under 
Article 57(2), it may nevertheless imply that the Yugoslav authorities may be partially 
responsible for the civilian casualties resulting from the attack and may suggest that the 
advance notice given by NATO may have in fact been sufficient under the 
circumstances. 

Report to the Prosecutor, Appendix A, H 77. The latter part of this statement seems far from 
uncontroversial. 

265 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

but individual civilians will never know whether this phenomenon will in fact 
protect them. 

In Kosovo, the risk of unwanted damage increased due to the minimum al- 
titude of 15,000 feet at which NATO aircraft operated most of the time. It has 
been argued that by setting this 15,000 feet level NATO politicians managed 
to avoid aircrew casualties, but in so doing, were transferring the risks to the 
civilian population. However, the British Ministry of Defence has stated that 
some aircraft "operated down to 6,000 feet when target identification or a 
weapons delivery profile required it." 15 Nevertheless, "the no-body-bags pol- 
icy" posed and poses a moral dilemma. It implies that the lives of your own pilots 
are worth more than the lives of the innocent civilians on the ground, since 
the acceptance of some collateral damage relates to the "others", while the 
aim of "zero-casualty warfare" only relates to "yourself." The discrepancy is 
troublesome and indicates that future humanitarian interventions or 
peace-enforcement actions should rely also on low flying aircraft to make pos- 
sible genuine target identification — and arguably also ground troops — if that 
is necessary in order to protect the civilian population. One expert on the law 
of the battlefield has written that in taking care to protect civilians, "soldiers 
must accept some element of risk to themselves." 16 He notes that the law is 
unclear as to what degree of care is required of a soldier and what degree of 
risk he must take — "Everything depends on the target, the urgency of the mo- 
ment, the available technology and so on." 17 

In the autumn 1999 issue of the Canadian International Journal Mr. Paul 
Robinson of Toronto wrote an article with a sensational heading: "Ready to 
kill but not to die." 18 The author was of course referring to the NATO strategy 
in Kosovo. Robinson made the point that in high-tech, standoff warfare there 
is no chivalry, no military honor. In Kosovo NATO pilots did not see the peo- 
ple they were fighting. This type of warfare, it was argued, is problematical not 
only from a humanitarian but also from a security point of view. Its clinical 
character results in a temptation to resort to military force in international 
crises. It lowers the threshold for military force as such. Although this conclu- 
sion does not seem to be empirically sound, the broader argument raises the 
question whether existing international humanitarian law is appropriate for 



15. Lord Robertson, Kosovo: An Account of the Crisis (1999). 

16. A.P.U. Rogers, Zero-casualty warfare, 82 INTERNATIONAL REVIEW OF THE RED CROSS 165, 
177 (2000). 

17. Id. 

18. Paul Robinson, 'Ready to kill but not to die: NATO strategy in Kosovo, 54 INTERNATIONAL 

Journal 671 (1999). 

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Ove Bring 

dealing with high-tech warfare. An increased use of standoff weapons is not to 
the advantage of civilians. The solution is not a prohibition of such weapons, 
but rather a reconsideration of the parameters for modern warfare as it affects 
civilians. 

Did Protocol I Mean Anything in Kosovo? 

International humanitarian law as it related to the Kosovo crisis was dis- 
cussed in the March 2000 issue of the International Review of the Red Cross. 
A perspective de lege ferenda was put forward in an article by Peter Rowe, Pro- 
fessor of Law at the University of Lancaster. Rowe first put the question of 
whether in fact the constraints of modern IHL influenced NATO behavior 
during the conflict. The subtitle of his article is: "Have the provisions of Addi- 
tional Protocol I withstood the test?" 19 Rowe's position is that Protocol I did 
not add anything to the protection of the civilian population beyond the cus- 
tomary law protection that was already applicable before 1977. He concludes 
that the Protocol had little impact or influence upon the decisions of the air 
campaign — that "all the detailed rules so carefully drafted in 1977 were of lit- 
tle consequence." 20 In his view, the objects that military commanders for mili- 
tary reasons wished to attack were attacked. There was nothing more to it. 

If this argumentation is intended to imply that modern international law 
played no part in the crisis, it should be refuted. International humanitarian 
law clearly influenced decision-makers in Kosovo. Moreover, Additional Pro- 
tocol I contributed to the role that law played in decision-making. During the 
conflict, as during the Gulf War, legal advice was sought and considered. In 
both cases it was extremely important, for political and public image reasons, 
to be seen as acting in conformity with international law. The opposite would 
imply a political cost and setback that had to be avoided at a time when politi- 
cal support was essential. During the Gulf War General Schwarzkopf was ada- 
mant that "we didn't want any war crimes on our hands." 21 The same feeling 
obviously dominated NATO thinking in the spring of 1999. Protocol I, al- 
though it has not been ratified by all NATO States (not by the United States, 
France and Turkey at the time; France is now a party), has contributed much 
to the awareness of IHL standards in military and political circles. The United 



19. Peter Rowe, Kosovo 1999: The air campaign, 82 INTERNATIONAL REVIEW OF THE RED 

Cross 147 (2000). 

20. Id. at 159. 

21. Norman Schwarzkopf, It Doesn't Take a Hero 465 (1992). 

267 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

States position is that many of the rules of Protocol I are applicable as custom- 
ary law. Moreover, the non-governmental organizations and informed public 
opinion are very much aware of the IHL standards. They continuously moni- 
tor relevant situations — and the politicians know it. Thus, it was in the 
self-interest of NATO to involve its legal advisers in the planning and target- 
ing process. 

The US military lawyer James Burger has written in the same March issue 
of the International Review of the Red Cross the following: "While there may 
be disagreement over the application of the rules by commentators who write 
about it after the event, there can be no doubt that full consideration was 
given, as required by the laws of armed conflict, to the advice of legal counsel 
and the application of the rules." 22 We can probably safely conclude that in 
Kosovo there was a greater respect for humanitarian normative restraints than 
would have been the case had the adoption of Protocol I never taken place. 

The Weakness of Protocol I and the Need for Reform 

The Protocol only offers weak protection for civilians. Here one could eas- 
ily agree with Peter Rowe, when he argues that the Protocol, when it comes to 
the test, is very weak in determining what may and what may not be attacked. 
"It is when civilians are most likely to be placed in danger that Protocol I, de- 
signed to protect them, shows its faults." 23 One reason for this is that the Pro- 
tocol sets the dividing line between legal and illegal attacks on the basis of 
military expectations before the attack is commenced. As Rowe states: "At 
this stage of military operations those planning the attack are at their most op- 
timistic and civilians are at most risk." 24 This criticism mainly relates to the 
principle of proportionality and the acceptance of collateral damage. An even 
more important flaw with the Protocol, in this writer's view, is the wide inter- 
pretations of legitimate military objectives that the Protocol harbors. This in- 
terpretation flows only indirectly from the text of Article 52, but rather 
through a perception that the Protocol has codified a liberal customary law re- 
gime. The effect is an increased risk of extensive collateral damage. 

With regard to Kosovo it has already been indicated that collateral damage 
was a serious problem, but that the problem was not so much related to 



22. James Burger, International humanitarian law and the Kosovo crisis: Lessons learned or to be 
learned, 82 INTERNATIONAL REVIEW OF THE RED CROSS 129 (2000). 

23. Rowe, supra note 19, at 160. 

24. Id. 

268 



Ove Brinj 

violations of IHL standards as it was to the flexible interpretation of the defini- 
tion of military objectives. Should a reform of IHL be considered to address 
these matters, one point of departure would be that Additional Protocol I 
should stand as it is. A revision of the Protocol is neither realistic nor neces- 
sary. There is another way to approach the problem. 

Suggestions De Lege Ferenda 

Rowe suggests a new additional protocol to the 1980 Conventional 
Weapons Convention. Such an additional protocol would be adapted to the 
use of air-delivered "smart" weapons and it would introduce the same restric- 
tions on such weapons as now exist with regard to air-delivered incendiary 
weapons. The relevant formulation would then read as follows: 

It is prohibited to make any military objective located within a concentration of 
civilians the object of attack, except when such military objective is clearly 
separated from the concentration of civilians, and all feasible precautions are 
taken with a view to limiting the effects of the attack to the military objective 
and to avoiding, and in any event to minimizing, incidental loss of civilian life, 
injury to civilians and damage to civilian objects. 25 

The suggested text almost copies the 1980 restrictions on incendiaries. 26 It 
would be a lex specialis for mainly air warfare, overriding the balancing act of 
the principle of proportionality, a principle that has its main application in air 
warfare. According to such a lex specialis — and rethinking air warfare in his- 
tory — no buildings in Berlin, Baghdad or Belgrade could be attacked. It is dif- 
ficult to believe that States would be willing to accept an erosion of the 
principle of proportionality and give up their military freedom of assessing mil- 
itary advantage against civilian damage. Protocol I has established a sort of 
balance between military necessity and proportionality and also between pro- 
portionality and feasible precautions. It does not seem realistic to expect that 
States would be willing to renounce the advantages of that approach. 

Another problem with the text suggested by Rowe is that it is envisaged as a 
protocol additional to the 1980 Weapons Convention, although the text only 



25. Id. at 162. 

26. Cf. Article 2(3), Protocol III on Prohibitions or Restrictions on the Use of Incendiary 
Weapons, annexed to the Convention on Prohibition or Restriction on the Use of Certain 
Conventional Weapons Which May Be Deemed to be Excessively Injurious or to Have 
Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 137, DOCUMENTS ON THE LAWS OF 
WAR, supra note 1, at 533. 

269 



International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

covers methods and not means of warfare. It does not (like the other Protocols 
attached to the Weapons Convention) refer to a specific weapon category, al- 
though it may indirectly focus on air-delivered "smart" weapons. 

On the other hand, one could imagine another solution. The Independent 
International Commission on Kosovo has suggested the drafting of an addi- 
tional protocol III to the Geneva Conventions. 27 Such a protocol would not 
detract from or compete with Protocol I, because the new protocol would 
have another scope of application. It would be limited to conflicts of an inter- 
ventionist nature where the intervening side is a coalition enforcing a man- 
date against a militarily inferior party to the conflict. The coalition would not 
be fighting for its national security, vital interests or political survival, but for 
the purpose of limited crisis management. The new protocol would be limited 
to peace-enforcement operations conducted on behalf of the international 
community, or other interventions within the framework of regional crisis 
management, whether they are labeled humanitarian or not. It is important to 
state that such a new protocol would not address the jus ad bellum legality of 
humanitarian or other interventions (it would not introduce a "Just War" 
doctrine) ; it would stick to the traditional IHL method of describing a scope of 
application based on factual circumstances. In this case the scope of applica- 
tion would be linked to the limited nature of the international armed conflict. 
Should the State under attack plead self-defense and respond with coun- 
ter-attacks, thus escalating the level of armed conflict, the limited scope of ap- 
plication of the new protocol would no longer describe the situation 
accurately and Protocol I would become applicable. In line with this thinking 
Michael Hoffman, the American Red Cross Officer for International Humani- 
tarian Law, has suggested that we may witness emerging rules for 
"interventional armed conflict," for example in peace enforcement opera- 
tions, whether authorized by the UN Security Council or conducted otherwise 
by regional organizations. 28 

The UK Secretary of State for Defence said about the Kosovo air campaign 
on March 25, 1999 that "This is not a war, it is an operation designed to 
prevent what everybody recognizes is about to be a humanitarian catastrophe: 
ethnic cleansing, savagery. . . . That is what we are in there to prevent, that 



27. The Independent International Commission on Kosovo, The Kosovo Report, 
5,31, 165-66(2000). 

28. Michael Hoffman, Peace-enforcement actions and humanitarian law. Emerging rules for 
"interventional armed conflict," 82 INTERNATIONAL REVIEW OF THE RED CROSS 193, 200-203 
(2000). 

270 



Ove Bring 

is not war, it is a humanitarian objective very clearly defined as such." 29 
Nevertheless, NATO relied on the traditional law of war developed for 
inter-State armed conflict during the air campaign, including the definition of 
military objectives and the rules on targeting, proportionality and collateral 
damage linked to that definition. The liberal definition of military objectives 
and the generous acceptance of collateral damage are part of a legal regime 
that envisages a full-scale war. The Geneva Conventions and Additional Pro- 
tocol I were drafted against the background of World War II and partly with a 
possible clash between NATO and the Warsaw Pact in mind. 

International humanitarian law is built upon a balance between acceptance 
of military interests on the one hand and humanitarian concerns on the other. 
NATO's "no-body-bag policy" showed that this balance was upset in the 
Kosovo conflict's limited type of war. NATO could use the liberal definition 
of military objectives — thus benefiting from the rules favorable to the military 
interest — while at the same time attacking from such altitudes that humani- 
tarian concerns could not be met. This problem could be addressed in a new 
protocol for interventional types of conflict, through a sharpening of the defi- 
nition of military objectives. One could require that only those objectives be 
attacked which are making an effective contribution to military action, or 
which imminently are about to make such a contribution. 30 A requirement of 
imminence should be added, somewhat along the lines of the famous Caroline 
case. This would protect a number of dual-use objects and increase the protec- 
tion of the civilian population. 

Such a sharpening of the definition of legitimate military objectives would 
have its consequences with regard to the implementation of the principles of 
proportionality and feasible precautions. A stricter application of these two 
principles will follow from a more strict definition of military objectives. A 
stricter application of the principle of proportionality would somewhat reduce 
the problem of collateral damage flowing from that principle. The concepts of 
proportionality and feasible precautions would not themselves need to be 
sharpened. They would stand as they are today — in all types of international 
armed conflict. However, in interventionist conflicts a better balance with re- 
gard to precautionary measures would result from the suggested change; i.e., 



29. Quoted in Hoffman, id. at 195. 

30. C/. the ICRC Commentary to Article 51 (5) (b) of Additional Protocol I that the military 
advantage "should be substantial and relatively close, and that advantages which are hardly 
perceptible and those which would only appear in the long term should be disregarded." ICRC 

Commentary, supra note 3, H 2209. 

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International Humanitarian Law After Kosovo: Is Lex Lata Sufficient? 

precautionary measures would, as intended by the drafters of Protocol I, genu- 
inely protect civilians on the ground, and not only the attackers flying high. 

Although the above suggestion is the main de lege ferenda thrust of this pa- 
per, it should be mentioned that a further additional protocol could be imag- 
ined — a protocol attached to the 1980 Weapons Convention that would 
explicitly prohibit the use of cluster bombs. This type of multiple sub-muni- 
tions affected the civilian population in Kosovo and Serbia on several occa- 
sions, often more so than the intended military targets. A protocol on multiple 
weapons was in fact debated, in the years 1977 - 1980, as a follow-up to Addi- 
tional Protocols I and II for inclusion in the 1980 Conventional Weapons 
Convention. But time was not ripe for it then, during the Cold War, and the 
situation does not seem to have changed that much today. Or has it? During 
the Kosovo air campaign, after alarming media reports about civilian casual- 
ties caused by cluster bombs, some decision-makers reconsidered things. The 
NATO attack targeted on the Nis airfield on May 7 went wrong. The cluster 
bomb container opened right away after release from the aircraft, instead of 
opening over the airfield. As a consequence it projected the sub-munitions 
into the city of Nis. Following the media coverage of this incident there was a 
decision by the White House to prohibit the further use of cluster bombs dur- 
ing the conflict. However, this was a unilateral US decision. The British com- 
mand in London did not follow suit and more cluster bombs were dropped on 
targets in Serbia and Kosovo in the spring of 1999. 

Whether States in the future may in fact be willing to forgo weapons of the 
cluster bomb type in interventionist types of conflicts is not clear. Further 
thinking on this issue of means of warfare could perhaps usefully be channeled 
into the kind of discussion I have tried to promote in this paper, a discussion 
on the possibilities of increased protections for civilians in conflicts of a lim- 
ited nature. 



272 



Commentary 



Yves Sandoz 



As I have been Director of International Law and Communication at 
the International Committee of the Red Cross (ICRC) , an institution 
which devotes much energy to promote the Geneva Conventions of 1949 and 
their Additional Protocols of 1977, for 16 years and as I am co-editor of the 
Commentary to those Protocols, you will not be surprised that I don't share the 
negative views expressed by John Murphy, echoing those of Hays Parks, on 
both the Additional Protocols and their Commentary, even if they are certainly 
far from being perfect. 

What can at least be said about the Additional Protocols of 1977 in a few 
words is that it is not possible simply to affirm that they are or that they are not 
part of international customary law. As stated in the title of the Diplomatic 
Conference of 1974-1977, which negotiated and adopted the Protocols, this 
Conference had the double ambition to reaffirm and to develop international 
humanitarian law (IHL) . That means that in part the Protocols reaffirm and 
clarify customary rules of IHL and in part they develop that law. For the first 
part their rules bind all States, for the second only the States parties to the 
Protocols are bound. But the borderline is not always easy to determine for 
two reasons. The first is that the Diplomatic Conference has not clearly de- 
clared what was reaffirmation and what was development. The second is that 
some rules which were considered as a development in 1977 may be consid- 
ered today as part of customary law. But being commentator I will now base 
my next points on the very good papers presented by John Murphy and Ove 
Bring and enter into discussion on the Protocols and their Commentary only 
on the occasion of remarks to those papers. 



Commentary 

Let me start with some words on international customary law. John Murphy 
has quoted an author who went as far as questioning even the existence of in* 
ternational customary law. I will not comment on this not very serious decla- 
ration, but I would have something to add on the description given by John 
Murphy on how to establish that there is customary law, with a particular fo- 
cus on the difficulty of establishing State practice. 

A reference to the notion of "specially affected States" by the ICJ in the 
North Sea Continental Shelf case would be, for example, an important addi- 
tional element to mention. I will not go further here and now on that ques- 
tion, but I wish to mention that lawyers from the ICRC are finalizing a broad 
study on the customary rules of IHL, done with the contribution of legal and 
governmental experts, and based on the work of working groups, from all re- 
gions of the world. This study will be published next year. Of course, the ques- 
tion to know how to establish the practice and the opinio juris of States is 
discussed in that study to determine the existence of customary rules and the 
criteria taken into account will be explained. That being said and without en- 
tering into the substance of this study, I would like to stress three points. First, 
the aim of the study is to determine if a rule can or cannot be considered as a 
customary rule, but not to give an in-depth interpretation of that rule. For 
that reason we cannot expect too much from this study for the clarification of 
the exact and practical meaning of existing rules, which is the central problem 
debated by this colloquium. Secondly, there will always remain a certain de- 
gree of uncertainty as to the customary nature of certain rules, and therefore 
customary law is not a substitute to the formal adoption by States of treaties 
aiming to be universally accepted, as those of IHL. Thirdly, the problem of the 
existence or not of a normative restriction is particularly delicate with the 
emergence of new weapons, due to the fact that there cannot be a largely es- 
tablished practice during a long period of time in those cases. I will come back 
to this last question later. 

My next remark will be on the principle of proportionality, to affirm my 
strong conviction that this principle does exist in jus ad bellum — a State which 
has to use force as a last resort does not have the right to do more than what is 
imposed by the situation — as in jus in hello — there is an obligation in military 
operations to keep a balance between the military advantages anticipated and 
the expected incidental civilian damages. It is even a central principle of those 
laws. I was therefore surprised to read in the paper of John Murphy that Hays 
Parks has reported that "the American military review of Protocol I concluded 
that the concept of proportionality is not a rule of customary international 
law." All that I read and even what we heard yesterday from James Baker 

274 



Yves Sandoz 

reinforce my conviction. James Baker reminded us that this principle was at 
the center of the discussions on legitimate targets during the Kosovo bomb- 
ings, as well for NATO members party to Additional Protocol I as for those, 
like the United States, that were not. Therefore I can conclude in quoting Bill 
Fenrick, the well-known Senior Legal Adviser of the Office of the Prosecutor 
of the International Criminal Court on Yugoslavia: "That the principle of pro- 
portionality exists is not seriously disputed." The problem we have to address 
is the interpretation of the principle, not its existence. 

Without entering in-depth into this issue, I would signal that another prob- 
lem is the confusion in some military operations between the political objec- 
tive and the military objectives stricto sensu. Such confusion took place in the 
NATO operations in Kosovo, where the political objective — to oblige 
Milosevic to accept conditions previously fixed — was not well distinguished 
from military objectives. In fact, the question was not to win the war, but to 
put enough pressure on Milosevic to cause him to end the conflict. Therefore 
traditional notions of military objective and military advantage were used in 
an ambiguous way. This question would need serious consideration for opera- 
tions of this nature. But I do not pretend to start a serious discussion here and 
now. It would require in-depth analysis of this and other concrete cases. 

My next remark is that I cannot agree with the affirmation that the balance 
between the obligations of the defenders and those of the attackers has been 
broken down in Additional Protocol I of 1977 to the detriment of the attack- 
ers. In reality, the obligations of the defenders are very clearly stated in Proto- 
col I, as we can read particularly in Article 51(7): 

The presence or movements of the civilian population or individuals civilians 
shall not be used to render certain points or areas immune from military 
operations, in particular in attempts to shield military objectives from attacks or 
to shield, favor or impede military operations. The Parties to the conflict shall 
not direct movement of the civilian population or individual civilians in order to 
attempt to shield military objectives from attacks or to shield military 
operations. 

Article 58 then goes on to provide: 

The Parties to the conflict shall, to the maximum extent feasible; (a) without 
prejudice to Article 49 of the Fourth Convention, endeavour to remove the 
civilian population, individual civilians and civilian objects under their control 
from the vicinity of military objectives; (b) avoid locating military objectives 
within or near densely populated areas; (c) take the other necessary precautions 

275 



____ Commentary 

to protect the civilian population, individual civilians and civilian objects under 
their control against the dangers resulting from military operations. 

Thus, as we can see, the Protocol is very clear in imposing on a Party to the 
conflict a requirement not to use civilians to protect its military objectives. 
Nevertheless, it is also true that it requires as well that the attackers take into 
consideration the situation as it is in reality. They can't just ignore the fact 
that civilians are used as "human shields." But this is common sense. Imagine 
your own citizens being used; you cannot pretend you just don't care. And it is 
also true if innocent civilians of one party, particularly children, are used for 
this purpose. This element has to be taken into account in the balance and the 
crime of your enemy does not give you the right to ignore the situation created 
by that crime. But the Protocol doesn't prohibit action; it requires that all of 
these elements be taken into account in the appreciation of the situation. I 
think, as was clearly explained yesterday, that this position was adopted with- 
out hesitation by those deciding on the NATO bombings in Kosovo. 

Where I am in total agreement with John Murphy is that a real and crucial 
problem of clarification remains for the definition of a military advantage, and 
ascertaining the level where a decision must be taken or the determination of 
responsibilities. These are undoubtedly delicate questions which can only be 
clarified through practical examples in order to establish a kind of jurispru- 
dence. We could certainly add some other questions to the list, as the one just 
mentioned by Ove Bring on the dual-use objects, which precisely has, in my 
opinion, a close link with the principle of proportionality — in fact the attack 
of a dual-use object can be considered as the attack of a military objective with 
collateral damages. 

Mentioning again the principle of proportionality I want to stress another 
element of this principle, the fact that it has to be observed at different levels. 
Some would confine this principle to the strategic level and I cannot agree 
with that opinion. There is no doubt, for example, that a soldier cannot blow 
up a school full of children under the pretext that an enemy solider has en- 
tered the school. Such a restriction is an application of the principle — the mil- 
itary advantage being overthrown in such a hypothesis by the expected 
collateral damages — even if the enemy soldier has himself committed a viola- 
tion of the law in taking children as a shield. 

That being said, I don't deny that the appreciation of those rules is complex, 
but we cannot totally avoid such complexity. War is complex; life is complex; 
and the complexity of a problem is not a good reason to refuse facing it. We 



276 



Yves Sandoz 

have to solve those questions because they are at the heart of the necessary 
limitations in war. 

On the other hand, I am the first to admit that the military must have pre- 
cise orders and that the trend to take more seriously the obligation to punish 
war crimes renders still more indispensable this clarity, even if I cannot share 
the criticisms of the ICRC lawyer's commentary, in particular on the meaning 
of military objectives. In reality, the recent German military manual goes ex- 
actly in the same direction, as well as the excellent commentary written by 
Michael Bothe, who is present with us, and by the late Karl Josef Partsch and 
Waldemar Solf, the latter playing, as you know, a very important role in the 
American delegation to the 1974-1977 Diplomatic Conference. That being 
said, I do agree that this Commentary does not give a precise reply to all those 
delicate questions. 

Therefore we have to go further and to find the best way to do it. And for 
that, I think it is worth reading what Bill Fenrick has written in a recent 
article: 

If the application of the law applicable to targeting and proportionality is to 
become more transparent and, one hopes, more humane, outsiders, including 
military experts and legal advisers not directly involved in particular conflicts, 
should learn from the military planning process. A vigorous informed discussion 
of targeting and proportionality issues based on case studies, both historical and 
hypothetical, can contribute substantially to clarification of how the law can 
and should be applied. 

Then Fenrick draws the conclusion that "[t]he law applicable to targeting 
and proportionality must be brought down to earth." I totally agree with this 
statement and I think that the Naval War College is precisely the type of place 
where the discussion suggested by Fenrick could take place. 

I will not really enter into the problem of high-altitude air bombings, as I 
have not the basic factual elements to do it seriously. But I think nevertheless 
that it is important to reaffirm at this occasion at least one basic principle on 
which a certain confusion emerged in the discussion on those bombings: one 
cannot affirm that the security of its own soldiers have an absolute priority 
over the protection of the civilian population. Both elements have to be put 
into the balance and taken into account. If the price to absolute security of 
one's own soldiers is heavy casualties among civilians, this price is too high. 

Allow me then a further comment on the issue of precision-guided ammu- 
nition. I agree with John Murphy that there is no obligation to use it exclu- 
sively. In fact there are many interdictions and restrictions on the use of 

277 



Commentary 

weapons in IHL, but no obligation to use a specific weapon. I don't think those 
weapons are an exception. But that does not mean the possession of these 
weapons is without legal consequence in certain circumstances. It may help, 
for example, to keep the military action in conformity with IHL, particularly 
in densely populated areas, in changing favorably the balance between the an- 
ticipated military advantages and the expected civilian collateral damages. 

Another question is the following: if you have the choice between weapons 
causing more or less collateral damages to obtain the same military advantage, 
have you an obligation to use the second? My reply is yes, and that even if the 
principle of proportionality would still be in a favorable balance with the use of 
weapons of the first type — i.e., that the anticipated military advantage would 
overcome the expected incidental civilian damages. This affirmation is based 
on another principle which has been reaffirmed in Protocol I and which is of- 
ten confused with the principle of proportionality, the principle of the least 
feasible damage, which is clearly stated at Article 57(2) (ii). This provision re- 
quires those who plan or decide upon an attack to "take all feasible precau- 
tions in the choice of means and methods of attack with a view to avoiding, 
and in any event to minimizing, incidental loss of civilian life, injury to civil- 
ians and damage to civilian objects." 

Let me now say a few words on the ethical dimension of the question. My 
opinion is that the problem has not been correctly posed. To have or not to 
have a weapon doesn't change the ethical basis of your action, even if it can 
change your behavior, because this one depends on one hand on your ethical 
values, which remain constant, but on the other hand on the means you have 
at your disposal, which vary. As an example I would take a medical doctor. If 
he practices here or in a region of Africa far from any well-equipped medical 
center, he will keep the same ethic. But his decision and responsibility will be 
different if he has the capacity to test blood before an emergency transfusion 
or if he hasn't, with the same objective to best serve the interest of his patient. 
It is exactly the same if you have or don't have certain weapons. 

Finally I would like to make some comments on the future. I heard with 
sympathy the suggestions made by Ove Bring. I agree with him that some spe- 
cific rules could be elaborated, or at least that an agreed interpretation of ex- 
isting rules should be discussed, about enforcement measures, where there 
remain some unsolved questions. That being said, I am not sure that the best 
way to do it would be to start the drafting of an additional protocol III to the 
Geneva Conventions. 

Just recently the Secretary-General of the UN promulgated in a bulletin 
the rules of IHL which must be applied by UN forces engaged in enforcement 

278 



Yves Sandoz _ 

operations. This was the result of fruitful informal discussions organized by the 
ICRC between senior UN officials, military experts, the ICRC and other legal 
experts. This informal and smooth way to deal with such problems could in- 
spire us for other necessary clarifications or developments. I am afraid that if 
we open formally the procedure to adopt a third additional protocol (or even a 
fourth as we know that there are ongoing discussions on the elaboration of a 
third additional protocol on the protective emblems) so many obstacles and 
oppositions will emerge that it would require very long and tremendous work 
for an end result which has a good chance to be very disappointing. My hesita- 
tion, therefore, is on the procedure, not on the necessity to clarify the points 
mentioned by Ove Bring. 

My second remark for the future is to insist again on the importance to dis- 
cuss further the practical meaning of some IHL provisions on the conduct of 
hostilities and to find the right place to do it. I insist again on the fact that a 
place like this prestigious Naval War College would be ideal for such 
discussions. 

Finally my last remark is the following. There are no doubts for me that the 
United States has to play a leading role in further discussions on IHL provi- 
sions, particularly those concerning the conduct of hostilities. It is the greatest 
military power, with many recent war experiences. But those discussions and 
this leading role would be much easier and more credible if everyone accepted 
the same basic rules. The crucial problem nowadays is the application of the 
rules as we have seen in the discussion on the NATO operations in Kosovo. 
But as long as the United States is not party to Additional Protocol I, there 
will be some hesitations on what rules can be taken as a basis for this 
discussion. 

I know that there are still many obstacles to United States' ratification of 
the 1977 Additional Protocols, but I cannot refrain from affirming again my 
conviction that the US could ratify them without endangering its own security 
in using, where deemed necessary, the possibility of express reservations, as 
many other States did. Over this internal problem, I would stress also my con- 
viction that the ratification of the United States would have a decisive effect 
on the uniformity of IHL in the whole world, in the universal acceptance of 
this law, and on the possibility for United States to play a leading role in the 
necessary clarification of some of its provisions. We need the United States in 
that role. 

I hope you will accept my apology for using this opportunity to reaffirm my 
strong conviction on this issue and I thank you very much for your patience. 

279 



Commentary 



W. Hays Parks 

It is the role of a commentator to comment on the program offered, the 
topic before the panel, or the papers offered before that panel. While my 
emphasis will be on the latter, necessarily it will range over all three. 

The premise for this conference — lessons learned from Operation Allied 
Force, the NATO air campaign against Serbian forces in Kosovo — raises 
many questions. Allied Force may be a classic example of the adage, "Bad 
cases make bad law," with few valid lessons. As NATO's first military opera- 
tion, a prime objective was keeping the nineteen-member alliance intact. An- 
other was continuation of the Clinton Administration's objective in each of 
its peace operations after Somalia of using military force, but with the admoni- 
tion to commanders to "do no harm," a flawed philosophy akin to wanting to 
make an omelet without breaking any eggs. In Allied Force, uncommon steps 
were taken by NATO forces to reduce to an absolute minimum collateral 
civilian casualties and collateral damage to civilian objects, and in some in- 
stances avoiding Serbian military casualties as well. 1 These steps could be 



1. This generated considerable criticism in the official Air Force evaluation. See 

Headquarters United States air Force, Initial Report: The Air War over Serbia, 
aerospace Power in Operation Allied Force pp. x, 54 (2000). Of particular note is the 

following (p. x): 

Traditionally, air planners have assumed that political conditions will allow the most 
efficient employment of aerospace power, giving planners the latitude to optimize 
survivability, target effects, and and collateral damage considerations. During the air 
war over Serbia, such latitude did not exist. Not all members of the 19-nation Alliance 
would have accepted the intensity and violence required to fight this war if military 
planning had followed optimum Air Force doctrine. As long as Serbia was unable to 
inflict significant Allied casualties, NATO accepted some operational inefficiencies 
associated with those political restraints. 



Commentary 

taken because the United States and one or two of its allies had the capability 
to do so, not because they necessarily felt legally obligated to do so. Professor 
Murphy's articulation of the essential elements of the customary international 
law process would indicate that these voluntary actions offer little, if any, pre- 
cedent as to future law of war interpretation. 2 

The questions my two colleagues were asked are somewhat troubling, as 
they limit the scope of the inquiry. Specifically, they focus entirely on the obli- 
gations of the force engaged in offensive operations, to the neglect of the de- 
fending ground force. 3 This flows in part from the incorrect, perhaps 
intentional, use of the word "attacks" in the 1977 Additional Protocol I 4 to re- 
fer to actions taken either by an attacker or defender. 5 Use of "attacks" to refer 
to acts of defense is etymologically inconsistent with its definition and custom- 
ary use in any of the six official languages of Additional Protocol I, a point 
conceded in the Official Commentary of the International Committee of the 
Red Cross. 6 Limiting the definition of attacks to "acts of violence against the 
adversary" is inconsistent with the customary law principle of distinction, par- 
tially codified in Article 48, 7 and other provisions of Additional Protocol I that 
prohibit the use of the civilian population or individual civilians as human 



2. See Professor Murphy's paper in this volume. 

3. This unfortunate and incorrect effect is demonstrated in articles critiquing Operation Allied 
Force. See, for example, Peter Rowe, Kosovo 1999: The air campaign, 82 INTERNATIONAL 
REVIEW OF THE RED CROSS 147 (2000) and A. Rogers, Zero-casualty warfare, 82 
INTERN ATIONAl REVIEW OF THE RED CROSS 165, 176 (2000). The former examines only the 
efforts of the attacker to reduce collateral civilian casualties, while the latter offers only three 
sentences on the obligation of the defender. 

4. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, 
DOCUMENTS ON THE LAWS OF WAR 422 (A. Roberts and R. Guelff eds., 3d. ed. 2000) 
[hereinafter Protocol I]. 

5. Article 49, paragraph 1 of Additional Protocol I states, "'Attacks' means acts of violence 
against the adversary, whether in offense or defense." 

6. Commentary on the additional Protocols of 8 June 1977 to the Geneva 

CONVENTIONS OF 12 AUGUST 1949, at 603 (Yves Sandoz et al. eds., 1987). 

7. Article 48 states: "In order to ensure respect for and protection of the civilian population and 
civilian objects, 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 only against military objectives." Using the term "Parties to the 
conflict" rather than "States Parties" (to the Protocol) ignores the customary law obligation of a 
government to take reasonable measures to separate military objectives from civilian objects, and 
vice versa, in peacetime and war. 

282 



W. Hays Parks 

shields. 8 That this definition was the beginning of a slippery slope to erode the 
customary law principle of distinction is evident not only in the questions 
framed for this session, but also in the answers of the two primary presenta- 
tions. Professor Murphy notes this inconsistency. Others, including some of 
the sources he cites, have failed to do so. 

