The Nato Air Campaign
From the beginning of Operation Allied Force-NATO's bombing campaign against the Federal Republic of Yugoslavia-NATO and allied government and military officials stressed their intent to limit civilian casualties and other harm to the civilian population. The practical fulfillment of this legal obligation and political imperative turned upon a range of decisions relating to targeting, weapons selection, and the means of attack. Despite precautions, including the use of a higher percentage of precision-guided munitions than in any other major conflict in history, civilian casualties occurred.
Human Rights Watch conducted a thorough investigation of civilian deaths as a result of NATO's bombing campaign in the Federal Republic of Yugoslavia. On the basis of this investigation (detailed in a February 2000 report, "Civilian Deaths in the NATO Air Campaign"), Human Rights Watch found that there were ninety separate incidents involving civilian deaths throughout the Federal Republic of Yugoslavia during the seventy-eight day bombing campaign. Some 500 Yugoslav civilians are known to have died in these incidents. Between 278 and 317 of the dead-between 56 and 60 percent of the total number of deaths-were in Kosovo.1
Thirty-two of these incidents with civilian deaths occurred in Kosovo, the majority involving attacks on mobile targets or military forces in the field.2 Attacks in Kosovo overall were more deadly for civilians than those elsewhere in the Federal Republic of Yugoslavia-a third of the incidents (thirty-two out of ninety) account for more than half of the civilian deaths in the country. Seven incidents of civilian deaths that were particularly deadly were a result of attacks on convoys or transportation links. Because pilots' ability to identify these mobile targets properly was so important in avoiding civilian casualties, these incidents raise the question whether flying at high altitudes precluded proper target identification and caused unnecessary loss of life. Insufficient evidence exists to answer that question conclusively at this point.
Another factor in assessing the higher level of civilian deaths in Kosovo is the possible government use of ethnic Albanian civilians as "human shields." There is some evidence that Serbian and Yugoslav forces used internally displaced civilians as human shields in the village of Korisa on May 13, and may thus share the blame for the eighty-seven deaths there. (For further discussion on the use of "human shields" by government forces, see March-June 1999: An Overview.)
International Humanitarian Law and Accountability
Rules of international humanitarian law arise from international agreements such as the Geneva Conventions, or develop as international customary law. States have an obligation to ensure compliance with all provisions of international humanitarian law, and to suppress all violations. War crimes constitute some of the most serious violations of international humanitarian law, known as grave breaches, and are generally intentional or deliberate acts. These violations give rise to the specific obligation to search for and punish those responsible, regardless of the nationality of the perpetrator or the place where the crime was committed. Examples of war crimes are wilful killing, torture or inhuman treatment of noncombatants, wilfully causing great suffering or serious injury to body or health of noncombatants, or launching an indiscriminate attack in the knowledge that the attack will cause excessive loss of life or injury to civilians.
Human Rights Watch found no evidence of war crimes in its investigation of NATO bombing in Kosovo. The investigation did conclude, however, that NATO violated international humanitarian law. Human Rights Watch has called on NATO governments to establish an independent and impartial commission, competent to receive confidential information, that would investigate violations of international humanitarian law and the extent of these violations, and would consider the need to alter targeting and bombing doctrine to ensure compliance with international humanitarian law. Such a commission should issue its findings publicly. Human Rights Watch also called for NATO to alter its targeting and bombing doctrine in order to bring it into compliance with international humanitarian law.
With respect to NATO violations of international humanitarian law in Kosovo, Human Rights Watch was concerned about a number of cases in which NATO forces:
· took insufficient precautions identifying the presence of civilians when attacking convoys and other mobile targets; and
· caused excessive civilian casualties by not taking sufficient measures to verify that military targets did not have concentrations of civilians (such as at Korisa).
The Standards Applied
The conduct of warfare is restricted by international humanitarian law-the laws of war. International humanitarian law applies expressly and uniquely to armed conflict situations, with distinct provisions to regulate international and non-international (internal) armed conflicts. In evaluating NATO's use of military force in the Federal Republic of Yugoslavia, the laws of war provide the most relevant standards.
As explained in the chapter on Legal Standards in the Kosovo Conflict, beginning February 28, 1998, the conflict in Kosovo could be characterized as an internal armed conflict, which obliged both government forces and the KLA to respect basic protections of international humanitarian law-the rules of war-in particular, Article 3 common to the four Geneva Conventions of 1949, Protocol II to those conventions, and the customary rules of war. With the initiation of the NATO bombing on March 24, 1999, the conflict in Kosovo and all of the Federal Republic of Yugoslavia, to the extent that it involved NATO and Serbian and Yugoslav forces, became an international armed conflict to which the full body of international humanitarian law applied.
