APPENDIX B: LEGAL STANDARDS AND THE KOSOVO CONFLICT
Until 1998, human rights abuses in Kosovo, as documented in numerous human rights reports,113 were evaluated against the norms of international human rights law. Police abuse, arbitrary arrests, and violations of due process constituted violations of, among other instruments, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which the Yugoslav government has pledged to respect.114
The growth of armed opposition by the UÇK, however, and the intensification of fighting between government forces and this armed insurgency, have altered the nature of the conflict in Kosovo. Since February, intense fighting has resulted in an estimated six hundred deaths and the displacement of 300,000 persons, while hundreds of villages have been destroyed. Documented abuses include extrajudicial executions, the use of disproportionate force, indiscriminate attacks against civilians, and the systematic destruction of civilian property by the Serbian special police and Yugoslav Army, as well as abuses, such as hostage taking and summary executions, committed against Serbian and Albanian civilians by the UÇK.
By all estimations, the Yugoslav government is fighting against an armed insurgency that has waged ongoing and concerted attacks against the Serbian police and Yugoslav Army, and has controlled large sections of Kosovo, albeit temporarily. In terms of international law, the confrontation is considered an armed conflict.
The conduct of both government forces and the armed insurgency in an armed conflict is governed by international humanitarian law, known as the rules of war, and in particular Article 3 common to the four 1949 Geneva Conventions, Protocol II to those conventions, and the customary laws of war.115 Like human rights law, humanitarian law prohibits summary executions, torture, and other inhuman treatment and the application of ex post facto law. The essential difference is that the provisions of humanitarian law that apply in times of armed conflict are not derogable nor capable of suspension.
The special significance of the Kosovo situation having passed the threshold of an armed conflict is that it invokes the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia, which is mandated to prosecute intra alia crimes against humanity and violations of the laws or customs of war in the territory of the former Yugoslavia.116
Kosovo as an Internal Armed Conflict
International humanitarian law makes a critical distinction between international and non-international (internal) armed conflicts, and a proper characterization of the conflict is important to determine which aspects of international humanitarian law apply. Article 2 common to the four Geneva Conventions of 1949 states that an international armed conflict must involve a declared war or any other armed conflict which may arise between two or more of the High Contracting Parties to the convention. The official commentary to the 1949 Geneva Conventions broadly defines armed conflict as any difference between two states leading to the intervention of armed forces.117
An internal armed conflict is more difficult to define, since it is sometimes debatable whether hostilities within a state have reached the level of an armed conflict, in contrast to tensions, disturbance, riots, or isolated acts of violence. The official commentary to Common Article 3 of the Geneva Conventions, which regulates internal armed conflicts, lists a series of conditions that, although not obligatory, provide some convenient guidelines. First and foremost among these is whether the party in revolt against the de jure government, in this case the UÇK, 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.118
Other conditions outlined in the conventions commentary deal with the governments response to the insurgency. Another indication that there is an internal armed conflict is the governments recognition that it is obliged to use its regular military forces against an insurgency.119
Internal armed conflicts that reach a higher level of hostilities are governed by the 1977 Protocol II to the Geneva Conventions, which is more encompassing than Common Article 3 in its protection of civilians (see below). Protocol II is invoked when armed conflicts:
[T]ake place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.120
Finally, internal armed conflicts are also governed by customary international law, such as United Nations General Assembly 2444.121 This resolution, adopted by unanimous vote on December 19, 1969, expressly recognized the customary law principle of civilian immunity and its complementary principle requiring the warring parties to distinguish civilians from combatants at all times. The preamble to this resolution states that these fundamental humanitarian law principles apply in all armed conflicts, meaning both international and internal armed conflicts.122 Interpreting its jurisdiction over violations of customs of war committed in the territory of the former Yugoslavia, the ICTY has held that this jurisdiction includes violations of Common Article 3 and other customary rules on internal conflict and violations of agreements binding upon the parties to the conflict, considered qua treaty law, i.e. agreements which have not turned into customary international law (e.g. Protocol II to the Geneva Convention).123
The Applicability of Common Article 3 and Protocol II to the Conflict in Kosovo
The hostilities between the UÇK and government forces had, by February 28, 1998, reached a level of conflict to which the obligations of Common Article 3 apply. Given the subsequent intensity of the conflict from March to September, Human Rights Watch is also evaluating the conduct of the UÇK and government forces based on the standards enshrined in Protocol II to the Geneva Convention.124
On February 28, Serbian special police forces launched their first large-scale, military attack on villages Likoane and Cirez suspected of harboring UÇK members. Since that date, the UÇK and the government have been engaged in ongoing hostilities involving military offensives, front lines, and the use of attack helicopters and heavy artillery (mostly by the government). The UÇK possesses small arms and light artillery.
