Report on of International Humanitarian Law

 

in Kosovo in 1998

February 1999

 

Prepared for Justice Louise Arbour, Prosecutor of the International Criminal Tribunal for the former Yugoslavia, under Article 18 of the ICTY Statute

 

and to the attention of:

Judge Gabrielle Kirk McDonald, President of the ICTY

H.E. Kofi Anan, Secretary General of the United Nations

 

 

The President of the Security Council

The Council of Ministers and the Commission of the European Union

The Contact Group on former Yugoslavia

 

 

 

No Peace Without Justice (NPWJ), was launched in 1993 as a campaign of the Transnational Radical Party (TRP) for the creation of the International Criminal Tribunals for the Former Yugoslavia (ICTY). After the establishment of the ICTY, the campaign became an international committee of Parliamentarians, Mayors and citizens in May 1994.

During the last five years, NPWJ has focused its worldwide campaign on raising public awareness on the establishment of the International Criminal Court (ICC) and has worked for the convening of the Diplomatic Conference of Plenipotentiaries in Rome. In 1996 and 1997, NPWJ launched two solemn appeals for the prompt establishment of the permanent Court. The petitions, signed by over 80 personalities, Heads of States, Nobel Laureates and world leaders from all over the world, contributed significantly to the successful finalization of the ICC Statute at the Rome Conference. The appeals were published in The International Herald Tribune, Le Monde, La Repubblica, El País, Il Messaggero and the

Irish Times on the eve of the last session of the Preparatory Committee of the ICC Statute.

The “1997-1998 NPWJ International Campaign” was made of a series of regional conferences organized in conjunctions with Governments, international as well as Non-Governmental Organizations. All events saw the participation of local political leaders, legal experts, diplomats as well as representatives of the UN and the civil society; the proceedings of all meetings were published and disseminated at the UN during the ICC negotiations.

 

For the last two years, NPWJ has also constituted an inter-group at the EP called Amici Curiae, (Friends of the Court) that has presented several resolutions regarding both legal and political aspects related to the establishment of the international Court. Since its foundation, NPWJ has published a quarterly in four languages (English, French, Spanish and Italian) to update politicians, diplomats and the public on the progress of the ICC negotiations and on the events of its international campaigns. In addition to that NPWJ also realized a series of legal publications in cooperation with the academic community: Istituto Superiore Internazionale di Scienze Criminaly, Nouvelles Etudes Pénales and the European Law Students Association.

To secure a wide participation at the Rome Diplomatic Conference, NPWJ, through its Judicial Assistance Project, provided some 40 legal experts from all over the world to 13 Governments’ delegations mainly developing Countries. All delegations helped by NPWJ eventually joined the so-called ‘Like Minded Group’ and voted in favor of the ICC Statute. The majority of these Countries have already signed the Rome Treaty for the establishment of the Court. In Cooperation with the Transnational Radical Party, the Rome negotiations were covered by a daily newsletters called Terra Viva and Notizie Radicali, and the plenary meetings were also broadcast on the TRP website.

 

On October 1998, during a conference at the United Nations Headquarters, NPWJ launched its “Ratification Now” campaign, an international endeavor for the entry into operation of the ICC by the year 2000.

Since Summer 1998, NPWJ is following the situation in Kosovo with particular attention to the general human rights crisis. Purpose of the undertaking is to prepare a dossier on violations of International Humanitarian Law. A 6-people team, mainly formed of former ICTY personnel, has visited twice the Balkans on a fact finding mission last Fall.

 

 

NPWJ has been supported throughout its work by generous contributions from the Open Society Institute, the European Union, the Transnational Radical Party, as well as other private and public donors.

