HUMAN RIGHTS WATCH ON INTERNATIONAL LAW IN THE KOSOVO CONFLICT
Both NATO and Yugoslavia must be judged by International Law


Q: What are the "laws of war"? How do they apply to the conflict over Kosovo?

A: The laws of war are the international law that governs the conduct of parties to international and internal armed conflict, comprising the four Geneva Conventions of 1949 and their protocols, the Hague Conventions of 1907 and those principles that, because of their wide acceptance by the community of nations, have become customary international law that is binding on all states and belligerents. The conflict in Kosovo has changed in character from a civil war to an international armed conflict, and the civilians and soldiers affected are covered by the strongest protections of international law.

The cornerstone of this body of law is the duty to protect the life, health and safety of civilians and other non-combatants such as soldiers who are wounded, captured, or who have laid down their arms. It is absolutely prohibited to attack, injure or deport such persons. For this reason, the laws of war are also referred to as international humanitarian law.

A fundamental precept is that weapons and means of warfare must not cause "superfluous injury" or "unnecessary suffering." Starvation of the enemy population is prohibited as a tactic of war, as are any methods designed to cause extremely severe damage to the environment, the destruction of objects civilians depend on for survival such as food and water sources. Belligerent parties may not kill enemy soldiers they capture, but must hold them as prisoners of war, and it is forbidden to order or threaten that there shall be no survivors.

Another fundamental principle is that of civilian immunity. At all times it is forbidden to direct attacks against civilians or civilian objects (such as places of worship, historic monuments, or hospitals). Parties to the conflict may not use civilians to shield military objectives from attack. Military objects are those that make an effective contribution to military action; where there is doubt, the object shall be presumed to be civilian. A bridge, however, might serve both civilian and military purposes, and thus be a fair target for attack.

A corollary to civilian immunity is the basic prohibition of indiscriminate attacks. An attack is "indiscriminate" when its effect cannot be limited and so harms military and civilian targets without distinction. Indiscriminate attacks include those which may be expected to cause incidental loss of civilian life, injury to civilians, and/or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated. Typical examples are tactics such as carpet bombing populous areas that have military targets interspersed, laying land mines that will kill both soldiers and civilians for decades, and the use of chemical and biological weapons that cannot distinguish civilians from combatants.

Q: What does international law say about bombing densely populated areas such as Belgrade?

A: Bombardment which treats a number of clearly separated and distinct military objectives located in a city or town where civilians are concentrated as a single military objective is indiscriminate, and therefore prohibited. The warring parties bear a responsibility to take precautions, such as doing everything feasible to verify targets are not civilian objects, minimizing incidental loss of civilian life, removing the civilian population from the vicinity of military objectives, effectively warning the civilian population in advance of attack unless circumstances do not permit, and avoiding locating military objectives within or near densely populated areas.

Q: Should the three Americans captured by Serb forces be considered prisoners of war?

A: Yes. Prisoners of war (POWs) are combatants who "have fallen into the power of the enemy." POWs are protected by a very detailed set of rules enshrined in the Geneva Convention relative to the treatment of prisoners of war. In particular POWs are entitled to respect for their persons and their honor at all times. They must at all times be humanely treated; they must be protected against acts of violence or intimidation and against insults and public curiosity and they cannot be subject to reprisals.

Q: Is the mass expulsion of Kosovar Albanians and incidents of killings of civilians genocide?

A: Genocide is a rare and narrow crime that is distinct from the types of atrocities often inflicted against civilian populations in war. The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as certain acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The proscribed acts include killings, causing serious bodily or mental harm, imposing measures intended to prevent births within the group, forcibly transferring its children to another group, or deliberately inflicting on the group conditions of life calculated to bring about its destruction in whole or in part.

What is key here is that these acts must be inflicted not just as part of a campaign of war, or a "scorched earth" policy, but with the express purpose of destroying the group's very existence and identity as a group. Mass expulsions of the civilian population as such do not rise to the level of genocide, nor do killings of civilians--even of large numbers of civilians--absent a clear pattern showing a policy of exterminating the group to which they belong. Other acts can also be evidence of genocide, such as internment of the population in concentration camps, starvation, or rape and forced pregnancy committed for the purpose of breaking families and foreclosing births among the targeted group.

There have been allegations by NATO that the abuses Yugoslav forces are inflicting on the Kosovar Albanians amount to genocide but relatively little independent corroboration of these abuses. Human Rights Watch has researchers at the border with Albania and in Macedonia, gathering information from refugees. We are mindful that "ethnic cleansing" in Bosnia began with just such acts of expulsion and murder, and escalated to a level that showed a clear purpose to exterminate Muslim Bosniaks as a group, and so we are monitoring the situation carefully.

There is no doubt that the abuses being inflicted on the Kosovar Albanians are horrendous, and that regardless of whether they can be called "genocide," they do amount to crimes against humanity, an extremely serious offense in international law which is punishable by every nation on earth. Crimes against humanity, whether committed in armed conflict or peacetime, are systematic or widespread attacks against the civilian population, including murder, extermination, deportation, imprisonment, torture, disappearances, or other inhumane acts. Crimes against humanity, an offense in customary international law, have been included in the statutes of the ad hoc tribunals on Rwanda and former Yugoslavia, as well as the statute of the International Criminal Court.

Acts of expulsion and murder of the civilian population are also grave breaches of the Geneva Conventions and punishable as extremely serious war crimes.

Q: What is the duty of other nations towards the Kosovar Albanians who are fleeing their homes?

A: The Kosovar Albanians, having fled persecution on account of their ethnicity, are entitled to the full protection of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol relating to the Status of Refugees. This means they must be recognized as refugees, and most importantly, countries to which they have fled or where they are now being sheltered must not push them back to Kosovo until there is no reason to fear persecution there. Although the sudden mass influx of Kosovar Albanians has burdened the neighboring countries of Macedonia and Albania, both states are obligated to hold open their borders.

Refugees, like all people, are entitled to basic human rights, among them the rights to life, to health, to food and to shelter. There had been no preparation for the contingency of mass flight, and Human Rights Watch welcomes the belated mobilization of relief and willingness of NATO countries to shelter these people. The international community, and NATO governments in particular, have a responsibility to increase and maintain humanitarian relief to all those displaced by the conflict.

Refugees under the Convention have specific rights to identity papers and travel documents, and these are of critical importance to the Kosovar Albanians who have been systematically stripped of all proof of identity and residence by those who forced them to flee.

Another basic human right is the right to return to one's home. Kosovar Albanians retain this right, but no country may force them to return against their will while conditions justifying a fear of persecution persist.

The systematic, mass displacement of Kosovar Albanians from their homes is a violation of humanitarian law. Forced displacement of the civilian population is prohibited except where displacement is essential to ensure the safety of the population itself, or for overriding military reasons. Kosovar Albanians who remain in Kosovo are entitled to the general protections of international humanitarian law with respect to civilians: they must not be attacked, terrorized, starved, or deprived of goods essential to their survival.