Although the UÇK is primarily a guerilla army with no ridged hierarchical structure, and there are separate internal factions, during the period covered by this report (from February to September) the UÇK was an organized military force for purposes of international humanitarian law. According to those close to the UÇK who were interviewed by Human Rights Watch, at least until the summer offensive by the Serbian special police and Yugoslav Army, the UÇK is believed to have had five or six "operative zones," each with a regional and several subregional commanders. Not all, but most of the regional commanders were represented in the High Command, the body within the UÇK that makes decisions for the whole UÇK. This structure allowed decisions to be transmitted down to the fighters.
Seasoned war correspondents, as well as Human Rights Watch researchers who encountered the UÇK, observed instances of discipline among UÇK fighters manning checkpoints and their tendency to apply similar policies and procedures (for example, with regard to granting journalists access to areas under UÇK control). Such discipline is an indication that the fighters were receiving orders regarding policy and that the fighters were answerable at least to regional commanders. There are also cases, however, when a clear lack of discipline was observed, which points to some structural weaknesses within the UÇK. Despite this, it is clear that the UÇK leadership was able to organize systematic attacks throughout large parts of Kosovo. It also coordinated logistical and financial support from the Albanian diaspora in Western Europe and the United States. Until the Yugoslav Army sealed the border with Albania, arms flowed regularly from Albania's north.
From April until mid-July, 1998, the UÇK held as much as 40 percent of the territory of Kosovo, although most of that territory was retaken by government forces by August 1998. Until then, however, the UÇK had held a number of strategic towns and villages, and manned checkpoints along some of Kosovo's important roads; today their area of control has been reduced to some parts of Drenica and a few scattered pockets in the west, especially at night.
It appears that its command structure has been damaged as a result of the offensive, although it is believed that the nucleus of the organization continues to exist. Complicating the matter is the recent rise of a separate armed
Albanian organization known as FARK (Forcat Armatosur e Republikes se Kosoves -- Armed Forces of the Republic of Kosova), which has a separate base in Northern Albania and is mostly present in the Metohija (Dukagjin in Albanian) region of Kosovo. By September 1998, it was clear that this alternative group, comprised mostly of ethnic Albanians with past experience in the Yugoslav Army and police, did not agree with the UÇKs military strategy, criticizing its lack of professionalism. FARK, however, apparently did not exist as an organized force until August 1998.125
In interviews and public statements, UÇK spokesmen have also repeatedly expressed the organizations willingness to respect the rules of war, which is one of the factors to be considered in determining whether an internal armed conflict exists.126 In an interview given to the Albanian-language newspaper Koha Ditore in July 1998, UÇK spokesman Jakup Krasniqi said:
From the start, we had our own internal rules for our operations. These clearly lay down that the UÇK recognizes the Geneva Conventions and the conventions governing the conduct of war.127
UÇK Communique number 51, issued by UÇK General Headquarters on August 26, stated that, The UÇK is an institutionalized and organized Army, is getting increasingly professional and ready to fight to victory.128
There are reported cases of UÇK soldiers being disciplined by their own commanders for having harassed or shot at foreign journalists, although it is unknown if any UÇK combatants have been punished for targeting ethnic Serb civilians, abusing those in detention, or any other violation of Common Article 3 or Protocol II. Over 100 people, mostly ethnic Serbs, are believed to have been detained by the UÇK.