Contents

I. INTRODUCTION

 

2. JURISDICTION OF THE ICTY

A. Applicability of Articles 2, 3, 4 and 5

 

 

B. Existence of an Armed Conflict

(i) Legal Definition

(ii) The Kosovo Liberation Army as an organised armed group engaged in protracted armed violence

2. CAMPAIGN BY THE SERBIAN/FRY FORCES

    

    

A. Background

B. Method of operation of the Serbian/FRY forces in Kosovo

C. Chronological summary: March – October 1998

 

 

 

2. EVENTS ILLUSTRATIVE OF SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

A. Factual Description

 

(i) Operations in Senik, Sedlare, Rusinovce and Klecka at the end of August

 

(ii) Attack on the Vranic area at the end of September

(iii) Attacks in the border region in August and September

(iv) Attack near Susica at the end of August

(v) Operations in the area of Obrinje and Golubovac at the end of September

 

B. Applicable Law

V. INDIVIDUAL CRIMINAL RESPONSIBILITY

VI. SUMMING UP

 

 

I. INTRODUCTION

In October 1998, No Peace Without Justice established a team of experts in international humanitarian and international criminal law to engage in a project concerning the alleged commission of violations of international humanitarian law in Kosovo, in the Federal Republic of Yugoslavia (Serbia and Montenegro) (hereafter “FRY”), during 1998. More specifically, the project was concerned with those violations that are within the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (hereafter “International Tribunal” or “ICTY”) and the present report analyses the conflict in Kosovo from this perspective.

 

 

The team, composed of six members, travelled to Kosovo and other parts of the FRY, as well as to neighbouring Macedonia (FYROM) and Albania, in October 1998 in order to conduct the necessary field research for this report. The method of operation during the field mission largely involved meeting and interviewing various individuals and organisations on the ground, including local journalists and non-governmental organisations (“NGOs”), members of the diplomatic community, representatives of international NGOs, as well as of international governmental agencies, and personnel from the various Kosovo Diplomatic Observer Missions (“KDOM”).

In November and December 1998, a second field mission was conducted to follow up on the initial contacts which had been established. A smaller team again visited Kosovo, as well as Belgrade, and gathered some new material, in addition to confirming existing information and the conclusions that had been formulated on the basis the previous visit. This aspect of the work of the project has also been supplemented by research and analysis conducted in Brussels, New York and Washington D.C. Public information which is available on the conflict in Kosovo, including news reports and those compiled by various international NGOs, has been gathered, along with military information. This has been utilised to provide the context for as well as the substance of the present report, which seeks to present the findings of the project from the perspective of the relevant norms of international humanitarian law and the jurisdictional provisions of the Statute of the ICTY.

 

It is not the purpose of the report to document each and every violation of international humanitarian law committed in Kosovo during the conflict. The present aim is rather to demonstrate the existence of a campaign organised from within the State structure of the FRY, which involved the widespread commission of violations of international humanitarian law. It should thus be emphasised that, while violations may have been committed by both parties to the conflict – the Serbian/FRY forces and those of the Kosovo Liberation Army – the subject of the report does not extend to the latter. Such potential violations are nonetheless worthy of further investigation, and the Office of the Prosecutor of the International Tribunal (“Prosecutor”) should seek to gather any and all information in this regard, along with evidence of crimes committed by the FRY/Serbian forces.

Furthermore, it should be noted that the report does not cover those most recent events which have occurred since the agreement reached between the President of the FRY, Slobodan Milosevic, and the United States Special Envoy, Richard Holbrooke, in October 1998. While the conflict in Kosovo has clearly continued since this agreement and recent events, including the massacre of numerous Kosovars in Racak and the continued shelling of towns and villages in that and other areas, fall equally within the jurisdiction of the ICTY and merit substantial investigation by the Prosecutor, the research for the current report has been limited to a specific time-period. The report thus focuses on serious violations of international humanitarian law which are rapidly fading into the past and seeks to ensure that they are fully investigated and discussed in order to assess the criminal responsibility of those who directed the violence, destruction and suffering of the whole Kosovo conflict, from the highest level.

 

 

II. JURISDICTION OF THE INTERNATIONAL TRIBUNAL

A. Applicability of Articles 2, 3, 4 and 5

 

The jurisdiction of the International Tribunal over potential violations of international humanitarian law in Kosovo is, on its face, apparent. Article 1 of the ICTY Statute provides that any serious violation of international humanitarian law committed within the territory of the former Yugoslavia since 1991 may be prosecuted and punished by the Tribunal. Kosovo, which has the status of a province of the Republic of Serbia, thus falls within the spatial requirement of Article 1 and the temporal requirement is met by virtue of the open-ended term “since 1991”. Articles 2, 3, 4 and 5 of the Statute then provide the framework for the types of violations with which the International Tribunal is concerned by enunciating its subject matter jurisdiction in more detail. These Articles read as follows:

Article 2

Grave breaches of the Geneva Conventions of 1949

 

 

The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

 

 

(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

(g) unlawful deportation or transfer or unlawful confinement of a civilian;

(h) taking civilians as hostages.