This second point is offered to emphasize a concluding comment of Profes- 
sor Murphy. As he notes, 9 it is ironic that a nation committed to the rule of 
law, that has spent billions of dollars — in all likelihood more money than all 
other nations combined — to develop the most sophisticated target intelli- 
gence systems, weapons systems capable of the most accurate weapons deliv- 
ery, precision-guide munitions, that provides the best training for the men 
and women who operate them, and employs a multi-level, redundant, disci- 
plined target approval process, has its operations placed under a post-conflict 
microscope, while the illegal actions of its opponent in using human shields, 
and gross violations of the law of war in other conflicts occurring simulta- 
neously around the world, are ignored. It is doubtful that others who purport 
to follow the rule of law could have conducted the same campaign with fewer 
collateral civilian casualties. This "Do as I say, not as I can't do" approach 



8. Article 5 1 , paragraph 7 states: 

The presence or movements of the civilian population or individual civilians shall not be 
used to render certain points or areas immune from military operations, in particular in attempts 
to shield military objectives from attacks or to shield, favor or impede military operations. The 
Parties to the conflict shall not direct the movement of the civilian population or individual 
civilians in order to attempt to shield military objectives from attacks or to shield military 
operations. 
Article 58 provides: 

The Parties to the conflict shall, to the maximum extent feasible: 

(a) . . . endeavor to remove the civilian population, individual civilians and civilian 
objects under their control from the vicinity of military objectives; 

(b) avoid locating military objectives within or near densely populated areas; 

(c) take the other necessary precautions to protect the civilian population, individual 
civilians and civilian objects under their control against the dangers resulting from 
military operations. 

9. Professor Murphy's paper in this volume. 

283 



Commentary 

also suggests a double standard — a very high standard for the United States 
and a limited number of other Western democracies, and a lower standard for 
the rest ofthe world. 10 Hence the adage "Be careful what you ask for" is appro- 
priate in considering the law related to collateral casualties with respect to the 
precedent of Allied Force. 

Emphasis on the predominantly airpower focus of Allied Force neglects the 
historic lesson that ground force operations cause greater civilian casualties 
than air operations. 11 For this reason, historically a distinction was made be- 
tween the risks to the civilian population in the "operational zone," that is, 
within enemy artillery range, and civilians more distant from the line between 
opposing forces. 12 The former were assumed to remain at their own risk. Sev- 
eral efforts have been made to define the degree of protection afforded civil- 
ians not within the zone of operations, the most recent being Additional 
Protocol I. 13 This historic struggle has not been answered satisfactorily to date, 
but seems to have been lost in the post-Kosovo debate and in the questions 
posed at this conference. 



10. This is true within NATO itself. Targeting and collateral damage limitations insisted upon 
by some NATO governments during Allied Force, as noted in footnote 1, contrast markedly with 
their inability to meet the same standards. As the Air Force report states: 

Interoperability achieved many successes in terms of Alliance cooperation, but also fell 

short in areas such as precision munitions As the United States military continues to 

move toward a 21st century force propelled by the revolution in military affairs, the 
resulting gaps in capabilities with its Allied must be addressed. In future conflicts, the 
U.S. Air Force must also discover methods to integrate its assets with those of 
less-technologically advanced allies . . . without resorting to a "lowest common 
denominator" solution. In the face of a more sophisticated threat, this could be an 
increasingly significant limitation for those states expecting to participate in a coalition 
with the United States. 

Initial Report, supra note l, at 47. 

Post-conflict reviews of law of war compliance is particularly hypocritical when the criticism 
comes from citizens of or private organizations in a neutral nation, whose government and people 
have "opted out" of assuming their share of responsibility for a safer world. 

11. See this author's Air War and the law of War, 32 AIR FORCE LAW REVIEW 1 n.l (1990) 
providing World War II German casualty figures and Charles J. Dunlap, Kosovo, Casualty 
Aversion, and the American Military Ethos: A Perspective, 10 UNITED STATES AIR FORCE 

Academy Journal of Legal Studies 95, 103 (1999/2000). 

12. See, for example, M. W. Royse, Consultation, in LA PROTECTION DES POPULATIONS 
CIVILES CONTRE LES BOMBARDMENTS 72, 88 (1930). This program of contributions by 
international law experts was hosted by the International Committee of the Red Cross. 

13. This history is summarized and analyzed in Parks, supra note 11. 

284 



W. Hays Parks 

To close this portion of my remarks, the picture posed by the questions, the 
responses thereto, and sources cited therein, offer a clearer picture than the 
one seen by the battlefield commander. Appreciating the fog of war in which a 
commander must operate, the threshold for violation of the law of war is high, 
whether in the grave breach provisions of the 1949 Geneva Conventions or 
the 1977 Additional Protocol I, each of which requires mens rea. 1 * In establish- 
ing mens rea y a commander's decisions must be based upon information rea- 
sonably available to him at the time, and not what may be learned — or 
alleged — long after the conflict has ended. 15 



14. Article 147, GC, defines a grave breach as ". . . those involving any of the following acts, if 
committed against persons or property protected by the present Convention: willful killing, 
torture or inhuman treatment . . . willfully causing great suffering or serious bodily injury to body 
or health . . . for] extensive destruction and appropriation of property, not justified by military 
necessity and carried out unlawfully and wantonly" [emphasis supplied]. 

Article 85, paragraph 3, Additional Protocol I, defines a grave breach (for the circumstances of 
this panel) as "(a) making the civilian population or individual civilians the object of attack; [or] 

(b) 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, paragraph 2(a) (iii). . . . ."[emphasis added]. 

15. See, for example, the reservation taken by Switzerland upon ratification of Additional 
Protocol I (February 17, 1982), which states, "The provisions of Article 57, paragraph 2, create 
obligations only for commanding officers at the battalion or group level and above. The 
information available to commanding officers at the time of their decision is determinative." 
Similarly, at the time of its ratification (January 28, 1998), the United Kingdom declared that 
"Military commanders and others responsible for planning, deciding upon, or executing attacks 
necessarily have to reach decisions on the basis of their assessment of the information from all 
sources which is reasonably available to them at the relevant time." This approach was taken in 
the Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing 
Campaign Against the Federal Republic of Yugoslavia, 39 INTERNATIONAL LEGAL MATERIALS 
1257 (2000), reprinted herein as Appendix A [hereinafter Report to the Prosecutor] , with respect 
to NATO's mistaken attack of the Chinese Embassy in Belgrade on July 5, 1999. See id., 1111 
80-85, which found no criminal responsibility. 

285 



Commentary 

In considering ways in which to reduce collateral civilian casualties, distinc- 
tion must be placed in its historic context. It is a mutual obligation, as seen in 
the following: 

Distinction 16 
Attacker's obligations Defender's obligations 

Design/employment of weapon systems Separation of 

Training civilian population 

Target intelligence military objectives 

Target acquisition Air raid precautions 

Warning to civilian population 17 shelters 

evacuation 
civil defense 

The United States has done more than its fair share to fulfill its obligations 
with respect to improving bombing accuracy: 18 

U.S. Bombing Accuracy 

War 

World War II 
Korean War 
Viet Nam War 
Desert Storm 

Modern weapons systems, such as the McDonnell-Douglas F15E Strike Eagle, us- 
ing the Global Positioning System (GPS), account for ever-increasing accuracy with 
gravity (so-called "dumb") bombs. Today, the circular error probable (CEP) for US 
strike aircraft: dropping "dumb" bombs is less than forty feet. I say this to note an error 
made in a source of Professor Murphy's that incorrecdy assumed that increased 
bombing accuracy has occurred only through use of precision-guided munitions. 21 





Circular 


Number of Bombs 19 


Error Probable 20 


9,070 


3,3000 feet 


1,100 


1,000 feet 


176 


400 feet 


30 


200 feet 



16. W. Hays Parks, The Protection of Civilians from Air Warfare, 27 ISRAEL YEARBOOK ON 

Human Rights 65, 88 (1998). 

17. Hague Convention (IV) Respecting the Laws of Customs of War on Land, Oct. 18, 1907, 
Annex, art. 26, DOCUMENTS ON THE LAWS OF WAR, supra note 5, at 69, 78; Protocol I, supra 
note 5, art. 57(2) (c). 

18. R. P. Hallion, Storm over Iraq: Air power and the Gulf War 283 (1992). 

19. Table computed for 90% probability of a single bomb striking a 60x100 foot target, dropping 
500-lb. unguided bombs. For discussion of the relative accuracy of World War II strategic 
bombing, see W. Hays Parks, 'Precision and 'Area Bombing: Who did Which, and When?, 18 

Journal of Strategic Studies 147-174 (1995). 

20. Circular error probable is "the radius of a circle within which one-half of an aircraft's or 
missile's projectiles are expected to fall." U.S. Department of Defense, Joint Publication 1-02, 
Department of Defense Dictionary of Military and Associated Terms (1994). 

21. Professor Murphy's paper in this volume quoting Stuart Belt, Missiles Over Kosovo: 
Emergence, Lex Lata, of a Customary Norm Requiring the Use of Precision Munitions in Urban Areas, 

47 Naval Law Review 115, 118 (2000). 

286 



W. Hays Parks 

Precision-guided munitions were used with great effect during the 1972 
Linebacker campaigns over North Viet Nam. They received greater public at- 
tention during the 1991 Coalition war to liberate Kuwait, and have been im- 
proved since that time. Today the CEP "norm" for a laser-guided precision 
munitions (PGM) is three meters, with at least eighty per cent (rather than the 
CEP standard of fifty per cent) within that circle. But PGMs are not a panacea 
weapon. When a precision-guided munition goes awry, it is considerably less 
accurate than gravity bombs. For example, in the April 15, 1986 air strike 
against terrorist-related targets in Libya, the Mk-84 2,000-pound precision- 
guided bombs of one F-l 1 IF assigned to attack Aziziyah Barracks struck 7,400 
feet long and 3,700 feet left of the intended target. 22 PGM accuracy may be af- 
fected by weather and/or defeated by simple countermeasures. Obscurants, 
such as smoke, may defeat laser-guided bombs, while electro-optical munitions 
have similar vulnerabilities. 23 As is true of many aspects of warfare, the simple 
answer often masks myriad complexities. Who bears the responsibility for col- 
lateral civilian casualties resulting from successful obscurant use to defeat 
precision-guided munitions? 

Part of the problem in suggesting an obligation to use precision-guided mu- 
nitions is neglect of the factors that can result in collateral civilian casualties, 
almost all of which were evident to one degree or another in Allied Force: 

Factors Affecting Collateral Damage and Collateral Civilian Casualties 24 

Target intelligence Distance to target Target winds, weather 

Planning time Force training, experience Effects of previous strikes 

Force integrity Weapon availability Enemy defenses 

Target identification Target acquisition Rules of engagement 

Enemy intermingling 25 Human factor Equipment failure 
Fog of war 

Not all are within the attacking force's control. As Professor Adam Roberts 
noted in a presentation at the US Institute of Peace on March 1, 2001, there is 
a "rush to judgment that anything that affects the civilian population is illegal. 



22. Brian L. Davis, Qaddafi, Terrorism, and the Origins of the U.S. Attack on 
Libya (1990). 

23. Gary S. Ziegler, Weather Problems Affecting Use of Precision Guided Munitions, 32 NAVAL 
WAR COLLEGE REVIEW (May-June 1979), at 95; John P. Bulger, Obscurants: Countermeasures to 
Modern Weapons, 62 MILITARY REVIEW (May 1982), at 45. 

24. Parks, supra note 11, at 184-202. 

25. That is, enemy intermingling of military objectives with civilian objects and the civilian 
population, including the use of human shields. Photographic examples are contained in Parks, 
supra note 16, at 112-113. 

287 



_____ Commentary 

It is an error to assume that the law of war provides absolute protection for ev- 
erything that may be civilian." It also is an error to view every civilian casualty 
as a war crime, and/or to place the entire responsibility for civilian casualties 
on the party to the conflict that has the least control over them. 

Offsetting the law of war principle of distinction is the continuing emer- 
gence of a 'counter' targeting practice by some governments. In order to re- 
duce or defeat an opponent's military superiority, particularly with respect to 
airpower, many governments have taken no or limited air raid precautions or 
steps to evacuate the civilian population. Some have purposely located objects 
of strategic importance in urban areas, in order to use the civilian population 
as human shields. This practice became evident in the Korean War. It was ex- 
perienced in the Vietnam War, both in the air campaigns over North Vietnam 
and in air and ground operations in South Vietnam; in the 1991 Persian Gulf 
conflict; and in Allied Force. 26 It is not unique to air operations, as members of 
Task Force Ranger discovered in their battle in Mogadishu on October 3, 
1993 (relearning a lesson experienced a generation earlier in Vietnam). In 
April 1986, just prior to the US air strike against terrorist-related targets in 
Libya, Libyan dictator Moammar Gadhafi threatened to round up all foreign 
nationals and place them in and around his most important facilities. In the 
last decade, members of United Nations peacekeeping forces in the Balkans 
were taken hostage and placed adjacent to military objectives as human 
shields. In one nation, one of the first to ratify Additional Protocol I, an entire 
downtown city block was razed. A major military command and control cen- 
ter was built underground. The structures that existed on that block previ- 
ously were meticulously rebuilt, including a school and a mosque. The intent 
was clear: to use civilian objects and the civilian population to shield this im- 
portant military objective, and to exploit damage to them and civilian casual- 
ties should the military objective be attacked. 27 

Article 5 1 , paragraph 8 of Additional Protocol I states that even where a 
party to a conflict fails to fulfill its obligations to separate military objectives 
from the civilian population or, worse, uses the civilian population as human 
shields, the opposing party is not released from its legal obligations with respect 
to the civilian population and civilians. Although the United States is not a 
State Party to Additional Protocol I, this statement is consistent with its 



26. See, for example, W. Hays Parks, Rolling Thunder and the Law of War, 33 AIR UNIVERSITY 
REVIEW (Jan.-Feb. 1982), at 2 (Vietnam War); and U.S. DEPARTMENT OF DEFENSE, FINAL 

Report to Congress: Conduct of the Persian Gulf War 608, 614, 615 (1992). 

27. See, for example, W. Hays Parks, Crossing the Line, U.S. NAVAL INSTITUTE PROCEEDINGS 
(Nov. 1986), at 40, 50, and DAVIS, supra note 22, at 15, 18, 19. 

288 



W. Hays Parks 

post- World War II practice. A point this conference might have addressed is: 
In light of the increasing, illegal reliance upon human shields by some, to what 
extent can it be expected that the other side can assume the responsibility for 
minimizing collateral civilian casualties beyond its legal obligation? 

Professor Bring suggests a new additional protocol to limit (if not prohibit) 
attacks on military objectives in urban areas. 28 Recent State practice suggests 
this would merely exacerbate the problem, encouraging many to make in- 
creased use of civilian objects and the civilian population to shield military ob- 
jectives from attack. 

Professor Bring also suggests more effective warnings. I differ from his read- 
ing of the Final Report to the ICTY Prosecutor regarding Allied Force regard- 
ing NATO's attack on the Serbian Television and Radio Station in Belgrade, 
which I see as corroborating General Wesley Clark's statement that as a result 
of NATO warnings that the Serb Television and Radio Station building was 
about to be attacked, the Serbs ordered international journalists to report to 
the building, using them as human shields. 29 



28. Professor Bring's paper in this volume. 

29. Wesley Clark, Waging Modern War 264 (2001) and Alex Todorovic, Serb TV Chief 

Accused Over Air Raid, THE DAILY TELEGRAPH (London), Feb. 14, 2001, at 19. The ICTY 
Prosecutor's report does not support Professor Bring's argument. The report states in part: 

[S]ome doubts have been expressed as to the specificity of the warning given to civilians 
by NATO of its intended strike, and whether the notice would have constituted 
"effective warning ... of attacks which may affect the civilian population, unless 
circumstances do not permit" as required by Article 57(2) of Additional Protocol I. 

Evidence on this point is somewhat contradictory. On the one hand, NATO officials 
in Brussels are alleged to have told Amnesty International that they did not give a 
specific warning as it would have endangered the pilots. . . On this view, it is possible 
that casualties among civilians working at the [radio and television station] may have 
been heightened because of NATO's apparent failure to provide clear advance 
warning of the attack, as required by Article 57(2). 

On the other hand, foreign media representatives were apparently forewarned of the 
attack. ... As Western journalists were reportedly warned by their employers to stay 
away from the television station before the attack, it would also appear that some 
Yugoslav officials may have expected that the building was about to be struck. 
Consequently, UK Prime Minister Tony Blair blamed Yugoslav officials for not 
evacuating the building, claiming that "[t]hey could have moved those people out of 

the building. They knew it was a target and they didn't [I]t was probably for . . . very 

clear propaganda reasons." . . . Although knowledge on the part of Yugoslav officials of 
the impending attack would not divest NATO of its obligation to forewarn civilians . . ., 
it may nevertheless imply that the Yugoslav authorities may be partially responsible for 
the civilian casualties resulting from the attack and may suggest that the advance 
warning given by NATO may have been sufficient under the circumstances. 

Report to the Prosecutor, Appendix A, 11 77. 

289 



Commentary 

This issue is not new, nor changed by Additional Protocol I. Hugh Tren- 
chard, Marshal of the Royal Air Force, identified the problem in 1928: 

As regards the question of legality, no authority would contend it is unlawful to 
bomb military objectives, wherever situated. Such objectives may be situated in 
centers of population in which the destruction from the air will result in 
casualties also in the neighboring civilian population. The fact that air attack 
may have this result is no reason for regarding the bombing as illegitimate 
provided all reasonable care is taken to confine the scope of the bombing to the 
military objective. Otherwise a belligerent would be able to secure complete 
immunity for his war manufactures and depots merely by locating them in a 
large city ... a position which the opposing belligerent would never accept. 30 

A parallel issue relating to interpretation of Additional Protocol I with re- 
spect to precision-guided munition use was raised between World Wars I and 
II. Professor M. W. Royse, a World War I Marine Corps aviator, went on to a 
long and respected academic career at Harvard. In 1928 he authored what re- 
mains the best work on the law of war as it relates to aerial bombardment. 31 
Speaking at a 1930 conference of international legal experts hosted by the In- 
ternational Committee of the Red Cross, Royse noted "It is possible to gauge 
the immunity of civil populations by noting restrictions on 'permissible vio- 
lence.' Rules of war restrict the means and methods of warfare only . . . when 
the rule does not have the effect of placing one or more States at a disadvan- 
tage." 32 The increasing conduct of some States in using human shields, and 
some interpretations of Additional Protocol I offered in this meeting that 
place the entire responsibility for civilian casualty avoidance on nations em- 
ploying more advanced weaponry, are likely to erode rather than enhance re- 
spect for the law of war and civilian protection. 

Comments also are necessary regarding two arguments made by Professor 
Bring in his paper. The first concerns counting civilian deaths within a mili- 
tary objective as "collateral civilian casualties." 33 It is clear that the Pentagon 
would be a military objective in war. It should be equally obvious that a 



30. Charles Webster and Noble Frankland, THE STRATEGIC AIR OFFENSIVE AGAINST 
GERMANY 1939-1945, Vol. IV, Annexes and Appendices, 73 (1961). 

31. M. W. Royse, Aerial Bombardment and the International Regulation of 

WARFARE (1928). This comment is made with full and great appreciation and respect for the 
many works by James Maloney Spaight, including his three-edition AIR POWER AND WAR 
RIGHTS, published in 1924, 1933 and 1947. 

32. Royse, supra note 12, at 77. 

33. See Professor Bring's paper in this volume. 



290 



W. Hays Parks 



civilian working there assumes a certain risk. His or her presence would not 
change the nature of the Pentagon as a legitimate target. Civilians killed 
within an obvious military objective are not "collateral civilian casualties." 
Counting civilians employed within a military objective as "collateral civilian 
casualties" would only encourage increased civilian presence in a military ob- 
jective in order to make its attack prohibitive in terms of collateral civilian 
casualties. 

Finally, Professor Bring declares without any documentation or authorita- 
tive reference that the proportionality language contained in Article 51, para- 
graph 5 (b) of Additional Protocol I is "arguably a codification of traditional 
customary law." 34 The principle of proportionality has gained importance over 
the past thirty-five years, but within the limited audience of Western democ- 
racies. The principle of proportionality is important today to the US and its 
NATO allies. I do not disagree with its intent. I do disagree with some of the 
radical interpretations being offered of it. To suggest that it is customary law is 
bad history, as I have shown elsewhere. 35 

One question asked by conference planners is: "Does the use of preci- 
sion-guided munitions lead to a duty to use those types of weapons exclusively 
in future conflicts?" The answer should not be viewed solely through the US 
defense budget, which (misguidedly) some see as unlimited. Were I a lawyer 
for another government, my advice to that government would be: Don't buy 
them. There is no legal obligation to acquire them. But if you do buy them, 
you may be required to use them or face criminal prosecution for failure to use 
them when some believe you should have. Also, it may encourage an oppo- 
nent to use human shields to offset your technological advantage. 

Another answer is a question: How far does one take this argument? Two of 
the most precise attacks in recent years were the 1983 truck bomb attack on 
United States peacekeepers in Beirut, and last year's suicide barge attack on 
the USS Cole. Had a State party to an armed conflict carried those out, would 
it be legally obligated to continue precision suicide attacks? Similarly, on April 
16, 1988, an Israeli special operations team entered the home of Khalil 
el-Wazir, also known as Abu Jihad, the military commander and chief of 



34. See Professor Bring's paper in this volume. Following the colloquium, Professor Bring 
advised me that this statement was based upon the argument offered by Hans Blix in his Area 
Bombardment: Rules and Reasons, 49 BRITISH YEAR BOOK OF INTERNATIONAL LAW 1978, at 
31-69 (1980). While I hold both Hans Blix and Professor Bring in the highest respect, the 
practice of nations offers no evidence to substantiate this claim. 

35. Parks, supra note 16, at 90-97. 



291 



Commentary 

operations for the Palestine Liberation Organization, in Sidi Boussaid, Tuni- 
sia. Abu Jihad was killed as he reached for his weapon. His wife and two chil- 
dren, present in the room, were left unharmed. That is the epitome of 
distinction. Is it not a logical and inevitable extension of the question posed to 
this panel to suggest that a nation that has such a special operations capability 
would be legally obligated to use it against military objectives in urban areas 
even before resorting to precision-guided munitions? Such a suggestion is ab- 
surd, of course, but no less than the argument some have made with respect to 
precision guided munitions. 

I will close with one final comment, and that is to suggest that air power 
advocates to some degree may be victims of their own hype. Promising de- 
grees of accuracy that cannot always be met raises public expectations, and 
allows critics to argue that collateral civilian casualties resulting from the fric- 
tion of war may have been intentional. Touting technological precision may 
lead to expectations that are unrealistic. 36 It is a case of let the advocate or 
proponent beware. 



36. The official US Air Force analysis of Allied Force, received after this author's comments 
were given, agrees: "The benchmark for high bombing accuracy and low collateral damage, 
however, may create unrealistic expectations for political leaders and the public at large in future 
air operations fought under very different circumstances. . . ." INITIAL REPORT, supra note 1, at 
54. 



292 



Commentary 



Barry Strauss 



I would first like to thank Professors Murphy and Bring for such excellent 
papers, and the organizers for having invited me. This is an act of faith on 
their part because I am neither a warrior nor a lawyer. I know that most of you 
in this room fit one or the other if not both of these categories, so I'll direct my 
remarks towards you. In particular, I will try to avail myself with the Socratic 
method or as some would put it the 'Jeopardy approach.' That is, I'll pose my 
comment in the form of questions. 

Let me point out first that I am a historian. And as a historian, it's my duty 
to tell you that I represent a guild that has a fundamental skepticism about our 
enterprise here because historians are famously cautious about the possibility 
of learning from history. Historians would ask can we learn any lessons from 
the Kosovo conflict? Some of you will know the anecdote about the historian 
who was asked, 'What do you think of the French Revolution?' And he re- 
plied, 'It's too soon to tell.' Well, it may or may not be too soon to tell about 
Kosovo, but we need to ask about the Kosovo conflict — what can we learn 
from it? 

We begin by asking what can we learn about the role of lawyers? Professor 
Moore has told us that lawyers played a unique role in the Kosovo conflict in 
the history of modern warfare or indeed the history of warfare, in the role they 
played in advising on the tactics of this conflict. We need to ask is Kosovo the 
wave of the future? Will lawyers play a similar role in future wars? Or was 
Kosovo unique? Was it an abrogation? To what extent do the unique charac- 
teristics of the Kosovo warfare shape what happened there? In particular let 
me pose a question — what would have happened during the Kosovo war if 
groups of Serb terrorists had bombed hospitals in NATO countries? Would 



Commentary 

this have affected NATO's tactics in this war? Would lawyers have been able 
to convince commanders and indeed to convince politicians to be similarly re- 
strained in their response in Serbia? More generally — and this is my second 
question — when we think about the Kosovo war, should we think of it as fun- 
damentally a humanitarian intervention, or should we think of it as a political 
conflict whose aim was to stabilize NATO's volatile southeastern flank? I 
think we have to ask this question when we look more broadly at the strategy 
of the Kosovo conflict. 

Some of the questions and comments that arose yesterday I think would 
cause us to ask whether NATO's strategy in Kosovo was strictly military or 
was it rather following a political and psychological strategy? Did NATO plan 
to win the war by destroying Serbia's military potential for action in Kosovo, or 
was NATO rather aiming at delivering a message to Mr Milosevic and other 
members of the Serb elite that if the war were to continue, that eventually 
NATO would flatten the economic infrastructure of Serbia? I think we need 
to ask that as a factual question. We also need to ask it as an ethical question. 
What about the ethics of NATO's strategy in this war? In particular we need 
to ask it about the question of dual-use targets. NATO did target a number of 
dual-use facilities that had military use and so was legally proper to target, but 
they also were very important for the Serb economy. The question is to what 
extent were they targeted because of their military use? To what extent were 
they targeted because of their economic and therefore their political use? If 
this targeting was legal, was it also ethical? 

To turn the question around, to ask it in a somewhat different way, we've 
heard that the strategy in this war was not to strike a quick devastating knock- 
out blow, but rather it was a strategy of slow escalation. The war lasted sev- 
enty-eight days when it could possibly have ended much sooner. We need to 
ask the ethics of this strategy and in particular how many additional Kosovars 
suffered or died as a result of the prolongation of the war? How would we bal- 
ance that number against the number of civilians who were perhaps spared in 
Serbia because of the particular strategy that NATO followed? 

Now let's turn from strategy to tactics and look more specifically at collat- 
eral damage. On the subject of collateral damage, let me be forgiven for just 
stating the obvious. The term collateral damage is a euphemism — if not in- 
deed Orwellian. We're asking of course how many civilian casualties, how 
many deaths, how many injuries, how much civilian suffering is permitted in 
the conduct of war? The figure of five hundred civilian deaths in Serbia is be- 
fore us. We need to ask the question, was this an excessive number of deaths 
in this conflict? Or does it reflect restraint? Does it reflect admirable restraint? 

294 



Barry Strauss 

From this we need to ask about NATO commanders. In their behavior in this 
war were there significant deviations from the rules of proportionality and fea- 
sible precautions.. 7 Was there to a significant degree too liberal an interpreta- 
tion of what a military objective was in Serbia and Kosovo? 

From this we need to go to a factual question. It's one that's been raised be- 
fore, but I think we need to raise it again and ask for clarification from the ex- 
perts. It's a factual question regarding high-altitude bombing. That is, by 
bombing at 15,000 feet rather than going lower as a general rule, did NATO 
increase the possibility of civilian casualties? Did it increase the number of ci- 
vilian casualties? Depending on what our answer to that question is, I think 
we come up with a serious ethical question. That is, how do we weigh in the 
balance concern for the safety of soldiers' lives as opposed to concern for civil- 
ian lives? To ask the question in a different way, just what risks can we ethi- 
cally ask soldiers to undertake? Can we for example ask soldiers to expose 
themselves to hostile fire from other soldiers in order to minimize the number 
of civilian casualties? Is that a fair and ethical thing for us to demand? To go a 
step further, is it a democratic thing for us to demand? 

Now I raise the question of whether it's a democratic thing to demand be- 
cause the question of chivalry has come up — the question of chivalry and mili- 
tary honor. To my ears, these strike me as rather unusual terms to hear in 
talking about modern warfare. When I hear about chivalry and military honor, 
I have to ask myself whether these are appropriate terms or whether they are 
not instead aristocratic hangovers from an age of gentlemen warriors. We can 
certainly ask soldiers never to deliberately target civilians. We certainly must 
ask soldiers never to deliberately target civilians. We must ask commanders to 
follow the laws of armed conflict in choosing their targets. But again, can we 
ask soldiers to knowingly risk their own lives in order to minimize civilian 
casualties? 

Moving on from this, I wanted to ask some questions about Professor 
Bring's proposal for defining military objectives more tightly in future multina- 
tional humanitarian interventions. In particular I wanted to ask the following 
questions. What would the effect of his proposal be on the safety of soldiers 
following this much more restricted definition of military objectives? What 
would its effect have been in the Kosovo campaign? What would its effect 
have been on Kosovars in prolonging the campaign? And what would its effect 
have been on enemy power? 

Turning to Professor Murphy's discussion of the role of precision-guided 
munitions in urban and highly populated areas, it may indeed be the case that 
we ought not to employ any black letter rule in demanding that precision- 

295 



Commentary 

guided munitions be used. But would it not make sense to say that depending 
upon feasibility — the feasibility of using them and upon the discretion of the 
commanders — that indeed precision-guided munitions should be used in ur- 
ban and highly populated areas whenever possible. So not a black letter rule, 
but something that should be striven for in the interest of minimizing civilian 
casualties. A follow-up question on that for the experts would be to what ex- 
tent would finances make this possible or impossible? 

The question of finances brings me to my final question. That is one about 
the differences of the different kinds of States that fight war, the differences in 
ethics might be expected between technologically poor States and technologi- 
cally rich and sophisticated States. In particular, should we expect democratic 
countries to fight their wars by democratic principles? Should we expect dem- 
ocratic countries particularly when they are engaging in humanitarian inter- 
ventions to fight wars by humanitarian principles? Or rather, should we say 
that it's simply impossible to expect that of democratic countries and unfair to 
expect that of democratic countries? Should we say that war is not a humani- 
tarian business and that the proper role of democratic principles in the con- 
duct of war is making democratic political decisions about the nature of war, 
the aims of war, the purpose of war and having made those decisions to fight 
war cleanly and fairly and according to the laws of armed conflict, but fighting 
the war using all force at a country's disposal in order to win the war as quickly 
as possible, to achieve a political goal that is in and of itself humanitarian and 
humane? I'll leave that as my final question. I'm sure the discussion will take it 
further. 



296 



Discussion 



Modern Technology: Is There An Obligation to Use It? 

Brian O'Donnell: 1 

We had some discussion on the precision-guided munitions issue and I'd 
like to turn that to the targeting analysis issue for collateral damage purposes. 
Colonel Montgomery's presentation yesterday discussed the highly technical 
nature of some of the new technology that we Ve used to determine the blast 
patterns of buildings whether it's going to be walls falling in, walls falling out 
and so forth. Are we establishing in the panel's opinion — probably Hays Parks 
would be the best person to answer this — a new standard that if we don't take 
advantage of that new technology in future operations, then we have failed to 
utilize all reasonable means to minimize collateral damage? 

W. Hays Parks: 

I don't know enough about the formulas for determining how many civil- 
ians are likely to be inside an objective or how many collateral civilian casual- 
ties there may be. I will note that years ago I looked at the Top Secret original 
target package for North Vietnam. It was written in August of 1964 and gave 
an estimate that there were 2.7 persons living in each structure. I feel sorry for 
that .7 person whoever that may be. I'll let Tony Montgomery really respond 
more to that, but I feel that we know what munitions can do. The JDAM that 
we have is very well developed, quite sophisticated. So I feel fairly good about 
that side of it provided you have accurate delivery. I have not seen the formu- 
lations for how we determine that there's going to be X number of civilians in 
a particular structure or how likely it is we'll have X amount of collateral civil- 
ian casualties. I do think that we may be again creating expectations there 



1. Lieutenant Commander, United States Navy; International Law Advisor, Naval Warfare 
Development Command. 



Discussion 

that when these formula do not work, people will look at them in the most 
negative fashion. 

Mike Newton: 2 

In fulfilling the obligation of the law to take all feasible measures, it's easy to 
jump to precision-guided munitions which I think is what the media and 
much of the public has done. But in point of fact, I think the targeteers and 
our Air Force colleagues would agree that what really is done is an assessment 
of how to weaponeer a target, how to attack it, when to attack it in the way 
most likely to minimize collateral damage. I would give you just one exam- 
pie — the MUP [Yugoslav Ministry of Internal Affairs police forces] police sta- 
tion in Jackavitza. If you attacked it on an east-west axis, there were four-story 
civilian apartment buildings on either side. They didn't do that. They at- 
tacked it with five hundred pound dumb bombs on a north-south access. 
There's a big bomb crater in the road in front of the building. The building is 
devastated. There's a big bomb crater in the parking lot behind the building. 
Beautiful weaponeering, and the civilians on either side weren't affected — the 
windows weren't even broken. I think that's an example of the kinds of things 
that US militaries do precisely to minimize collateral damage which lead into a 
question really for the panel as a whole. 

Human Shields: Can Abuse of the Law of War Be a Force Multiplier? 

Mike Newton: 

There was press reporting on the attack on the RTS station where, when 
you look at what happened, the US military took steps to minimize collateral 
damage. It was press reporting that in fact Slobodan Milosevic had advance 
notice of the attack on the RTS station and the casualties that were caused 
were caused by the fact that he took people, rounded them up and locked 
them in the station — literally locked them into the station — as a propaganda 
vehicle to then exploit to the world media, which he did successfully. I mean 
the very fact that people perceive of that as an unlawful attack; the very fact 
that we're still discussing it is, I think, an indicator of Milosevic's success. 

If you do go down the road of pursuing future legal developments, how do 
you envision using the law? I mean it's pretty clear to me that people are using 
the laws as a force multiplier to actually assist an unethical defendant. How 



2. Lieutenant Colonel, United States Army; Office of War Crimes Issues, Department of State. 



298 



Discussion 

would you guard against that because very clearly that's what we're seeing in 
the practicality on the ground — an unethical defender is using the law as a 
way to limit and constrain the attacker even when the attacker is making a 
huge effort to comply with the law? So how would you address that as a matter 
of law if you do try to come up with an additional protocol or further targeting 
restrictions? 

W. Hays Parks: 

I think the one thing that I would look at if we were rewriting additional 
Protocol I, I would make it a grave breach to use human shields. I think that's 
not in there. You could perhaps interpret that from using the grave breach 
provision of the Civilians' Convention if you're on occupied territory. But if 
you're not, I think the dilemma you have is that some nations felt then and 
feel now that if I can draft my men and women into my military and have them 
die in my defense, I can use my civilians the same way. If those are civilians of 
another country — as happened both I think in Yugoslavia and also happened 
in Iraq in 1990 when hostages were taken and used as human shields — then 
you have a grave breach of Article 147. 1 think, however, we still have the un- 
resolved dilemma that existed at the time of negotiation of Additional Proto- 
col I as to what extent can the leadership of an enemy nation use its own 
population as human shields. 

John Murphy: 

The only comment I'll make on the situation that's been posed here is that 
it illustrates the difficulty of getting the facts straight in an armed conflict. 
Part of the problem in the situation you pose is that Mr Milosevic was success- 
ful in getting a certain element of the press to believe the story and that if all 
the facts had come out, then there really would have been no valid charge 
that the United States forces had violated the law of armed conflict. In fact, 
quite the contrary would have been charged. But of course getting the facts 
straight during any crisis, certainly during armed conflict, continues to be a 
major — perhaps irresolvable — problem. 