Finally, through its words and actions, the Yugoslav government has clearly recognized the UÇK as an organized armed force. In addition to the special police forces, which operate similar to a military organization, the government has been obliged to use regular military forces, the Yugoslav Army, against the insurgents.
The major government offensive that began in July has severely affected the capacity of the UÇK, and may ultimately affect the status of the conflict under the laws of war. However, the conditions of Article 3 and Protocol II were satisfied during the period under the purview of this report (February - August, 1998). Human Rights Watch is, therefore, evaluating the conduct of both the government and the UÇK based on the principles outlined in Common Article 3 and Protocol II.
Common Article 3 and the Protection of Non-combatants
Article 3 common to the four Geneva Conventions has been called a convention within a convention. It is the only provision of the Geneva Conventions that directly applies to internal (as opposed to international) armed conflicts.
Common Article 3, Section 1, states:
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 had 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.
Common Article 3 thus imposes fixed legal obligations on the parties to an internal armed conflict to ensure humane treatment of persons not, or no longer, taking an active role in the hostilities.
Common Article 3 applies when a situation of internal armed conflict objectively exists in the territory of a State Party; it expressly binds all parties to the internal conflict, including insurgents, although they do not have the legal capacity to sign the Geneva Conventions. In Yugoslavia, the government and the UÇK forces are parties to the conflict and therefore bound by Common Article 3's provisions.
The obligation to apply Article 3 is absolute for all parties to the conflict and independent of the obligation of the other parties. That means that the Yugoslav government cannot excuse itself from complying with Article 3 on the grounds that the UÇK is violating Article 3, and vice versa.
Application of Article 3 by the government cannot be legally construed as recognition of the insurgent partys belligerence, from which recognition of additional legal obligations beyond Common Article 3, would flow. Nor is it necessary for any government to recognize the UÇKs belligerent status for Article 3 to apply.
In contrast to international conflicts, the law governing internal armed conflicts does not recognize the combatants privilege129 and therefore does not provide any special status for combatants, even when captured. Thus, the Yugoslav government is not obliged to grant captured members of the UÇK prisoner of war status. Similarly,government army combatants who are captured by the UÇK need not be accorded this status. Any party can agree to treat its captives as prisoners of war, however.
Since the UÇK forces are not privileged combatants, they may be tried and punished by the Yugoslav courts for treason, sedition, and the commission of other crimes under domestic laws.
Protocol II and the Protection of Non-combatants
Protocol II supplements Common Article 3 and provides a more encompassing list of protections for civilians in internal armed conflicts. While not an all-inclusive list, the following practices, orders, and actions are prohibited:
· Orders that there shall be no survivors, such threats to combatants, or direction to conduct hostilities on this basis.
· Acts of violence against all persons, including combatants who are captured, surrender, or are placed hors de combat.
· Torture, any form of corporal punishment, or other cruel treatment of persons under any circumstances.
· Pillage and destruction of civilian property. This prohibition is designed to spare civilians the suffering resulting from the destruction of their real and personal property: houses, furniture, clothing, provisions, tools, and so forth. Pillage includes organized acts as well as individual acts without the consent of the military authorities.130
· Hostage taking.131
· Desecration of corpses.132 Mutilation of the dead is never permissible and violates the rules of war.
Protocol II also states that children should be provided with care and aid as required. Article 4, paragraph 3 states that no children under the age of fifteen shall be recruited by the armed forces or groups.
Protection of the Civilian Population
In situations of internal armed conflict, generally speaking, a civilian is anyone who is not a member of the armed forces or of an organized armed group of a party to the conflict. Accordingly, the civilian population comprises all persons who do not actively participate in the hostilities.133
Civilians may not be subject to deliberate individualized attack since they pose no immediate threat to the adversary.134
The term civilian also includes some employees of the military establishment who are not members of the armed forces but assist them.135 While as civilians they may not be targeted, these civilian employees of military establishments or those who indirectly assist combatants assume the risk of death or injury incidental to attacks against legitimate military targets while they are at or in the immediate vicinity of military targets.