 

Article 3

Violations of the laws or customs of war

The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:

 

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

(e) plunder of public or private property.

 

 

Article 4

Genocide

 

1. The International Tribunal shall have the power to prosecute persons committing genocide as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.

 

 

2. Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

 

 

(e) forcibly transferring children of the group to another group.

3. The following acts shall be punishable:

(a) genocide;

(b) conspiracy to commit genocide;

 

 

(c) direct and public incitement to commit genocide;

(d) attempt to commit genocide;

(e) complicity in genocide.

Article 5

 

 

Crimes against humanity

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) extermination;

 

 

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

 

 

other inhumane acts.

(i) Article 2

 

Article 2 of the Statute is drawn from the four Geneva Conventions of 1949 (Geneva Conventions)1 and, more specifically, those provisions of the Conventions which mandate the criminal prosecution of those responsible for “grave breaches” of their terms. In 1949, this regime of universal jurisdiction and mandatory prosecution or extradition was regarded as limited to breaches of the provisions of the Conventions which concerned international armed conflicts, as opposed to conflicts which were determined to be internal in character. While article 3, common to each of the four Conventions, enunciated basic prohibitions in relation to internal armed conflicts, the mechanism for enforcement established in the “grave breaches” provisions was not considered to extend to common article 3. It must be emphasised that this did not preclude a State from prosecuting an individual for violations of common article 3, but merely rendered States under no obligation to do so.

Until relatively recently, the mechanisms for prosecuting individuals for “grave breaches” of the Geneva Conventions remained remarkably untested. By incorporating the terminology of the Conventions into the Statute of the International Tribunal, however, the debate surrounding the exact scope of the “grave breaches”2 (Tadic case), expressed the view that Article 2 of the Statute should only be applied in the context of a conflict determined to be international in nature, Judge Abi-Saab, in a Separate Opinion, advocated its applicability also in internal armed conflicts. Similarly, in their final Judgement in the case of Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo3 (Delalic et al. case), Trial Chamber II, while finding the conflict in Bosnia and Herzegovina to have been international throughout 1992, suggested, obiter dicta, that violations of common article 3 of the Geneva Conventions should now be considered as “grave breaches” of the Conventions.

regime has been reopened. Many voices have been raised in support of an extension of these provisions to incorporate internal armed conflicts as well as international armed conflicts, the former category being of far greater incidence than the latter, and developments in international law rendering any strict division along these lines wholly artificial. Within the International Tribunal itself and in the context of its particular Statute, there remains some debate on the matter. While the majority of the Appeals Chamber, in a Decision on Jurisdiction, in the case of Prosecutor v. Dusko Tadic

 

Despite these indications of a nascent development in the law, the current report does not consider the applicability of Article 2 of the Statute to the Kosovo conflict. As will be discussed further below, there has been some dispute about the actual existence of an “armed conflict” in Kosovo and, while it is here contended that such a view is entirely unsupported in law and fact, it is not argued that the armed conflict was or is international in nature.

(ii) Article 3

 

 

Even a cursory glance at the description of the military campaign conducted by the Serbian/FRY authorities in Kosovo, laid out below, suffices to raise the applicability of Article 3 of the Statute – particularly paragraphs (b), (c) and (e). The Appeals Chamber, in its Decision on Jurisdiction in the Tadic case, held that Article 3 is applicable in situations of armed conflict, whether international or internal. In addition, the Appeals Chamber described Article 3 as a catch-all provision designed to ensure that the jurisdiction of the International Tribunal is “watertight”. In its view, therefore, violations of common article 3 of the Geneva Conventions, concerning internal armed conflicts, also fall squarely within the ambit of Article 3 of the Statute, whose enumerated provisions are illustrative rather than exhaustive. Common article 3 of the Geneva Conventions states as follows:

 

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, colour, 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 whatsoever 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 which are recognized as indispensable by civilized peoples.

