KOSOVO
FOCUS ON HUMAN RIGHTS
International Humanitarian Law in Kosovo:Kosovo as an Internal Armed Conflict
Human Rights Watch has determined that the conflict in Kosovo has reached the level of an internal armed conflict, for the purpose of the application of the 1949 Geneva Conventions and their Protocols, and customary international humanitarian law.
Article 3, common to all four Geneva conventions, requires that civilians and other protected persons in internal armed conflicts be treated humanely, with specific prohibitions on murder, torture, or cruel, humiliating or degrading treatment. It also forbids the passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court that respects the due process of law. Common Article 3 is binding on all parties to a conflict, including government and opposition forces. It 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 have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, color, religion or faith, sex birth or wealth, or any 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 judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognizable as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
Protocols I and II of the Geneva Conventions elaborate on these and other prohibited acts, such as hostage-taking and the observance of "humane treatment."
As a party to the Geneva Conventions, as well as to Protocols I and II, the Federal Republic of Yugoslavia is obliged to respect these standards that govern an internal armed conflict. Kosovar Albanian forces are also bound to observe these standards even though they lacked the capacity to sign these treaties.
The application of international humanitarian law does not imply any recognition of the independence of Kosovo. Furthermore, because the Kosovar Albanian forces are not recognized as privileged combatants in an international armed conflict, they are not exempt from trial and punishment by the Yugoslav government for common crimes; nor do they enjoy prisoner of war status under the Geneva Conventions if captured. Yugoslavia may, however, agree to treat captives as prisoners of war, and the Kosovar Albanian forces may do the same.
In addition to international humanitarian law, Yugoslav forces are also bound by the OSCE Code of Conduct , paragraph 36, which obliges all states involved in internal conflicts to ensure that the use of force by their armed forces "must be commensurate with the needs for enforcement" and that "armed forces will take due care to avoid injury to civilians or their property."