In addition, both sides may utilize as combatants persons who are otherwise engaged in civilian occupations. These civilians lose their immunity from attack for as long as they directly participate in hostilities.136 [D]irect participation [in hostilities] means acts of war which by their nature and purpose are likely to cause actual harm to the personnel and equipment of enemy armed forces, and includes acts of defense.137
Hostilities not only covers the time when the civilian actually makes use of a weapon but also the time that he is carrying it, as well as situations in which he undertakes hostile acts without using a weapon.138 Examples are provided in the United States Army Field Manual which lists some hostile acts as including:
sabotage, destruction of communication facilities, intentional misleading of troops by guides, and liberation of prisoners of war. . . . This is also the case of a person acting as a member of a weapons crew, or one providing target information for weapon systems intended for immediate use against the enemy such as artillery spotters or members of ground observer teams. [It] would include direct logistic support for units engaged directly in battle such as the delivery of ammunition to a firing position. On the other hand civilians providing only indirect support to the armed forces, such as workers in defense plants or those engaged in distribution or storage of military supplies in rear areas, do not pose an immediate threat to the adversary and therefore would not be subject to deliberate individual attack.139
Persons protected by Common Article 3 include members of both government and UÇK forces who surrender, are wounded, sick or unarmed, or are captured. They are hors de combat, literally, out of combat.
Designation of Military Objectives
Under the laws of war, military objectives are defined only as they relate to objects or targets, rather than to personnel. To constitute a legitimate military objective, the object or target, selected by its nature, location, purpose, or use, must contribute effectively to the enemys military capability or activity, and its total or partial destruction or neutralization must offer a definite military advantage in the circumstances.140
Legitimate military objectives are combatants weapons, convoys, installations, and supplies. In addition:
an object generally used for civilian purposes, such as a dwelling, a bus, a fleet of taxicabs, or a civilian airfield or railroad siding, can become a military objective if its location or use meets [the criteria in Protocol I, art. 52(2)].141
Full-time members of the Yugoslav governments armed forces and UÇK combatants are legitimate military targets and subject to attack, individually or collectively, until such time as they become hors de combat, that is, surrender or are wounded or captured.142
Policemen without combat duties are not in principle legitimate military targets, nor are certain other government personnel authorized to bear arms such as customs agents.143 Policemen with combat duties, however, would be proper military targets, subject to direct individualized attack.
Prohibition of Indiscriminate Attacks: The Principle of Proportionality
The civilian population and individual civilians generally are to be protected against attack.
As set out above, to constitute a legitimate military object, the target must 1) contribute effectively to the enemys military capability or activity, and 2) its total or partial destruction or neutralization must offer a definite military advantage in the circumstances.
The laws of war characterize all objects as civilian unless they satisfy this two-fold test. Objects normally dedicated to civilian use, such as churches, houses and schools, are presumed not to be military objectives. If they in fact do assist the enemys military action, they can lose their immunity from direct attack. This presumption attaches, however, only to objects that ordinarily have no significant military use or purpose. For example, this presumption would not include objects such as transportation and communications systems that under applicable criteria are military objectives.
The attacker also must do everything feasible to verify that the objectives to be attacked are not civilian. Feasible means that which is practical or practically possible taking into account all the circumstances at the time, including those relevant to the success of military operations.144
Even attacks on legitimate military targets, however, are limited by the principle of proportionality. This principle places a duty on combatants to choose means of attack that avoid or minimize damage to civilians. In particular, the attacker should refrain from launching an attack if the expected civilian casualties would outweigh the importance of the military target to the attacker. The principle of proportionality is codified in Protocol I, Article 51 (5):
Among others, the following types of attacks are to be considered as indiscriminate: . . .
(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 in relation to the concrete and direct military advantage anticipated.
If an attack can be expected to cause incidental civilian casualties or damage, two requirements must be met before that attack is launched. First, there must be an anticipated concrete and direct military advantage. Direct means without intervening condition of agency . . . A remote advantage to be gained at some unknown time in the future would not be a proper consideration to weigh against civilian losses.145
Creating conditions conducive to surrender by means of attacks which incidentally harm the civilian population146 is too remote and insufficiently military to qualify as a concrete and direct military advantage. A military advantage can only consist in ground gained and in annihilating or weakening the enemy armed forces.147
The second requirement of the principle of proportionality is that the foreseeable injury to civilians and damage to civilian objects not be disproportionate, that is, "excessive" in comparison to the expected concrete and definite military advantage.