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

 

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

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

 

Trial Chamber II, in its Judgement in the Delalic et al. case, further confirmed that violations of common article 3 must be considered as within the jurisdiction of the International Tribunal by virtue of Article 3 of the Statute, absent the above-mentioned development which would bring violations of common article 3 within the “grave breaches” regime of the Geneva Conventions and thus within Article 2 of the Statute.

Bearing this in mind, the evidence discussed below points to violations of international humanitarian law within the scope of Article 3 of the Statute. However, in order to satisfy all of the jurisdictional prerequisites for the applicability of this Article, it is indeed necessary to confirm the actual existence of an “armed conflict” as such and the link between the acts alleged and this armed conflict. This is discussed further below.

 

(iii) Article 4

In addition, Article 4 of the Statute, respecting genocide, is not discussed in relation to the events in Kosovo with which the present report is concerned. Once again, a cautious approach is here adopted, which does not involve an analysis of the legal definition of genocide and the factual circumstances which may or may not fit within that definition. The developing jurisprudence of the International Tribunal, as well as the International Criminal Tribunal for Rwanda (“ICTR”), will further elaborate the extent of the requirement that the acts enumerated in Article 4 be committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, and further investigations by the Prosecutor may lead to the conclusion that such is the case in Kosovo. Nonetheless, the research conducted for the preparation of the present report does not reveal sufficient evidence of this intent requirement to construct an argument for the applicability of Article 4.

 

 

(iv) Article 5

While isolated acts in the course of an armed conflict may constitute violations of the laws or customs of war, the concept of crimes against humanity entails an added dimension. The United Nations Secretary-General, in his Report pursuant to Security Council Resolution 808 that contains the Statute of the International Tribunal,4 described crimes against humanity thus:

 

“47. Crimes against humanity were first recognized in the Charter and Judgement of the Nürnberg Tribunal, as well as in Law No. 10 of the Control Council for Germany. Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.

48. Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. In the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called “ethnic cleansing” and widespread and systematic rape and other forms of sexual assault, including enforced prostitution.”

 

 

Ordinarily, the concept of crimes against humanity extends to crimes committed outwith the context of an armed conflict, as was emphasised by the Appeals Chamber in its Decision on Jurisdiction in the Tadic case. However, the Statute of the International Tribunal specifically requires that, in order to incur its jurisdiction under Article 5, these crimes be committed in an armed conflict in the former Yugoslavia, although this armed conflict may be international or internal in nature.

In the Nikolic Rule 61 Decision of 20 October 1995,5

Trial Chamber I confirmed that an armed conflict was the first requirement for a crime to be considered a crime against humanity by the International Tribunal. In addition, the Trial Chamber considered that the requirement that crimes must be “directed against any civilian population” is specific to crimes against humanity and entails three components.

“First, the crimes must be directed at a civilian population, specifically identified as a group by the perpetrators of those acts. Secondly, the crimes must, to a certain extent, be organised and systematic. Although they need not be related to a policy established at State level, in the conventional sense of the term, they cannot be the work of isolated individuals alone. Lastly, the crimes, considered as a whole, must be of a certain scale and gravity.”

Subsequently, Trial Chamber II, in a Decision on the Form of the Indictment in the Tadic case, emphasised that

 

 

“The very nature of the criminal acts in respect of which competence is conferred upon the International Tribunal by Article 5, that they be “directed against any civilian population”, ensures that what is to be alleged will not be one particular act but, instead, a course of conduct.”

Of further importance is the finding of the International Tribunal that crimes against humanity may be committed against persons who at one time bore arms, but who have subsequently ceased from taking part in combat activities. In its Vukovar Rule 61 Decision, rendered on 3 April 1996,6

Trial Chamber I stated that,

“[a]lthough according to the terms of Article 5 of the Statute of this Tribunal, the combatants in the traditional sense of the term cannot be victims of a crime against humanity, this does not apply to individuals who, at one particular point in time, carried out acts of resistance. As the Commission of Experts, established pursuant to Security Council resolution 780, noted, “it seems obvious that Article 5 applies first and foremost to civilians, meaning people who are not combatants. This, however, should not lead to any quick conclusions concerning people who at one particular point in time did bear arms.... Information of the overall circumstances is relevant for the interpretation of the provision in a spirit consistent with its purpose.” (Doc S/1994/674, para. 78). This conclusion is supported by case law, particularly the Barbie case. In that case the French Cour de Cassation said that “inhumane acts and persecution which, in the name of a State practising a policy of ideological hegemony, were committed systematically or collectively not only against individuals because of their membership in a racial or religious group but also against the adversaries of that policy whatever the form of the opposition” could be considered a crime against humanity. (Cass. Crim. 20 December 1985).