Yves Sandoz: 

The problem is not so much a need to change the law but to implement it. 
There are too many violations; but it's not drafting new laws that will change 
this. We have to find better ways to react to violations of the law. That is the 
key issue. 

299 



Discussion 

Michael Bothe: 

I must admit, I have not quite seen where this problem of human shields 
comes in. This is in violation of the laws of war certainly. In Yugoslavia, this is 
a subject for the jurisdiction of the ICTY. As it is a violation of the laws of 
war, it comes under the definition of the crimes which are subject to the 
jurisdiction of that Court under Article 3 of the Statute of the ICTY. Having 
said that, I entirely agree that much more attention should be paid to this cur- 
rent practice. 

Do We Need An Additional Protocol For Humanitarian Intervention? 

Christopher Greenwood: 

This question is for Ove Bring regarding his proposal for drafting an addi- 
tional protocol for humanitarian interventions. Which body of law would ap- 
ply to States toward which the intervention is directed? In a Kosovo type of 
case if the coalition which is carrying out the intervention is governed by a 
new protocol as envisioned on interventions because they are acting in a hu- 
manitarian capacity and not self-defense, which body of law would apply to 
the country in which the intervention is being carried out? Will it be subject 
to the same body of rules about intervention because it is the intervenee, or 
will it be able to say that in it's own view that it is acting in self-defense indeed 
for it's own national survival and thus subject only to the more lenient stan- 
dards that are the general rule in Protocol I? 

Ove Bring: 

First, I would like to say that if we could imagine an additional protocol III 
in this context, it needs to be a balanced protocol relating to what we've just 
talked about — the need to get rid of human shields as a way of defense during 
international conflicts. That issue has to be addressed in the same kind of pro- 
tocol. But I'm not married to the idea that it must be a negotiated text. It 
could also be some common statement on how operations should be con- 
ducted. That kind of document would not compete with international hu- 
manitarian law proper. It would only be something in addition to it with very 
specific messages being signaled to the parties to that conflict. 

I agree that you have a very good point there with regard to who is gov- 
erned by what body of law. How would Yugoslavia in this case consider the sit- 
uation in legal terms? They would probably look upon this as a right of 
self-defense. Although this protocol I'm talking about is not relating to aggres- 
sion or self-defense for humanitarian intervention or the opposite, they would 

300 



Discussion 

certainly find themselves having the right to conduct warfare under the nor- 
mal standards of self-defense. I agree with you that that is a problem that has 
to be looked into further. 

If you have a kind of new protocol trying to limit the situation to a certain 
kind of intervention, that will presume that the armed conflict will stay within 
the confines of the scope of application that has been drafted in that protocol. 
If the Yugoslav authorities start to upgrade and escalate the fighting under the 
principle of self-defense, then that scope of application will fall. You will not 
find yourself within those parameters any more. You will go back to the ordi- 
nary law of armed conflict. 

John Murphy: 

The briefest of comments regarding this interesting proposal. I have prob- 
lems with it just as others have expressed problems. One thing I think hasn't 
been noticed is it seems to be that in the case of where the motivation for the 
intervention is primarily humanitarian, to change the rules to make it more 
difficult for there to be military efficiency would obstruct bringing the humani- 
tarian violations to an end quickly. That it seems to me would be dysfunc- 
tional and unfortunate. It does seem to me that Professor Bring's proposal 
brings with it a little bit of the just war concept with all of the difficulties that 
raises. 

Ove Bring: 

There have been a lot of points of view put forward with regard to the pro- 
posed additional protocol III. Perhaps that suggestion should be looked upon 
in perspective. Probably the main focus on my paper was the definition of mili- 
tary objectives. At the end of the paper, I wanted to address the ethical lessons 
of the Kosovo conflicts since that is part of our agenda here. During such an 
assessment of the ethical dimension of the Kosovo conflict, I think it's appro- 
priate to bring up the idea that is already floating around in the international 
community about such an additional protocol III. I have taken the many res- 
ervations and critical points with regard to it — it might be totally unrealistic 
and it might be counterproductive in certain respects. Still, I think it addresses 
the matter of improper balance with regard to the rights of attackers against 
the hazards that the civilians on the ground are experiencing. But in order to 
address that problem, if you admit it is a problem in these situations, we don't 
have to be stuck to a certain legal solution. Additional protocol III that we've 
been discussing would be a treaty. Another way would be, as I said, perhaps to 
have a code of conduct which perhaps could get rid of some of the more 

301 



Discussion 

technical devaluating effects that a treaty text would have on international 
humanitarian law as a whole. Or one could imagine having the Secretary- 
General of the United Nations issue another bulletin on observance by UN 
forces on international humanitarian law principles in armed conflict. That 
kind of bulletin could refer exactly to these enforcement operations and it 
could be a sort of a guideline for other kinds of similar interventions. That was 
in the general perspective. 

Reciprocity in War and the Law of War 

Leslie Green: 

In any future conflict, particularly one with a coalition character, we've got 
to carry the public with us. From this point of view I want to raise a question. 
I'm thinking of the issue of these "clever," or, to use Mike Schmitt's term, 
"brilliant" bombs. We've got them. By way of contrast, if we are involved in a 
conflict against an enemy that doesn't have them, are we under an obligation 
to use only deliberative resources that are available to him? This is reciprocity 
par excellence! It's merely a modern application of the old Asian idea that ele- 
phants should only be used against elephants and men against men. Where do 
we stand from our propaganda point of view in persuading the public when we 
have the means to wipe them out, but they only have the means to kick us? 

W. Hays Parks: 

Leslie, I don't recall where that was. I've seen various versions of that. One 
of them of course was the proposal during the negotiation of Additional Proto- 
col I that was made by Togo, which argued that if two nations were in a war 
and one of them had an air force and the other did not, the one that had the 
air force could not use it — nice try! 

There's a rather famous quote by Churchill about a disarmament confer- 
ence where the lion wanted another animal to give up its teeth. And the bear 
said we all just ought to hug each other — this kind of thing. So, there's a great 
deal of that. I think the dilemma we have is that unfortunately our opponents 
do not always follow our doctrine. They don't play to our strong suit. Mr 
Milosevic would have loved to have neutralized our airpower capabilities to 
force us into a ground campaign. That's the dilemma you have. However we 
feel about the obligation to use precision-guided munitions in every case; I 
think all of us would agree that we are not going to say we'll not use them be- 
cause we do want to hold down the collateral casualties as much as we can. 

302 



Discussion 

Yves Sandoz: 

I have two points. First, the question of determining how a poor country, 
without important military means, could defend itself without violating IHL 
was at the heart of negotiations which took place during the 1974-1977 Dip- 
lomatic Conference. The result of those negotiations was the introduction in 
Additional Protocol I of 1977 of rules accepting guerilla warfare as a legitimate 
means of warfare. The principles remain the same, as I mentioned before, but 
they have to be implemented in relation to the means available. Quite clearly, 
if the fighting is unbalanced, there is a great risk, as I think John Murphy men- 
tioned too, that respect for the law will decrease and that we will enter into an 
era of terrorist attacks. 

The second point is the following: the NATO action in Kosovo will proba- 
bly remain a special case. I do not think we will have many cases in which this 
emergency humanitarian intervention doctrine will be applied. Basically, it is 
an intervention to ensure the application of the law in stopping a violation of 
it. This type of intervention is unbalanced by nature. There is no comparison 
between NATO and Yugoslavian forces. But the fundamental questions for 
the credibility of such interventions in world public opinion are clarity and im- 
partiality. Clarity in setting forth the threshold over which a State may not 
step without encountering such enforcement actions and establishing who has 
the right to decide those actions. And impartiality in taking measures corre- 
sponding only to the gravity of the situation and not to the economic or politi- 
cal interest of those deciding and undertaking the action. 

John Norton Moore: 

When we look at imbalance, we need, for example, to talk about the imbal- 
ance of the Iraq Army invading Kuwait. If we talk about the imbalance, talk 
about the imbalance of the massive human rights violations in Bosnia with 
200,000 killed in disregard of the law of war. If we talk about the imbalance, 
we might talk about the imbalance of a regular army police force directed to- 
ward killing civilians in Kosovo in a massive way that we're trying to stop. It 
seems to me that the real key is to look at what the goals of the democracies 
are in trying to stop democide and genocide, trying to stop aggressive war. The 
reality is we want to win those as rapidly as we possibly can at the lowest cost 
to all involved. 

Michael Bothe: 

The question of differentiated or equal obligations has been with us all the 
time because although legally speaking, parties to a conflict are equal, militarily 

303 



Discussion 

speaking they never are. We've had that in different prospects and different re- 
spects. For instance the question whether poor countries can afford to provide 
adequate standards of treatment for prisoners of war if they cannot nourish 
their own armies. That is one version of that. There is a tension between reci- 
procity and the fundamental principle of no reciprocity which is also inherent 
in the laws of war. You do not mete out bad treatment to the other guy as a re- 
action to bad treatment if you can do better. I think this is all very well covered 
by Article 57 of Protocol I which says in relation to the attacks that all feasible 
precautions have to be taken in order to minimize civilian casualties. Now 
what is feasible for one party is not necessarily feasible for the other party, but 
this does not lower the standard for the party for which this is feasible. 

Target Priority and Collateral Damage 

Michael Glennon: 

Assume that a list of lawfully vetted targets is assembled. Assume further 
that some of the targets on the list are known to carry a substantially greater 
risk of collateral damage and civilian deaths. Can those targets be assigned a 
higher priority? Can they be moved up on the list and hit sooner rather than 
later because the belief is the war will therefore be ended sooner saving ulti- 
mately a greater number of military and civilian lives. 

Yves Sandoz: 

If I understood the question, you have a reply in Article 57(3) of Protocol I, 
which states that "when a choice is possible between several military objec- 
tives for obtaining a similar military advantage, the objective to be selected 
shall be that the attack on which may be expected to cause the least danger to 
civilian lives and to civilian objects." I think that answers your question, 

"No Body Bags" War and the Value of Human Lives 

Adam Roberts: 

I want to raise the question of whether this really was a "no body bags" war 
as Ove Bring stated it in his paper. Of course it was in the sense that we know 
that allied forces did not suffer any combat casualties, but whether it was a 
clear policy from the beginning that it was a "no body bags" war is a much 
more debatable proposition. Those embarking on the decision to engage in 
war knew that they were taking a risk with their own servicemen's lives. I 
think I'm right in recalling that that was stated in some of the speeches at the 

304 



Discussion = ^ ===== ^__ 

beginning of the war including I think in President Clinton's. So one has to be 
very careful before one adopts the ex post facto wisdom which assumes that 
this was clearly understood to be a "no body bag" war at the time. I do not 
think that it was. On the other hand, the desire to protect the servicemen and 
women of allied countries was in my view entirely understandable. Again, I 
don't think it's self-evident, and I'd like the opinions of the panel on this, but 
just because there was a desire to protect their lives doesn't mean they were 
being viewed superior in value to the lives of others. And it's far from self- 
evident that keeping airmen in a position of relative safety increases the risk 
to the population below. It is possible that in a position of relative safety 
aircrews could make decisions that were calm and informed as distinct from 
being made in haste, I come from a country with a tradition of low-level 
bombing and the risks associated with that low-level bombing are well known. 
They include risks to those on the ground as well as those performing it. 

Ove Bring: 

Professor Barry Strauss asked me if you have this kind of solution, what will 
be the safety of the soldiers, the safety of the Kosovars? Will there be a prolon- 
gation of the conflict, etcetera? Well, these are all issues that need to be dis- 
cussed from this ethical perspective. With regard to the safety of soldiers, I 
quoted Tony Rogers who said that under international humanitarian law, we 
have to realize that certain risks will have to be taken. I'm arguing here for a 
solution that would increase the risk to soldiers and pilots. That is clear. It's a 
political problem of course for those States as to whether they will or not em- 
bark in the beginning on a "no body bags" policy or something close to that. 
They will have terrific problems in democratic States to accept these in- 
creased risks for pilots and soldiers. Still, I think what we need in this interna- 
tional community of today is more political leadership — more political 
willingness to take risks in order to secure common values of the international 
community. So that is something which I would like to see more of and I think 
that many individuals would be prepared to take risks personally in order to 
achieve things like saving people from genocide or whatever. The safety of the 
Kosovars in this kind of situation could have been much better with my sug- 
gestion, but of course the Kosovo conflict as Yves Sandoz said was unique. It 
probably will not repeat itself again. I mean there was almost a gigantic hu- 
manitarian catastrophe with regard to the refugees in the beginning due to the 
fact that there were no ground troops. My argument goes in the direction that 
political leadership has to consider ground troops in situations like this. That 
could actually shorten the conflict and it could give much better protection. It 

305 



Discussion 

would signal something to the Milosevic regime in this case that would deter 
them from going further on the track of ethic cleansing. All these are 
possibilities. 

Chuck Kogan: 

Listening to the discussions this morning and particularly the remarks of 
Mr. Strauss and Mr. Parks, I'd like to make the following observation. The 
Kosovo war was fought on the basis that coalition lives are more valuable than 
lives on the other side. This is what war is all about. 

W. Hays Parks: 

I have to disagree with that. The Kosovo campaign was conducted to save 
lives. Although it may have cost 500, it probably saved many thousands more 
than that. I think that's something that's been neglected in these discussions. 

Does Kosovo Provide Lessons For The Future? 

Barry Strauss: 

I'd like to return to my point that the lessons of this war must be very lim- 
ited because Serbia's inability to respond massively to NATO attacks leaves us 
with one dimension unknown. We don't know how NATO would respond if 
it was provoked in ways that Serbia couldn't provoke it. So from the point of 
view of what we've learned for the future, the answer is we don't know about 
that yet. 

Cluster Bombs and Long-Term Collateral Damage 

Adam Roberts: 

I just wanted to raise an issue about this discussion and the focus here on 
collateral damage and the way in which the discussion has gone. One dimen- 
sion of damage got largely but not entirely excluded: that is the long-term 
damage that may flow from use of certain types of weapons and may have an 
impact long after the conflict. Ove Bring mentioned in his paper the effect of 
cluster bombs. The principal problem with regard to cluster bombs is not the 
immediate collateral damage, but rather the long-term effect. That is one is- 
sue that I think does arise very clearly from the Kosovo war. So there are other 
aspects to unintended damage besides the immediate collateral damage that 
certainly require attention. 

306 



Discussion _____ 

W. Hays Parks: 

The answer to the question of cluster munitions is threefold: it's historical, it's 
technical, and it's ongoing diplomatic initiatives. Unexploded ordnance — what 
we are calling now, explosive remnants of war — are of course part of everyone's 
history. I think the French have been clearing something like a half million 
rounds of unexploded ordnance from their own territory for the last fifty some 
odd years. We recognized it more after Kosovo for the very simple reason that 
many of the people who lived in Kosovo were allowed to go back to their homes 
before the areas were cleared thus placing themselves at risk. 

I just finished reading Anthony Beevor's book on the battle of Stalingrad. 3 
Even in the dead of winter when that battle was over, the Soviet Army did not 
let the civilians return to their homes until the unexploded ordnance was 
cleared. That of course is a responsibility of a sovereign nation to do that. We 
have the gap in Kosovo because there was no sovereign there to prevent people 
from returning. The United Nations and others, however, have noted the ac- 
tivities of the United States and a number of other nations in going in to clear 
not only antipersonnel landmines but to assist in clearance of all unexploded 
ordnance, and they've been praised for that effort. 

Lastly, the diplomatic part. Last September the International Committee of 
the Red Cross hosted a meeting in Leone that was chaired by Yves Sandoz. 
While its original focus was on cluster munitions, the issue eventually evolved 
to explosive remnants of war. We are in the middle of the second review 
conference to the UN Conventional Weapons Convention now where this is- 
sue is under consideration. One of the things that we're looking at — and it 
will be a long-term solution — is requiring some sort of a self-destruct or self- 
neutralization device on all ordnance. That could be very expensive, but in 
the long run it will save lives and save money. It costs roughly $500 to clear 
one piece of unexploded ordnance whereas something like this would be less 
than $50 a round. We're looking at it very seriously. We have not only a hu- 
manitarian and technological interest in doing it, but also a military interest. 
No commanding officer likes to have his own troops advance through their 
own unexploded ordnance. So this may be one of those places where all of 
this will come together. It may take some time because obviously some people 
will say we can't afford that. It may take twenty years to do it. It's an issue be- 
ing focused on. It is certainly not related just to cluster munitions. 



3. ANTONY BEEVOR, STALINGRAD: THE FATEFUL SIEGE, 1942-1943, at 407 (1998). 

307 



Discussion 

The Principle of Proportionality 

John Murphy: 

I want to clarify a point with respect to Yves Sandoz' comments. I'm an ag- 
nostic as to the debate that you have with Hays Parks on whether there is or is 
not a rule of customary international law called the rule of proportionality. I'll 
leave it up to you folks to continue to do battle on that. I am similarly an ag- 
nostic because I think it's really beyond my technical competence to get into 
the question of whether Protocol I strikes an improper balance between the 
obligations of the attackers and the obligations of the defenders. I did note 
that in my paper. I will say this in respect to the rule of proportionality. It does 
seem to me that it is applied, whatever its status, in terms of a question of 
whether the collateral damage is excessive compared to the military advan- 
tage. I think it is a very difficult rule to interpret and apply and I think that's 
been brought out in the course of our discussions not only this morning but at 
other times and no doubt it will arise again. 

Henry Shue: 

I would like to say a bit more about the role that the considerations of pro- 
portionality play in target selection. A lot of us were fairly skeptical about how 
important proportionality can be because it is so vague. But you all say that 
proportionality absolutely did come into consideration. There's kind of two 
ways it can work. One, effective proportionality can be that you decide that 
rather than hitting a particular target the way you would like to, you hit it 
some other way — at night instead of in the day, or with a precision weapon in- 
stead of a non-precise one — but you still go ahead and hit it. Were there very 
many cases in which you said of a dual-purpose target, "Yes, it has military 
value, but its civilian value is so great that we shouldn't hit it at all with con- 
sideration to proportionality?" Were any targets ever totally ruled out rather 
than just hit some other way? It sounds as if for example the electrical grid was 
treated that way until the end of the bombing campaign. 

Judith Miller: 

Proportionality was key in respect to any targeting decision that I am aware 
of in Kosovo or in any other context in which military force was used by the 
United States in conjunction with its allies while I was at DoD. And while it 
may sound vague, I think we all have very much in mind that it is a principle 
that needs to be applied. You can't say, "Well, there are X human lives at 
stake or civilians versus an enormous military value." There's no way to boil 

308 



Discussion 

that down to a formula. But our intelligence people, the people who put to- 
gether target folders and background information, and the modeling that 
we've done have allowed us to actually think in specifics not just generalities. 
We knew that there were housing developments close to something that we 
cared about attacking and there were a number of occasions where targets 
were rejected. 

I'm confident there were a number of targets rejected before they ever got 
to my level because we had so many other good lawyers and target people 
working in the field, which is the first line of the appraisal. But there were 
some targets that came through from the field that we asked questions about, 
looked at, and ultimately concluded that they were not appropriate targets to 
take on. So while it's not a science, I think certainly everyone I worked with 
on the operational side and the Joint Staff, in the policy world of DoD, and the 
legal community felt that that was the guiding principle of really paramount 
importance. 

Richard Sorenson: 

We closely scrutinized each and every target. That of course started out 
fundamentally with military necessity, but then would go down to the number 
of military casualties that would happen and the number of civilians that po- 
tentially would die. We were really looking at "effects based targeting." We're 
not looking at simply blowing up a particular building or whatever. If we can 
achieve the desired effect with some other means that minimizes the unneces- 
sary suffering, then that was also considered- So if we could go with alternative 
means to achieve the same effect that's required by military necessity. And 
that was considered throughout the campaign. The bottom line is we had a lot 
of data. 

Flying At 15,000 Feet 

Susan Fink: 4 

As a military pilot who's been in academia for about a year now, I've been 
struck by the number of times I've heard that one of the things that we need to 
really think about in humanitarian intervention is how we can put our pilots 
at 15,000 feet and knowingly kill hundreds of people when the reason for this 
is humanitarian intervention, not just a regular international war, but 



4. Lieutenant Commander, United States Navy; Fletcher School of Law and Diplomacy. 



309 



Discussion 

humanitarian in purpose. When I dig a little deeper, I find that the argument 
is two-fold. First, it's a moral and ethical one that must be taken into account 
when decision makers at the highest level entertain a thought of humanitar- 
ian intervention. And then deeper it is that the altitude at which pilots fly ac- 
tually increases the number of civilians killed. Pressing this a little further, 
there is some ambiguity about whether there were precision-guided munitions 
available or whether we'd run out of those at this point and were reverting to 
other weapons, etcetera. But my question is this — it's probably more appropri- 
ate to ask this of a moral and ethical panel — but I would like to ask the legal 
experts whether you entertain this from a legal standpoint. Secondly, what ad- 
vice would you give to those who live in the land of the doable — those who 
live in the land of the political who have to make these decisions — what ad- 
vice you would give them to either rebut, entertain or take this into account 
when making a decision to go in to humanitarian intervention? 

Richard Sorenson: 

Let me start out by saying that I don't think there are facts to support that 
in reality in particular with Kosovo. The problems with hitting the convoys 
from fifteen thousand feet occurred when Milosevic intentionally intermin- 
gled combatants with noncombatants — it was difficult to discriminate. I think 
there were relatively few civilians killed as a result of those strikes from fifteen 
thousand. And in fact, the pilots did go down to six thousand. They had bin- 
oculars. They were in fact complying with their obligations under the law of 
armed conflict to discriminate between combatants and noncombatants. So I 
don't think the facts are out there. It makes great newspaper copy, sells news- 
papers, airtime and interviews, but the facts just simply aren't there to suggest 
that by keeping our pilots at 15,000 feet to protect them we were engaging in 
basically carpet bombing. I understand what carpet bombing is and that did 
not happen. The A- 10 pilots did not pickle off their general-purpose bombs 
anywhere. They had specific targets that they had spotted and were releasing 
their ordnance against those military targets that they had identified. Some- 
times there was misidentification and that goes with the fog of war. The mili- 
tary commanders that are in command of military forces, and the pilots that 
are flying planes and releasing ordnance, use their best military judgment at 
the time, assessing all the facts, knowing that they cannot intentionally target 
civilians due to the training they have received on the law of armed conflict. 
Plus targeting reviews happened at all levels, including during the operations 
going after field forces in Kosovo proper, to ensure we were distinguishing be- 
tween military and civilian targets. 

310 



PARTY 



COALITION OPERATIONS 



Introduction 



Nicholas Rostow 



O 



ur topic is coalition warfare. We will examine such issues as what rules 
to follow when different members of the coalition have different inter- 
national legal obligations. A particular focus will be Protocol I since some 
NATO members are parties, while others are not. We will also examine the ex- 
tent to which Protocol I is customary international law. 

This whole issue of coalition warfare of course is an old one. There have 
been coalitions since I suppose the beginning of recorded military history. 
They always raise very interesting political-military issues. Commanders 
always complain bitterly about political interference. One need only read 
Winston Churchill's book on the life of Marlborough to learn what real politi- 
cal interference was. I would just offer Churchill's comment that the only 
thing worse than fighting with allies is fighting without them — that is on 
your side. 



Coalition Warfare and Differing Legal 

Obligations of Coalition Members Under 

International Humanitarian Law 



Torsten Stein 



W 



ars were fought by alliances or "coalitions," both before and at 
Waterloo. Indeed, coalition warfare has been a dominant theme of 
armed conflict in the 19th and 20th centuries and is represented at the end of 
the last millennium in Operation Allied Force. It is, however, a more recent de- 
velopment that coalition partners do not necessarily operate separately and in 
clearly distinct segments of the theater or battlefield. Today's coalitions 
"inter-operate" so closely that it may be difficult, if not impossible, for adversar- 
ies and outsiders, such as the International Committee of the Red Cross 
(ICRC) that seek to monitor the observance of obligations under international 
humanitarian law, to identify who did what and to whom. 

Admittedly, the coalition partners have (almost) a clear understanding of 
such matters. Moreover a participating State would, due to the pressure from 
a public at home which demands answers, either admit to its own wrongdoing, 
deny responsibility and point out the responsible party, or make a plausible de- 
nial of responsibility without putting the blame on any specific State or actor. 
If the coalition consists of democracies, that process should make it easier to 
place the blame within a relatively short period of time. Theoretically, how- 
ever, one cannot leave out the possibility that the coalition may manage to 
build a wall of denial or silence. 

Increasing the problems further, the various members of a coalition waging 
war might have differing legal obligations under the law of armed conflict; 



Coalition Warfare and Differing Legal Obligations 

obligations which are treaty 'based. Some coalitions might be more homoge- 
neous in this respect, others less so. The coalition conducting Operation 
Allied Force was certainly more homogenous, even if not all participating 
members were contracting parties to the 1977 Additional Protocol I the 1949 
Geneva Conventions, than the coalition which is currently providing troops 
for the Kosovo International Security Force (KFOR) . 

At the end of the day Protocol I may not be the biggest problem. What 
about the 1980 UN Conventional Weapons Convention and its Protocols? Or 
the 1997 Ottawa Convention on anti-personnel mines? The diversity of re- 
spective obligations arising from these conventions might be much greater in a 
coalition of over 30 States than with regard to Protocol I. 

Can there be differing legal standards for various members of a given coali- 
tion? Could the commander-in-chief (CINC) of such a coalition ask (or even 
order) those force -providing States not parties to the restricting treaties to un- 
dertake actions which violate those treaties, while all the others live up to 
their treaty obligations? Does it make a difference if the coalition is a "UN 
force" or at least authorized by the Security Council to use force? Are there 
other reasons why the strictest legal standard should govern a coalition war 
because the coalition derives the legality of its use of force from being a re- 
gional arrangement, or from its humanitarian purpose? Or because reprisals of 
the other side would be indiscriminate? And to whom would possible interna- 
tionally wrongful acts be attributed? To the coalition if it is an international 
organization, to all members of the coalition or only to the flag State? 

This paper will discuss all these questions using NATO's Kosovo campaign 
as an example, which includes the air campaign of Operation Allied Force, as 
well as KFOR, the ground force authorized by the UN Security Council to use 
force, if necessary. There can be no doubt that the whole of the law of armed 
conflicts applies to the air campaign, although NATO spokesmen avoided 
calling it a "war" and insisted that it was a "humanitarian action." I will at- 
tempt to treat the questions under a somewhat broader perspective, because 
there will be other (and different) coalitions in the future, and the same rules 
will probably apply to all of them; as would, by the way, customary interna- 
tional law rules emerging out of Operation Allied Force. 

The Factual Setting 

Examples of the diversity of obligations during the Kosovo campaign in- 
clude: France, the United States and Turkey were not parties to Protocol I; 
Turkey is not a party to the UN Conventional Weapons Convention or any of 



316 



Torsten Stein 



its Protocols; Russia (as was the former Soviet Union) is not a party to Proto- 
cols II and IV, nor is Poland; Yugoslavia and all its former Republics are not 
parties to Protocols II and V with the exception of Bosnia, which is a party to 
Protocol II; and the United States is not a party to Protocol IV. One could go 
on naming other force -providing States among the over 30 contributing to 
KFOR and the various choices they have made with respect to ratifying the 
Conventional Weapons Convention and its protocols. 

It is also a fact that for probably different reasons foreign offices and defense 
ministries carefully compared armed forces manuals. However, as the second 
KFOR Commander confirmed, 1 while rules of engagement contained numer- 
ous restrictions premised on grounds of domestic law, none expressly refer to 
obligations under international humanitarian law. General Clark, who served 
as Supreme Allied Commander Europe, reports that while there was resis- 
tance among NATO States when he tried to get additional targets approved, 
the rationale did not include "we can't do it because some of us are bound by 
Protocol I." 2 Nonetheless, the legal restraints of Protocol I were observed, 
even if they found no expression at the CINC-level. 

Has Protocol 1 Become Customary International Law? 

Differing treaty obligations of members of a coalition would not pose a prob- 
lem if a treaty such as Protocol I has become customary international law. No 
one, however, has thus far maintained that the UN Conventional Weapons 
Convention and its Protocols, or the 1997 Ottawa Convention, have become 
binding upon non-parties. 3 It is widely accepted in international law that, as 
Article 38 of the Vienna Convention on the Law of Treaties confirms, treaty 
obligations and customary law obligations may coincide, because the treaty 
codifies already existing customary law, or because new customary interna- 
tional law is generated in the aftermath of a treaty. 

It is appropriate to dwell for a moment on the process of creating customary 
international law. As stated in Article 38 (1) (b) of the Statute for the Interna- 
tional Court of Justice (ICJ), such law requires both custom and the subjective 
element of following this custom because one is so obliged by law — opinio iuris. 
In this respect, it is interesting to note the practice of the same court in the 



1. Personal interview; cf. also GENERAL KLAUS REINHARDT, KFOR - STREITKRAFTE FUR 

denfrieden (2001). 

2. Wesley Clark, Waging Modern War 201 (2001). 

3. The dubious process of instant customary international law will thus not be investigated 
here. 



317 



Coalition Warfare and Differing Legal Obligations 

"de-emphasising of material practice as a constitutive element combined with 
the tendency to "count" the articulation of a rule twice, so to speak, not only 
as an expression opinio juris but also as State practice itself." 4 

In the Nicaragua case, the International Court of Justice (ICJ) disregarded 
the view of some lawyers 5 as to the non-relevance of General Assembly reso- 
lutions in the process of evolving customary international law, when it re- 
ferred to non-binding resolutions as evidence of this kind of law. 6 The 
question of who's practice is relevant in the formation of customary law is 
central in this process. The ICJ stated in its North Sea Continental Shelf case 7 
that the practice of non-parties is essential in the development of this law. 
With treaties of universal acceptance like the 1949 Geneva Conventions, 8 
and to a lesser extent the Additional Protocols of 1977, 9 there are only a few 
States left to create this kind of custom and opinio iuris. This Baxter paradox 10 
has, however, not been seen as blocking the evolution of customary law, as 
exemplified by the above-mentioned decisions of the Court. The focus has in- 
stead shifted to the activities of both the parties and the non-parties, consid- 
ering a wide range of sources as evidence for both custom and opinio iuris. 
With a distinct unwillingness to focus solely on what the belligerents actually 
do, which is probably bound up with a policy of enhancing the protection of 
noncombatants and combatants alike, the ICJ, and lately as well the Interna- 
tional Criminal Tribunal for the former Yugoslavia (ICTY), 11 have decided to 
direct their focus at other sources of "evidence" for the necessary custom and 
opinio iuris. Amongst these, the number of ratifications to international trea- 
ties and the dictates of military manuals have been referred to in order to 



4. Bruno Simma & Philip Alston, The Sources of Human Rights Law: Custom, Jus Cogens and 
General Principles, 12 AUSTRALIAN YEAR BOOK OF INTERNATIONAL LAW 82, 96 (1992). 

5. E.g, Gaetano Arangio-Ruiz, The Normative Role of the General Assembly of the United Nations 
and the Development of Principles of Friendly Relations, 137 RECUEIL DES COURS 431 (1972). 

6. Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 99-100 (June 27) [hereinafter 
Nicaragua case]. Though, as stated by Wolfke,"[t]he evaluation of the sufficiency of such 
evidence must, however, always be carried out 'with all due caution,' especially as far as the 
evidentiary value of non-binding resolutions is concerned." Karol Wolfke, CUSTOM IN PRESENT 

International Law 152 (2ded. 1993). 

7. North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.) 1969 I.C.J. 43 (Feb. 20). 

8. According to a search of the official ICRC website (http://www.icrc.org) on October 18 
2001, there are 189 Parties to the 1949 Geneva Conventions. 

9. There are 159 Parties to Additional Protocol I and 151 Parties to Additional Protocol II. Id. 

10. Richard Baxter, Treaties and Custom, 129 RECUEIL DES COURS 27, 73 (1970). 

11. Prosecutor v. Tadic, Appeal on Jurisdiction, Case No. IT-94-1-AR72 (Oct. 2, 1995), 
reprinted in 35 INTERNATIONAL LEGAL MATERIALS 32, 55 (1996). 



318 



Torsten Stein 



ascertain what States consider to be binding on themselves. 12 

Customary international law may also emerge from treaties because a great 
number of identical bilateral treaties establish a widespread opinio iuris, or be- 
cause a multilateral treaty has been ratified by the overwhelming majority of 
States. Thus, quite a number of authors conclude from the fact that the 
Geneva Conventions of 1949 have been ratified by more States than virtually 
any other convention (the Convention on the Right of the Child being one of 
the rare exceptions 13 ) that a great number of their rules have become recog- 
nized as customary rules, even as ius cogens. In some instances this might be 
the result of occasional confusion provoked by renaming the "law of war" or 
"law of armed conflict" as "international humanitarian law," thus blurring the 
distinction between "humanitarian" and "human rights" law. 14 Common Arti- 
cle 3 to the four Geneva Conventions, which does constitute a kind of human 
rights provision, might have contributed to that confusion, since, as the ICJ 
held in the Nicaragua case, it reflects "elementary considerations of human- 
ity" 15 and constitutes "the minimum yardstick" 16 for armed conflict. And again 
in the Nuclear Weapons advisory opinion, the ICJ pronounced that: 

[A] great many rules of humanitarian law in armed conflict are so fundamental 
to the respect of the human person . . . that . . . these fundamental rules are to be 
observed by all States whether or not they have ratified the conventions that 
contain them, because they constitute intransgressible principles of 
international customary law. 17 



12. ld. } and Report on the follow-up to the International Conference for the Protection of War 
Victims, 26 th International Conference of the Red Cross and Red Crescent, Commission I, Item 
2, Doc 95/c.I/2/2, at 7^8 (1995). 

13. Mention should as well be made of the Constitution of the Universal Postal Union and the 
Constitution of the International Telecommunication Union, both of which have 189 parties, as 
stated on their homepages http://www.itu.int and http://www.upu.int, respectively. 

14. Dietrich Schindler, Significance of the Geneva Conventions for the Contemporary World, 81 

International Review of the Red Cross 717 (1999). The process is well described by 

Meron, who states that "the recognition of nonns based in international human rights as 
customary may affect the intepretation and even the status of the parallel norms in instruments 
of international humanitarian law through a sort of osmosis or application by analogy." 

Theodor Meron, Human Rights and Humanitarian Norms as Customary 
International Law 68, (1989). 

15. Nicaragua case, supra note 6, at 104. 

16. Id. 

17. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 257, H 99 
0uly8). 



319 



Coalition Warfare and Differing Legal Obligations 

The International Tribunal for the former Yugoslavia joined the ICJ in this 
view in the Tadic case. 18 The question remains, however, whether this is of 
much help in determining whether all the provisions of Protocol I, and in par- 
ticular those that might not have been properly observed in Operation Allied 
Force, are intransgressible principles of customary international law. 