Excessive damage is a relative concept. For instance, the presence of a soldier on leave cannot serve as a justification to destroy the entire village. If the destruction of a bridge is of paramount importance for the occupation of a strategic zone, it is understood that some houses may be hit, but not that a whole urban area be leveled.148 There is never a justification for excessive civilian casualties, no matter how valuable the military target.149
Indiscriminate attacks are defined in Protocol I, Article 51 (4), as:
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
c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.
The Protection of Civilians from Displacement
There are only two exceptions to the prohibition on displacement, for war-related reasons, of civilians: their security or imperative military reasons. Article 17 of Protocol II states:
1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
The term imperative military reasons usually refers to evacuation because of imminent military operations. The provisional measure of evacuation is appropriate if an area is in danger as a result of military operations or is liable to be subjected to intense bombing. It may also be permitted when the presence of protected persons in an area hampers military operations. The prompt return of the evacuees to their homes is required as soon as hostilities in the area have ceased. The evacuating authority bears the burden of proving that its forcible relocation conforms to these conditions.
Displacement or capture of civilians solely to deny a social base to the enemy has nothing to do with the security of the civilians. Nor is it justified by imperative military reasons, which require the most meticulousassessment of the circumstances150 because such reasons are so capable of abuse. As the commentary to Protocol II states:
Clearly, imperative military reasons cannot be justified by political motives. For example, it would be prohibited to move a population in order to exercise more effective control over a dissident ethnic group.151
Mass relocation or displacement of civilians for the purpose of denying a willing social base to the opposing force is prohibited as it responds to such a wholly political motive.
Even if the government were to show that the displacement were necessary, it still has the independent obligation to take all possible measures to receive the civilian population under satisfactory conditions of shelter, hygiene, health, safety, and nutrition.
Starvation of Civilians as a Method of Combat
Starvation of civilians as a method of combat has become illegal as a matter of customary international law, as reflected in Protocol II:
Article 14 -- Protection of objects indispensable to the survival of the civilian population
Starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works.
What is prohibited is using starvation as a weapon to annihilate or weaken the population. Using starvation as a method of warfare does not mean that the population has to reach the point of starving to death before a violation can be proved. What is forbidden is deliberately causing the population to suffer hunger, particularly by depriving it of its sources of food or of supplies.
This prohibition on starving civilians is a rule from which no derogation may be made.152 No exception is allowed for imperative military necessity, for instance.
Article 14 lists the most usual ways in which starvation is brought about. Specific protection is extended to objects indispensable to the survival of the civilian population, and a non-exhaustive list of such objects follows: foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works. The article prohibits taking certain destructive actions aimed at these essential supplies, and describes these actions with verbs which are meant to cover all eventualities: attack, destroy, remove or render useless.
The textual reference to objects indispensable to the survival of the civilian population does not distinguish between objects intended for the armed forces and those intended for civilians. Except for the case where supplies are specifically intended as provisions for combatants, it is prohibited to destroy or attack objects indispensable for survival, even if the adversary may benefit from them. The prohibition would be meaningless if one could invoke theargument that members of the government's armed forces or armed opposition might make use of the objects in question.153
Attacks on objects used in direct support of military action are permissible, however, even if these objects are civilian foodstuffs and other objects protected under Article 14. This exception is limited to the immediate zone of actual armed engagements, as is obvious from the examples provided of military objects used in direct support of military action: bombarding a food-producing area to prevent the army from advancing through it, or attacking a food-storage barn which is being used by the enemy for cover or as an arms depot, etc.154
The provisions of Protocol I, Article 54 are also useful as a guideline to the narrowness of the permissible means and methods of attack on foodstuffs.155 Like Article 14 of Protocol II, Article 54 of Protocol I permits attacks on military food supplies. It specifically limits such attacks to those directed at foodstuffs intended for the sole use of the enemys armed forces. This means supplies already in the hands of the adverse party's armed forces because it is only at that point that one could know that they are intended for use only for the members of the enemy's armed forces.156 Even then, the attacker cannot destroy foodstuffs in the military supply system intended for the sustenance of prisoners of war, the civilian population of occupied territory or persons classified as civilians serving with, or accompanying, the armed forces.157
Proof of Intent to Starve Civilians
Under Article 14, what is forbidden are actions taken with the intention of using starvation as a method or weapon to attack the civilian population. Such an intent may not be easy to prove and most armies will not admit this intent. Proof does not rest solely on the attackers own statements, however. Intent may be inferred from the totality of the circumstances of the military campaign.