 

 

Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above.”

In its final Opinion and Judgment in the Tadic case, rendered on 7 May 1997,7 Trial Chamber II largely agreed with these findings and added that a discriminatory intent is also a requirement for any crime against humanity. When considering the definition of “civilian”, the Trial Chamber held that “a wide definition of civilian population ... is justified”. Indeed, in the view of the Trial Chamber,

 

 

“the targeted population must be of a predominantly civilian nature. The presence of non-civilians in their midst does not change the character of the population.”

Furthermore, “those actively involved in a resistance movement can qualify as victims of crimes against humanity.”

The Trial Chamber further noted that,

 

 

“the emphasis is not on the individual victim but rather on the collective, the individual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population. This has been interpreted to mean, as elaborated below, that the acts must occur on a widespread or systematic basis, that there must be some form of a governmental, organizational or group policy to commit these acts and that the perpetrator must know of the context within which his actions are taken, as well as the requirement imported by the Secretary-General and members of the Security Council that the actions be taken on discriminatory grounds.”

It should be emphasised that the Trial Chamber determined that, in order to constitute crimes against humanity, the relevant crimes can occur on either a widespread basis, referring to number of victims, or in a systematic manner, indicating a pattern or methodical plan. As long as one of these two conditions is met, this is sufficient to exclude isolated or random acts. Similarly, “[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution.”

The Trial Chamber also stated that the concept of crimes against humanity necessarily implies a policy element, although this policy need not be explicitly formulated, nor need it be the policy of a State.

 

 

“Importantly, however, such a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not.”

It is with all of these considerations in mind that the report presents the campaign of the Serbian/FRY security forces and the violations of international humanitarian law which characterise it. It is the view here advocated that each of the attacks and incidents described in the following text are illustrative of a criminal policy on the part of the Serbian/FRY authorities and, as such, clearly constitute crimes against humanity within the jurisdiction of the International Tribunal by virtue of Article 5 of the Statute.

It is thus the intention of the present report to analyse the events of the Kosovo conflict in the context of Articles 3 and 5 of the Statute. This reflects a caution designed to ensure that the findings of the report are stated in the strongest possible terms, without there being any possible question as to the jurisdiction of the International Tribunal over the events discussed.

 

 

Before continuing, however, it is necessary to settle the matter of the existence of an armed conflict in Kosovo in 1998, for, as has been revealed above, this is a prerequisite for the application of both Articles 3 and 5.

 

2. Existence of an Armed Conflict

(i) Legal Definition

There is no convenient legal formulation of that which constitutes an “armed conflict” for the purposes of the applicability of international humanitarian law. Furthermore, the nature of modern armed conflicts is such that it is often difficult to determine when, precisely, a conflict commences. Given, however, that the basic principles of international humanitarian law seek to protect fundamental rights to humane treatment, and that the application of this body of law to a conflict is not intended to confer any legal status on the parties engaged in hostilities, it is generally accepted that the basic provisions of international humanitarian law should be applied as widely as possible.

 

The level of protection afforded by international humanitarian law is currently determined, in the first instance, by the nature of the particular conflict in question – international or internal. While the law is perhaps moving towards an erosion of this dichotomy, it remains the case that persons involved in or affected by a conflict between States can call upon a much wider panoply of legal provisions than those caught up in a conflict between the State and internal forces, or between two or more groups of such internal forces.