The gap between those coalition partners who have ratified Protocol I, and 
those who have not, might not be as wide as it seems, since, for example, the 
US Air Force's Intelligence Targeting Guide has incorporated almost verba- 
tim many relevant articles from the Protocol. 19 It is of interest here to note 
that its Attachment 4.2.2 on military objects is — almost to the letter — a re- 
statement of Protocol I, Article 52(2). Attachment 4.3.1.2 on precautions and 
proportionality does not mention the trinity of "excessive," "concrete," and 
"direct," though these are mentioned in US Army Judge Advocate General's 
School's Operational Law Handbook 2002, 20 as well as in the US Army's Field 
Manual 27- 10. 21 The Handbook states that "[t]he U.S. considers these provi- 
sions customary international law." Admittedly, this statement indicates only 
that the US recognizes its own interpretation of these principles/rules as part 
of customary international law. 22 

As mentioned above, the pronouncement of a rule in a national manual of 
a non-party to a treaty has special relevance in the process of establishing cus- 
tomary international law, notwithstanding the assertion in United States v. List 
et a\P The fact that the entries are motivated by more than just legal consider- 
ations does not seem to limit their legal significance. 24 



18. Tadic case, supra note 11, 1111 96-137. 

19. Targeting Division, Headquarters 497 Intelligence Group, Air Intelligence 
Agency, USAF Intelligence Targeting Guide (Air Force Pamphlet 14-210), Feb 1, 1998, 

available at http://www.fas.org/irp/doddir/usaf/afpaml4-210/. 

20. International and Operational Law Department, The Judge Advocate 
General's School, Operational Law Handbook 9 (2002), available at http://www. 

jagcnet.army.mil/CLAMO-Public. 

21. Headquarters, Department of the Army, The Law of Land Warfare 

(Department of the Army Field Manual 27-10) para. 41 (1956), available at 
http://www.adtdl.anny.mil/cgi-bin/atdl.dll/fm/27-10/Chl.htm. 

22. Operational Law Handbook, supra note 20, at 9. 

23. U.S. v List et al. [The Hostage case] (1948), Trials of War Criminals before the Nuernberg 
Military Tribunals under Control Council Law No. 10, vol. 1 1 (1950), 1230 at 1237. See as well 
Theodor Meron, The Geneva Conventions as Customary Law, 81 AMERICAN JOURNAL OF 

International Law 361 (1987). 

24- Compare this with the ICJ's accceptance of statements made by State representatives in 
international fora as constitutive of opinio iuris, although these statements are motived by a wide 
range of different reasons, I.C.J. Report 1986 at 98-108, Ml 187-205. 



320 



Torsten Stein 



But even if national military manuals may increasingly be looked at as im- 
portant evidence of customary international law, this will only be of limited 
help such as, for example, regarding the status of collateral damage. 

The problem here is whether those provisions of Protocol I that came into 
focus during Operation Allied Force are eligible for consideration as custom- 
ary law, given that terms like "military significance," "definite military advan- 
tage," and "effective contribution to military action" are not defined, not even 
by non-exhaustive examples as for "indiscriminate attacks?" If one takes only 
the declaration made by Germany and the United Kingdom, according to 
which "the military advantage anticipated from an attack is intended to refer 
to the advantage anticipated from the attack as a whole and not only from iso- 
lated or particular parts of the attack," 25 what then is the meaning or interpre- 
tation that could become customary law for non-parties? Could it be that 
non-parties have to observe stricter obligations than those who have ratified 
Protocol I, but with admissible and accepted reservations or declarations? As 
stated by Baxter, "[i]t would be paradoxical in the extreme if a non-party were 
to be regarded as bound unqualifiedly by the obligations of the conventions, 
while a party might limit its duties by the entry of reservations." 26 

It could be argued that there would not be any significant problems binding 
non-parties to the same extent as far as the States having made reservations 
are bound. The understanding that collateral casualties are both legal and un- 
avoidable, as long as they are below a certain threshold, would thus stand. Ad- 
mittedly, only a few of the parties to Protocol I have made the 
above-mentioned reservations. A case could thus be made for binding the 
non-parties to a stricter code, i.e., what the parties without a reservation are 
bound by, as long as customary international law can be established. 

Both alternatives, however, incorporate a degree of uncertainty as regards 
the precise limits of the obligations, as the proportionality principle "creates 
serious difficulties in practice, since it necessarily remains loosely defined and 
is subject to subjective assessment and balancing. In the framework of the re- 
quired evaluation, the actors enjoy a considerable margin of appreciation." 27 It 
may be correct to say that the fundamental principles repeatedly mentioned 



25. See DOCUMENTS ON THE LAWS OF WAR 505 and 511, respectively (Adam Roberts & 
Richard Guelff eds., 3d ed. 2000). Similar statements were made by Australia, Belgium, Canada, 
Italy, the Netherlands, New Zealand and Spain. Id. at 500-509. 

26. Richard Baxter, Multilateral Treaties as Evidence of Customary International Law, 41 BRITISH 

Yearbook of International Law 285 (1965-66). 

27. Stefan Oeter, Methods and Means of Combat, in THE HANDBOOK OF HUMANITARIAN LAW 
IN ARMED CONFLICTS 178-9 (Dieter Fleck ed., 1995). See id. for further references. 



321 



Coalition Warfare and Differing Legal Obligations 

by the ICJ, the basic distinction between civilians and combatants, the prohi- 
bition against directly attacking civilians, and the rule of proportionality, are 
customary international law. But it is very doubtful whether the same can be 
said about all the other provisions of Protocol I — in particular those dealing 
with collateral damage. 28 

If Protocol I is not, at least not as a whole, customary international law, dif- 
fering legal standards for various members of a given coalition remain — even 
leaving aside other restrictions on weapons and means of warfare. But there 
might be other reasons why the same standard of legal obligations should ap- 
ply to such a coalition. 

Does "same standard" always mean "maximum standard" in the sense of a 
"most favored nation clause?" The answer probably depends upon if and to 
what extent the reciprocity principle is (still) applicable to the international 
humanitarian law as it certainly was to the traditional law of war. Article 96 
of Protocol I provides that parties to a conflict which are bound by the Proto- 
col remain so bound vis-a-vis adverse parties also bound thereby, even if one 
or more allied or adverse parties are not party to the Protocol. Consequently, 
States bound by the Protocol participating in a coalition which includes 
States not party thereto, are not relieved of their Protocol I obligations. But it 
has been said that, because Iraq has not accepted Protocol I, those States in 
the opposition coalition during the Gulf War which were bound by that 
Protocol, were not directly obliged to apply it, whatever "directly" means 
in that context. 29 1 will come back to the reciprocity problem later with re- 
spect to reprisals. 

A Single (Maximum) Standard for "UN Forces"? 

For quite some time it has been debated whether UN forces were not only 
morally, but legally bound to respect the existing humanitarian law, even if 
some or all of the force-providing States were not. But before addressing that 
issue, a few words should be devoted to the differentiation of forces operating 
under a United Nations mandate. Since no standing UN force has been estab- 
lished under UN Charter Articles 43 and 45, the UN has had to rely on 



28. For a comprehensive analysis of the customary status of the Additional Protocols, see 
Christopher Greenwood, Customary Law Status of the 1977 Additional Protocols, in 

Humanitarian Law of Armed Conflict, Challenges ahead 93 (Astrid J.M. Delissen & 

Gerard J. Tanja eds., 1991). 

29. Christopher Greenwood, Historical Developments and Legal Basis, in HANDBOOK OF 

Humanitarian Law, supra note 27, at 26. 



322 



Torsten Stein 



coalitions of the willing whenever it decided armed force was needed. 30 In 
only one instance did such a coalition of the willing operate under anything 
resembling UN command and control. 31 These Chapter VII actions have in 
general been carried out under UN authority — through the mandate it- 
self — but under no tangible UN control. Such was the case with Operation 
Desert Storm in 1991. State practice seemed to be founded on the idea that 
armed forces acting under Chapter VII are not bound by the Geneva Conven- 
tions or other treaty-based international humanitarian law, as they act for the 
UN rather than as State actors bound by those rules. 32 

The doctrine has, on the other hand, often claimed binding effect of inter- 
national humanitarian law in these situations. 33 This claim is often based on 
the obligation of parties to the 1949 Geneva Conventions to ensure obser- 
vance of these rules in all situations. 34 It can also be said to be presumed by the 
adoption of the 1994 Convention on the Safety of United Nations and Associ- 
ated Personnel, which in its Article 2(2) excludes its application to missions 
authorized by the Security Council as an enforcement action under Chapter 
VII of the Charter of the United Nations in which any of the personnel are 
engaged as combatants against organized armed forces and to which the laws 
of international armed conflicts applies" 35 



30. The regime regulating UN authorized peace-keeping forces will not be examined here. 

31. The US-led coalition forces in Korea during 1950-53. 

32. Michael Hoffman, Peace-enforcement actions and humanitarian law: Emerging rules for 
"interventional armed conflict", 82 INTERNATIONAL REVIEW OF THE RED CROSS 193 (2000). 

33. E.g., Leslie Green, The contemporary law of armed conflict 319 (1993). 

Seyersted stated that "[n]one of the States participationg in the United Nations action in Korea 
maintained during that action that it was not governed by the general laws of war, on the 
contrary, they acted on the assumption that it was." FINN SEYERSTED, UNITED NATIONS 
FORCES IN THE LAW OF PEACE AND WAR 204 (1966). The binding effect of international 
customary law seems furthermore to follow from UN Charter Article 103, which seems to allow 
the UN obligations to supersede other obligations only when these other obligations result from 
treaties. But see Paul Szasz, UN Forces and International Humanitarian Law, in INTERNATIONAL 

Law Across the Spectrum of Conflict: Essays in Honour of Professor L.C. Green 
on the Occasion of his Eightieth Birthday 513 (Michael Schmitt ed., 2000) (Vol. 75, 

U.S. Naval War College International Law Studies). This in itself leaves open the question of 
how the UN can be bound by the treaty obligations of international humanitarian law that do not 
(yet) have a customary status. 

34. Common Article 1 to all four Conventions. See e.g., Greenwood, supra note 29, at 46. 

35. Emphasis provided by the present author. The main problem with respect to the determination of 
which law is to apply to UN missions is considered by Greenwood to relate to those situations where 
the mission is neither an enforcement mission which undertakes military actions resembling an 
armed conflict, nor a peacekeeping mission which strives to act neutrally. Christopher Greenwood, 
International Law and the Conduct of Military Operation: Stocktaking at the Start of a New Millennium, 

in International Law Across the Spectrum of Conflict, supra note 33, at 192. 



323 



Coalition Warfare and Differing Legal Obligations 

The UN Secretary-General's Bulletin on the "Observance by United Na- 
tions forces of international humanitarian law" of August 6, 1999, 36 provides 
only partial answers. First of all, the Bulletin is restricted to forces conducting 
operations under UN command and control, 37 which is, as stated above, the 
exception rather than the rule. What about forces under national or NATO 
command, authorized, as KFOR, "to monitor and ensure compliance with 
this [the Military Technical] Agreement and to respond promptly to any vio- 
lations and restore compliance, using military force if required"? 38 Secondly, 
the Bulletin is said not to replace the national laws by which military person- 
nel remain bound throughout the operation. 39 What if the army, air force, 
navy or marine corps manuals of States which are not a party to some or most 
of the treaties on humanitarian law allow for actions and operations prohib- 
ited under those treaties? Are the manuals to prevail? Because this Section 
seems to be included in order to ensure that obligations resting on parties that 
are more far reaching than those flowing from the Bulletin's provisions will 
not be abrogated from, the object thus being the application of as much in- 
ternational humanitarian law as possible to the relevant force, it is therefore 
submitted that such manuals cannot validly derogate from the obligations 
under the Bulletin. 

The substantive Sections 5 to 9 of the Bulletin combine fundamental prin- 
ciples that might be classified as customary law with rules prohibiting or re- 
stricting the use of certain weapons, rules which are hardly customary law. 40 
This raises the question as to whether the Secretary-General can issue rules 
and regulations for the conduct of State-deployed forces on UN missions if 
some of the provisions rely on treaties that have not been ratified by all States 
participating in Chapter VII or peacekeeping operations? 41 Some authors 



36. 38 International Legal Materials 1659 (1999) [hereinafter Bulletin]. 

37. Id., Section 1. 

38. The Military Technical Agreement Between the International Security Force ("KFOR") 
and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia, 
Appendix B(4), available at http://www.nato.int/kfor/resources/documents/mta.htm. 

39. Bulletin, supra note 36, Section 2. 

40. See especially Bulletin, id., Section 6. 

41. Hoffman, supra note 32, at 201. 



324 



Torsten Stein 



seem to claim so when focusing on the Secretary-General's function as "com- 
mander-in-chief ' of operations carried out under UN authority and com- 
mand — which currently includes only peacekeeping operations. 42 It should be 
pointed out here that in those situations where a coalition has been autho- 
rized by the UN, but has not been obliged to operate under its control/com- 
mand, a right for the Secretary-General to instruct the force does not exist, 
which is presumed by the exclusion of missions outside "United Nations com- 
mand and control" from the Bulletin's applicability. 43 

A solution could be seen in the status-of-forces agreements mentioned in 
Section 3, which are treaties by themselves and which are designed to ensure 
that the force will conduct its operations with full respect for the principles 
and rules of the general conventions applicable to the conduct of military per- 
sonnel. But then, also under Section 3, the obligation to respect such princi- 
ples and rules is applicable even in the absence of a status-of-forces 
agreement. And, finally, the Guidance has serious lacunae, not least because 
it is silent on military occupation and KFOR is an occupation force par 
excellence. 

One obvious way to bind the forces operating under a UN mandate to the 
highest level of international humanitarian law would be to mandate such 
compliance in the Security Council resolutions which authorize the use of 
force in the first place. This way, contributing States which are non-parties to 
the relevant treaties would be obliged to act in accordance with these treaties 
for the purpose of the specific mission. On the other hand, such a policy could 
effectively undermine the interest of these States in participating in UN mis- 
sions, thus leading to a shortage of voluntary forces. 44 

It remains more or less a gut feeling that UN or UN-authorized forces 
should abide by all existing principles and rules of international humanitarian 
law. The legal foundation of such an obligation — as well as the legal status of 
the Secretary-General's Bulletin — is still open to debate. 



42. Szasz, supra note 33, at 519. As UN Force Protection (UNPROFOR) I and II in the former 
Yugoslavia have shown, enforcement actions can become necessary even in the course of 
peacekeeping operations. 

43. Bulletin, supra note 36, Preamble. 

44- The Security Council could as well decide to relieve the participating members of their 
humanitarian treaty obligations through UN Charter Article 103, though it is submitted here 
that this is only a theoretical possibility. 



325 



Coalition Warfare and Differing Legal Obligations 

A Single (Maximum) Standard for "Coalitions"? 

There are, as we have witnessed in Operation Allied Force, coalitions that 
have no UN authorization whatsoever. The legality of such operations will 
not be the subject of this paper. Rather, the focus here is whether the fact 
alone that States form a coalition for the joint use of force oblige them to ap- 
ply a single maximum standard in humanitarian law? In general, a State does 
not lose or gain rights and obligations when it operates together with other 
States as opposed to undertaking operations alone. Some arguments in favor 
of such an obligation are, however, conceivable. NATO drew some legitimacy 
(if not legality) for Allied Force from the fact that the UN Security Council 
was veto-blocked, unable to do what common sense and the humanitarian 
agenda of present day politics and law expected, 45 and that the regional ar- 
rangement (NATO) had to step in; that this was not the use of force by a sin- 
gle State for selfish purposes, but the use of force by a coalition of 
like-minded, democratic, law-abiding States for a good purpose, a "small UN." 
This might, or might not, overcome the missing UN mandate and might end 
up setting a problematic precedent, but since it is at least not entirely clear 
whether even UN forces have to apply a maximum standard of humanitarian 
law, being a coalition alone does not seem to be a convincing argument in 
that respect. 

More compelling could be the argument that the coalition used force for 
humanitarian purposes, that its very purpose was to end gross violations of hu- 
man rights. 46 The fact that NATO was intervening in the name of human 
rights implied a perhaps heavier moral burden to respect the rules of humani- 
tarian law, but did it also imply a legal obligation to do so? Would the same 
reasoning apply if a coalition is not intervening in the name of human rights, 
but participating in collective self-defense? 

In the specific case of NATO's Operation Allied Force, one motive for re- 
specting a high standard of humanitarian law was certainly to avoid the loss of 
the support of even a single ally, and NATO's unanimity rule in targeting de- 
cisions also guaranteed that the concerns of each member were taken seri- 
ously. It also has been reported from the Gulf War that the Royal Air Force 



45. Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 EUROPEAN JOURNAL 

of International Law l (1999). 

46. V. Kroning, Kosovo and International Humanitarian Law, in Forum: HUMANITARES 
VOLKERRECHT - INFORMATIONSSCHRIFTEN HEFTl/2000, at 45 (2000). 



326 



Torsten Stein 



refused at least twice to bomb targets given it by American commanders be- 
cause the risk of collateral damage was too high. 47 

A policy argument that would still have some importance is the need to 
streamline the planning structure of a coalition of forces. Thus, it is preferable 
to have only one set of rules upon which to formulate plans, and since the par- 
ties with the most comprehensive legal bindings cannot derogate from their 
obligations, unless these bindings are dependent upon reciprocity and the 
other party is not bound, the maximum level should be chosen. 

But the strongest incentive for a coalition to apply the maximum standard, 
if it is also the one applied by the other side, is, I believe, still "positive reci- 
procity" and the risk of reprisals. Quite a few argue that since the law of war 
has been transformed into a human rights oriented law, belligerent reprisals 
are prohibited and reciprocity has therefore lost its relevance. 48 This may be 
correct to a certain extent for the Geneva Conventions and Protocols, which 
expressly prohibit reprisals against civilians, wounded, prisoners of war, indis- 
pensable objects, the natural environment and installations containing dan- 
gerous objects, etc. 49 Hostile forces, however, still may become the object of 
reprisals. But beyond "Geneva Law," there is the UN Conventional Weapons 
Convention and its Protocols. An adversary might not want, or might not be 
able, to distinguish between coalition partners if it decides to respond to the 
use of a prohibited weapon in the same manner. 

Responsibility 

Another reason, finally, for applying a single (maximum) standard of in- 
ternational humanitarian law in a given coalition might be responsibility for 
possible internationally wrongful acts. To whom will non-compliance with hu- 
manitarian law rules, which bind some but not all in a coalition, be attributed? 



47. H.LDebs, Vol. 600, col. 907, May 6, 1999, as mentioned in Peter Rowe, Kosovo 1999: The 
Air Campaign — Have the Provisions of Additional Protocol I Withstood the Test?, 82 

International Review of the Red Cross 158 n.4l (2000). It should here be mentioned 

that one of the reasons for the US to limit the amount of States participating in the attacks on the 
Taliban regime in Afganistan in the fall of 2001 seems to be "the lesson US military planners took 
from Nato's bombing campaign in Kosovo in 1999 [which] was that a large alliance complicates 
and delays the choice of objectives" as stated in the FINANCIAL TIMES (London), Sep. 22/23, 
2001, at 1. 

48. Schindler, supra note 14, at 725. 

49. Articles 46, 47, 13 and 33 of the 1949 Geneva Conventions I, II, III and IV, respectively, and 
Articles 20 and 41-56 of Protocol I. 



327 



Coalition Warfare and Differing Legal Obligations 

To the "coalition" if it is, as in the case of NATO, an international organiza- 
tion? To all members of the coalition or only to the respective flag State? 

A. Responsibility of international organizations in general 

It seems to be widely accepted today that the rules of State responsibility 
can be applied mutatis mutandis to intergovernmental organizations having a 
legal capacity of their own in international law. One relevant principle that 
applies here is that nobody should be able to evade liability or responsibility by 
transferring activities to a separate legal entity which he has co-founded and 
which operates in pursuit of his own goals and under his influence in the or- 
gans of that entity. This, again in principle, entails that an international orga- 
nization is responsible for its internationally wrongful acts in the same way as 
would be its member States had they acted individually instead as of members 
of the organization. 50 

The attribution of responsibility to international organizations has been 
justified on several grounds. With the major role of international organiza- 
tions in contemporary international relations, the international community 
could not tolerate a situation in which such active actors in the global system 
could violate binding international norms without bearing the consequences; 
otherwise the basic aims of international responsibility (i.e., deterrence and 
provision of remedies) would be undermined. 51 Others base their reasoning for 
attributing responsibility to international organizations on their international 
legal personality, which entails rights and obligations, one of the obligations 
being international responsibility in certain cases. 52 Again others hold that the 
same "general principles of law" that are the basis of State responsibility apply 
also to international organizations which, being subjects of international law, 
are governed by identical principles. 53 Since treaties or agreements which ex- 
plicitly establish the responsibility of international organizations are scarce, 54 



50. See Werner Meng, Internationale Organisationen im volkerrechtlichen Deliktsrecht 45, 324-57 
ZIETSCHRIFT FUR AUSLANDISCHES OFFENTLICHES RECHT UND VOLKERRECHT 324 et seq 
(1985) and MOSHE HlRSCH, THE RESPONSIBILITY OF INTERNATIONAL ORGANIZATIONS 

Toward Third Parties: Some Basic Principles passim (1995). 

51. See HlRSCH, supra note 50, at 8. 

52. See Konrad Ginther, International Organizations, Responsibility, in ENCYCLOPEDIA OF 
PUBLIC INTERNATIONAL LAW 1336 et seq (Rudolph Bernhardt ed., 1995). 

53. See Mahnoush Arsanjani, Claims Against International Organizations, 7 YALE JOURNAL OF 

World Public Order 131 (1981). 

54. See Convention on International Liability for Damages Caused by Space Objects, Jan. 29, 
1972, 18 U.S.T. 2410, 610 U.N.T.S. 205, and the United Nations Convention on the Law of the 
Sea, opened for signature Dec. 10, 1982, U.N. Doc. A/conf.62/122, reprinted in 21 

International Legal Materials 1261-1354 (1982). 



328 



Torsten Stein 



the principle that international organizations may be held internationally re- 
sponsible for their acts is mostly classified as being part of international cus- 
tomary law. But practice in this field is also rare and, furthermore, not 
consistent, since "responsibility" and "liability" are not always clearly distin- 
guished. 55 

A number of preconditions seem to be unanimously required for the respon- 
sibility of international organizations, the first one being that the organization 
has legal personality, i.e., a legal capacity of its own. There is little doubt that 
the member States of an international organization in most cases have ac- 
cepted that legal status by either founding the organization or by joining it later 
on. But what about third States? The majority opinion still appears to be that 
international organizations have legal capacity with respect to third States 
only if those third States have recognized the organization, either explicitly or 
implicitly through establishing diplomatic relations or entering into treaties 
with the organization. 56 One might add that an implicit recognition could also 
be found if a third State raises claims against an international organization. 

Another precondition is that the act that caused damage is attributable 57 to 
the international organization. Likewise, in this respect, it does not seem to be 
decisive whether the act was within the power, function or mandate of the or- 
ganization, or rather constituted an ultra vires act; 58 rather, it is necessary that 
the international organization had "effective control" over the act. One of the 
notable shortcomings of international organizations, in comparison with 
States, lies in their limited resources. 59 Most international organizations lack 
personnel, means, and in particular troops to administer large-scale opera- 
tions. The practical solution that has been found is that the organization "bor- 
rows" the necessary resources from its member States. 60 The question that 
then arises is who shall bear international responsibility, i.e., who has com- 
mand and control, the organization or the "sending State?" 



55. The International Law Commission makes a distinction, using "responsibility" for cases 
involving a breach of obligations and "liability" in connection with activities which have caused 
damage, but are otherwise lawful. See HlRSCH, supra note 50, at 7 n.34. 

56. But see IGNAZ SEIDL-HOHENVELDERN & GERHARD LOIBL, RECHT DER 
INTERNATIONALEN ORGANISATIONEN 90 et seq. (2000). 

57. KNUT IPSEN, VOLKERRECHT 573 (1999). 

58. See HlRSCH, supra note 50, at 88 et seq. 

59. See Torsten Stein, Decentralized International Law Enforcement: The Changing Role of the State 
as Law Enforcement Agent, in ALLOCATION OF LAW ENFORCEMENT AUTHORITY IN THE 

International System 107 et seq. Gost Delbmck ed., 1995). 

60. See HlRSCH, supra note 50, at 66 et seq. 



329 



Coalition Warfare and Differing Legal Obligations 

A slightly different question is who will bear responsibility if the organiza- 
tion directs or "orders" its members to implement a decision of the organiza- 
tion. The crucial factor for the determination of responsibility for the 
implementing act is the measure of discretion left to the members. 61 

B. Is NATO responsible? 

If a precondition for the responsibility of international organizations is that 
they have legal personality with regard to the claimant third party, the fulfill- 
ment of that condition vis-a-vis Yugoslavia can by no means be taken for 
granted. There is no evidence that Yugoslavia, as a non-aligned State, ever for- 
mally recognized NATO as a subject of international law. And Yugoslavia re- 
mained excluded from the vast and rapidly developing net of NATO's 
cooperation agreements with Central and Eastern European countries (North 
Atlantic Cooperation Council and Partnership for Peace). 62 Yugoslavia has 
not, in any event not yet, raised claims arising out of Operation Allied Force 
against NATO, but instead — before the ICJ — against NATO's member 
States. 63 This is certainly also due to the fact that NATO is neither a possible 
respondent before the ICJ, nor a possible defendant before the International 
Criminal Tribunal for the former Yugoslavia (ICTY) . Only States can be parties 
to a legal dispute before the ICJ, and the Yugoslavia Tribunal' s jurisdiction is 
limited to the individual criminal responsibility of those who have committed 
grave breaches against international humanitarian law. 64 Proceedings have 
also been introduced before the European Court of Human Rights. 65 



61. See id. at 82. 

62. For details, see NORTH ATLANTIC TREATY ORGANIZATION, NATO HANDBOOK 43 et seq. 
(1995). 

63. For details, see Peter Bekker, International Decisions, Legality of Use of Force - International 
Court of Justice, June 2, 1999, 93 AMERICAN JOURNAL OF INTERNATIONAL LAW 928 (1999). 

64. Nevertheless, in May 1999, the chief prosecutor for the ICTY established a committee to examine 
and assess charges that NATO's conduct of the air campaign violated the laws of war. On June 2, 2000, 
the ICTY prosecutor reported to the UN Security Council that, based on the committee's report, she 
found that there was no basis to open a criminal investigation into any aspect of the NATO campaign. 
Although NATO had made some mistakes, the prosecutor determined that NATO had not 
deliberately targeted civilians. For details, see Sean Murphy, Contemporary Practice of the United 
States Relating to International Law, NATO Air Campaign Against Serbia and the Laws of War, 94 

American Journal of International Law 690 (2000). 

65. Application No. 5220/99 (Bankovic and others — Belgium, Czech Republic, Denmark, 
France, Gemany, Greece, Hungary, Iceland, Italy, Luxembourg, Netherlands, Norway, Poland, 
Portugal, Spain, Turkey and United Kingdom). The applicants alleged violations of Articles 1, 2, 
10 and 13 of the Convention. The application has been communicated to the respondent States 
and transferred to the Grand Chamber of the Court (see Information Note No. 24 on the case-law 
of the Court, November 2000). The Court held hearings on the admissibility on October 25, 2001. 



330 



Torsten Stein 



Another question would be whether NATO acted within the framework of 
its functions and powers, both defined and fixed in the North Atlantic 
Treaty, 66 since some writers maintain that an international organization's re- 
sponsibility presupposes that the organization has acted according to its stat- 
ute. Here, again, the answer is not that easy. The main purpose of the North 
Atlantic Treaty is "to safeguard the freedom, common heritage and civilization 
of their (the parties) peoples. . . ." 67 There is nothing in the NATO Treaty to 
suggest that another of NATO's purposes is to protect human rights through 
the use of force "out of area," as was the case with Operation Allied Force. To 
be able to say that this too is one of NATO's purposes, one will have to add the 
"New Strategic Concept" 68 adopted during the Washington summit in April 
1999, to the existing Treaty, although it is not a formal amendment of the 
Treaty, duly ratified in each member State. In its "New Strategic Concept" 
NATO pledges to fulfill "non- Article 5 missions" in case of a crisis outside the 
NATO Treaty area. Although the new concept is a political, not a legal com- 
mitment, one could not say that Operation Allied Force has been an ultra vires 
act of one of NATO's organs. All NATO member States agreed, otherwise the 
operation would not have taken place. But NATO looked more like an instru- 
ment than the author of or the driving force behind the operation. 

Be that as it may, the next question is whether the alleged violations of in- 
ternational law would be attributable to NATO, because the relevant rules of 
international law are binding also on NATO, and because NATO had "effec- 
tive control" over the act that could subsequently be qualified as internation- 
ally wrongful. Is NATO bound by the 1977 Additional Protocols even though 
not all of its members are? The relevant question here is "targeting." NATO 
has been accused of having selected targets for air strikes that were not, or at 
least not strictly, military targets (bridges, power stations, radio and TV 



66. North Atlantic Treaty, Apr. 24, 1949, 63 Stat. 2241, 34 U.N.T.S. 243. 

67. See paragraph 2 of the preambula. Id. 

68. Bulletin des Presse- und Informationsamtes der Bundesregierung Nr. 24 vom 3.5. 1999, 222 
et seq. See also Eckart Klein & Stefanie Schmahl, Die neue NATO-Strategie und ihre 
volkerrechdichen und verfassungsrechdichen Implikationen, 35 RECHT UND POLITIK 198 (1999). 



331 



Coalition Warfare and Differing Legal Obligations 

stations). Most of these targets certainly served both military and civilian uses, 
and attacking dual-use objects is not necessarily unlawful, provided that they 
meet the definition of military objectives in Article 52, paragraph 2 of Proto- 
col I, that the principle of proportionality is observed, and that collateral dam- 
age is minimized. 69 But did the television studios make an effective 
contribution to Serbian military action and did the attacks offer a definite mil- 
itary advantage? If they were targeted merely because they were spreading 
propaganda to the civilian population, it appears at least doubtful whether 
their destruction offered a definite military advantage. 70 

If these attacks were in breach of Protocol I, did NATO have "effective 
control?" The targeting procedure was as follows: NATO's military planners 
identified and requested specific targets. These targets were or were not ap- 
proved by the permanent representatives of the member States, sometimes af- 
ter consulting with their respective governments. If only one Representative 
cast a negative vote, the target was not attacked. If the target was approved, 
the task force received an order to attack. Every air force contingent had its 
own "national commander in theater" and the pilots received their mission or- 
ders from him. The national commander could, in theory, decide not to attack 
a specific target because he was of the opinion that it was not a military objec- 
tive. Does this discretion of member States' authorities to implement or not a 
decision of the organization remove the organization's responsibility? In real- 
ity the commander gave the order, because he knew that his government had 
approved the target and because the target could be classified as a dual-use ob- 
ject. So the decision was in fact taken at the NATO level, and NATO, pro- 
vided that all other preconditions were fulfilled, could be responsible for 
"illegal" targeting. 

The last category of possible internationally wrongful acts are what one 
might call "pilot errors." A number of such errors were reported and some had 
to do with the fact that for reasons of "force protection" NATO had decided 
to execute the missions from a very high altitude. One pilot attacked what he 
thought was a Serbian military convoy; it turned out to be a convoy of refu- 
gees. Another pilot attacked a bridge (certainly a dual-use object) at the very 
moment at which a civilian train entered the bridge. Both bridge and train 
were destroyed. It is not clear whether the pilot had the possibility to break off 



69. See Theodor Meron, The Humanization of Humanitarian Law, 94 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 239, 276 (2000). 

70. See George Aldrich, Yugoslavia's Television Studios as Military Objectives, 1 INTERNATIONAL 

Law Forum 149-50 (1999). 



332 



Torsten Stein 



the attack. If these and other attacks constituted violations of the humanitar- 
ian law applicable in armed conflicts, did NATO — given the chain of com- 
mand — have "effective control?" Even if this should be so, NATO does not 
possess one mode of reparation that might be required in such a case: 71 disci- 
plinary and penal jurisdiction remain with the force-providing State. 

C. The responsibility of NATO's member States 

Responsibility of member States for "their" international organizations ac- 
tions can be direct, if it turns out that the organization itself is for one or an- 
other reason not responsible in a situation in which the members acted 
through the organization. Responsibility can also be concurrent, with the con- 
sequence that a third party which is the victim of an internationally wrongful 
act can choose whether to seek redress from the organization or its members. 
Responsibility of the member States can be secondary in cases in which the or- 
ganization is primarily responsible, but, for example, lacks the necessary funds 
to pay compensation. 

This is not the place to discuss in detail the distribution of responsibility be- 
tween international organizations and its member States. 72 It is, however, be- 
yond doubt that member States would be responsible if, for general reasons, 
NATO should not be responsible at all. A so-called "negative conflict" would 
not be acceptable, i.e., that both sides, the organization and its members, point 
fingers at one another. It seems equally beyond doubt that, should it be their 
turn, all NATO member States are responsible for the decision to use force 
against Yugoslavia; it was a unanimous decision of all member States. The 
same is true for "targeting" decisions, which also, as has been shown above, re- 
quired unanimity. But not all member States took part in Operation Allied 
Force. Iceland, for example, does not maintain armed forces at all. 73 And not 
all of the NATO member States who do maintain an air force participated. 

The situation becomes even more complicated by the fact that not all 
member States have accepted the same treaty obligations. The United States, 
whose air force flew most of the missions, has not ratified Protocol I under 



71. See Protocol I, art. 87(3). 

72. See in this respect MATTHIAS HARTWIG, DIE HAFTUNG DER MlTGLIEDSTAATEN FOR 
INTERNATIONALE ORGANISATIONEN passim (1993), and HIRSCH, supra note 50, at 96 et seq. 
See also C.F. Amerasinghe, Liability to Third Parties of Member States of International Organizations: 
Practice, Principle and Judicial Precedent, 85 AMERICAN JOURNAL OF INTERNATIONAL LAW 
259-280 (1991). 

73. Iceland is a respondent in the application pending before the European Court of Human 
Rights (see supra note 65). 



333 



Coalition Warfare and Differing Legal Obligations 



which targeting decisions, as well as decisions taken by pilots during their mis' 
sion, appear to be at least problematic. The same was true for France and Tur- 
key. Are those member States who approved the targets and are bound by 
Protocol I, responsible, but not the nation that eventually attacked these tar- 
gets because it is not a party to the Protocol? Does NATO have to disclose 
who attacked which target? 74 Can, at the end of the day, only those States 
carry responsibility that have accepted the jurisdiction of the ICJ and could, 
therefore, be sued there? 75 

The only reasonable solution seems to be that all NATO member States 
are responsible for any internationally wrongful acts committed during Opera- 
tion Allied Force. NATO as such is not recognized by the possible claimant 
(Yugoslavia) . NATO is not an organization that has been created "to do busi- 
ness" with third States and which third States have accepted as such. NATO 
is not the "international tin council." 76 Therefore, the concept that has been 
developed in international law for the sole responsibility of international orga- 
nizations, and which has borrowed much from national commercial law, 77 
does not really fit NATO. NATO's budget could certainly not accommodate 
all claims for pecuniary compensation. 78 If it comes to individual wrongful de- 
cisions made by pilots, other NATO States could, of course, invoke the 
flag-State principle, but they should consider that NATO will also in the fu- 
ture have to rely on a few actors for common operations. If those who agree 
"to do the job" will afterwards be left alone to face responsibility on account of 
possible internationally wrongful acts, their readiness will disappear. Al- 
though, for these reasons, joint responsibility advocates strongly for a common 
standard, the concept of responsibility under international law as such does 



74. Amnesty International concluded that NATO's command structure appears to contribute 
to confusion over legal responsibility and recommended that NATO clarify its chain of 
command so that there are clear lines of responsibility, known within and outside the 
organization, for each State and each individual involved in military operations conducted under 
its aegis (c/. Murphy, supra note 64, at 692) . 