Particularly relevant to assessment of intent is the effort the attacker makes to comply with the duties to distinguish between civilians and military targets and to avoid harming civilians and the civilian economy.158 If the attacker does not comply with these duties, and food shortages result, an intent to attack civilians by starvation may be inferred.
The more sweeping and indiscriminate the measures taken which result in food shortages, when other less restrictive means of combat are available, the more likely the real intent is to attack the civilian population by depriving it of food. For instance, an attacker who conducts a scorched earth campaign in enemy territory to deprive the enemy of sources of food may be deemed to have an intention of attacking by starvation the civilian population living in enemy territory. The attacker may not claim ignorance of the effects upon civilians of such a scorched earth campaign, since these effects are a matter of common knowledge and publicity. In particular, relief organizations, both domestic and international, usually sound the alarm of impending food shortages occurring during conflicts inorder to bring pressure on the parties to permit access for food delivery and to raise money for their complex and costly operations.
The true intentions of the attacker also must be judged by the effort it makes to take prompt remedies, such as permitting relief convoys to reach the needy or itself supplying food to remedy hunger. An attacker who fails to make adequate provision for the affected civilian population, who blocks access to those who would do so, or who refuses to permit civilian evacuation in times of food shortage, may be deemed to have the intent to starve that civilian population.
The federal constitution of Yugoslavia, promulgated in 1992, established Yugoslavia as a democratic state founded on the rule of law. The forty-nine articles of the section on rights and freedoms guarantee all Yugoslav citizens basic civil and political rights, such as free speech, free association and the right to a fair trial.
Yugoslav laws guarantee all defendants the right to due process. Article 23 of the federal constitution forbids arbitrary detention and obliges the authorities to inform a detainee immediately of the reason for his or her detention and grant that person access to a lawyer. Article 24 obliges the authorities to inform the detainee in writing of the reason for his or her arrest within twenty-four hours. Detention ordered by a lower court may not exceed three months, unless extended by a higher court to a maximum of six months. Article 25 outlaws torture, as well as any coercion of confessions or statements. The use of force against a detainee is also a criminal offence.
The constitution guarantees the rights of minorities to preserve, foster and express their ethnic, cultural, linguistic and other attributes, as well as to use their national symbols, in accordance with international law.159 Article 20 states that:
Citizens shall be equal irrespective of their nationality, race, sex, language, faith, political or other beliefs, education, social origin, property, or other personal status.
Articles 46 and 47 guarantee minorities the right to education and media in their mother tongue, as well as the right to establish educational and cultural associations. Article 48, however, places some restrictions on free association for minorities. It states:
Members of national minorities have the right to establish and foster unhindered relations with co-nationals within the Republic of Yugoslavia and outside its borders with co-nationals in other states, and to take part in international nongovernmental organizations, provided these relations are not detrimental to the Federal Republic of Yugoslavia or to a member republic. [Emphasis added.]
The Yugoslav constitution also guarantees that the government will respect international law. Article 10 states:
The Federal Republic of Yugoslavia shall recognize and guarantee the rights and freedoms of man and the citizen recognized under international law.
Article 16 adds:
The Federal Republic of Yugoslavia shall fulfill in good faith the obligations contained in international treaties to which it is a contracting party. International treaties which have been ratifiedand promulgated in conformity with the present Constitution and generally accepted rules of international law shall be a constituent part of the internal legal order.