In the most recent judicial expression of that which constitutes an armed conflict, and thus triggers the application of international humanitarian law, the Appeals Chamber of the International Tribunal recognised these two different forms of conflict and described them thus:

“[A]n armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring states or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there”8

 

 

As has been previously stated, it is not here argued that the conflict in Kosovo was or is international in nature, but rather, that it must be considered to be an armed conflict to which the provisions of international humanitarian law concerning internal armed conflicts apply. The above quotation from the Appeals Chamber recognises two factors in the determination that such a conflict exists: the occurrence of protracted armed violence, and the organisation of the groups involved. These factors are also well established in the discussion on the applicability of common article 3 of the Geneva Conventions and Additional Protocol II to the Geneva Conventions, which relate to internal armed conflicts, in the ICRC Commentaries to these instruments.

In relation to these provisions of so-called “Geneva law”, the paramount concern has been to distinguish between a situation of internal armed conflict and the existence of civil strife or internal disturbance, involving isolated acts of violence. Such civil strife is often considered by States to be inappropriate for international attention, and this is indeed the position of the government of the FRY in relation to the Kosovo conflict. Thus, in 1949, during the drafting of the Geneva Conventions, different criteria were evoked to define an armed conflict of a non-international character. The Commentary to common article 3 describes certain elements which could be indicative of the existence of such an armed conflict:

 

“(1) That the Party in revolt against the de jure Government possesses an organized military force, an authority responsible for its acts, acting within a determinate territory and having the means of respecting and ensuring respect for the Convention.

(2) That the legal Government is obliged to have recourse to the regular military forces against insurgents organized as military and in possession of a part of the national territory.

(3) (a) That the de jure Government has recognized the insurgents as belligerents; or

(b) That it has claimed for itself the rights of a belligerent; or

 

 

(c) That it has accorded the insurgents recognition as belligerents for the purposes only of the present Convention; or

(d) That the dispute has been admitted to the agenda of the Security Council or the General Assembly of the United Nations as being a threat to international peace, a breach of the peace, or an act of aggression.

(4) (a) that the insurgents have an organization purporting to have the characteristics of a State.

(b) That the insurgent civil authority exercises de facto authority over the population within a determinate portion of the national territory.

 

 

(c) That the armed forces act under the direction of an organized authority and are prepared to observe the ordinary laws of war.

(d) That the insurgent civil authority agrees to be bound by the provisions of the Convention.” 9

The Commentary is also careful to emphasise that the absence of such indicators does not, however, render article 3 inapplicable, for “the scope of application of the Article must be as wide as possible.”

 

 

During the Diplomatic Conference which led to the adoption of the two Additional Protocols to the Geneva Conventions in 1977, it became clear that the scope of application of the second Protocol would be more restrictive than that of common article 3, which it was intended to supplement. Nonetheless, it is useful to consider also the criteria for the applicability of Protocol II for some guidance on what is considered to be an internal armed conflict. The ICRC Commentary to the Protocol states,

“First, a non-international armed conflict is distinct from an international armed conflict because of the legal status of the parties opposing each other; the parties to the conflict are not sovereign States, but the government of a single State in conflict with one or more armed factions within its territory.

It is therefore appropriate to raise the question whether all forms of violent opposition to a government, from simple localized rioting to a general confrontation with all the characteristics of a war, can be considered as non-international armed conflicts.

 

The expression “armed conflict” gives an important indication in this respect since it introduces a material criterion: the existence of open hostilities between armed forces which are organized to a greater or lesser degree. Internal disturbances, characterized by isolated or sporadic acts of violence, do not therefore constitute armed conflict in a legal sense, even if the government is forced to resort to police forces or even to armed units for the purpose of restoring law and order. Within these limits, non-international armed conflict seems to be a situation in which hostilities break out between armed forces or organized armed groups within the territory of a single State. Insurgents fighting against the established order would normally seek to overthrow the government in power or alternatively to bring about a secession so as to set up a new State.”

Through this explanation, the Commentary illustrates the collective character of the confrontation between forces, which cannot consist of isolated individuals without co-ordination. Moreover, a Sub-Group of the Working Group at the Conference of Government Experts, which was established in 1971 to consider the drafting of the new instruments to supplement the Geneva Conventions, adopted three criteria that had to be met on the side of the insurgents for the recognition of the existence of an internal armed conflict and these were indeed incorporated into the text of article 1 of Protocol II.