75. The ICJ has dismissed, inter alia, Yugoslavia's claims against the United States for lack of 
jurisdiction (see Bekker, supra note 63). See also Nicholas Alexander, Airstrikes and 
Environmental Damage: Can the United States Be Held Liable for Operation Allied Force?, 11 

Colorado Journal of International Environmental Law and Policy 471 (2000). 

76. See HARTWIG, supra note 72, at 307 et seq. and Amerasinghe, supra note 72. 

77. See MENG, supra note 50. 

78. Financing 85% of the costs for making the Danube again navigable has been estimated 
by the European Union as requiring 22 Million Euro (Agence Europe No. 7724 of 25 May 2000, 
at 11). 



334 






Torsten Stein 



not legally mandate a single (maximum) legal standard for all members of a 
coalition in case of differing individual legal obligations. 79 

Conclusion 

It is, for practical as well as legal purposes, preferable that the same (maxi- 
mum) legal standard of obligations under international humanitarian law ap- 
ply to all members of a given coalition, provided that the other side is bound to 
obey the same rules. To the extent that treaty-based rules of humanitarian law 
are at the same time regarded as declaratory of custom, the uniformity of the 
legal standard is guaranteed, but it is doubtful whether this would reach much 
beyond the most fundamental principles. In those instances when humanitar- 
ian law obligations arise only from treaties, other possible reasons for why a co- 
alition should apply the same (maximum) standard do not individually seem 
to be compelling, although perhaps taken together, they may be. 

A solution for future coalitions could be found in the idea which underlies 
Article 96(2) and also 96(3) of Protocol I: status-of- forces agreements as well 
as rules of engagement should provide that the maximum standard of obliga- 
tions of one or more members of a coalition applies to all its members during a 
given conflict. Members of a coalition who so wish may make it clear that they 
do not intend, by accepting the maximum standard, to contribute to the 
emergence of additional customary law, but that they accept and apply the rel- 
evant rules only for coalition purposes. Such an ad hoc solution might be more 
helpful than a possible "third protocol" to the Geneva conventions on rules 
applicable to coalition warfare. Such a protocol would be only another treaty, 
with few ratifications at the beginning and probably not in force for a long 
time, and would give rise later to the old question whether and when it might 
become part of customary law. 



79. For more on this topic by the present author, see Torsten Stein, Kosovo and the International 
Community. The Attribution of Possible Internationally Wrongful Acts: Responsibility of NATO or of 
its Member States, in KOSOVO AND THE INTERNATIONAL COMMUNITY 181 et seq (C. 
Tomuschat ed., 2002). 

* I am very much indebted to Magne Frostad, a doctoral student who served in the 
Norwegian Judge Advocate's Corps, for his great support in finalizing this paper. 



335 



To What Extent Is Protocol I Customary 
International Law? 



The Honorable Fausto Pocar 



PHT^l 



I 



o what extent does Protocol I 1 reflect customary international law, 
such that it may be regarded as binding on non-party States? The ques- 
tion has been discussed since the early days following the entry into force of 
Protocol I, when the number of ratifying States was still rather thin. 2 Indeed the 
frequent involvement of non-ratifying States in international armed conflicts 
made an answer to that question urgent, in order to establish the scope of appli- 
cation of the principles that the Protocol enshrines in a given situation. Not- 
withstanding the increase in the number of States parties, 3 the problem 
continues to be topical, in particular because the countries that have not yet 
ratified the instrument, including some major actors in international relations, 
maintain serious reservations as to the binding force of one or more principles 
expressed and regulated therein. 4 In this context, it has to be pointed out that 
attention has mainly focused on Part III (Articles 35 to 47) of Protocol I, deal- 
ing with methods and means of warfare and with the status of combatants and 
prisoners of war, as well as on Part IV (Articles 48 to 79), concerned with the 



1. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, June 8, 1977, 1125 U.N.T.S. 3, DOCUMENTS 
ON THE LAWS OF WAR 422 (A. Roberts &R. Guelff eds., 3d ed. 2000) [hereinafter Protocol I]. 

2. Protocol I entered into force on December 7, 1978. By 1980 only 16 States had become 
parties to Protocol I; they were Bahamas, Bangladesh, Botswana, Cyprus, Ecuador, El Salvador, 
Finland, Gabon, Ghana, Jordan, Laos, Libya, Niger, Sweden, Tunisia and Yugoslavia. 

3. 59 States were parties to Protocol I as of August 21, 2001. 

4. India, Indonesia, Iran, Iraq, Israel, Japan, Pakistan, Turkey and the United States are some of 
the States which have not ratified Protocol I so far. 



To What Extent is Protocol 1 Customary International Law? 

protection to be afforded to civilian populations; these two parts of the Proto- 
col being in many respects linked to each other. 

It is undisputed that Protocol I is aimed both at codifying existing interna- 
tional law relating to the protection of victims of international armed conflicts 
and at developing such law in order to increase their protection. As the Pre- 
amble clearly states, the instrument is based on the necessity "to reaffirm and 
develop the provisions protecting the victims of armed conflicts." 5 Thus, Proto- 
col I itself explains that not all of its provisions simply codify existing law, 
though it declares at the same time that a number of them do so. 

One is therefore confronted with a problem common to the interpretation 
of all so-called codification conventions, i.e., the problem of identifying the 
treaty provisions that reflect customary international law, as opposed to those 
that make innovations or contain additional elements, thus developing the 
law's scope and content. 6 The former will have general value in that they re- 
produce customary rules, while the binding force of the latter will be limited to 
the States having ratified or acceded to the convention. This is in accordance 
with the general rule that treaties do not create either obligations or rights for 
a third State without its consent and that their effects are limited to State par- 
ties (pacta tertiis nee nocent nee prosunt). 1 

In making this assertion, however, some points must be borne in mind. 
First, the abovementioned status of a treaty provision as reproducing or devel- 
oping customary international law may change according to the time at which 
its status is assessed. A provision that did not reflect customary law when it 
was drafted may subsequently become a customary rule through its general ap- 
plication by States. Similarly, although less frequently, a provision which codi- 
fied principles forming part of customary law when it was drafted may not 
reflect them at a later stage due to changes in general State practice. In deal- 
ing with this issue, reference should therefore be made to the point in time at 
which the question of the binding force of a specific treaty provision for 
non-contracting States arises. 



5. Emphasis added. 

6. See Richard Baxter, Treaties and Custom, 129 RECUEIL DES COURS 36 ft* (1970); Karl 
Zemanek, Die Bedeutung der Kodifizierung des Volkerrechts fur seine Anwendung, in FESTSCHRIFT 
VERDROSS 565 (1971); Roberto Ago, Nouvelles reflexions sur la codification du droit international, 

92 Revue Generale de Droit International Public 539 (1988). 

7. According to Article 34 of the Vienna Convention on the Law of Treaties (May 23, 1969, 
1155 U.N.T.S. 331), "A treaty does not create either obligations or rights for a third State 
without its consent." 

338 



The Honorable Fausto Pocar 



Secondly, even when a treaty provision can be considered as codifying a 
norm of customary law, it is the latter that finds application as regards 
non-party States and not the treaty provision as such. As the International 
Court of Justice clarified in the Nicaragua case, 8 the two norms derive from 
distinct sources of law and each continues to belong to a separate body of 
rules. Indeed, the Court stated: 

Even if the customary norm and the treaty norm were to have exactly the same 
content, this would not be a reason for the Court to hold that the incorporation 
of the customary norm into treaty-law must deprive the customary norm of its 

applicability as distinct from that of the treaty norm [T]here are no grounds 

for holding that when customary international law is comprised of rules 
identical to those of treaty law, the latter 'supervenes' the former, so that the 
customary international law has no further existence of its own. 9 

Thus, their interpretation and application may be subject to different princi- 
ples, although the treaty provision will have an impact in this context in that it 
constitutes an assessment of the relevant rule or principle made by the States 
which have entered into the treaty. 

Thirdly, as the codification process necessarily requires an assessment of 
the customary rule or principle concerned as well as a written definition 
thereof, the resulting written text may be regarded as affecting its scope and 
content. Consequently, any precision or new element that may have been 
added — as is normally the case — by the treaty provision to the principle of 
customary law which it codifies must be checked carefully in order to establish 
whether it has come to be accepted as generally applicable. However, the ad- 
dition of new elements by a treaty provision to a customary principle should be 
distinguished from specifications deriving by necessary implication from the 
accepted general customary principle. As it has been pointed out, 10 such spec- 
ifications could not be regarded as requiring acceptance of the treaty in order 
to become applicable to a State. A different conclusion would result in allow- 
ing a limitation of the already accepted general principle that derives from 



8. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 94-5 Oune 27) 
[hereinafter Nicaragua casej. 

9. Id. at 95. 

10. See Georges Abi-Saab, The 1977 Additional Protocols and General International Law: Some 
Preliminary Reflections, in HUMANITARIAN LAW OF ARMED CONFLICTS: CHALLENGES AHEAD, 
ESSAYS IN HONOUR OF FRITS KALSHOVEN 120 (Astrid J.M. Delissen & Gerard J. Tanja eds., 
1991), who mentions in this regard the rules concerning the protection of civilians against aerial 
bombardments in Protocol I. 

339 



To What Extent is Protocol I Customary International Law? 

customary law. The inclusion of such necessary implications in a treaty provi- 
sion cannot reduce in any way for non-party States the obligations they would 
have under the general principles from which those implications derive. 

The elements and factors to be taken into consideration in assessing State 
practice for the purposes of establishing the existence of customary rules and 
principles have been widely discussed in international legal doctrine and case 
law. This paper does not aim at revisiting all the features and implications of 
the problems arising in this area, including the issue of defining State practice. 
The main principles governing the matter have been already laid down by the 
International Court of Justice in the North Sea Continental Shelf case 11 and in 
the Nicaragua case, 12 whereby the Court has stressed the respective role of the 
practice of States and opinio juris as factors for identifying a customary rule of 
international law, as well as the place of treaty provisions codifying customary 
law in this regard. Following these judgments, there is no doubt that for a rule 
to exist as a norm of customary international law both its recognition as a legal 
obligation by States and the latter's conduct which is consistent with the rule 
are required. 13 

Some issues deserve special consideration as far as the relationship between 
codified and customary rules is concerned. In this context, it has been dis- 
cussed whether the practice of all States, including those which are parties to 
the treaty (in our case Protocol I) , should be taken into account for the pur- 
poses of establishing the existence of a customary norm. A negative answer 
would diminish the number of States whose practice is relevant to this end 
and would make it more difficult to determine the status of customary law, as 



1 1. See North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3, 44 (Feb. 

20). 

12. See Nicaragua case, supra note 8, at 97-8. 

13. In particular, the Court in the Nicaragua case stated: 

The mere fact that States declare their recognition of certain rules is not sufficient for 
the court to consider these as being part of customary international law, and as 
applicable as such to those States. Bound as it is by Article 38 of its Statute to apply, 
inter alia, international custom 'as evidence of a general practice accepted as law', the 
Court may not disregard the essential role played by general practice. . . . The Court 
must satisfy itself that the existence of the rule in the opinio juris of States is confirmed 
by practice. ... In order to deduce the existence of customary rules, the Court deems it 
sufficient that the conduct of States should, in general, be consistent with such rules, 
and that instances of State conduct inconsistent with a given rule should generally have 
been treated as breaches of that rule, not as indications of the recognition of a new rule. 

Nicaragua case, supra note 8, at 97-8. 

340 



The Honorable Fansto Pocar 



the acceptance of the treaty increases. However, such a conclusion (the 
so-called Baxter paradox 14 ) would disregard both the fact that the treaty itself 
is an important piece of State practice for the determination of customary 
law, although its role in this regard must be carefully assessed, 15 and the im- 
pact that any subsequent practice of the contracting States in the application 
of the treaty which establishes their agreement or disagreement regarding its 
interpretation 16 may bear on the development of a customary norm. There- 
fore, it is submitted that customary international humanitarian law should not 
be determined on the sole basis of the practice of the States that have not rati- 
fied Protocol I. 

In addition to the practice of State parties in their application of Protocol I 
and the behavior of other States vis-a-vis the Protocol itself, any other ele- 
ment being evidence of State practice may come into play. Special importance 
should however be attached to the case law, although limited, of international 
courts, such as the International Criminal Tribunal for the former Yugoslavia 



14. According to the Baxter paradox, "[A]s the number of parties to a treaty increases, it 
becomes more difficult to demonstrate what is the state of customary international law dehors 
the treaty." In addition, "[a]s the express acceptance of the treaty increases, the number of states 
not parties whose practice is relevant diminishes. There will be less scope for the development of 
international law dehors the treaty. . . ." See Baxter, supra note 6, at 64, 73. 

15. See Theodor Meron, The Geneva Conventions as Customary Law, 81 AMERICAN JOURNAL 
OF INTERNATIONAL LAW 367 (1987), which points out that although acts concordant with a 
treaty obviously are indistinguishable from acts in the application of the treaty, the 
demonstration that an act by State parties is regarded by them as required not only by their 
conventional obligations but also by general international law would show the existence of an 
opinio juris, which should be given probative weight for the formation of customary law. 

16. C/. Article 3 1 (3) (b) of the Vienna Convention on the Law of Treaties (supra note 7), 
concerning general rules of interpretation, which states: "There shall be taken into account, 
together with the context . . . [a]ny subsequent practice in the application of the treaty which 
establishes the agreement of the parties regarding its interpretation." See on this provision 
Francesco Capotorti, Sul valore della prassi applicativa dei trattati secondo la convenzione di 
Vienna, in INTERNATIONAL LAW AT THE TIME OF ITS CODIFICATION. ESSAYS IN HONOUR 
OF ROBERTO AGO 197 ff. (A. Giuffre ed., 1987); Fausto Pocar, Codification of Human Rights 
Law by the United Nations, in PERSPECTIVES ON INTERNATIONAL LAW 153 (Nandasiri 
Jasentuliyana ed., 1995). 

341 



To What Extent is Protocol 1 Customary International Law? 

(ICTY) and the International Criminal Tribunal for Rwanda (ICTR). 17 As has 
been pointed out, the assessment of the customary nature of treaty provisions 
made by international courts has frequently proved to be regarded as determi- 
native in subsequent debates. 18 However, even in respect of case law, it has to 
be stressed that previous decisions of international courts cannot be relied on 
as having the authority of precedents in order to establish a principle of law. 
The current structure of the international community, which clearly lacks a 
hierarchical judicial system, does not allow consideration of judicial precedent 
as a distinct source of law. Therefore, prior case law may only constitute evi- 
dence of a customary rule in that it may reflect the existence of opinio juris and 
international practice, but cannot be regarded per se as having precedential 
authority in international criminal adjudication. As has been pointed out, in- 
ternational criminal courts must always carefully appraise decisions of other 



17. The limited number of ICTY decisions dealing with the issue considered in this paper, i.e., 
whether Protocol I reflects customary law, depend on the consideration that the Protocol was 
referred to by the ICTY as conventional law rather than as evidence of customary international 
law. See e.g. Prosecutor v. Blaskic, Judgement, I.C.T.Y. No. IT-95-14-T, Mar. 3, 2000, 11 172 
[hereinafter BlaSkic case], where it is stated that Croatia and Bosnia-Herzegovina ratified 
Protocol I and Protocol II (which is applicable to non-international armed conflicts) in 1992 and 
that "consequently, as of January 1993, the two parties were bound by the provisions of the two 
Protocols, whatever their status within customary international law." See also Prosecutor v. 
Kordic and Cerkez, Decision on the Joint Defence Motion to Dismiss for Lack of Jurisdiction 
Portions of the Amended Indictment Alleging "Failure to Punish" Liability, I.C.T.Y. No. 
IT-95-14/2-PT, Mar. 2, 1999, 11 13, where it is stated that "both the Republic of Croatia and 
Bosnia and Herzegovina are bound by Additional Protocol I as successor States of the Socialist 
Republic of Yugoslavia, which had ratified the Protocol on 11 June 1979." In this context see 
also Prosecutor v. Delalic et al., Appeal Judgement, I.C.T.Y. No. IT-96-21-A, Feb. 20, 2001, Ml 
111-113, where it is stated that Bosnia and Herzegovina would have in any event succeeded to 
the Geneva Conventions of 1949 (to which Yugoslavia was a party) irrespective of any findings 
as to formal succession. The Appeals Chamber considered that "in international law there is 
automatic State succession to multilateral humanitarian treaties in the broad sense, i.e., treaties 
of universal character which express fundamental human rights" and that "in light of the object 
and purpose of the Geneva Conventions, which is to guarantee the protection of certain 
fundamental values common to mankind in times of armed conflict, . . . the Appeals Chamber is 
in no doubt that State succession has no impact on obligations arising out from these 
fundamental humanitarian conventions." 

18. See THEODOR MERON, HUMAN RIGHTS AND HUMANITARIAN NORMS AS CUSTOMARY 
INTERNATIONAL LAW 43 (1989). See also Christopher Greenwood, Customary Law Status of the 
1977 Geneva Protocols, in HUMANITARIAN LAW OF ARMED CONFLICTS, supra note 10, at 99, 
where it is noted that no decisions of the ICJ or of other authoritative international tribunals 
existed regarding Protocol I and points out that international decisions are rare in respect to any 
of the humanitarian law treaties, except for the decisions on war crimes cases issued after World 
War II. Later on, as mentioned in the text, the international criminal tribunals established by the 
Security Council have sometimes dealt with the Protocols. 

342 



The Honorable Fausto Pocar 



courts before relying on their persuasive authority as to existing law. 19 Conse- 
quently, although judicial decisions of international courts may have a special 
weight, they must be regarded as one of the elements that have to be taken 
into account in the assessment of the existence of a customary rule. 

Looking at the provisions of Protocol I from the perspective of existing cus- 
tomary international humanitarian law, it is certainly possible to identify dif- 
ferent groups of norms. The first and largest group encompasses the rules 
whose customary nature is undisputed. It is widely recognized that much of 
the Protocol is a codification of general international law. Even States that 
hesitate to accept the instrument or have decided not to ratify it, such as the 
United States, 20 have expressed the view that many of its provisions are either 
settled customary international law or eligible for their ultimate recognition as 
customary international law. 21 

A customary status should clearly be accorded, in the first place, to the 
provisions that echo or restate the Hague Regulations annexed to the Fourth 
Hague Convention of 1907, which are generally regarded as reflecting 



19. See Prosecutor v. Kupreskic et al., Judgement, I.C.T.Y. No. IT-95-16-T, Jan. 14, 2000, H 542 
[hereinafter Kupreskic case]. 

20. See Letter of Transmittal of Protocol II by President Reagan to the Senate, dated January 29, 
1987, reprinted in 81 AMERICAN JOURNAL OF INTERNATIONAL LAW 910 (1987), and 
Hans-Peter Gasser, An Appeal for Ratification by the United States, 81 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 912 (1987). See also George Aldrich, Prospects for United States 
Ratification of Additional Protocol I to the 1949 Geneva Conventions, 85 AMERICAN JOURNAL OF 
INTERNATIONAL LAW 1 (1991), where the difficulties encountered by the United States are 
discussed with a view to overcoming them by means of reservations. 

21. Indeed, it has been noted that statements of United States officials following the 
announcement that the United States would not ratify Protocol I are evidence that "the United 
States regards Articles 37 (perfidy), 40 (refusal of quarter), 42 (on persons parachuting from a 
disabled aircraft), 59 (non-defended localities), 60 (demilitarised zones), 73 (refugees), 75 
(fundamental guarantees) and 79 (journalists) as declaratory of custom." See Greenwood, supra 
note 18, at 103. See also EDWARD KWAKWA, THE INTERNATIONAL LAW OF ARMED 

conflict: personal and material fields of application 26 (1992); theodor 
Meron, War Crimes Law Comes of Age 179-80 (1998). 

343 



To What Extent is Protocol I Customary International Law? 

customary law. 22 This applies, for example, to the basic rules that concern 
methods and means of warfare, such as those contained in Article 35(1), 
which declares that the right of the parties to a conflict to choose methods or 
means of warfare is not unlimited, and to Article 35(2), which prohibits the 
employment of weapons, projectiles and material and methods of warfare that 
are of a nature to cause superfluous injury or unnecessary suffering. These 
provisions basically follow Articles 22 and 23(e) of the Hague Regulations, 
which excluded the unlimited use of means of warfare and contained the pro- 
hibition on employing arms, projectiles or material calculated to cause unnec- 
essary suffering. It is true that Protocol I uses, additionally, the term 
"methods of warfare" in order to define the scope of the prohibition and that 
the addition could be regarded as introducing a new element, which would 
only have the status of a treaty rule. 23 It is submitted, however, that the addi- 
tion is a mere clarification of the already existing customary rule reflected in 
the Hague Regulations rather than a new rule aiming at its development. In- 
deed, the prohibition against employing certain means of warfare appears to 
include both the choice of weapons and the way in which weapons are em- 
ployed. 24 



22. It has to be noted that a Trial Chamber of the ICTY has considered that: 

[I]t is the Hague Convention (IV) of 1907 respecting the Laws and Customs of War on 
Land (hereinafter "the Regulations of The Hague"), as interpreted and applied by the 
Nuremberg Tribunal, which is the basis for Article 3 of the Statute. Hence, although 
Article 3 of the Statute subsumes Common Article 3, it nevertheless remains a broader 
provision inasmuch as it is also based on the Regulations of The Hague which, in the 
opinion of the Trial Chamber, also undoubtedly form part of customary international law. 

See Blaskic case, supra note 17, 11 168. 

23. See Henri Meyrowitz, The Principle of Superfluous Injury or Unnecessary Suffering: From the 
Declaration of St. Petersburg of 1868 to Additional Protocol I of 1977, 299 INTERNATIONAL 
REVIEW OF THE RED CROSS 98 (1994), where it is stated that "while this rule derives from the 
principle expressed in HR, Article 23(e), international legislation was required to make it 
positive law." 

24. See Greenwood, supra note 18, at 104. It has to be noted in this context that Article 35 was 
adopted by consensus at the Geneva Diplomatic Conference and that some participating States 
made declarations that confirm the customary nature of paragraphs (1) and (2) of Article 35. In 
particular, the Federal Republic of Germany joined the consensus with the "understanding that 
paragraphs 1 and 2 reaffirm customary international law" and that paragraph 3 constitutes a new 
conventional rule. It should also be noted that the addition of the term "superfluous injury" to 
the term "unnecessary suffering" is to be regarded as simply aiming at rendering in English the 
expression "maux superflus" contained in the French text of Article 23(e). See Meyrowitz, supra 
note 23, at 104-5. 

344 



The Honorable Fansto Pocar 



Similar considerations apply in this context to the provisions prohibiting 
acts that go beyond ruses of war and amount to perfidy (Article 37) or declara- 
tions that no quarter will be given (Article 40), and others that clearly follow 
the corresponding provisions of the Hague Regulations. Equally, most of the 
provisions concerning combatant and prisoner-of-war status (Articles 43 to 
47) restate rules already expressed in the Hague Regulations or in the Geneva 
Conventions of 1949, which are largely considered as reflecting customary in- 
ternational law 25 even though the customary nature of some additions have 
been questioned in legal doctrine. This is the case, in particular, of the provi- 
sion of Article 44(3) concerning the requirement that combatants distinguish 
themselves from the civilian population. While this requirement clearly re- 
flects an existing principle, the provision differs from customary international 
law especially as regards the situation in which combatants are unable to dis- 
tinguish themselves; therefore, the criteria set forth in Protocol I have to be 
regarded as new conventional rules. 26 

As regards the protection of civilians and the civilian population against 
the effects of hostilities, there is no doubt that the principle of distinction as 
set forth in Article 48 of Protocol I, both as regards the distinction between 
combatants and noncombatants and between civilian objects and non-civil- 
ian objects, reaffirms a general rule of international law that has never been 
questioned despite being frequently disregarded in State practice. The same 
applies in this context, at least in general terms, to the definition of civilians 
and the civilian population (Article 50) and to the general protection they 
shall enjoy against dangers arising from military operations (Article 51), in 
particular through the prohibition of indiscriminate attacks, as well as to the 
general rule on protection of civilian objects (Article 52). The specificity of 
these provisions appear mainly to be detailed clarifications of existing recog- 
nized rules rather than additions aimed at their development. 27 



25. See e.g., Jean-Marie Henckaerts, Study on Customary Rules of International Humanitarian 
Law: Purpose, Coverage and Methodology, 81 INTERNATIONAL REVIEW OF THE RED CROSS 660 
(1999). 

26. See in particular L. Penna, Customary International Law and Protocol I: An Analysis of Some 
Provisions, in STUDIES AND ESSAYS ON INTERNATIONAL HUMANITARIAN LAW AND RED 

Cross Principles, in Honour of Jean Pictet 214-5 (Chnstophe Swinarski ed., 1984); and 

Greenwood, supra note 18, at 107, where it is also noted that Article 44(3) was one of the most 
controversial provisions inserted in Protocol I, and has been identified by the United States as a 
major reason for its decision not to ratify the Protocol. 

27. As to the role of Protocol I in clarifying pre-existing customary law, see Hans-Peter Gasser, 
Negotiating the 1977 Additional Protocols: Was it a Waste of Time?, in HUMANITARIAN LAW OF 
ARMED CONFLICTS, supra note 10, at 85-6. 

345 



To What Extent is Protocol 1 Customary International Law? 

It has to be noted in this regard that a Trial Chamber of the ICTY has, with 
respect to Articles 51(2) and 52(1) of the Protocol, expressed the view that 
these provisions "are based on Hague law relating to the conduct of warfare, 
which is considered as part of customary law." The Chamber concluded that: 

[T]o the extent that these provisions . . . echo the Hague Regulations, they can 
be considered as reflecting customary law. It is indisputable that the general 
prohibition of attacks against the civilian population and the prohibition of 
indiscriminate attacks or attacks on civilian objects are generally accepted 
obligations. As a consequence, there is no possible doubt as to the customary 
status of these specific provisions as they reflect core principles of humanitarian 
law that can be considered as applying to all armed conflicts, whether intended 
to be international or non-international conflicts. 28 

A similar consideration can be made as concerns the principle of propor- 
tionality as set forth in Article 51(5)(b), according to which an attack on a 
military objective is prohibited when it would cause excessive injury to civil- 
ians or damage to civilian objects in relation to the concrete and direct mili- 
tary advantage anticipated. 29 Admittedly, the extent to which these 
provisions correspond to customary law has been questioned, because the for- 
mulation adopted appears to contain a number of specifications that can not 
be found in previous declarations of the same principles. However, it has also 
been pointed out that such specifications are aimed at clarifying the scope of 
the principles rather than at adding new elements that would lead to the mod- 
ification of their content or effects. 30 While it is possible that the interpreta- 
tion of certain expressions used in Protocol I may lead to improvements that 
could result in a departure from existing customary law principles, it is certain 
that such improvements would be considered as forming part of the natural 
development of customary law rather than as constituting mere treaty 
provisions. 

In the same line of reasoning, it may be assumed that the provisions of Arti- 
cles 57 and 58, prescribing that precautionary measures should be taken in 
conducting an attack, as well as against the effects of attacks, are mere qualifi- 
cations of the general principles of distinction and proportionality, although 



28. Prosecutor v. Kordic and Cerkez, Decision on the Joint Defence Motion to Dismiss the 
Amended Indictment for Lack of Jurisdiction Based on the Limited Jurisdictional Reach of 
Articles 2 and 3, 1.C.T.Y. No. IT-95-14/2-PT, Mar. 2, 1999, 1 31. 

29. See Greenwood, supra note 18, at 109; Penna, supra note 26, at 220. 

30. As to the specifications contained in Article 51(5)(b), see, e.g., MERON, supra note 18, at 
65. 

346 



The Honorable Fausto Pocar 



they may be seen as going beyond customary law. 31 It is interesting to note that 
the customary nature of these provisions has been recently affirmed by a Trial 
Chamber of the ICTY, not only because they specify pre-existing norms, but 
also because they appear to be uncontested by States, even non-ratifying 
States. The Chamber went on to state that when a rule of international hu- 
manitarian law is somewhat imprecise, it must be defined with reference to the 
laws of humanity and dictates of public conscience espoused in the celebrated 
"Martens clause," 32 which constitutes customary law. As a result, the Cham- 
ber concluded that the prescriptions of Articles 57 and 58, and of the corre- 
sponding customary rules, must be interpreted "so as to construe as narrowly 
as possible the discretionary power to attack belligerents and, by the same to- 
ken, so as to expand the protection accorded to civilians." 33 

While most of Protocol I can undoubtedly be regarded as essentially reflect- 
ing customary international law, there are areas where this conclusion is sub- 
ject to debate for two reasons. First, Protocol I clearly sets forth some new 
rules. Secondly, the specificity of Protocol Ps provisions add new elements to 
principles that, while well established in customary law, leave margins of dis- 
cretion to belligerent States. Belligerent States are then free to argue that 
such specifications will limit or may limit discretion if they are given certain 
interpretations. The scope and impact of these additions is therefore contro- 
versial and may be the basis for the hesitations of some States to ratify Proto- 
col I. Indeed, Protocol Ps ratification would require that the interpretation of 
its principles should be conducted according to the relevant criteria of the law 
of treaties, which are not applicable to the corresponding rules as recognized 
in customary international law. 

Some areas appear to be especially significant in this respect, in particular 
those relating to the protection of the civilian population and civilian objects. 
For instance, the presumption expressed in Article 50(1) that in case of doubt 
as to whether a person is a civilian, that person should be considered as having 



31. See Greenwood, supra note 18, at 111. 

32. The Martens clause first appeared in the preamble to the Hague Convention (II) of 1899. It 
states: 

Until a more complete code of the laws of war is issued, the High Contracting Parties 
think it right to declare that in cases not included in the Regulations adopted by them, 
populations and belligerents remain under the protection and empire of the principles 
of international law, as they result from the usages established between civilised 
nations, from the law of humanity, and the requirements of the public conscience. 

33. Kupreskic case, supra note 19, 1JH 521-25. The issue was not considered on appeal. See 
Prosecutor v. Kupreskic et al., Appeal Judgement, I.C.T.Y. No. IT-95-16-A, Oct. 23, 2001. 



347 



To What Extent is Protocol I Customary International Law? 

such status, and the provision of Article 52(3) that an object normally dedi- 
cated to civilian purposes shall, in case of doubt as to its being used to contrib- 
ute to military action, be presumed not to be so used. These provisions do not 
seem to derive automatically — although it would certainly be 
desirable 34 — from the principle of distinction as settled in customary interna- 
tional law, which appears to leave it to the attacker to decide how to deter- 
mine the status of the military objective. 

There seems to be no doubt that the definition of military objectives con- 
tained in Article 52(2) corresponds to existing principles as reflected in cus- 
tomary international law and simply clarifies them. However, if the 
clarifications of the definition are considered as being open to different inter- 
pretations of the scope of the obligations imposed on the attacker, then that 
would be incompatible with a consideration of the provision as fully reflecting 
customary law. Expressions such as "effective contribution to military action" 
or "definite military advantage" may not be sufficiently precise for the purpose 
of establishing a safe basis for a rule of customary international law. 35 On the 
other hand, it has also been submitted that the definition enshrined in the sec- 
ond sentence of Article 52(2) is such that it should be deemed to include not 
only civilians, but combatants as well. If, indeed, the implicit ratio legis for such 
provision is the same that underlies the principle that superfluous injury or 
unnecessary suffering should be avoided, there is no reason why the provision 
should not apply to attacks against members of armed forces as well. 36 

Similarly, the obligation to protect the natural environment against wide- 
spread, long-term and severe damage, which includes the prohibition of the 
use of methods or means of warfare which are intended or may be expected to 



34. See in particular Frits Kalshoven, Reaffirmation and Development of Humanitarian Laws 
Applicable in Armed Conflicts, 9 NETHERLANDS YEARBOOK OF INTERNATIONAL LAW 112 
(1978). 

35. The possibility of a wide interpretation of legitimate objectives under Protocol I is 
underlined, among others, by Peter Rowe, Kosovo 1 999: The Air Campaign: Have the provisions of 
Additional Protocol I withstood the test?, 82 INTERNATIONAL REVIEW OF THE RED CROSS 147 
(2000). See also Penna, supra note 26, at 219, who points out that Article 52(2) may be regarded 
as customary law, but recognizes that the definition of military objectives contained therein is far 
from being precise and that "customary international law at present allows belligerents to regard 
legitimate civilian objects serving directly or indirectly the enemy war effort as 'military 
objectives'." 

36. For this approach see Meyrowitz, supra note 23, at 115, who states that "strictly speaking, 
the extension of the rule stated in Article 52(2) to combatants would not have the purpose of 
protecting them, but of excluding them, under certain circumstances, from the definition of 
military objectives that may lawfully be attacked." 

348 



The Honorable Fausto Pocar 



cause such damage (Article 35(3)), in particular when the health or survival 
of the population may be prejudiced (Article 55), finds no clear precedent in 
existing customary law, as was acknowledged by some States who participated 
in the drafting of Protocol I. 37 Although subsequent development of a custom- 
ary principle of respect for the environment in warfare may be in progress, 38 its 
scope is certainly far from being assessed and recognized. It may be also noted, 
in this connection, that the said provisions appear to affirm a principle of pro- 
tection in absolute terms, applicable irrespective of a reference both to the 
principles of proportionality and of distinction. It must be noted, in this re- 
spect, that Article 55 refers to population without the qualification "civilian." 

A final area that may deserve special attention, since it is subject to debate, 
concerns the prohibition of reprisals against civilians and protected objects, 
which are referred to in Articles 51 to 56 of Protocol I. It is well known that 
the controversy on this matter has been and still is important, and different 
views have been expressed both at the Geneva Diplomatic Conference where 
Protocol I was negotiated and subsequently. The dominant view is probably 
that the provisions of Protocol I neither reflect pre-existing customary law nor 
have subsequently reached that nature, but contain significant developments 
in this regard. 39 

Interestingly, the issue was considered by a Trial Chamber of the ICTY, 40 
which discussed whether the Protocol's provisions on reprisals against 



37. See Greenwood, supra note 18, at 101, where it is stated: 

Article 35(3) ... is more contentious and, unlike the rest of Article 35, was not based 
upon the provisions of earlier treaties. Nor could it be said that State practice prior to 
1977 provided much support for the existence of such a rule. Although the Article was 
adopted by consensus, the Federal Republic of Germany stated that it participated in 
that consensus on the understanding that Article 35(3) introduced a new rule. 
Subsequent United States statements regarding Article 35(3) take the same 
position. . . . Article 55 is closely linked to Article 35(3) and should be regarded as 
having the same status. 