Protocol I additional to the Geneva Conventions of 1949 provides the basis for the evaluation here of NATO's bombing. This protocol has been ratified by most NATO members, and the U.S. government, while not a party, has declared that it accepts all of the relevant standards. The basic principle of Protocol I, and of the laws of war generally, is that the civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. This turns in large part on the requirement that attackers must distinguish between civilians and combatants and between military objectives and civilian objects. They must take all feasible precautions to avoid or minimize harm to civilians, and to this end may not attack civilians directly, or combatants and civilians indiscriminately.
Damage to civilian objects and civilian casualties that are incidental to lawful attacks on military objectives are known in military terminology as "collateral damage." The legality of an attack turns upon various factors. First, the attackers must do everything feasible to verify that they are aiming at something specific-they cannot lash out blindly. Second, the attackers must establish that the objective to be attacked is a legitimate military objective. And third, the attackers must establish whether an attack would endanger civilians and civilian objects, and must weigh this risk against the military advantage to be gained. Attacks which may be expected to cause incidental loss of life or injuries to civilians, or to cause damage to civilian objectives are indiscriminate if this harm to civilians is "excessive in relation to the concrete and direct military advantage anticipated" (Protocol I, article 57 (2)). The International Committee of the Red Cross (ICRC), the principal authority on the interpretation of international humanitarian law, has cautioned that the argument of proportionality can never justify very high civilian casualties and damage, whatever the military advantage envisioned.
In researching each of the incidents involving civilian deaths in Kosovo, Human Rights Watch sought to gather the facts that can enable analysts to assess the legitimacy of the real or perceived military objectives targeted; the care taken and procedures and criteria employed to confirm the military nature of the targets; the proportionality of the civilian deaths and the means employed in the attack in relation to the military objectives, where these were known; the correlation of civilian deaths to the location and nature of the targets selected; the timing of target selection as a factor in its appropriateness and the minimization of civilian harm; the methods and conditions under which distinct weapons systems were employed; and, the potentially indiscriminate nature of some weapons systems in general and under certain conditions.
In assessing specific attacks, with a view to general observations on the conduct of the air war, the primary issue is whether due care was taken for the protection of civilians. Was the prospect of civilian deaths sufficiently taken into account in the targeting, the weaponry employed, and the means and conditions under which weapons were employed? This involves a review of the selection of targets, and the procedures through which these were determined, matters beyond the scope of the present report. So too is the larger question of whether the military objectives identified and targeted by NATO forces were wholly within what is permissible under humanitarian law. The following analysis addresses those aspects of the air war conducted in Kosovo only through the cost in civilian lives, as a factor in assessing the larger picture of compliance with international humanitarian law.
Case Studies of Civilian Deaths _in Kosovo
The incidents in Kosovo involving civilian deaths provide a part of the picture from which to consider NATO's conduct of the war.3 At issue is whether NATO effectively adhered to the humanitarian law imperative that the civilian population be protected against dangers arising from military operations. At the core is the principle of civilian immunity from attack and its complementary principle requiring the parties to a conflict to do everything feasible to distinguish civilians from combatants at all times. Several incidents, which accounted for a large proportion of civilian deaths, clearly illustrate troubling aspects of NATO actions, and are presented below.
The most dramatic losses of civilian life from the NATO offensive in Kosovo came from attacks on fleeing or traveling refugees mistaken for military forces. Repeated attacks on refugees over a twelve-mile stretch of the Djakovica-Decan road in Kosovo took the lives of seventy-three civilians; attacks near Korisa in Kosovo killed as many as eighty-seven displaced persons and refugees; and two incidents involving attacks on civilian buses, at Luzane and Savine Vode, caused additional civilian losses. An estimated nineteen civilians died in the two attacks on Dubrava prison.
In all of these incidents, the principal concern is whether every feasible precaution was taken to accurately distinguish civilians from combatants. At the same time, there are questions as to whether the decisions to attack might have been made on the basis of incomplete and/or seriously flawed information. The public statements by NATO concerning particular attacks, and the changes in the way attacks were characterized, also bear some analysis, in particular insofar as such statements may show an intent to justify clearly unlawful attacks in which civilian casualties were clearly excessive.
