The Laws of War and NATO Attacks on Yugoslavia

Abstract

In May 2000 the Serbian Public Prosecutor, Dragisa Krsmanic, began the indictment of the leaders of the USA, the UK, France and Germany, and former NATO Secretary-General Javier Solana, for war crimes. These charges, laid in the Serbian Supreme Court, relate to alleged violations by NATO forces of the Geneva Convention on the conduct of war. These violations were alleged to have occurred in the course of NATO attacks upon Serbia, intended to persuade the Yugoslav Government to comply with United Nations Security Council Resolutions 1160, 1199 and 1203, which required its withdrawal from the province of Kosovo. From 24 March to 8 June 1999 NATO was alleged to have breached the Convention by using cluster bombs, and by attacking civilians, residential areas, and non-military targets. Ironically, Yugoslav President Slobodan Milosevic and four other Yugoslav Serbs have been indicted by the Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia, also for alleged war crimes. In this case it is against the Kosovo Albanians. The situation is one fraught with dangers and difficulties for the international community. As with the trial of Libyan suspects in the Lockerbie case, the development of rules and procedures of international criminal trials have been influenced more by political considerations than by legal. But we can say with confidence that an international criminal legal system is developing. Public international law regulates relations between nations. That part which relates to military action is generally known as the Law of Armed Conflict, or anciently as the Laws of War. War is both state of armed, physical contest between nations, and a legal condition of armed hostility between states. The instigation and conduct of war has since the very earliest times been subject to some degree of regulation or control. In the thirteenth century Thomas Aquinas wrote, [I]n order that war may be three things are necessary. In the first place, the authority of the prince, by whose order the war is undertaken . His second and third requirements for like those of his predecessor St Augustine, bishop of Hippo, were cause and right intent. Were such the only requirements for the use of force to be lawful, the NATO bombing campaign in the former Yugoslavia in early 1999, intended to achieve peace in Kosovo, would appear lawful. But the laws of war have advanced much since St Thomas lived, and ironically, the United Nations Charter, designed to promote peace, enshrines growing tendency to prohibit all wars not waged in self-defence. This left little room for the just war, concept which has reared its head increasingly. The legality of any given action by the international community, or by an individual country or group of countries depends upon whether the action is justified by international law. The NATO air strikes on the former Yugoslavia early in 1999 were designed to force compliance with United Nations resolutions, but were not expressly authorised by the United Nations. Nor did they resemble traditional peacekeeping missions, or defensive military actions, such as the British action for the recovery of the Falkland Islands from Argentine invaders in 1982. That is not to say, however, that NATO acted unlawfully in bombing Yugoslavia. But what was the legal basis for its action?