38. See NATALINO RONZITTI, DlRITTO INTERNAZIONALE DEI CONFLITTI ARMATI 161 (2d ed. 
2001). 

39. For the state of international customary law before Protocol I, see FRITS KALSHOVEN, 
BELLIGERENT REPRISALS 375 (1971), who concludes, after a thorough consideration of State 
practice, that belligerent reprisals have not so far come under a total prohibition, and further 
notes that "the power of belligerents to resort to belligerent reprisals can only be effectively 
abolished to the extent that other adequate means take over their function of law enforcement." 
For a recent consideration of the issue, see RONZITTI, supra note 38, at 180. 

40. Kupreskic case, supra note 19, HH 527-36. The issue has not been raised on appeal. See the 
Appeal Judgment, supra note 33. 

349 



To What Extent is Protocol I Customary International Law? 

civilians in combat zones (Article 51(6)) and reprisals against civilian objects 
(Article 52(1)) have been subsequently transformed into general rules of in- 
ternational law. Assuming that the mentioned provisions were not declara- 
tory of customary law, the Chamber expressed the view that the universal 
revulsion towards reprisals, as well as their trampling on the most fundamental 
principles of human rights, have contributed to the emergence of customary 
law on the matter. The Chamber also recalled the requirements of humanity 
and dictates of public conscience espoused in the Martens clause, stating that 
the pressure stemming therefrom has resulted in the formation of customary 
law on reprisals. It further maintained that opinio juris existed to support the 
view that these rules have become a part of customary law. It pointed to cir- 
cumscriptions on reprisals in modern warfare contained in the military manu- 
als of States, including the United States; the adoption by the United Nations 
General Assembly of a resolution in 1970 stating that civilian populations 
should not be the object of reprisals; and the ratification of Protocol I by a 
large number of States. It further pointed out that another Trial Chamber 
also held the view that reprisals against civilians must always be prohibited. 41 
In addition, it stated that in the armed conflicts of the last fifty years, States 
have normally not asserted the right to undertake reprisals against enemy ci- 
vilians in the combat area. Whatever consideration be given to this judg- 
ment, 42 it is undeniable that it may play an important role in assessing the 
legitimacy of reprisals against civilians and protected objects, and in develop- 
ing customary international law that reflects the provisions of Protocol I in 
this area. 

Other examples could be cited in examining the extent to which Protocol I 
reflects pre-existing customary international law and its contributions to clari- 
fying the content and scope of customary law. However, at this stage it seems 
that some conclusions can be drawn in light of the present practice. A slow 
but continuous trend towards recognizing the general value of the provisions 
contained in Protocol I, especially as far as they are intended to set forth 
well established customary principles or improve their definitions, is largely 



41. See Prosecutor v. Milan Martic, Review of Indictment Pursuant to Rule 61, I.C.T.Y. No. 
IT9541-R61, Mar. 8, 1996, 1111 10-18. 

42. For the position that the invocation of the Martens clause can hardly justify the conclusion 
that the combined effect of the clause and opinio juris can transform the prohibition on reprisals 
against civilian objects into customary law binding on States that have not ratified Protocol I or 
have dissented from the prohibition of reprisals, see Theodor Meron, The Humanization of 
Humanitarian Law, 94 AMERICAN JOURNAL OF INTERNATIONAL LAW 250 (2000). 

350 



The Honorable Fansto Pocar 



discernible in international practice and legal doctrine. 43 The increasing num- 
ber of State ratifications is corroborative of this growing trend, together with 
the emerging case law of international judicial bodies, which tends to more fre- 
quently underline human values in assessing the content of customary interna- 
tional law. 

Except perhaps in some cases where it is clear that no customary rule ex- 
ists, the areas in which Protocol I has encountered the most difficulty in de- 
veloping into customary law appear to be the areas where the Protocol itself, 
because its provisions and the definitions contained therein are not suffi- 
ciently clear and well shaped, is subject to different interpretations. In other 
words, the diverging approach to such provisions lies in their interpretation. 
In this regard, it has to be noted that the resistance to ratify Protocol I may 
also lie in the different rules of interpretation that would apply in establishing 
the scope of the principles enshrined in the Protocol, should the latter be 
regarded as treaty provisions instead of principles of customary interna- 
tional law. 

In light of these conclusions drawn twenty-five years after Protocol I was 
adopted, one can doubt whether it was drafted in a way intended to help the 
development of customary law. Unclear treaty rules can hardly develop into 
customary law and may frequently be opposed by States which may fear being 
bound by interpretations they would not be in the position to accept. By way 
of example, a list of military objectives would have helped the formation of 
customary law, at least as far as the list is concerned, even though it would 
have been necessary to recognize that the list was not exhaustive. The lack of 
such a list, due to only partially different views of States as to its scope, does 
not provide any help in this regard. 44 Although it cannot be denied that Pro- 
tocol I has had an impact on pre-existing customary law, 45 it may be submitted 
that Protocol I could have made a far greater contribution to its development. 



43. In this connection, the potential impact of Protocol I on the state of customary law has been 
stressed by Gasser, supra note 27, at 87. 

44. For a different view, see FRITS KALSHOVEN AND LlESBETH ZEGVELD, CONSTRAINTS ON 

the Waging of War 101 (2001). 

45. For a discussion of this issue, see Yoram Dinstein, The New Geneva Protocols: A Step Forward 
or Backwards?, 33 YEAR BOOK OF WORLD AFFAIRS 269 (1979); and, with regard to reprisals 
against civilians, Commentaires au sujet du Protocole I, 79 REVUE INTERNATIONALE DE LA 

Croix Rouge 553 (1997). 

351 



Commentary 



Rudolf Dolzer 



As I agree with most points made by Professor Stein and Judge Pocar, I 
shall limit my comments to two points. The first one concerns the 
methodology and sources of international humanitarian law in general. The 
second one relates more specifically to the evolving diversity of goals and func- 
tions of humanitarian law and the necessity to understand and apply the exist- 
ing rules in the current policy context. 

The first point on the sources of humanitarian law starts out from the basic 
premise that no special rules exist, or should be recognized, in this area which 
would in principle depart in any way from those recognized for public interna- 
tional law in general. In other words, the canon of principles laid down in Ar- 
ticle 38 of the Statute of the International Court of Justice will apply to 
humanitarian law as well. The jurisprudence of the ICJ has been consistent 
with this postulate. As to the relationship between treaty law and customary 
law in particular, the rulings in the North Sea Continental Shelf case, 1 the Nica- 
ragua case 2 and the Nuclear Weapons advisory opinion 3 do not point to any di- 
vergence in the Court's approach between humanitarian law and other areas 
of public international law. The nuances of these three decisions may not be 
always identical. It has been noticed rightly that the North Sea Continental 
Shelf decision, for instance, seems to require a more comprehensive and de- 
tailed examination of State practice than the Nicaragua decision. All three 



1. North Sea Continental Shelf (F.R.G. v. Den., F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20). 

2. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (J une 27) [hereinafter 
Nicaragua case]. 

3. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 78 (July 8). 



Commentary 

decisions converge inasmuch as they are based on the same view that "it 
should not lightly be assumed that treaty law evolves into customary law." 4 
Widespread practice and corresponding opinio iuris will be required for the for- 
mation of customary law, with or without parallel treaty law. This maxim has 
to be adapted to the circumstances of the context in regard to the number and 
characteristics of relevant States, and the practice of the major States will 
have to be given considerable weight. 

At the same time, it is appropriate to assume that the rules on the persistent 
objector will also be operative in the context of humanitarian law. While we 
all agree that the strengthening and expansion of the rules protecting the vic- 
tims and the innocents deserve our support, it is also clear that behind these 
rules lie carefully balanced compromises which take into account the nature 
of warfare. Against this background, it should not be generally presumed that 
States are inclined to interpret those rules in favoram humanitatem at the cost 
of their freedom in the means and methods of warfare. 

Special issues may arise in those areas of customary law and treaty law 
which are frequently disregarded in State practice. In such a setting it will be 
necessary to examine carefully to the extent possible whether States assume 
that the relevant rule is valid in principle, and point to special justifications 
for their departure from the rule, or clarify whether it must be concluded that 
States do not consider themselves to be bound in general. Of course, the first 
alternative describes the setting of considerable State practice regarding the 
prohibition of the use of force. Many governments act contrary to a rule, but 
nonetheless accept it in principle by way of pointing to one of the justifica- 
tions that allow them, or would allow them if the relevant facts existed, to 
act contrary to the rule. The issue will become more complex if no attempt 
to justify the conduct is made. In case a considerable number of States fall 
into this category, it will have to be assumed that the rule has been eroded. 
Such a process of derogation may take different forms, depending on the 
precise circumstances. 

In the extreme setting, it is possible that the rule as such can no longer be 
considered to be valid and that States are no longer bound by any norm in the 
relevant context. Another version of a process of this kind will exist where 
States do not flatly disregard the rule but apply it frequently in a generally re- 
stricting manner; under such circumstances, the understanding of the rule 
will have to be adapted to the practice. This will also be the case if State prac- 
tice disregards the rule in a specific area of application. Evidence of such 



4. North Sea Continental Shelf, supra note 1, at 41, No. 71. 

354 



Rudolf Dolzer 

different types of derogation can be found in various areas of humanitarian 
law. The common denominator of all such developments lies in the require- 
ment to take into account State practice in identifying and interpreting the 
rules of humanitarian law. In the context of treaty law, Article 3 1 of the Vi- 
enna Convention on the Law of Treaties 5 points in the same direction. 

The second part of my remarks concerns the diversity of goals, functions 
and faces of humanitarian law. The essential point which I wish to make is 
that the various branches of humanitarian law resulting from this diversity 
need to be viewed in an integrated context so that the development of the law 
as a whole will be kept and tied together. 

The diversity and the branches to which I refer essentially consists of the 
following three parts: 

(1) The protection of potential victims, being the primary goal of 
humanitarian law as it has evolved historically, remains the key 
concern. 

(2) The necessity to leave room to fight a war for a good cause in an 
efficient manner must be preserved. This concerns Professor 
Dinstein's point that we do not want a war to last forever, and John 
Norton Moore's emphasis on the need to fight effective wars in our 
contemporary world. 

(3) Following the developments in the past decade, we need to view 
humanitarian law increasingly through the lenses of international 
criminal law, as the two areas are increasingly linked together. 

Why is it necessary to point to the distinctness of these diverse goals and 
branches? The concern here is a fragmentation in the outlook on humanitar- 
ian law that may occur when the three segments noted above are seen in isola- 
tion without regard to the necessity to fashion and design the rules so as to 
reflect the existence and the special needs of all three branches. In practice, 
the three perspectives have their own "constituencies" which may or may not 
be prepared in practice to accept that their own concerns need to be merged 
with the policies and considerations underlying the two other concerns. As to 
the protective dimension of humanitarian law, it is widely known that its 
causes are championed especially in scholarly circles, but also by a number of 



5. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331. 

355 



Commentary 

governments. Perhaps it is fair to say that the favorite clause of this part of the 
international humanitarian law community is the Martens Clause drafted in 
1899 for the first time and phrased in Article 1 (2) of Protocol I 6 as follows: "In 
cases not covered by this Protocol, civilians and combatants enjoy the protec- 
tion of the principles of international law derived from the established custom, 
from the principles of humanity and from the dictates of public conscience." 7 
This emphasis on humanity and the public conscience as the overarching goal 
of humanitarian law echoes the fundamental purpose of humanitarian law, 
and from an abstract point of view no one will disagree with the noble cause 
expressed by the Martens Clause. 

Nevertheless, it will not be denied that another part of the community con- 
cerned with humanitarian law may have priorities in practice which highlight 
factors additional to those reflected in the Martens Clause. I refer to the mili- 
tary sector and to the actors on the ground. Any realistic consideration will 
have to conclude that it is not surprising that this community is often less con- 
cerned with the principles of the Martens Clause than with the interpretation 
of the law in a manner which allows flexibility, military advantage and ulti- 
mately the operation and conclusion of a successful military operation ended 
within an appropriate timeframe. 

The third branch of the contemporary humanitarian law relates, of course, 
to the enforcement community, charged with the application of the modern 
rules of international criminal law. It appears that the application and inter- 
pretation of this dimension of international humanitarian law may present the 
most difficult challenge for the entire body of rules in the coming years. The 
universe of criminal law as generally accepted in most parts of the world is 
characterized by distinct principles such as the prohibition of ex post facto laws, 
the presumption of innocence, the prohibition of vagueness of criminal rules 
and an emphasis on the subjective perception of the individual concerned. 
Should the rules of international criminal law based on the laws of war be 



6. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, June 8, 1977, 1125 U.N.T.S. 3, DOCUMENTS 
ON THE LAWS OF WAR 422 (A. Roberts &R. Guelff eds., 3d ed. 2000) [hereinafter Protocol I]. 

7. The Martens clause first appeared in the preamble to the Hague Convention (II) of 1899. It 
states: 

Until a more complete code of the laws of war is issued, the High Contracting Parties 
think it right to declare that in cases not included in the Regulations adopted by them, 
populations and belligerents remain under the protection and empire of the principles 
of international law, as they result from the usages established between civilised 
nations, from the law of humanity, and the requirements of the public conscience. 



356 



Rudolf Dolzer 

fashioned so as to be as transparent and predictable as possible? Should these 
rules be construed so as to allow a wide margin of appreciation and an empha- 
sis ex ante for the actor on the ground? 8 Should the main emphasis in the inter- 
pretation concern the broad protection of the victim, even though this would 
be at the expense of the special guarantees characteristic of criminal law and 
also at the expense of chilling the enthusiasm of those States willing to wage a 
just war? 

These three modes of interpreting international criminal law are empha- 
sized here only for the sake of separating and isolating the potential perspec- 
tives. In reality, these approaches will be blended in one way or another in the 
application of the law. What is remarkable, however, is that the International 
Criminal Tribunal for the former Yugoslavia (ICTY) has come fairly close to 
emphasising the third, the "humanitarian approach" in the context of apply- 
ing Articles 57 and 58 of Protocol I dealing with the necessity of feasible pre- 
cautions for the civilian population. Generally speaking, the Tribunal was 
faced in this context with an unusually generally worded, imprecise rule, un- 
characteristic for language typical of criminal law. The court would have had 
the opportunity to narrow down the meaning of the two articles by way of a 
narrow construction. It would have been possible to interpret the rules taking 
into account the necessity of military efficiency, and an approach respecting 
the rule of the margin of appreciation would also have been conceivable. 

In the Kupreskic case referred to by Judge Pocar, the ICTY chose to inter- 
pret Articles 57 and 58 in the specific light of the Martens Clause laid down in 
Article 2 of Protocol I. 9 In effect, this reading of the rules led to a very broad 
understanding and to an emphasis on the protective dimension of Protocol I, 
with no special regard for the first and second branch of international humani- 
tarian law in the sense mentioned above. The ICTY found that these rules 
must be interpreted "so as to construe as narrowly as possible the discretionary 
power to attack belligerents and, by the same token, so as to expand the pro- 
tection accorded to civilians." 10 Clearly, for purposes of enforcement, the 
ICTY thus has underlined a distinctly humanitarian approach to the interpre- 
tation of the Protocol I. The ruling shows no apparent regard for the classical 



8. The concept of the margin of appreciation has been widely used by the European Court of 
Human Rights in the context of the application of human rights norms which, in the view of the 
court, must be interpreted to take into account the special situation of the member States as they 
apply the law. 

9. See Prosecutor v. Kupreskic et al., Judgement, I.C.T.Y. No. IT-95-16-T, Jan. 14, 2000, 11 
525. 

10. Id. 



357 



Commentary 

requirements of criminal law, nor was any attention paid, it appears, to any ap- 
proach favoring a margin of appreciation for those who have to render deci- 
sions during times of war. As to the wording of the Martens Clause in the 
modern sense, as reflected in Protocol I, the literal reading leaves no doubt 
that the clause will only be applied in cases "not covered by this Protocol." 11 
Thus it has to be assumed that the Martens Clause must be applied only in ar- 
eas not addressed by the written rules. This is quite different from assuming, as 
the ICTY did, that the Martens Clause must serve as a rule of interpretation 
for the written rules which are written in a manner so as to be in need of inter- 
pretation. The implication of the ICTY's approach is indeed then to broaden 
the protective dimension of the humanitarian rules in a general manner, with- 
out attention to the other branches of this body of rules. It is more than doubt- 
ful whether such an approach is consistent with the original intention of the 
Martens Clause and with the contemporary need to integrate all concerns em- 
bodied in humanitarian law. 

When we speak about the lessons of the Kosovo, the humanitarian ap- 
proach adopted by this decision of the ICTY reflects our general hope that this 
decision has taught former President Milosevic and his disciples a lesson 
which future warmongers and warlords and dictators will eventually remem- 
ber. The urgent question, however, remains whether this approach satisfies all 
goals and functions present in humanitarian law. What about the chilling ef- 
fect for those who are willing to fight a war with a just cause? What are the 
consequences of such a chilling effect? Does such an approach in an unin- 
tended way protect a dictator from those who may be called upon to fight him? 
And, more generally, what is the effect of such an approach to humanitarian 
law doctrine on the acceptance by governments of an international criminal 
system? 

There are no clear-cut answers to these questions, but they need to be ad- 
dressed because they concern serious questions. We are living through a pe- 
riod of fundamental changes in the laws of armed conflict, and it is important 
that the implication of all these changes are thought through in a broad de- 
bate where the requirements of criminal law guarantees are discussed, where 
the realities of military conduct are taken into account and where not only the 
noble humanitarian aspirations in an isolated sense are highlighted. Possibly, 
the international community will decide to adopt the humanitarian approach 
favored by the ICTY, but we must do so in a manner which is responsive to all 
elements and dimensions of the laws of war as they will operate in practice. I 



11. Protocol I, supra note 6, art. 1(2). 

358 



Rudolf Dolzer 



submit that our reflections on the choices to be made in the future are still at 
an early stage. Whoever wishes to take the moral high ground for the develop- 
ment of humanitarian law is also under moral pressure to consider the implica- 
tions in all their various facets on international relations. This requires, in 
particular, both a focus on the impact of any change of law on those national 
leaders who are most likely to start an illegal war and to cause unnecessary suf- 
fering, and also on the conduct of those leaders and nations who are most 
likely to defend potential victims against an illegal war and thus to end unnec- 
essary suffering. 



359 



Commentary 



Leslie C, Green 



A 



s had been forewarned, the immediate effect of Operation Allied 
Force, which was in fact directed against targets in Serbia as well as 
Kosovo province, was an increase in the terror directed against the Muslim Al- 
banian population. While NATO claimed that only military targets were being 
attacked, it soon became clear that civilians and civilian objects were suffering 
damage — sometimes because of "clever" bombs going astray but also, it seems, 
from NATO's desire to avoid casualties among its own personnel, which led to 
aircraft flying beyond anti-aircraft range resulting in mistakes in targeting. 
Cluster bombs, the range of which is difficult or impossible to control, were 
among the ordinance dropped rendering civilian casualties virtually inevitable. 
While it was claimed that bridges over the Danube, television studios and elec- 
tricity-generating establishments were legitimate military objectives, questions 
regarding the rule of proportionality in relation to collateral damage, both un- 
der customary law and Protocols I and II, have to be examined. 

The Economist Intelligence Unit reported, perhaps in the light of more 
recent developments with some exaggeration, that the NATO bombing 
"inflicted enormous damage on Yugoslavia's economy and infrastruc- 
ture. . . . Yugoslavia will sink below Albania and become the poorest country 
in Europe." 1 The Secretary General of the United Nations stated in a press re- 
lease of April 28, 1999: 

The civilian death toll is rising, as is the number of displaced. There is increasing 
devastation to the country's infrastructure, and huge damage to [its] economy. 
For example, Mr. Sommarugua [President of the International Committee of 



1. Globe and Mail (Toronto), 23 August 1999. 



Commentary 

the Red Cross after visiting Yugoslavia] told me that the destruction of the three 
bridges in Novi Sad also cut off the fresh water supply to half of that city's 
population of 90,000 people. 2 

No fewer than 350 cluster bomb attacks were launched against Serb forces 
(it was later discovered that NATO claims of destruction of Serb tanks and 
other military installations were unrealistic) and: 

[Officially it is acknowledged that between five and ten per cent of the bombs 
would have failed to detonate, although unofficial estimates put it 
higher. . . . Although the civilian casualty toll from incidents involving 
unexploded munitions has dropped from five a day in the first month after the 
air campaign ended to the present one or two a day Lt. Col. Flanagan 
[Australian program manager of the United Nations mine action coordinate 
center in Pristina] said he needed NATO's help to meet the challenge of 
making Kosovo safe for the population, especially in rural areas, Any help we 
could get from NATO would be appreciated, but at the moment KFOR 
[Kosovo Protection Force] is not addressing the problem unless there is an 
emergency humanitarian or operational reason'. He said 'children were being 
maimed because the cluster bombs looked like toys and were extremely 
sensitive. If you pick up a cluster bomb it will explode, it is even more dangerous 
than a mine. Anything can detonate a cluster bomb'. Colonel Flanagan said 
NATO had supplied the coordinates for the cluster bomb attacks which had 
helped his teams to trace some of the unexploded bomblets. However, not all 
the coordinates had proved accurate. 3 

Given the nature of this statement, one is inclined to enquire whether it did 
not embarrass those participants in the NATO campaign which were parties 
to Protocol II as amended 4 of the 1990 Conventional Weapons Convention. 5 



2. Statement by Secretary-General Kofi Annan on Kosovo Crisis, Press Release SG/SM/6972, 
Apr. 28, 1999, available at http://www.globalpolicy.org/security/issues/Kosovo334.htm. For a 
breakdown of the damage done to Yugoslavia's economy, see Ved Nanda, Legal Implications of 
NATO's Armed Intervention in Kosovo, in INTERNATIONAL LAW ACROSS THE SPECTRUM OF 
CONFLICT: ESSAYS IN HONOUR OF PROFESSOR L.C. GREEN ON THE OCCASION OF HIS 
EIGHTIETH BIRTHDAY 313, 319 (M. Schmitt ed., 2000) (Vol. 75, US Naval War College 
International Law Studies). 

3. Michael Evans, NATO Bombs Still Killing Kosovars, THE TIMES (London), Aug. 16, 1999. 

4. Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other 
Devices, adopted May 3, 1996, 35 INTERNATIONAL LEGAL MATERIALS 1206, 1209 (1996). 

5. Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons 
Which May be Deemed to be Excesively Injurious or to Have Indiscriminate Effects, adopted 
Oct. 10, 1980, 1342 U.N.T.S. 137, reprinted in THE LAWS OF ARMED CONFLICT 179 (D. 
Schindler and J. Toman eds., 3d ed. 1988). The unamended Protocol II is at 185. 

362 



Leslie C. Green 



While NATO certainly did not use booby-traps, Colonel Flanagan's descrip- 
tion of cluster bombs as "toy-like and attractive to children" brings them very 
close to the definition of such weapons: "any device or material which is de- 
signed, constructed, or adapted to kill or injure, and which functions unex- 
pectedly when a person disturbs or approaches an apparently harmless object 
or performs an apparently safe act." 6 

Colonel Flanagan also expressed some criticism of NATO's unwillingness 
to assist in clearing these weapons which again draws attention to the Proto- 
col and its obligation to give notice of a minefield and arrange for its 
clearance: 

1 . Without delay after the cessation of active hostilities, all minefields, mined 
areas, mines, booby-traps and other devices shall be cleared, removed, 
destroyed. . . . 

2. High Contracting Parties and parties to a conflict bear such responsibility 
with respect to minefields, mined areas, mines, booby-traps and other 
devices in areas under their control. 

3. With respect to minefields, mined areas, mines, booby-traps and other 
devices laid by a party in areas over which it no longer exercises control, 
such party shall provide to the party in control of the area ... to the extent 
permitted by such party, technical and material assistance necessary to 
fulfill such responsibility. 7 

For the main part, KFOR and those members of NATO contributing thereto 
remained in control of most of Kosovo and would appear, at least at the time of 
Colonel Flanagan's remarks, as not being as cooperative as some of them are obli- 
gated to be. Finally, it may be asked whether by using weapons coated in depleted 
uranium there has not been a breach of the basic principle of customary law that 
weapons likely to cause unnecessary suffering may not be used, while for parties to 
Protocol I 8 there would appear to have been also a breach of Article 35, which 
forbids "methods or means of warfare which are intended or may be expected, to 
cause widespread, long-term and severe damage to the environment" (emphasis 
added) as such usage must have envisaged. 

As has been pointed out, the bombing campaign was not as successful as 
NATO might have hoped. It extended over seventy-eight days and at no time 



6. Id., art. 2(4). 

7. Id., art. 10. 

8. Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and Relating to the 
Protection of Victims of International Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3, 16 

International Legal Materials 1391 (1977) [hereinafter Protocol I]. 

363 



Commentary 

was there any contact between ground troops and no fatalities were suffered 
by NATO air personnel. Since the aerial campaign was affected by weather 
conditions as well as the accuracy of the crews, observation of targets was 
sometimes difficult. 9 While the United States was not a party to Protocol I, 
both Canada and the United Kingdom were. It is therefore necessary as re- 
gards these participants to refer to the relevant Articles of that instrument. It 
should also be noted that in so far as the United States was concerned it was 
under the customary law obligation to confine its offensive activities to mili- 
tary and not civilian targets. In accordance with Protocol I: 

Article 48 - Basic rule 

[T] he 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 only against military objectives. 

Article 51 - Protection of the civilian population 

1. The civilian population and individual civilians shall enjoy general 
protection against dangers arising from military operations. 



3. The civilian population as such, as well as individual civilians, shall not be 
the object of attack. Acts or threat of violence the primary purpose of which 
is to spread terror among the civilian population is prohibited. 

There has never been any suggestion that NATO operations were in any way 
directed at causing terror, but NATO never concealed that there was inherent 
in its policy an intention to create a situation in which the Yugoslav population 
would be so discomforted as to rise up and overthrow the government seated in 
Belgrade. This eventually occurred but not as a direct consequence of the 
bombing campaign. 
Article 51 continues: 

4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: 

(a) those which are not directed at a specific military objective; 

(b) those which employ a method or means of combat which cannot be 
directed at a specific military objective; or 



9. See, e.g., Nanda, supra note 2, at 319. 

364 



Leslie C. Green 



(c) those which are employ a method or means of combat the effects of 
which cannot be limited as required by this Protocol; 

and consequently, in each case, are of a nature to strike military objectives 
and civilian objectives and civilians or civilian objects without distinction. 

5. Among others, the following types of attacks are to be considered as 
indiscriminate: 

(a) an attack by bombardment by any methods or means which treats as a 
single military objective a number of clearly separated and distinct 
military objectives located in a city, town, village or other area 
containing a similar concentration of civilians or civilian objects; and 

(b) an attack 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 10 in relation to the concrete and 
direct military advantage anticipated. 

Article 52 - General protection of civilian objects 



2. Attacks shall be limited strictly to military objectives. In so far as objects are 
concerned, 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 neutralization, in 
the circumstances ruling at the time, offers a definite military advantage. 

3. In case of doubt whether an object which is normally dedicated to civilian 
purposes ... is being used to make an effective contribution to military 
action, it shall be presumed not to be so used. 

In the case of the bombing campaign undertaken by NATO, it would often ap- 
pear, prima facie, that the question may also be asked whether the distinction 
demanded by Protocol I of those States which were parties to it was always 
respected. 

Perhaps one of the clearest instances of acceptance of ethical principles in 
modern international law is that which governs the punishment of those 
guilty of war crimes, genocide and crimes against humanity. To the extent 
that Serbian or Kosovar Albanians committed any of these offenses, they must 
answer at a trial before the International Criminal Tribunal for the former 



10. See, e.g., William Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 

98 Military Law Review 91 (1982). 

365 



Commentary 

Yugoslavia (ICTY) established by the United Nations. The ICTY has no dies 
ad quern and so enjoys jurisdiction until it is declared functus officio or there is a 
clear statement that conflict in the territories of the former Yugoslavia has 
come to an end. Prima facie, members of the NATO forces who may have 
committed offenses against the law of armed conflict are as amenable to the 
jurisdiction of the Tribunal as are any other offenders. In fact, the ICTY estab- 
lished a committee to investigate this issue, which, concluded that no further 
investigation was necessary and no attempt has been made to indict any 
NATO personnel. 11 

Since the operation was essentially aerial, the ambit subject to the law of 
armed conflict was somewhat limited. The provision of Protocol I defining 
grave breaches is almost certainly an expression of the customary law with re- 
gard to protection of civilians and so is not confined solely to parties to the 
Protocol. However, that instrument's language is specific: 

3. [T]he following acts shall be regarded as grave breaches of this Protocol, 
when committed willfully . . . and causing death or serious injury to body or 
health: 

(a) making the civilian population or individual civilians the object of 
attack; 

(b) 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 danger to civilian objects. . . . 12 

One English newspaper report lends support to the argument that such 
breaches did occur: "So wild was the bombing that ministers found themselves 
having to call journalists, make-up girls, hospital staff and even whole villages 
'legitimate targets of war', blithely rewriting the Geneva Convention to suit 
themselves." 13 

There can be no doubt that if the rule of law or ethical standards are to 
prevail in the future, it is essential that the law concerning war crimes, geno- 
cide and crimes against humanity be attached to all individuals, military, po- 
litical or civilian, and not merely to those against whom "we" are taking 
action. As has been mentioned a committee established by the ICTY Office of 



11. Final Report to the Prosecutor by the Committee Established to Review the NATO 
Bombing Campaign Against the Federal Republic of Yugoslavia, reprinted in 39 
INTERNATIONAL LEGAL MATERIALS 1257 (2000), and reprinted herein as Appendix A 
[hereinafter Report to the Prosecutor]. 

12. Protocol I, supra note 8, art. 85 (3) (a) and (b). 

13. Simon Jenkins, A Victory for Cowards , THE TIMES (London), June 1 1, 1999. 

366 



Leslie C. Green 



the Prosecutor (OTP) in accordance with Article 18 of its Statute 14 did inves- 
tigate allegations lodged against NATO. Some of its comments bear repro- 
duction. As regards the legality of the NATO recourse to force without 
United Nations sanction, the Report states 

[T] he jus ad bellum regulates when states may use force and is, for the most part, 
enshrined in the UN Charter. In general, states may use force in self defence 
(individual or collective) and for very few other purposes. In particular, the 
legitimacy of the presumed basis for the NATO bombing campaign, 
humanitarian intervention, without prior Security Council authorization, is 
hotly debated. That being said . . . the crime related to an unlawful decision to 
use force is the crime against peace or aggression. While a person convicted of a 
crime against peace may, potentially, be held criminally responsible for all of the 
activities causing death, injury or destruction during a conflict, the ICTY does 
not have jurisdiction over crimes against peace. 15 

Consequently, the Report was confined to examining only allegations that 
NATO might have committed acts contrary to the jus in hello. 

In so far as it was alleged that the use of depleted uranium (DU) constituted 
a breach of the law of armed conflict, the Report stated: 

There is no specific treaty ban on the use of DU projectiles. There is a 
developing scientific debate and concern expressed regarding the impact of the 
use of such projectiles and it is possible that, in future, there will be a consensus 
view in international legal circles that use of such projectiles violate general 
principles of the law applicable to use of weapons in armed conflict. No such 

consensus exists at present It is acknowledged that the underlying principles 

of the law of armed conflict such as proportionality are applicable in this 
context; however it is the committee's view . . . based on information available 
at present, that the OTP should not commence an investigation into use of 
depleted uranium projectiles by NATO. 16 

A similar hesitancy to condemn the use of cluster bombs is to be found in 
the Report. 



14. "The Prosecutor shall initiate investigations ex officio or on the basis of information obtained 
from any source, particularly from Governments, United Nations organs, intergovernmental and 
non-governmental organizations. The Prosecutor shall assess the information received or 
obtained and decide whether there is sufficient basis to proceed." S.C. Res. 827 (May 25, 1993), 
U.N. Doc. S/25704, at 36-40 (1993), reprinted in 32 INTERNATIONAL LEGAL MATERIALS 1 165, 
1192(1993). 

15. Report to the Prosecutor, Appendix A, 11 30. 

16. Id., U 26. 

367 



Commentary 

There is no specific treaty provision which prohibits or restricts the use of cluster 
bombs, although, of course, cluster bombs must be in compliance with the 
general principles applicable to the use of all weapons. Human Rights Watch 
[which had submitted documentary evidence concerning alleged NATO 
offences] has condemned the use of cluster bombs alleging that the high 'dud' or 
failure rate of the submunitions (bomblets) contained inside cluster bombs 
converts these submunitions into antipersonnel landmines which it asserts, are 
now prohibited under customary international law. Whether antipersonnel 
landmines are prohibited under current customary international law is 
debatable, although there is a strong trend in that direction. There is, however, 
no general legal consensus that cluster bombs are, in legal terms, equivalent to 
antipersonnel landmines .... It is the opinion of the committee, based on 
information presently available, that the OTP should not commence an 
investigation into use of cluster bombs as such by NATO. 17 

While it was hesitant to condemn the use of particular weaponry, the com- 
mittee did make some general comments concerning legal issues relating to 
target selection. Here we may detect some hints of a commander's responsibil- 
ity to have concern for ethical principles. 

[I]n combat, military commanders are required a) to direct their operations 
against military objectives, and b) when directing their operations against 
military objectives, to ensure that the losses to the civilian population and the 
damage to civilian property are not disproportionate to the concrete and direct 
military advantage anticipated. Attacks which are not directed against military 
objectives (particularly attacks directed against the civilian population) and 
attacks which cause disproportionate civilian casualties or civilian property 
damage may constitute the actus reus for the offence under Article 3 of the ICTY 
Statute. 18 The mens rea for the offence is intention or recklessness, not simple 
negligence. In determining whether or not the mens rea requirement has been 
met, it should be borne in mind that commanders deciding on an attack have 
duties: 

(a) to do everything practicable to verify that the objectives to be attacked 
are military objectives, 

(b) to take all practicable precautions in the choice of methods and means 
of warfare with a view to avoiding or, in any event to minimizing 
incidental civilian casualties or civilian property damage, and 



17. Id., 11 27. 

18. Concerning violations of the laws or customs of war. 



368 



Leslie C. Green 



(c) to refrain from launching attacks which may be expected to cause 
disproportionate civilian casualties or civilian property damage. 