113 Human Rights Watch reports include: Increasing Turbulence: Human Rights in Yugoslavia, October 1989; Yugoslavia: Crisis in Kosovo, with the International Helsinki Federation, March 1990; Yugoslavia: Human Rights Abuses in Kosovo 1990-1992, October 1992; Open Wounds: Human Rights Abuses in Kosovo, March 1993; Persecution Persists: Human Rights Violations in Kosovo, December 1996.
114 Yugoslavia ratified the International Covenant on Civil and Political Rights on June 2, 1971.
115 Yugoslavia acceded to the four Geneva Conventions on April 21, 1950, and to Protocols I and II on June 11, 1979.
116 On July 7, 1998, the Tribunal declared publicly that the hostilities in Kosovo had reached the level of an armed conflict, although the starting date for this designation was not stated. In a letter to members of the Contact Group dealing with the Kosovo crisis, Justice Louise Arbour declared:
[T]he nature and scale of the fighting indicate that an armed conflict, within the meaning of international law, exists in Kosovo. As a consequence, she intends to bring charges for crimes against humanity or war crimes, if evidence of such crimes is established.
The U.S. government has a similar position. On August 31, U.S. ambassador-at-large for war crimes issues, David Scheffer, said, there is no question that an armed conflict exists in Kosovo. There is also no question that the War Crimes Tribunal has jurisdiction to investigate and prosecute war crimes and crimes against humanity committed in Kosovo pursuant to U.N. Security Council Resolution 827 (1993), which covers the former Yugoslavia.
117 International Committee of the Red Cross, Commentary, III Geneva Convention (International Committee of the Red Cross: Geneva 1960), p. 23.
118 International Committee of the Red Cross, Commentary, IV Geneva Convention (International Committee of the Red Cross: Geneva 1958), p. 35.
120 International Committee of the Red Cross Commentary to Protocol II, p. 90.
121 U.N. General Assembly, Respect for Human Rights in Armed Conflicts, United Nations Resolution 2444, G.A. Res. 2444, 23 U.N. GAOR Supp. (No. 18) U.N. Doc. A/7433 (New York: U.N., 1968), p. 164.
122 U.N. General Assembly Resolution 2444 affirms:
. . . the following principles for observance by all government and other authorities responsible for action in armed conflicts:
(a) That the right of the parties to a conflict to adopt means of injuring the enemy is not unlimited;
(b) That it is prohibited to launch attacks against the civilian populations as such;
(c) That distinction must be made at all times between persons taking part in the hostilities and members of thecivilian population to the effect that the latter be spared as much as possible.
123 The Prosecution v. Duko Tadic, Appeals Chamber Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, para. 89 ( October 2, 1995).
124 Human Rights Watch also takes some concepts from Protocol I, since it provides useful guidance on the rules of war.
125 The ICRC Commentary to Article 1 of Protocol II addresses the requirements for control over territory. Paragraph 3.3. says: In many conflicts there is considerable movement in the theater of hostilities; it often happens that territorial control changes hands rapidly. Sometimes domination of a territory will be relative, for example, when urban centres remain in government hands while rural areas escape their authority. In practical terms, if the insurgent armed groups are organized in accordance with the requirements of the Protocol, the extent of territory they can claim to control will be that which escapes the control of the government armed forces. However, there must be some degree of stability in the control of even a modest area of land for them to be capable of effectively applying the rules of the Protocol.
126 The ICRC Commentary on Common Article 3, paragraph 1, states that an internal armed conflict exists when, the insurgent civil authority agrees to be bound by the provisions of the Convention.
127 Koha Ditore, July 12, 1998.
128 UÇK Communique Nr. 51, as published in Koha Ditore, August 26, 1998.
129 The combatants privilege is a license to kill or capture enemy troops, destroy military objectives and cause unavoidable civilian casualties. This privilege immunizes combatants from criminal prosecution by their captors for their violent acts that do not violate the laws of war but would otherwise be crimes under domestic law. Prisoner of war status depends on and flows from this privilege. See Solf, "The Status of Combatants in Non-International Armed Conflicts Under Domestic Law and Transnational Practice," American University Law Review, No. 33 (1953), p. 59.