(i) a responsible command;10

(ii) such control over part of the territory1112 and

as to enable them to carry out sustained and concerted military operations;

(iii) the ability to implement the Protocol.13

These criteria evidently restrict the applicability of Protocol II to conflicts of a certain degree of intensity. Thus, not all cases of non-international armed conflict are covered, as is the case with common article 3.

In light of all of these considerations and bearing in mind that the application of Additional Protocol II, as such, is not being sought, but rather the fundamental protections of international humanitarian law in times of internal armed conflict, such as to trigger the jurisdiction of the International Tribunal in their breach, it is here submitted that only a relatively low threshold of demonstrated “organisation” of an armed group need be satisfied by the forces involved in the Kosovo conflict. There therefore follows a brief description of the Kosovo Liberation Army and a preliminary consideration of the extent of the fighting between these forces and those of the Serbian/FRY authorities.

 

 

(ii) The Kosovo Liberation Army as an organised armed group engaged in protracted armed violence

While reliable information on the size and organisation of the Kosovo Liberation Army throughout 1998 is difficult to gather, and a certain degree of speculation about its strength and activities has been published in the media, it is possible to establish certain basic facts by utilising press sources, NGO reports and through discussions with professed members or associated persons.14

The group calling itself the Kosovo Liberation Army (Ushtria Clirimtare e Kosoves in Albanian, referred to as the “UCK”15 The initial activities of the UCK were limited to isolated attacks on police vehicles and stations in Kosovo and then the targeting of Serbs and Kosovars loyal to the Serbian regime. By the end of 1997, however, it was demonstrating its ability to launch co-ordinated operations over a fairly wide area, indicating the emergence of a high degree of organisational structure, which many speculated came from members based outside of the FRY, particularly in Germany, Austria and Switzerland. The looting of Albania’s military depots in 1997 boosted the availability of large supplies of weapons and other equipment to the UCK and other groups, and the reigning anarchy in northern Albania facilitated its ability to move personnel and supplies freely.

throughout this report) emerged in 1996 and 1997, apparently in response to the mounting repression of the Kosovar population by the Serbian/FRY authorities during the course of the preceding decade.

 

 

Sources indicate that, at the beginning of 1998, the UCK had approximately 500 active members, which then swelled into the several thousand towards the summer. Some sources estimate that the number could have reached 12-20,000 during June as the Kosovar population became more and more disillusioned with the effectiveness of their struggle for increased autonomy through non-violent methods.

The American-Albanian community provides important financial and logistical backing to the UCK and its North American based organisation purchases equipment, especially army fatigues, other clothing necessities and, apparently, arms, through its contacts and then has them transported to Kosovo. Communities in Switzerland and Germany are the other two main channels of financial support and a foundation which translates as “the Motherland calls you”16 both within Kosovo and abroad, have also been utilised latterly for UCK activities.

is utilised to raise funds. Sources allege that bank accounts in Switzerland were used to centralise donations, although there are indications that some of these were closed in August. In addition, there have been claims that the taxes imposed by the Kosovar “parallel government”,

The soldiers of the UCK wear various types of uniforms, often depending on availability. These do, however, all bear the insignia of the black double-headed eagle on a red background. Through its network of support, these forces are mostly equipped with light weaponry and some sophisticated telecommunications equipment, including satellite telephones. According to a prominent fund-raiser for the UCK in New York City, the UCK has access to a variety of different weapons, including AK 47s, M 48s, 50 mm calibre guns from Pakistan and Bulgaria, anti-aircraft and anti-tank rockets, Chinese rocket launchers, and 75mm cannons. A UCK member based in Likovac further stated that they had access to kalashnikovs, sniper rifles, and 62 and 82 mm mortars, which were brought in from northern Albania, having originated in the United States or Montenegro. Furthermore, there are a number of UCK training camps and bases in northern Albania, as well as many, of a more mobile nature, throughout Kosovo.

UCK sources maintain that strict discipline is kept within the Army and that if a soldier refuses to execute an order or take part in a mission, he is jailed in camp. Furthermore, a military tribunal with an appeals chamber has been created in order to adjudicate claims of misbehaviour or any other violations of the military code. To this effect, a formal military code has reportedly been drafted.