One of the principles underlying international humanitarian law, constituting 
an expression of high ethical standards, is the principle of distinction, which 
obligates military commanders to distinguish between military objectives and 
civilian persons or objects. The practical application of this principle is 
effectively encapsulated in Article 57 of Protocol I which, in part, obligates 
those who plan or decide upon an attack to 'do everything feasible to verify that 
the objectives to be attacked are neither civilians nor civilian objects.' The 
obligation to do everything feasible is high but not absolute. A military 
commander must set up an effective intelligence gathering system to collect and 
evaluate information concerning potential targets. The commander must also 
direct his forces to use available technical means to properly identify targets 
during operations. Both the commander and the aircrew actually engaged in 
operations must have some range of discretion to determine which available 
resources shall be used and how they shall be used. Further, a determination 
that inadequate efforts have been made to distinguish between military 
objectives and civilians or civilian objects should not necessarily focus 
exclusively on a specific incident. If precautionary measures have worked 
adequately in a very high percentage of cases then the fact they have not worked 
well in a small number of cases does not necessarily mean they are generally 
inadequate. 19 

Once again, it would seem that the committee was unwilling to find that 
NATO might in fact have breached the law, even though it might be argued 
that the decision not to suffer casualties and to fly beyond the range of 
anti-aircraft artillery militated towards ineffective targeting, especially in 
cloudy weather. Moreover, the number of incidents listed in the Report to the 
prosecutor 20 involving civilian casualties, some of which were quite heavy, 
might suggest that the accuracy of targeting was inadequate in quite a large 
number of cases. 21 



19. Report to the Prosecutor, Appendix A, UH 28-9. 

20. See id., n 9 and 53. 

21. See for example, id. y UU 58-70, dealing with attacks on a civilian train and a convoy of 
Albanian refugees. 

369 



Commentary 

The Report to the Prosecutor went into some detail as to what might be de- 
fined as a military objective, 22 but once again fails to be dogmatic as to the pol- 
icy adopted by NATO. Perhaps more important in so far as the future is 
concerned is its comments on proportionality, a concept that owes its origins 
to ethical standards: 

48. The main problem with the principle of proportionality is not whether or not 
it exists but what it means and how it is to be applied. It is relatively simple to 
state that there must be an acceptable relation between the legitimate 
destructive effect and undesirable collateral effect. For example, bombing a 
refugee camp is obviously prohibited if its only military significance is that 
people in the camp are knitting socks for soldiers. [Is the same true if they are 
collecting aluminum pots to be converted into aircraft or munitions?] 
Conversely, an air strike on an ammunition dump should not be prohibited 
merely because a farmer is ploughing a field in the area. Unfortunately, most of 
the applications of the principle of proportionality are not quite so clear cut. It is 
much easier to formulate the principle of proportionality in general terms than it 
is to apply it to a particular set of circumstances because the comparison is often 
between unlike quantities and values. One cannot easily assess the value of 
innocent human lives as opposed to capturing a particular military objective. 

49. The questions which remains unsolved once one decides to apply the 
principle of proportionality include the following: 

(a) What are the relative values to be assigned to the military advantage 
gained and the injury to non-combatants and or the damage to civilian 
objects? 

(b) What do you include or exclude in totaling your sums? 

(c) What is the standard of measurement in time or space? and 

(d) To what extent is a military commander obligated to expose his own 
forces to danger in order to limit civilian casualties or damage to 
civilian objects? [Once again, an ethical question for said commander] 

50. The answers to these questions are not simple. It may be necessary to resolve 
them on a case by case basis, and the answers may differ depending on the 
background and values of the decision maker. It is unlikely that a human rights 
lawyer and an experienced combat commander would assign the same relative 
values to military advantage and to injury to noncombatants. Further, it is 
unlikely that military commanders with different doctrinal backgrounds and 



22. See id., 1111 35-47. 

370 



Leslie C. Green 



differing degrees of combat experience or national military histories would 
always agree in close cases. It is suggested that the determination of relative 
values must be that of the 'reasonable military commander'. 13 Although there will 
be room for argument in close cases, there will be many cases where reasonable 
military commanders will agree that the injury to noncombatants or the damage 
to civilian objects was clearly disproportionate to the military advantage 
gained. 24 

Despite the somewhat confident expression to be found in this last sen- 
tence, the entire approach adopted in the Report to the Prosecutor empha- 
sizes how difficult it will always be to reach an acceptable common 
understanding of what constitutes ethical standards of behavior. 

City planners rarely pay heed to the possibility of future warfare. Military 
objectives are often located in intensely populated areas and fighting 
occasionally occurs in such areas, Civilians present within or near military 
objectives must, however, be taken into account in the proportionality equation 
even if a party to the conflict has failed to exercise its obligation to remove 
them. 25 

In the Kupreskic case the ICTY addressed the issue of proportionality as follows: 

526. As an example of the way in which the Martens clause 26 may be utilised, 
regard might be had to considerations such as the cumulative effect of attacks 
on military objectives causing incidental damage to civilians. In other words, 
it may happen that single attacks on military objectives causing incidental 
damage to civilians, although they may raise doubts as to their lawfulness, 
nevertheless do not appear on their face to fall foul per se of the loose 
prescriptions of Articles 57 and 58 27 (or of the corresponding customary 
rules). However, in case of repeated attacks, all or most of them falling within 
the grey area between indisputable legality and unlawfulness, it might be 
warranted to conclude that they may not be in keeping with international 
law. Indeed, this pattern of military conduct may turn out to jeopardise 



23. Emphasis added. 

24. Report to the Prosecutor, Appendix A. 

25. Id., H 51 

26. "[I]n cases not included in the Regulation . . . the inhabitants and the belligerents remain 
under the protection and the rule of the principles of the law of nations, as they result from the 
usages established among civilized peoples, from the laws of humanity and the dictates of the public 
conscience." Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 
in THE LAWS OF ARMED CONFLICT, supra note 5, at 70 (emphasis added). 

27. Protocol I, supra note 8, regarding "Precautionary Measures." 

371 



Commentary 

excessively the lives and assets of civilians, contrary to the demands of 
humanity.' 28 

This formulation . . . can be regarded as a progressive statement of the applicable 
law with regard to the obligation to protect civilians. Its practical import, is 
somewhat ambiguous and its application far from clear. It is the committee's 
view where individual (and legitimate) attacks on military objectives are 
concerned, the mere cumulation of such instances, all of which are deemed to 
have been lawful, cannot ipso facto be said to amount to a crime. The committee 
understands the above formulation, instead, to refer to an overall assessment of 
the totality of civilian victims as against the goals of the military campaign 

54. During the bombing campaign, NATO aircraft flew 38,400 sorties, 
including 10,484 strike sorties. During these sorties 23,614 munitions were 
released .... [and] it appears that approximately 500 civilians were killed 
during the campaign. These figures do not indicate that NATO may have 
conducted a campaign aimed at causing substantial civilian casualties either 
directly or incidentally. 

55. The choice of targets by NATO includes some loosely defined categories 
such as military-industrial infrastructure and government ministries and some 
potential problem categories such as media and refineries. All targets must meet 
the criteria for military objectives. If they do not do so, they are unlawful. A 
general label is insufficient. The targeted components of the military-industrial 
infrastructure and of government ministries must make an effective 
contribution to military action and their total or partial destruction must offer a 
definite military advantage in the circumstances ruling at the time. Refineries 
are certainly traditional military objectives but tradition is not enough and due 
regard must be paid to environmental damage if they are attacked. The media as 
such is not a traditional target category. ... As a bottom line, civilians, civilian 
objects and civilian morale as such are not legitimate military objectives. The 
media does have an effect on civilian morale. If that effect is merely to foster 
support for the war effort, the media is not a legitimate military objective. If the 
media is sued to incite crimes ... it can become a legitimate military objective. If 
the media is the nerve system that keeps a war-monger in power and thus 
perpetuates the war effort, it may fall within the definition of a legitimate 
military objective. As a general statement, in the particular incidents reviewed 
by the committee, it is the view of the committee that NATO was attempting to 
attack objects it perceived to be legitimate military objectives. 



28. Prosecutor v. Kupreskic et al., Judgement, I.C.T.Y. No. IT-95-16-T, Jan. 14, 2000, H 542. 

372 



Leslie C. Green 



56. The committee agrees there is nothing inherently unlawful about flying 
above the height which can be reached by enemy air defences. However, 
NATO air commanders have a duty to take practicable measures to distinguish 
military objectives from civilians or civilian objectives. The 15,000 feet 
minimum altitude adopted for part of the campaign may have meant the target 
could not be verified with the naked eye. However, it appears that with the use 
of modern technology, the obligation to distinguish was effectively carried out 
in the vast majority of cases during the bombing campaign. 

57. In the course of its review, the committee did not come across any incident 
which, in its opinion, required investigation by the OTP. . . . 

The committee examined five specific incidents of attacks the legality of 
which might have been doubtful, but in each case came to the conclusion that 
there was no reason to refer the matter to the Prosecutor. One is left with a 
somewhat uncomfortable feeling with the committee's statement in its penul- 
timate paragraph: 

[T]he committee has not assessed any particular incidents as justifying the 
commencement of an investigation by the OTP. NATO has admitted that 
mistakes did occur during the bombing campaign; errors of judgment may also 
have occurred. Selection of certain objectives for attack may be subject to legal 
debate. On the basis of the information received, however, the committee is of 
the opinion that neither an in-depth investigation related to the bombing 
campaign as a whole nor investigations related to specific incidents are justified. 
In all cases, either the law is not sufficiently clear or investigations are unlikely 
to result in the acquisition of sufficient evidence to substantiate charges against 
high level accused or against lower accused for particularly heinous offences. 29 

It may well be that, noting all the efforts to define proportionality and to assess 
the role of ethical considerations, one comes to the conclusion that the findings 
of the committee might be correct. However, it is submitted that one cannot but 
feel that the report might have contributed more to vindicating the rule of law 
and recognizing the significance of ethical standards as equally operative for all 
parties, had it recommended to the Prosecutor the possibility of referring to the 
ICTY some of the issues it examined. The Tribunal might not in all cases have 
agreed with individual recommendations, particularly in view of the fact in 
some instances the Report to the Prosecutor itself refers to a "trend 



29. Report to the Prosecutor, Appendix A, H 90. 

373 



Commentary 

developing," or to particular cases being controversial or — clearly an issue for 
judicial determination — that in some instances "the law is not sufficiently 
clear." 

The Serbs, particularly as a result of pressure from Russia, its traditional ally, 
and in face of the threat by NATO that a land offensive would be launched, fi- 
nally accepted terms almost identical with those rejected at Rambouillet prior 
to the commencement of the bombing campaign. Among the terms accepted 
was an arrangement for Kosovo to be temporarily administered by an interna- 
tional body supported by some military and police personnel brought in from 
Yugoslavia, thus preserving that State's concern with its national sovereignty. 
Kosovo was divided into areas of administration with civil affairs to some ex- 
tent controlled by the United Nations Mission in Kosovo (UNMIK). Since it 
was recognized that returning Kosovar Albanians, supported by the KLA, 
might pursue a policy of revenge against the remaining Serb population, it was 
agreed that the KLA would be disarmed and that KFOR would ensure the 
safety of the Serbs. It was not long before it became clear that the KLA was not 
going to be overly cooperative regarding the surrender of arms and KFOR not 
excessively effective in preventing attacks on the Serbs. 

Further, KLA leaders made it clear that they intended to regard themselves 
as an interim government determined on secession, whatever the view of 
NATO or KFOR. The French defense minister commented on this state of 
affairs: 

[T] here's an unseemly scramble for power, influence and wealth within the 
KLA. . . . The Kosovars don't understand that we're here not to support them 
but to support human rights for all and ensure political power is held to account. 
On the other hand, to expect the KLA to willingly disband when they see a 
continued threat from paramilitaries under effective protection by French and 
Russian troops [in their respective administrative areas], and to refuse to 
recognize provisional mayors when UNMIK hasn't assigned a single municipal 
administrator, is just farcical. 30 

This seems to overlook that, officially at least, it was never part of NATO's pol- 
icy to assist the Kosovars in doing anything to question or endanger Yugosla- 
via's sovereignty over the area. As the occupation by KFOR continued, it 
became clear that, on paper at least, the KLA and its soi disant political leader- 
ship were proving a little more cooperative, although KFOR's protective activi- 
ties became more and more essential for the Serb population. 



30. THE TIMES (London), Aug. 14, 1999. 

374 



Leslie C. Green 



The growing willingness to allow the KLA — originally denounced as a gang 
of terrorists — to push its political aims and failure to prevent attacks upon the 
local Serbs raise questions as to the extent to which NATO was sustaining its 
contention that its intervention was ethical based on the needs to protect hu- 
manitarian principles. In fact, the ethical and humanitarian character of 
NATO's policy became even more questionable when it reneged somewhat 
on its promises to assist in the rehabilitation and rebuilding of Yugoslavia, un- 
less the then government was replaced by one that was more "democratic." It 
is true that this has now ensued, but this fact does not lend support to the ide- 
alistic grounds on which NATO claims to have acted originally. 

In assessing the validity of the NATO bombing campaign from both legal 
and ethical standpoints, it becomes necessary to ask whether the campaign 
achieved its purpose. That is to say, whatever its legality might have been, was 
the action justified because of what was ultimately achieved? It is clear from 
the above comments, and in the light of the continuing trouble in Kosovo and 
the threats of conflict spreading in the area, that the writer is not happy with 
either the legal or ethical grounds on which NATO claimed to be acting. 
Since similar situations denying human rights in the most obscene manner 
might recur, it is clearly necessary to consider what, if any, process can be in- 
troduced to prevent similar unilateral and questionable punitive or enforce- 
ment action in the future. Perhaps this might be achieved by adopting a policy 
somewhat like the following: 

When a government is unwilling or unable to protect, or persistently infringes 
the human rights of large segments of its population, or the government 
structure has so disintegrated that law and order have virtually ceased to exist, it 
may then well be time for the United Nations to take over the administration 

until such time as normal conditions have been restored To some extent this 

is already happening in Bosnia and Kosovo. . . . However it would perhaps be 
more desirable that this be done not on an ad hoc basis — nor by a group of states 
assuming such authority unto itself — but on the basis of a permanent United 
Nations body made up of trained personnel from a variety of countries. . . . The 
members of such administrative or governing commissions should not be drawn 
from nationals of the great powers among whom, despite the end of the cold 
war, political rivalries and maneuvering is still likely to take place. 31 



31. See Leslie Green, 23 rd Annual Conference of the Canadian Council on International Law, 

1994 Canadian Council on International Law Proceedings 6, 26; 26 th Annual 

Conference of the Canadian Council on International Law, 1997 CANADIAN COUNCIL ON 

International Law Proceedings 31,37. 

375 



Commentary 

If such a policy were adopted, there might be less doubt as to the legal or 
ethical basis for the intervention and a more substantial foundation for con- 
tending that it is in accordance with the rule of law and the maintenance of 
ethical principles. 



376 



Commentary 



David Graham 



Professor Stein and Judge Pocar have done well in addressing the issue of 
coalition warfare and the effect that Protocol I has had on the ability of 
coalition partners to engage in effective operations. Central to this discussion, 
of course, has been the fact that the United States — a principal participant in 
essentially every major coalition enterprise undertaken since the coming into 
force of Protocol I — is not a party to the Protocol. I would hasten to add that 
there is no indication that the United States intends to become a party to this 
instrument at any time in the foreseeable future. Given this fact, I would like to 
offer my own thoughts concerning three specific questions and in so doing also 
comment on a number of the observations that have been made. 

Let us turn to the first question. Since certain members of NATO are con- 
tracting parties to Protocol I, whereas the United States and some others are 
not, what does this signify in terms of the interoperability of coalition forces 
like NATO's? Upon the coming into force of Protocol I and the concomitant 
decision of the United States not to become a party, I can well remember the 
substantial hand-wringing that occurred. This action on the part of the 
United States sounded the death knell of the NATO Alliance, it was said. 
Others believed this US decision, for all intents and purposes, served to ne- 
gate its Article V collective defense commitment under the North Atlantic 
Treaty. Why? Because, how would it be possible for the United States to en- 
gage in combat operations with its NATO allies absent an obligation to com- 
ply fully with the provisions of Protocol I? It would be impossible to mount 
effective NATO coalition operations when the participating States were 
bound by different law of armed conflict standards. The means and methods 
by which warfare could be conducted would vary too substantially. It would be 



Commentary 

impossible to achieve consensus even upon a set of command rules of engage- 
ment (ROE). In brief, the coalition sky was falling and it was all the result of 
the US decision to reject Protocol I. 

What has become of these dire predictions? Time and experience have 
shown these concerns to have fallen into the category of "much ado about 
nothing." The fact that the United States is not a party to Protocol I has had 
no adverse effect on the ability of the United States and its coalition partners 
to engage in numerous effective military operations. There are three principal 
reasons for this. First, shortly after the United States announced its decision 
not to become a party to Protocol I — and prior to the time that a number of 
other NATO States did so — law of armed conflict experts from the United 
States and several NATO countries conducted a series of meetings to discuss 
various provisions of the Protocol. As a result of these meetings, a common 
understanding was reached regarding the manner in which certain of the 
more vague, subjective, and ill-defined articles would be interpreted and ap- 
plied. (A number of these agreed interpretations were later reflected in several 
of the statements of understanding and reservations made by NATO mem- 
bers when they eventually became parties to Protocol I.) These common un- 
derstandings have assisted the United States and its NATO partners in 
achieving a broad consensus regarding the law of armed conflict requirements 
applicable to coalition operations. 

Coupled with these earlier meetings between US and NATO law of armed 
conflict experts is the fact that there has been extensive cooperation between 
the United States, key NATO allies, and several other countries in the updat- 
ing of their respective law of war manuals. These countries have included, at 
various times, Australia, Canada, the United Kingdom, New Zealand, Den- 
mark, and Israel. Again, numerous provisions of Protocol I have been dis- 
cussed, in detail, and common approaches toward the manner in which these 
provisions would be applied during military operations have been developed. 
This process has served to foster a growing consensus among the States con- 
cerned that no substantive differences regarding the law of armed conflict ap- 
plicable to coalition operations currently exist. 

The third and perhaps most basic reason why the US decision not to be- 
come a party to Protocol I has not adversely affected its ability to engage in 
effective coalition operations revolves around the process through which co- 
alition ROE are drafted, disseminated, and trained. Of primary importance is 
the fact that coalition military activities are conducted in accordance with 
mutually agreed ROE, which are largely unaffected by academic/diplomatic 



378 



David Graham 



disagreements over nuanced interpretations of various provisions of Protocol 
I. 

This is not to say that the drafting of coalition ROE is not often a time con- 
suming, frustrating process. This was certainly true in the cases of SFOR (the 
Stabilization Force in Bosnia-Herzegovina) and KFOR (the Kosovo Interna- 
tional Secutity Force), and was true as well during Operation Allied Force. Of 
note, however, is the fact that the major ROE issues that arose in the context 
of these operations — such as those related to targeting — did not result from 
differing interpretations regarding the law of armed conflict. Invariably, any 
delay in achieving ROE consensus resulted largely from a highly politicized 
decision making process driven by a desire on the part of the participating gov- 
ernments to minimize casualties — both military and civilian. This was not a 
desire mandated by law of armed conflict considerations, but by the perceived 
need to retain the very thin veneer of public and political support for the oper- 
ation itself. In a similar vein, Professor Stein has noted that, though KFOR 
ROE were unquestionably restrictive in nature, these restrictions were the re- 
sult of domestic law, rather than law of armed conflict concerns. In brief, co- 
alition ROE are the product of a negotiated consensus that reflects a common 
understanding of coalition law of armed conflict requirements, and then dis- 
seminated to and trained on by coalition forces. 

It is for these reasons that the US decision not to become a party to 
Protocol I has had no adverse effect on the interoperability capabilities of co- 
alition forces. Again, experience has shown that when concerns that might af- 
fect interoperability do surface, these are driven by political or domestic law 
considerations, rather than disagreements over the meaning or requirements 
of specific international law requirements. In such cases, the coalition ROE 
are drafted and the forces of the participating countries deployed in such a 
way that such concerns are resolved and the operational capabilities of the co- 
alition are not diminished. 

Can there be differing legal standards for various members of a given coali- 
tion? This is a question that Professor Stein and Judge Pocar appeared to 
struggle with, for good reason, in order to arrive at a workable answer. A text- 
book treaty law response would most likely render effective coalition warfare 
exceptionally difficult to wage. Allow me to explain what I mean by this state- 
ment. The question posed immediately begs another. To what does the term 
"legal standards" refer in this context? That is, does there exist an interna- 
tional consensus as to the nature of the "legal standards" applicable to a coali- 
tion as a whole, or to individual member States of a coalition, when those 
States are engaged in military operations? 



379 



Commentary 

This question might be answered in one of two ways. First, the textbook ap- 
proach: within a coalition, the actions of each member State must be dictated 
by the various international conventions to which it is a party, as well as by the 
statements of understanding and reservations made by this State to each of 
these conventions. Under this approach it would seem to follow that a coali- 
tion as a whole, when developing its operations plan, must take into account 
each convention to which any of its members are parties, as well as the state- 
ments of understanding and reservations made by these individual members. 
There is little doubt that such an approach would prove to be exceptionally 
difficult to apply in a real-world environment. Rather than establishing 
clear-cut "legal standards" for a coalition as a whole, it would subject the co- 
alition to a potentially vast array of varying interpretations of what these stan- 
dards should be. Individual coalition members would be forced to function 
under diverse standards, a fact that would be certain to adversely affect the 
operational capabilities of the coalition. 

In view of these inherent difficulties, might this issue be approached in a 
more practical way? I would submit that if there are to be uniform legal stan- 
dards to which a coalition as a whole is to be held, these must be customary 
law of armed conflict standards. This is a workable approach — a 90% solution, 
if you will. Adherence to the customary law of armed conflict, of which the 
four 1949 Geneva Conventions are an integral part, would ensure a disci- 
plined, effective, and lawful coalition operation. Coalition ROE could be 
drafted accordingly. If within a coalition there arise those situations in which 
individual members feel as if they are restrained from employing certain means 
or methods of warfare, these could be dealt with on a case-by-case basis. How- 
ever, experience has shown that these situations would be few in number, and 
"work-arounds" could be effected. This is a common sense, legally sustainable 
approach toward ensuring that all coalition members, as well as the interna- 
tional community, fully understand the law of armed conflict applicable to co- 
alition operations. 

There are also other elements of this issue that merit comment. Professor 
Stein has suggested in seeking to formulate a workable response to this ques- 
tion that perhaps the law of armed conflict standards applicable to coalition 
operations may be found, in part, in the UN Secretary-General's 6 August 
1999 guidance on the "Observance by United Nations forces of international 
humanitarian law." 1 He notes a number of problems associated with this ap- 
proach, but fails to speak to the principal shortcomings of this document. It is 
poorly drafted and incomplete, and in a number of instances misleading and 
inaccurate. It does nothing to advance the development and effective 

380 



David Graham 



implementation of the law of armed conflict. If one is searching for coalition 
standards, they will not be found in this guidance. 

On another matter raised by Professor Stein in connection with his discus- 
sion of coalition standards, I find myself in complete agreement. He points out 
the potential for confusion that has resulted from what he refers to as "the 
re-naming" of the law of war, which has generally been referred to in the 
post-Charter era as the law of armed conflict. By referring to the law of armed 
conflict as international humanitarian law, he notes that the distinction be- 
tween "humanitarian" and "human rights" law has been blurred. I would go 
further. The apparent attempt to make the law of armed conflict a kinder, 
more gentle form of jurisprudence has generated a significant degree of confu- 
sion in the minds of many. 

What does the term "international humanitarian law" actually mean? Even 
a cursory review of this issue clearly reflects the fact that the term means dif- 
ferent things to different people. In discussions with articulate, well-informed 
individuals who insist upon using this term, I have listened to sometimes pas- 
sionate explanations of the term and the necessity for its use. Disturbingly, 
however, these explanations often differ and there appears to be no consensus 
as to the norms and principles embraced under this terminological umbrella. 
To some, it is just another "updated" name for the law of armed conflict, in- 
dicative of the "humanitarian" emphasis now placed on the regulation of 
armed conflict. To others it reflects the fact that the body of law applicable to 
armed conflict now contains many, but not all, of the elements of human 
rights law. There are also those who view international humanitarian law as 
the single embodiment of all of the law of armed conflict and human rights 
law. 

How did we reach this point? When was the vote taken as to whether such 
a name change should occur? I cannot think of a single individual charged 
with the responsibility of giving real-world advice to military commanders on 
law of armed conflict issues that would have cast an affirmative vote for em- 
bracing a term that would result in blurring the legal obligations for which a 
commander and his staff would be held accountable in an operational envi- 
ronment. The use of a term that confuses and carries with it such imprecision 
in an area of the law that imposes so many responsibilities and often calls for 
life and death decisions, does a disservice to those who constantly strive to 
comply with this law. I'll continue to provide advice on the law of armed con- 
flict. I know what it is and, even more importantly, what it is not. 

To what extent is Protocol I customary international law, such that it may 
be binding on non-parties? Perhaps this question might be more accurately 



381 



Commentary 

articulated: "can't we simply declare Protocol I, in its entirety, to be reflective 
of customary international law and thus declare its provisions to be binding on 
the United States, despite the fact that the United States has chosen not to 
become a party to the Protocol?" To this question, Professor Stein has pro- 
vided an answer. He has expressed substantial doubt as to whether all of the 
provisions of Protocol I have become "intransgressible" principles of custom- 
ary international law. He notes specifically that it is "very doubtful" whether 
many of the undefined provisions of Protocol I can be declared to be of such a 
nature, specifically those that were of principal concern during the conduct of 
Operation Allied Force. 

In illustrating this point, Professor Stein refers to terms such as "military 
significance," "definite military advantage," "effective contribution to military 
action," and "indiscriminate attacks" and notes that they are not defined even 
by way of non-exhaustive examples. Moreover, he observes, even among 
those States that have become parties to Protocol I, a number have issued 
varying statements of understanding regarding their individual interpretations 
of the meaning of these terms. Given these facts, he concludes that it may be 
correct to state that the fundamental principles of the law of armed conflict 
contained within Protocol I and repeatedly referenced by the International 
Court of Justice — that is, the basic distinction between civilians and combat- 
ants, the prohibition against directly attacking civilians, and the rule of pro- 
portionality — are customary law of armed conflict concepts. However, he 
notes, "[i]t is very doubtful whether the same can be said about all of the other 
provisions of Protocol I. ..." I am in complete agreement with Professor Stein 
on that point. 

Judge Pocar, on the other hand, would appear to be much more supportive 
of the view that Protocol I, as a whole, is making steady progress toward be- 
coming customary international law. He observes that in looking at the fac- 
tors to be considered in making customary law determinations, "customary 
international humanitarian law should not be determined on the sole basis of 
the practice of the States that have not ratified the Protocol." 2 In making this 
statement, Judge Pocar acknowledges, in essence, the primary role played by 
State practice in the formulation of customary international law. Of this, 
there can be no doubt. Every criterion set forth for the purpose of making cus- 
tomary law determinations has, at its core, the concept of State practice. The 
primacy of this concept has been reaffirmed repeatedly by various interna- 
tional tribunals. To this Judge Pocar would seem to say that he agrees that 



2. See Judge Pocar's paper in this volume (emphasis added). 

382 



David Graham 



State practice is the key component of any customary law determination, but 
that in applying this principle one must not look exclusively at the practice of 
those States that have chosen to challenge the customary law nature of nu- 
merous provisions of Protocol I. Fair enough. Let us take a look at those States 
that are parties to Protocol I. 

I have never been impressed by the number of States that have, over the 
years, become parties to Protocol I. It is my view that the long list of signato- 
ries of this document has very little to do with State practice in the area of the 
law of armed conflict. The vast majority of the signatories of Protocol I are at 
best interested observers — bystanders, if you will — when it comes to the ac- 
tual application of the law of armed conflict in combat situations. These 
States have not applied the provisions of Protocol I on the battlefield or, for 
the most part, during any form of military operation. In sum, they have not 
"practiced" the various provisions of Protocol I. (The same is true of the Inter- 
national Committee of the Red Cross (ICRC) and a host of other non-govern- 
mental organizations (NGOs).) As a result, the fact that these States are 
parties to Protocol I means very little when one examines the practice of such 
States in the context of determining whether the Protocol constitutes custom- 
ary international law. 

In terms of tangible State practice that substantively affects the evolution 
of Protocol I as customary law, I have but one thing to say: "show me the play- 
ers." Not the signatories; not the observers; not the ICRC or the NGOs; but 
rather "show me the players." Which States in the international community 
actually practice or apply law of armed conflict principles on an ongoing basis 
in a real- world environment? The answer is very few — of which the United 
States is one. And the United States as a consistent law of armed conflict 
practitioner has just as consistently expressed the view that Protocol I, as a 
whole, does not reflect customary international law. 

One might ask "what about those States, though relatively few in number, 
that have signed Protocol I and have practiced or applied the law of armed 
conflict in a series of military operations since the times of their signatures? 
Surely their status as parties to Protocol I evidences a growing acceptance of 
its provisions as customary law?" Again, another fair observation. However, 
such a premise fails to hold up under scrutiny. Examine, if you will, the States 
in issue. Essentially each of these States has qualified its ratification of Proto- 
col I with a series of both reservations and statements of understanding deal- 
ing with various articles of the Protocol. Search as you may, you will find no 
concordant and continuous State practice regarding the application of 

383 



Commentary 

numerous provisions of Protocol I — even among that limited number of States 
that are both parties and players. 

Judge Pocar also notes that special importance should be attached to the 
case law of international tribunals, in terms of evaluating the assessment of 
such courts as to whether certain treaty provisions have become customary in- 
ternational law. Leaving aside the fact, however, that customary law is not the 
primary source of international law upon which international tribunals base 
their decisions, what have such courts looked for when they turn to an exami- 
nation of whether a particular concept has become a binding principle of cus- 
tomary international law? Once again, these courts have sought to find the 
existence of concordant and continuous State practice associated with the 
concept in issue, and the acceptance of or acquiescence in the concept by the 
State (s) to which the court is being asked to apply this principle. As I have in- 
dicated previously, there exists no concordant and continuous State practice 
with respect to the applicability of Protocol I — and the United States has nei- 
ther accepted or acquiesced in the view that the Protocol, as a whole, reflects 
customary international law. I do not believe that any international tribunal 
would find the more controversial and ill-defined articles of Protocol I to be 
binding customary law. 

Let me speak, very briefly, as well, to Judge Pocar's summary of an opinion 
of a Trial Chamber of the ICTY that was dealing with law of armed conflict 
obligations under Articles 57 and 58 of Protocol I. The Court found that 
"when a rule of international humanitarian law is somewhat imprecise, it must 
be defined with reference to the laws of humanity and dictates of public con- 
science espoused in the celebrated 'Martens Clause', which is, itself, custom- 
ary law." Here, I would simply call your attention to the fact that the "laws of 
humanity" and "the dictates of public conscience" are but the second and 
third components of the Martens Clause. The first, omitted component refers 
to the "usages established among civilized peoples", that is, customary law as 
established by State practice. The omission of any reference to this aspect of 
the Martens Clause, even if inadvertent, is certainly a significant one when 
the Martens Clause has been invoked to "define" the "imprecision" of certain 
Protocol I provisions. 

I'll conclude my comments by leaving you with a quote from Judge Pocar's 
excellent paper, a quote that very cogently summarizes the issue of whether 
Protocol I, as a whole, might rightly be viewed as customary international law. 
Judge Pocar states: 



384 



David Graham 



While most of Protocol I can undoubtedly be regarded as essentially reflecting 
customary international lav/, there are areas where this conclusion is subject to 
debate for two reasons. First, Protocol I clearly sets forth new rules. Second, the 
specificity of Protocol Ps provisions add new elements to principles that, while 
they are well established in customary law, leave margins of discretion to 
belligerent States. Belligerent States are then free to argue that such provisions 
will limit or may limit discretion if they are given certain interpretations. The 
scope and impact of these additions is therefore controversial and may be the 
basis of the hesitations of some States to ratify Protocol I. 3 



To this, I can add only, "Well said." 



3. See Judge Pocar's paper, supra, at 347. 

385 



Discussion 



Can a Coalition Member Be Held Responsible for the Actions of 

Other Members? 

Ruth Wedgwood: 

I have a question for Professor Stein on your approach to the problem of the 
potential responsibility of one coalition member for the actions of other coali- 
tion members. This is probably a statement against interest because I'm not 
sure this is a good line of argument for the United States. Given the manner in 
which the idea of command responsibility has now been liberalized to include 
not only direct commanders in a wiring diagram but also responsibility for ac- 
tors who may be under the effective control of a commander (I have in mind 
here the Blaskic case 1 where the fact that actions may have been taken by a 
paramilitary was not enough to exculpate Blaskic and indeed the extension of 
command responsibility to a broad range of civilian officials), don't you think 
there is some potential liability (I suppose we shall see in the International 
Court of Justice) by individual coalition members for the actions of others 
which they might indeed have been able to stop politically? 

Torsten Stein: 

Well, there might be. I take a three-stage approach. Where you have an in- 
ternational organization, States cannot hide behind the organization and say 
"we will not be responsible because it's the organization that's acting, not us." 
The organization has no penny to pay. You cannot say "well, this was some- 
thing where the organization as such acted ultra vires, so we are not responsi- 
ble." But if you have a situation like Operation Allied Force where you say 
NATO is not the "international tin council," then you can't use all those rules 
and say NATO is responsible. You have a group of individual nations. They 
agree to do something together, and now they are responsible. It would make 



1. Prosecutor v. Blaskic, Judgement, I.C.T.Y. No. IT-95T4-T, Mar. 3, 2000. 



Discussion 

sense. Also, for political reasons, let not the one who did it stand alone in the 
rain because the others were not in a position to do it. I don't see a clear rule in 
international law that says because you are all acting together, we can just 
choose one out of the coalition. There are little examples for that I think. 
That would not be a bad rule. 

Ruth Wedgwood: 

I would simply issue a note of caution. There are even arguments being 
made that UN peacekeepers should be responsible for not having prevented 
the Serbs from acting out. So the command responsibility may be going hori- 
zontal as well as vertical and therefore one should be careful. 

Wolff H. von Heinegg: 

When it comes to NATO operations there are a variety of different instru- 
ments in force for the member States of the coalition, but it's never NATO to 
whom it can be attributed. It's always the national States to whom a possible 
violation can be attributed. Politically there may be a problem. So what the 
NATO countries should do, rather than having a variety of rules of engage- 
ment (even though they are standardized), they should at least try to find a 
common denominator as regards their different legal obligations. 

Torsten Stein: 

We agree that in any given coalition there can be different legal standards, 
and if there was no pre-existing legal obligation then one will not be held lia- 
ble even for the actions of coalition partners. But it would be an awkward case 
indeed if one asked a State to be in the coalition primarily because that State 
had not ratified certain conventions, such as the one on blinding laser 
weapons. 

The United States and Protocol I 

Yves Sandoz: 

Has the United States de facto recognized Protocol I? If not, are there con- 
cerns remaining that prevent the United States from ratifying Protocol I? 

David Graham: 

I'll answer your second question first. Yes, I think there are still concerns 
that we have with specific provisions to Protocol I, and I won't go through 
those specific concerns. I think those have appeared in the public domain on a 

388 



Discussion __ 

number of different occasions. Those concerns are essentially of an opera- 
tional nature. 

I think there are inartfully drafted and very subjective provisions of Proto- 
col I. Provisions that lend themselves to subjective judgments and would place 
commanders in a very tenuous position on the battlefield and subject to sec- 
ond-guessing. Just as various parties of Protocol I have expressed various in- 
terpretations of what those provisions mean in the form of statements of 
understanding and reservations, we have reservations with respect to whether 
they could ever be applied in an objective manner. I think that includes much 
of Protocol I given the fact that it was based on compromise and was very 
inartfully drafted. Those are the types of provisions that we still have reserva- 
tions about because we think that it places commanders in situations that sub- 
ject those commanders to subjective judgments. We can't give them clear 
guidance with respect to what those provisions mean. 