130 International Committee of the Red Cross (ICRC), Commentary, IV Geneva Convention (Geneva: ICRC, 1958), p.226.
131 The ICRC Commentary on the Additional Protocols, p. 874, defines hostages as
persons who find themselves, willingly or unwillingly, in the power of the enemy and who answer with their freedom or their life for compliance with the orders of the latter and for upholding the security of its armed forces.
132 Protocol II, article 8, states:
Whenever circumstances permit, and particularly after an engagement, all possible measures shall be taken, without delay, . . . to search for the dead, prevent their being despoiled, and decently dispose of them.
133 R. Goldman, "International Humanitarian Law and the Armed Conflicts in El Salvador and Nicaragua," American University Journal of International Law and Policy, Vol. 2 (1987), p. 553.
134 M. Bothe, K. Partsch, & W. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague: Martinus Nijhoff, 1982), p. 303.
135 Civilians include those persons who are "directly linked to the armed forces, including those who accompany the armed forces without being members thereof, such as civilian members of military aircraft crews, supply contractors, members of labour units, or of services responsible for the welfare of the armed forces, members of the crew of the merchant marine and the crews of civil aircraft employed in the transportation of military personnel, material or supplies. . . . Civilians employed in the production, distribution and storage of munitions of war. . . ." Ibid., pp. 293-94.
136 Ibid., p. 303.
137 ICRC, Commentary on the Additional Protocols, p. 619.
138 ICRC, Commentary on the Additional Protocols, p. 618-19. This is a broader definition than "attacks" and includes at a minimum preparation for combat and return from combat. Bothe, New Rules for Victims of Armed Conflicts, p. 303.
139 Ibid., p. 303 (footnote omitted).
140 Protocol I, art. 52 (2).
141 Bothe, New Rules for Victims of Armed Conflicts, pp. 306-07.
142 A wounded or captured combatant is out of the fighting, and so must be protected.
143 Report of Working Group B, Committee I, 18 March 1975 (CDDH/I/238/Rev.1; X, 93), in Howard S. Levie, ed., The Law of Non International Armed Conflict, (Dordrecht, Netherlands: Martinus Nijhoff, 1987), p. 67. See Rosario Conde, "Policemen without Combat Duties: Illegitimate Targets of Direct Attack under Humanitarian Law," student paper (New York: Columbia Law School, May 12, 1989).
144 Bothe, New Rules for Victims of Armed Conflict, p. 362 (footnote omitted).
145 Ibid., p. 365.
146 ICRC, Commentary on the Additional Protocols, p. 685.
147 Ibid., p. 685. As set out above, to constitute a legitimate military objective, the object, selected by its nature, location, purpose or use must contribute effectively to the enemy's military capability or activity, and its total or partial destruction or neutralization must offer a "definite" military advantage in the circumstances. See Protocol I, art. 52 (2) where this definition is codified.
148 ICRC, Commentary on the Additional Protocols, p. 684.
149 Ibid., p. 626.
150 Ibid., p. 1472.
152 Ibid., p. 1456.
153 Ibid., p. 1458-59.
154 Ibid., p. 657. The New Rules gives the following examples of direct support: "an irrigation canal used as part of a defensive position, a water tower used as an observation post, or a cornfield used as cover for the infiltration of an attacking force." Bothe, New Rules for Victims of Armed Conflicts, p. 341.
155 Article 54 of Protocol I is the parallel standard, for international armed conflicts, to Article 14, Protocol II in its prohibition of starvation of civilians as a method of warfare.
156 Bothe, New Rules for Victims of Armed Conflict, p. 340.
157 Ibid., pp. 340-41.
158 Civilians are not legitimate military targets; this is also expressly established by U.N. General Assembly Resolution 2444, above. The duty to distinguish at all times between civilians and combatants, and between civilian objects and military objects, includes the duty to direct military operations only against military objectives.
159 Constitution of the Federal Republic of Yugoslavia, Article 11.