As I said, we have met with coalition partners. We have agreed as to how 
we would interpret those provisions (in terms of developing consensus rules of 
engagement), how we would apply the use of force, and how we would not ap- 
ply the use of force. But that doesn't mean that we still do not have serious res- 
ervations about some of the provisions of Protocol I. 

Now with respect to your first question, I do not think that we are going to 
be the position of violating Protocol I because the rules of engagement that we 
come up with in a coalition environment will essentially reflect the interpreta- 
tions that our coalition partners have with respect to the law of armed con- 
flict. I don't see any commander that would knowingly force a coalition 
partner into a violation of Protocol I; knowing what governmental limitations 
might have been placed on that coalition partner by their capitals. I don't see 
that situation as occurring. 

The Status of Protocol 1 As Customary International Law 

Fausto Pocar: 

I would like to clarify my remarks regarding the status of Protocol I as cus- 
tomary international law. I didn't say that as a whole the Protocol is becoming 
or is customary law. I said that there is a trend towards recognition of the gen- 
eral value of Protocol I as evidenced by the increasing number of ratifications 
and some case law in international tribunals. However, I also said that the 
State practice is still showing areas in which this is not true, and I referred to 
major actors in international relations. I maintain one should take into ac- 
count also the State practice of the States that have ratified the Protocol and 

389 



Discussion 

not only the non-ratifying States. Neither did I say that the practice of the 
ICTY is determinative. I only referred to arguments made by many schol- 
ars — including scholars in this room like Professor Greenwood — that referred 
to international case law as having been seen later on as determinative in de- 
bates, but this is not necessarily always the case. When I referred to the in- 
crease in number of State parties, I had in mind major actors as well because 
one of the States that has ratified Protocol I as recently as 1998 is the United 
Kingdom. 

Leslie Green: 

I only want to touch on the point of the number of ratifications. True, from 
the point of view of classical doctrine, there would have been a general atti- 
tude that perhaps 159 ratifications amounts to at least general international 
law. But when I look at those 159 ratifications, I'm not very concerned as to 
what Nepal thinks about the law of armed conflict nor what Iceland thinks. 
(I'm fascinated by the thought that Iceland recently signed a treaty of non-ag- 
gression and peace with Nepal. Somehow or another it doesn't sound very 
practical.) I'm much more concerned with the fact, not that the United King- 
dom has ratified, but that the United States, China, and Israel have not rati- 
fied. What we have to count are those who are the contributors. If I'm looking 
at the law this evening, I don't care whether Switzerland has ratified a law of 
the sea convention. The same thing applies here. Who are the actors? If a 
number of senior actors don't play, then we can't call it general or universal in- 
ternational law. 

Reprisals 

Adam Roberts: 

This is a question particularly directed at Judge Pocar and Colonel Graham. 
It touches on whether there may be a difference of emphasis between them re- 
garding the issue of reprisals. In his paper, Judge Pocar referred to the problem 
of reprisals very briefly. Colonel Graham was quite right to suggest that the 
reservations that a number of States — and not only NATO member States 
but at least one other State — have made to Protocol I suggest that there is un- 
ease on this issue of reprisal and a desire to leave some room open for reprisals 
as a means of enforcing observance of the laws of armed conflict. This is an is- 
sue which can certainly arise in coalition warfare as evidenced in the 1991 
Gulf operations where the senior partner in the operation was the United 
States. The United States felt an obligation to make clear that it would do 

390 



Discussion ___„ 

something if the other side violated fundamental norms, as Secretary of State 
James Baker communicated to Tariq Aziz on 9 January in Geneva with respect 
to the use of weapons of mass destruction. My question is very simply, what 
scope do you think is left within the law of armed conflict for reprisals and is 
that a problem in coalition operations? 

David Graham: 

The concept of reprisals — even if you restricted it to belligerent repri- 
sals — is an extremely difficult concept. I think I can tell you without divulging 
confidential information that we have debated the issue of belligerent reprisals 
within the Department of Defense and between Defense and the Department 
of State extensively. I wish I could give you an easy answer with respect to 
what the position is on belligerent reprisals. I will tell you that I do not think 
the United States has renounced the right to engage in belligerent reprisals 
(apart from those categories of persons and property protected in the 1949 
Geneva Conventions) given certain circumstances, but that's as far as I'm pre- 
pared to go. It's a difficult issue. 

Fausto Pocar: 

Unfortunately I am not able to fully answer this question. I touched upon it 
in my paper only to show that this is an area in which the debate is open. 
When I referred to the decision of the Trial Chamber in Kupreskic, 2 1 was quite 
prudent to say that whatever consideration is given to this judgment it may 
play a role in developing the law. I won't say more because this question is now 
before the Appeals Chamber of which I am a member. 

The Martens Clause and the Margin of Appreciation 

Rudolf Dolzer: 

Allow me to make a brief point regarding the Kupreskic case. The ICTY had 
to interpret Protocol I, Article 57's "feasible precautions" provision. (I think 
this is a very broad statute with a very broad wording). What the ICTY did was 
interpret "feasible precautions" in the light of the Martens Clause. In other 
words, you interpret a very broadly worded statute in the light of a very, very 
broad general clause. 



2. Prosecutor v. Kupreskic et al., Judgement, I.C.T.Y. No. IT-95-16-T, Jan. 14, 2000. 

391 



Discussion 

The Martens Clause is reworded in the Protocol I. It says u [i]n cases not 
covered." 3 Now I'm not quite sure what it means, "in cases not covered," but I 
would be very careful to apply the Martens Clause in areas that are more or 
less specifically addressed in the Protocol. Otherwise I would probably not ap- 
ply the Martens Clause. But even if I would in principle think it might be ap- 
plicable in terms of applying Article 57 in the context of criminal justice, if you 
add the Martens Clause, you would come into a sphere of vagueness that in 
most domestic constitutional systems would probably be quite near to the bor- 
ders that probably constitutional lawyers would find acceptable. 

My remark as to margin of appreciation was meant as follows: those who 
have to apply Protocol I or customary law have to apply it under specific cir- 
cumstances — sometimes very short-term, sometimes without very specific 
knowledge. I think the ICTY should do more. I would be happier if the ICTY 
had not supplemented Article 57 with the Martens Clause, but with a sense 
and spirit of the margin of appreciation approach. In other words giving some 
benefit of doubt to those who act under the circumstances in which they have 
to act. Now why do I say so again? I say so mainly not because I am sympa- 
thetic to those who are before the ICTY at the moment as very few of us are, 
but I think we have to keep in mind that those rules will have to be accepted. I 
take the ICTY very seriously. I think there is a very good chance that the juris- 
prudence of the Tribunal in the long-term will have a considerable influence 
depending upon its persuasiveness. What I'm concerned about is if the Tribu- 
nal for very good or excellent reasons comes down with an interpretation of 
the law that will make it difficult next time for those who are on the different 
side and in similar circumstances, then I think indeed those very hard cases 
would make very bad law. 

The Relationship Between Human Rights Law and the 
Law of Armed Conflict 

Natalino Ronzitti: 

The International Court of Justice in its Nuclear Weapons advisory opinion 
has said that humanitarian law is lex specialis vis-a-vis human rights law, so in 
some cases you have to apply human rights law. This is a problem for Euro- . 
pean countries; it's not a problem for the United States. For European coun- 
tries it's a real problem because we have a European Convention on Human 
Rights. There is a case before the European Court of Human Rights for 



3. Protocol I, Article 1(2). 

392 



Discussion _^____ 

violation of the Convention on Human Rights during Operation Allied Force. 
This is important also for an occupying army or also for peacekeeping opera- 
tions. We cannot say that we will not apply the European Convention be- 
cause in this case individuals are under the jurisdiction of the State that is 
occupying its territory or having its troops on their territory. So for the Euro- 
pean States it's a very important issue. How is it possible to address this issue 
in a coalition? 

David Graham: 

I appreciate that comment Professor. I understand that you're subject to 
the European Convention on Human Rights and I understand that the Euro- 
pean Court is now making a determination as to whether or not it will assume 
jurisdiction of the case against NATO countries for Operation Allied Force. 
If the European Court assumes jurisdiction, my question becomes does it 
apply human rights law? Does it apply the law of armed conflict? Does it apply 
a combination of the two? Is, in fact, the European Court on Human Rights 
going to make rulings with respect to the law of armed conflict and interpret 
the law of armed conflict? To me that's a fairly scary proposition. 

My concern also is that when you combine elements of human rights law 
and the law of armed conflict, it makes my job of advising military command- 
ers a very difficult job. I know what the law of armed conflict is. When I ask 
very, very bright people to tell me what international humanitarian law is, I 
get some very good answers. The problem is that they're all diffe?ent. Every- 
body has his or her own idea with respect to what international humanitarian 
law is. Professor Stein has said that we have seen the transformation of the law 
of armed conflict into simply an element of humanitarian law. Well, that's an 
uncomfortable proposition for me as well because it makes my job in advising 
commanders a very difficult job in terms of understanding what their obliga- 
tions are. That's something that continues to trouble me. I think it's some- 
thing that we need to take a long hard careful look at. 

Torsten Stein: 

I just want to comment on one point of Colonel Graham's statement. It's 
absolutely clear that the Strasbourg Court will apply the European Conven- 
tion and nothing else if they take up the case. 4 



4. See Professor Greenwood's paper in this volume. 

393 



__ Discussion 

Fausto Pocar: 

The European Court has managed to apply the European Convention on 
Human Rights and nothing more than that. But of course the problem — the 
relationship with the law of war — arises in any case because the Convention 
says that the state of war does not exclude the application of the Convention. 
So the problem of combining the Geneva conventions and the European Con- 
vention on Human Rights does exist for States that are parties to both. 

Leslie Green: 

I find myself very much in agreement with Colonel Graham, because from 
my point of view international humanitarian law is the Geneva conventions. 
This is treaty armed conflict law. We also have customary armed conflict law. 
Armed conflict law is lex specialis. It has been created to deal specifically with 
armed conflicts. If I look at the European Convention on Human Rights, it re- 
lates to a peace situation. It relates to a situation of a country dealing with its 
own subjects or perhaps those who are present within its territory. That was 
the basic view that the Convention originally took. The fact that the Court 
has perhaps extended it, in the same way that the Canadian Supreme Court 
has extended our own Charter of Rights, does not change the law. It is not the 
role of the European Court of Human Rights to deal with issues that are out- 
side the field of human rights. The issue of the law of armed conflict is lex 
specialis, which applies even if the Convention on Human Rights is lex 
generalis, which I don't think it is. 

Michael Bothe: 

It comes as a surprise to me that we are back to this old issue of humanitar- 
ian law and human rights. Professor Green, you know what you said was 
wrong. We made every effort from 1974 to 1977 to have a good mix of human 
rights and humanitarian law. Article 75 of Protocol I and the human rights 
provisions of Protocol II are human rights provisions. They are drafted accord- 
ing to the international covenants. Their purpose is to a certain extent to ex- 
clude the suspension of the guarantee which is possible according to the 
European Convention on Human Rights; to reintroduce those guarantees and 
to make them in a certain sense immune against this type of suspension. This 
double guarantee or double protection of victims by humanitarian law and by 
human rights law was always with us. This is not new. 

There is nothing like a lex specialis. These are two overlapping areas of in- 
ternational law. Now when you have overlapping areas of international law, 
you will get into difficult situations at some point. I think the case which is 

394 



Discussion 

pending before the European Court of Human Rights is one of those difficult 
situations where you have also as a matter of fact a very old question. The rela- 
tionship between the right to life and the right to kill in warfare. It's a very fun- 
damental issue. It pops up from time to time at places where you might not 
have expected, but there is nothing shocking and nothing new about it. Per- 
haps it's an opportunity to rethink the issue. This is the fundamental side of it. 
The Court has to decide the issue on a technical level because the Court 
will have to apply the European Convention. There the problem is whether 
actual fighting is something that is meant to be "subject to the jurisdiction" of 
a party to the Convention, or whether the scope of protection of the Conven- 
tion as it is formulated really covers actual fighting. It covers action in the con- 
text of an occupation, but actual fighting is different. This would be my 
problem if I were a judge there. Is this really something which is within the 
scope of protection of the European Convention? 

Leslie Green: 

Professor Bothe, I know you were Rapporteur of that Committee. I sat in on 
that Committee. But I would remind you that what we did in that Committee 
was to take certain human rights and make them part of armed conflict law. 
They were taken out of the generality of human rights law from the point of 
view of military operations and made part of Geneva law because they appear 
not in a human rights document but in a Protocol attached to the Geneva 
conventions. They are now part of armed conflict law. They are to be consid- 
ered from the point of view of the operation of the law of armed conflict, not 
in the light of human rights law. They may be in Pictet's definition of interna- 
tional humanitarian law, which he said was the Geneva conventions, but from 
that point of view I think you go too far in retaining it as a separate concept 
when it has become part of the lex specialis of the law of armed conflict. 

Rudolf Dolzer: 

To me the issue of the law of armed conflict or humanitarian law is to some 
extent a semantic issue in terms of interpreting the law. It is a matter of strict 
interpretation of the relevant treaties. The European Court will interpret the 
case before it in terms of its law, not more and not less. 

Professor Bothe indicated that there is a serious question whether the Euro- 
pean Convention was meant in the first place to address war or war-like situa- 
tions. I would think that is not the case. The universal human rights 
conventions will have to interpret human rights laws in their own light. I 
think that we will come to the general issue of which is the more specific law. 

395 



Discussion 

The law of armed conflict is probably more specific, but there may be instances 
where the two bodies of law have to be interpreted in the light of each other. 
That would be a very specific issue to be determined in the light of the very 
specific case, but in principle one would have to assume that the law of armed 
conflict is much more specific than human rights law. 

Fausto Pocar: 

I would like to make a simple point on the relationship between human 
rights law and humanitarian law. We are discussing the question of the Euro- 
pean States, but the question is not only European. We should not forget that 
many countries in the world — about 150 now — are parties to the UN Cove- 
nant on Civil and Political Rights. The Covenant's provisions on these mat- 
ters are more or less going in the same direction as the European Convention. 
So the problem of combining the treaty obligation that was mentioned by Pro- 
fessor Bothe still exists and exists also for the United States because the 
United States is a party to the Covenant. So it's a point that should be 
stressed. 



396 



PART VI 



THE ROAD AHEAD 



o 



Introduction 



Joel Rosenthal 



ur topic is entitled "The Road Ahead." Now I suppose if Yogi Berra 
were in my place he would just say, when you get to the fork in the 
road, take it. Say what you will about Yogi, but he's right to imagine that the 
road ahead is one with many forks. Legal and ethical dilemmas necessarily im- 
ply that choices must be made. I hope that this colloquium and this particular 
panel can help us to see these choices clearly and help us articulate the princi- 
ples upon which we make our decisions. 

The organizers of this colloquium sensed that the Kosovo campaign 
brought to the surface several inconclusive legal and ethical issues stemming 
primarily from rapid geopolitical and technological changes. This point has 
been made throughout proceedings. For example Professor Dinstein points 
out in his paper that the jus in hello cannot afford to lag behind the changing 
conditions of combat. Colonel Graham asked us when did we change our per- 
spective from the law of armed conflict to international human rights law? 
We have seen some new language and new concepts, and we've seen some old 
concepts put under new strain. We are all here because we know that these 
changes affect our thinking about the road ahead. 

The organizers also understand that in order to investigate the world be- 
tween law and ethics, we would need to call upon an eclectic group. So that is 
why in this colloquium are included judges, philosophers, military officers, his- 
torians and even lawyers. We hope we've created a stimulating and fruitful 
discussion that has been interdisciplinary, inter-professional and interna- 
tional. Yesterday historian Barry Strauss cautioned whether we can or should 
even try to learn lessons from history. The organizers take that admonition se- 
riously, but we're also confident that we can profitably reflect on the Kosovo 
experience in ways that might not amount strictly to lessons learned but might 
nevertheless shed some light on the road ahead. 



T 



The Laws of War After Kosovo 



Adam Roberts 



he 1999 Kosovo War between NATO members and the Federal Re- 
public of Yugoslavia confirmed the importance of issues relating to 
the laws of war in contemporary conflicts, especially in coalition operations. It 
also exposed some problems in that body of law. A central issue in the war was 
the minimizing of civilian casualties. The NATO leadership recognized from 
the start that this was of major importance, for two main reasons: because the 
war was being fought with a stated purpose of protecting the inhabitants of 
Kosovo and also because international opinion would not have tolerated a 
war on civilians. 1 An underlying question raised by the war is thus the extent 
to which international legal considerations and institutions can assist in pro- 
tecting the civilian. 

The title of this paper calls for explanation. The terms "the laws of war" (jus 
in hello) and "international humanitarian law" are for most purposes inter- 
changeable. They refer to the same body of law. Both terms are used in this pa- 
per. For most purposes I prefer the first of these terms, "laws of war" being 
older and simpler, and recognizing as it does that war is the central area of 
concern. However, the second term, "international humanitarian law," some- 
times with the suffix "applicable in armed conflicts," is increasingly used in in- 
ternational diplomacy. In some usages, this term can also encompass relevant 
parts of the international law of human rights. The term may be particularly 
appropriate in reference to a situation (such as applied in Kosovo before 
March 24, 1999) in which there is no international armed conflict and only a 



1. The importance of minimizing civilian casualties is stressed in the memoirs of the Supreme 
Allied Commander Europe during the period of the Kosovo War. See WESLEY CLARK, WAGING 

Modern War 438^0 (2001). 



The Laws of War After Kosovo 



small-scale civil war, but there is systematic government repression of part of 
its own population. Whichever term one uses, the fact remains that the scope 
of this body of law has significantly expanded in the past sixty years to encom- 
pass the law on crimes against humanity and on genocide as well as the laws 
and customs of international armed conflict; and that in the past decade this 
body of law has been increasingly viewed as at least partially applicable in con- 
flicts which are partly or completely non-international in character. 

Eight questions 

This survey concentrates on the following eight questions which (a) arose 
in connection with the Kosovo War, and (b) also touch on matters which are 
likely to affect the way in which the law is viewed, influences events, and de- 
velops further in the future: 

1. How did developments in the written laws of war which occurred in the 
1990s, and the increasing international concern with implementation of the 
law, affect the framework within which international responses to civil wars, 
including in Kosovo, took place? 

2. Is there now a stronger link than before between jus in hello and jus ad 
helium 1 . In particular, what are the implications of the fact that sometimes, as 
in Kosovo, violations of international humanitarian norms by a belligerent in 
an internal conflict provide part of the rationale for external military 
intervention? 

3. If military action is embarked upon for proclaimed humanitarian pur- 
poses by a large alliance or coalition, is there a logic whereby it is carried out by 
low-risk, remote control methods? In particular, is the oxymoron, humanitar- 
ian war, particularly likely to take the form of bombing; and what jus in hello 
problems arise from reliance on air power? 

4. Is there tension between (a) the NATO/US strategic doctrine which 
aims at putting pressure on the adversary's government, and not just its armed 
forces, and (b) the implicit assumption of the laws of war that the adversary's 
armed forces are the main legitimate object of attack? If so, how can this ten- 
sion be addressed? 

5. What lessons are to be learned from the fact that the NATO operations 
were subject to the jurisdiction of the International Criminal Tribunal for the 
former Yugoslavia (ICTY)? In particular, does the consideration of the 
NATO bombing campaign that was conducted under the auspices of the 
ICTY Prosecutor suggest that the NATO campaign was conducted largely in 
accord with member States' obligations under the laws of war? 

402 



Adam Roberts 



6. Did the war confirm that there can be many forms of non-belligerence 
which differ significantly from neutrality as traditionally conceived in the laws 
of war? 

7. Did the war expose deficiencies or omissions in the existing codifications 
of the laws of war? In particular, is there a need for further codification? And 
what are the main subject-areas that might require such codification? 

8. What, if anything, might need to be done about the paradox that the 
United States is simultaneously a principal upholder of the obligation of States 
to observe the laws of war and a non-party to several important agreements on 
the subject? 

These questions are certainly not the only important jus in hello ones to 
arise. A number of specific issues and controversies, such as the naval opera- 
tions in the Adriatic and the bombing of the TV station in Belgrade, cannot 
be covered here in the detail they deserve. 

These eight questions have to be seen against a larger background of 
changes in the conduct of international politics in the 1990s, and increasing 
international preoccupation with the problem of civil wars and with the im- 
plementation of the laws of war. These changes had a significant effect on the 
fact, and the form, of NATO involvement in Kosovo. 

Changes in the conduct of international politics 

In the 1990s four factors, none of them entirely new, reinforced the ten- 
dency of international bodies and foreign powers to get involved in wars, in- 
cluding particularly civil wars, and also to apply pressure for implementation 
of the laws of war by belligerents. 

Firstly, most conflict since the end of the Cold War has had the character of 
civil wars, though often with international involvements on one or more sides. 
Since such wars cause appalling and often highly visible suffering, as well as 
threatening international stability in the regions in which they occur, there has 
been an evident need to ensure the application of certain rules of restraint in 
such wars. 

Secondly, many contemporary wars have a particular tendency to engage 
the interests of outside powers because they threaten to create huge refugee 
flows with which our not-very-liberal societies are unwilling to cope. Whether 
it is northern Iraq, Bosnia, Kosovo or East Timor, an unholy alliance of hu- 
manitarianism and illiberalism makes intervention within the State undergo- 
ing conflict a possible, even imperiously necessary, option. 

403 



The Laws of War After Kosovo 



Thirdly y there has been a growing awareness that crimes committed by 
States have been among the most serious of the twentieth century. The inter- 
national preoccupation with restitution for a wide range of State misdeeds is 
evidence of this. 

Fourthly , it is widely accepted that the post-Cold War international order 
has to be based on values other than, or additional to, mutual respect among 
sovereign States. Human rights and humanitarian norms are core parts of any 
such system of values. It is thus very difficult for States to ignore massive viola- 
tions of fundamental norms. 

The challenge of implementation 

The main challenge facing the laws of war today is not devising new 
rules — though some are needed. It is implementation of the rules that exist, 
and of the underlying idea of moderation in the conduct of armed conflict. Un- 
questionably, the preoccupation with implementation is widely shared among 
those who have worked in the field of the laws of war; it has had a profound ef- 
fect on policy and on treaty-making in this field; and it has been reflected in a 
number of UN reports and in certain actions of the UN Security Council. 

"Implementation" is taken to encompass (]) the normal measures taken by 
States, and by international bodies including the International Committee of 
the Red Cross (ICRC) and the United Nations, to ensure that populations 
and armed forces are aware of the laws of war and carry out their terms; (2) 
the actions taken by outside bodies, including States and international organi- 
zations, in response to systematic violations of the laws of war. My focus is 
mainly on this second and more difficult category, which encompasses the en- 
forcement of the laws of war, but is not limited to coercive measures. 

The concern with implementation should not be taken to imply support for 
the commonly expressed view that existing implementation is lamentable or 
even non-existent. In the 1999 Kosovo War there was much effective imple- 
mentation. This was not only on the NATO side, but also in some instances 
on the Federal Republic of Yugoslavia (FRY) side. For example, in the talks at 



404 



Adam Roberts 



the conclusion of the war the FRY military provided extensive and accurate 
information about the location of minefields. 2 The central challenge is both to 
improve patterns of implementation, and to further develop means of coping 
with gross violations. 

Changes in the Laws of War in the 1990s 

In the decade before the war on Kosovo, there had been two striking devel- 
opments in the laws of war: a tendency to make more explicit and detailed the 
application of the laws of war to conflicts with a partly or wholly non-interna- 
tional character; and a range of specific measures to improve mechanisms of 
implementation. Both of these developments affected the United States and 
NATO response to the events in Kosovo. Up to March 24, 1999 the Kosovo 
problem had largely the character of State repression by the Yugoslav authori- 
ties and civil war. It might thus have been perceived as a largely internal prob- 
lem, about which the rest of the world should not worry. The fact that Kosovo 
did not escape the attention of outside powers and bodies owes something to 
the development of the law. 

Changes in the written law 

In the laws of war, as they developed from the mid-nineteenth century to 
the Second World War, implementation was traditionally not treated as a ma- 
jor topic in its own right. The general assumption, reflected in certain early 
agreements on the laws of war (e.g., the 1899 and 1907 Hague Conventions) 
was that civilized States could be relied on to ensure that their own armed 
forces would act in a disciplined, restrained and professional manner. That 
idea was called into question by the events of the twentieth century. When 
the State that was supposed to take action was the very one whose armed 
forces had committed the alleged offenses, the idea of purely national jurisdic- 
tion seemed optimistic; and when the State itself was committed to a criminal 



2. Information from General Rupert Smith, Deputy Supreme Allied Commander Europe, June 
25-27, 1999. See also the UN Mine Action Programme website, www.mineaction.org. Its report 
on Kosovo of September 2001 (available at the Mine Action website) showed that the Yugoslav 
Army handed over 620 records of minefields in Kosovo, principally but not exclusively on the 
Albanian and Macedonian borders. According to the final annual report on the UN Interim 
Administration in Kosovo Mine Action Programme, covering the period to December 15, 2001, 
the 620 records did not include mines laid by Ministry of Interior Police Units, or paramilitary 
groups. UNMIK Mine Action Programme Annual Report - 2001 (December 2001) H 10 (available 
at the Mine Action website). 

405 



The Laws of War After Kosovo 



policy, it was absurd. That is why since 1945 there has been a definite move- 
ment towards a system of international criminal law affecting the activities of 
States and armed forces. 

As far as treaties are concerned, the old pattern of treating implementation 
casually began to change significantly after the Second World War. The 1948 
Genocide Convention authorized and indeed exhorted parties to take action 
against offenders, including rulers and public officials; and it authorized action 
through the UN. The four 1949 Geneva Conventions called for: (1) universal 
jurisdiction as regards grave breaches, and (2) "Protecting Powers" to ensure 
implementation of certain parts of the agreements in wartime. However, the 
implementation systems specified in these treaties concluded in 1948 and 
1949 have not been used much in the intervening years. 

The 1977 Geneva Protocol I 3 included some provisions attempting to break 
the impasse. In particular, in accordance with the terms of its Article 90, the 
"International Humanitarian Fact-Finding Commission" was set up in 1991. 
Yet this too has not worked. Not a single one of the numerous problems in the 
decade of its existence has been referred to it. In this, as in many other ways, 
the actual forms of implementation that have been developed have been dif- 
ferent from what was envisaged in treaties. 

In short, the law developed before the 1990s had relatively few provisions 
regarding implementation, and those that existed were not effective. This 
does not mean that there was no implementation — many States did a capable 
job of developing a culture of law observance within their own armed forces. 
However, the war crimes and crimes against humanity of the 1990s exposed 
the weakness of the implementation "system." 

Similarly, laws of war agreements concluded before the 1990s said relatively 
little about civil war. The treaty provisions explicitly applicable in civil wars 
were notoriously modest (being essentially Common Article 3 of the 1949 
Geneva Conventions and 1977 Geneva Protocol II), and were especially weak 
on matters of implementation. 

In the 1990s, States and international bodies made further attempts to ad- 
dress questions of implementation and enforcement. Eight new legally binding 
international documents in the area of the laws of war broadly defined were 
adopted by the UN Security Council or by States at international conferences. 
Only one of these new agreements (the 1995 Protocol on Blinding Laser 



3. Protocol Additional (I) to the Geneva Conventions of 1949, and Relating to the Protection of 
Victims of International Armed Conflict, June 8, 1977, 1125 U.N.T.S. 3, DOCUMENTS ON THE 
LAW OF WAR 422 (Adam Roberts and Richard Guelff eds., 3d ed. 2000) [hereinafter Protocol I] . 

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Weapons) does not deal extensively with implementation and enforcement, 
or with the problem of civil war. 4 The other seven new international instru- 
ments, all of which do address these issues, are: 

1. The 1993 Statute of the International Criminal Tribunal for the former 
Yugoslavia. Adopted by the UN Security Council in 1993. 

2. The 1994 Statute of the International Criminal Tribunal for Rwanda. 
Adopted by the UN Security Council in 1994. 

3. The 1994 Convention on the Safety of UN and Associated Personnel. 
This is not part of the laws of war as such, but closely related. It 
contains extensive provision for prosecution or extradition of 
offenders. 

4. The 1996 Amended Protocol 11 on Landmines to the 1980 UN 
Convention on Certain Conventional Weapons. This requires each party 
to take legislative and other measures against violations "by persons 
or on territory under its jurisdiction or control." 

5. The 1997 Ottawa Landmines Convention. This contains extensive 
provisions on transparency, compliance and dispute settlement. 

6. The 1 998 Rome Statute of the International Criminal Court (entered 
into force July 1, 2002). 

7. The 1 999 Second Hague Protocol for the Protection of Cultural Property 
in Armed Conflict (not yet in force) . This was concluded and opened 
for signature during the Kosovo War, but had been negotiated and 
agreed well before. It contains numerous provisions regarding 
implementation and enforcement not just of the Second Protocol 
itself, but also of the Convention and the first Protocol (both of which 
had been concluded in 1954). 



4. I exclude from this total documents of an essentially advisory character, such as the 1994 
ICRC/UNGA Guidelines for Military Manuals and Instructions on the Protection of the 
Environment in Times of Armed Conflict, included in the UN Secretary-General's report of 19 
August 1994 to the UN General Assembly. See U.N. Doc. A/49/323 (1994). 

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The Laws of War After Kosovo 



All seven documents have two critically important features in common. 
First, they contain some provisions that go beyond the old idea of essentially 
national implementation by the authorities of individual States. Second, they 
have formal application in wholly or partly non-international armed conflicts. 

An unresolved problem: internationalized civil war 

Most wars are much more confused in character than the simple dichoto- 
mous definition of war, as being either international or non-international, 
would suggest. Frequently, as in past eras, the civil wars of our time have had 
international dimensions: troops and command structures from outside pow- 
ers have often played major roles on one or more sides. In many cases a more 
accurate short description of the conflict would be "internationalized civil 
war", although this is not a recognized category in the laws of war. 

As far as the laws of war are concerned, one unhappy result of having largely 
separate bodies of law applying to different aspects of the conflict is that courts, 
especially ICTY , have had to devote enormous efforts to determining the char- 
acter of the conflict in Bosnia as it arose in particular times, places and events. 
The wars in Bosnia and Croatia were among many which have had partly in- 
ternational and partly internal aspects. There must in principle be a case for 
applying the whole of the body of the laws of war even to armed conflicts that 
are substantially non-international in character, and some recent develop- 
ments in the law do point in that direction. However, as far as Kosovo is con- 
cerned, the question of the character of the conflict is not especially difficult. 
Before March 24, 1999 it was mainly or entirely a non-international armed 
conflict, occurring within the territory of the Federal Republic of Yugoslavia. 
After that date there was, superimposed on that conflict, an international 
armed conflict between the NATO powers and the FRY. 

The UN Security Council's involvement 

In the 1990s the UN Security Council assumed a major role in attempting 
to ensure implementation of the laws of war, including investigation and pun- 
ishment of certain violations. This role was not entirely new. For example, al- 
ready during the Iran- Iraq War (1980-88) the Security Council had 
authorized the main official investigation into the use of chemical weapons. 

In the conflicts of the 1990s the UN Security Council addressed issues re- 
lating to the implementation of international humanitarian law in at least five 
cases: Bosnia and Herzegovina (1992-5); Somalia (1992); Rwanda (1994); 
Sierra Leone (1997-2000); and Kosovo (1998-9). In addition to attacks on 
civilians and other similar violations, a major issue at stake in some of these 

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cases was the refusal of parties to permit delivery of humanitarian aid — which 
is certainly a problem relating to the laws of war, but could also be considered 
a violation of other norms and agreements. 

In all these cases in the 1990s the Security Council went beyond appeals to 
observe norms, and called for action. There were always several different 
stated purposes for UN-authorized action or the threat thereof, but obser- 
vance of humanitarian law was one of them. The actions taken by the Council 
included not only the establishment of the international criminal tribunals for 
Yugoslavia and Rwanda, but also action of a more direct kind. Some of the 
cases of UN-authorized military action, and some cases of UN-imposed eco- 
nomic sanctions, were partly based on claims that the target State had vio- 
lated fundamental norms of humanitarian law. 

These forms of action under UN Security Council auspices posed problems. 
As regards military action, in most of these five crises a principal problem for 
the UN was the difficulty of finding outside forces willing to act in situations 
perceived to be dangerous. The failures of the UN, and of States, to act in time 
in respect of the crises in Rwanda in 1994 and Srebrenica in 1995 are clear ex- 
amples. The enthusiasm for implementing humanitarian norms ran into the 
rock of national interests. In respect of Kosovo the problem was different: the 
main difficulty was in getting agreement in principle in the Security Council 
that force should be used at all in response to the unfolding crisis. This was be- 
cause, more than in any of the other five cases, any military action to stop on- 
going atrocities in Kosovo involved violating the sovereignty of a functioning 
sovereign State, Yugoslavia. 

Links Between Jus in Bello and Jus ad Bellum 

One consequence of the developments of the 1990s has been the strength- 
ening of the idea that a systematic pattern of violations of the basic humani- 
tarian norms of international humanitarian law may justify acts of military 
intervention. Although there were many pre-echoes of this in the nineteenth 
and twentieth centuries, the apparent strengthening of this link between jus 
ad bellum and jus in bello represents a momentous and controversial change in 
the terms of international debate. 

The long-standing and important principle that the law relating to resort to 
war (jus ad bellum) is a separate and distinct subject from the law relating to 
conduct in war (jus in bello) remains valid and important. However, there have 
always been causal links between these distinct bodies of law. One such link is 
that aspect of the idea of proportionality that deals with the proportionality of 

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a military response to the original grievance. The developing practice of mili- 
tary action as a response to violations of the law of war is another important 
link. Quite simply, massive violations of jus in hello by a belligerent can help to 
legitimize certain threats and uses of force by outside powers intervening to 
stop the violations. 

In an effort to get an offending State to observe rules of restraint, the first 
response of outside powers may be the threat, rather than the actuality, of 
force. The use of pressure against States, for example in order to make them 
accept an intervention force, as was attempted in Kosovo and done in East 
Timor in 1999, raises a problem. Traditionally, international law and interna- 
tional lawyers have been suspicious of agreements negotiated under duress. If 
the host government has only given consent under extreme pressure, is its 
consent valid? The experience of the post- 1990 period shows how necessary 
pressure can be to achieve international objectives, and how hard it is to elim- 
inate certain aspects of power politics. 

The change in the landscape, whereby humanitarian outrages serve in 
practice as a basis for threatening or using force, has not been universally rec- 
ognized. This is not surprising, particularly as the whole issue poses difficult di- 
lemmas for humanitarian workers and organizations. In some cases in the 
1990s, the violations of jus in hello that contributed to decisions to intervene 
included assaults on aid workers and convoys. Any suggestion that humani- 
tarian workers and organizations may play some part in triggering military ac- 
tions challenges their deep (and in some cases legally based) commitment to 
impartiality and neutrality. Almost all humanitarian workers and organiza- 
tions are in a state of denial about the extent to which they, and the principles 
and laws for which they stand, have played a part in initiating militar