Moreover, there is a question as to whether NATO's determined effort to avoid pilot casualties precluded low-flying operations that might have helped to identify targets more accurately. This was and continues to be a major issue in the public debate about Operation Allied Force. For many weeks in the initial stages of the war, NATO airplanes were not flying below 15,000 feet. If the height at which the NATO pilots flew had little effect on with identification of and attacks upon targets, then the issue is irrelevant. But if precision would have been greater (and civilian casualties lessened) had NATO pilots flown lower, it could be argued that there may have been a point at which NATO was "obligated" to have its pilots fly lower.4 In the case of attacks such as those at Djakovica-Decan, described below, in which flying at a higher altitude seems to have been a factor in a pilot's failure to properly identify a target, the conclusion again is that inadequate precautions were taken to avoid civilian casualties.
The incident at Korisa, described below, also raises important questions of Yugoslav responsibility for some of the civilian deaths attributed to NATO bombing. In this case, NATO did not apply adequate precautions in executing its airstrikes. But Yugoslav military forces may share the blame for the eighty-seven civilian deaths at Korisa: there is some evidence that displaced Kosovar civilians were forcibly concentrated within a military camp there as human shields.
Direct Yugoslav responsibility has been shown for killings at the Dubrava prison that Yugoslav authorities attributed to NATO bombing. Human Rights Watch researchers in Kosovo found that some eighty-six prisoners there were victims of extrajudicial executions-cold-blooded murder-by Yugoslav forces in the days after NATO bombed the prison. The NATO attack on May 21 was, however, responsible for nineteen deaths at the facility prior to the massacre of prisoners; an earlier NATO attack killed four civilians at the prison.5
Seven of the thirty-two incidents in Kosovo in which civilians died occurred as a result of attacks on targets in densely populated urban areas. Three incidents occurred in Djakovica, two in Pristina, and two in Prizren.The targets in almost all of these attacks were military/police barracks, headquarters, and other facilities, or factories. In these cases there was little doubt as to the apparent objective of the attack, or that these locations constituted lawful military objectives.
A discussion of the major legal and policy issues raised in selected incidents in Kosovo follows:
Refugees on the Djakovica-Decan Road
On April 14, during daylight hours, NATO aircraft repeatedly bombed refugees over a twelve-mile stretch of road between Djakovica and Decan in western Kosovo, injuring thirty-six and killing seventy-three civilians-deaths Human Rights Watch was able to document. The attacks began around 1:30 p.m. and persisted for about two hours, causing civilian deaths in numerous locations on the convoy route near the villages of Bistrazin, Gradis, Madanaj, and Meja. NATO and U.S. spokespersons initially claimed the target was an exclusively military convoy and that Serb forces may have been responsible for the attacks on civilians. Pentagon spokesman Ken Bacon said that NATO commander Gen. Wesley Clark had received reports that "after the convoy was hit, military people got out and attacked civilians." "The pilots state they attacked only military vehicles," NATO said, adding that the "reported incident will be fully investigated once all mission details have been reviewed." There are also various NATO reports of Serbian deception in placing dead civilians at the site of the bombing. German Defense Minister Rudolf Scharping, in particular, put the blame for civilian casualties on Yugoslav forces.6
On April 15, NATO began to backtrack. It said one plane had "apparently" dropped a bomb on a civilian vehicle traveling with a military convoy. The reference to a strictly military convoy was modified: "Serbian police or army vehicles might have been in or near the convoy." NATO acknowledged that it had bombed civilian vehicles by mistake: "Following a preliminary investigation, NATO confirmed that apparently one of its planes dropped a bomb on a civilian vehicle traveling with a convoy yesterday."
Reporters from U.S. media went to the scene on April 15. They interviewed refugee survivors and observed shattered farm tractors, burned bodies identified as refugees, bomb craters, shrapnel, and bomb remnants with U.S. markings. The refugee column had apparently been divided in two main groups. Over the next few days, NATO wavered from insisting its forces attacked only military vehicles to an explanation that two convoys had been targeted, that the refugees had been at the rear of military columns, and that the civilian death toll was limited. On April 16, NATO spokesman Jamie Shea and Gen. Giuseppe Marini declared that "in one case and one only, we have proof of civilian loss of life. Otherwise, we are sure that we targeted military vehicles."
NATO finally admitted that the pilot of a U.S. F-16 mistakenly fired on what he believed to be military trucks, and expressed "deep regret." Later, on April 19, NATO modified its account of a single pilot's error, declaring that about a dozen planes had been involved in numerous attacks on the two convoys, dropping a total of nine bombs. Convoluted explanations continued for a number of days after the incident; NATO and the United States seemed incapable of reconstructing what had occurred. There were widespread press reports of the use of cluster bombs, which the United States denied.7
In addition to the press reporting of this incident and the endless damage control by NATO and U.S. spokespersons, Human Rights Watch obtained extensive forensic details of the incident from the Yugoslav government.8 No evidence whatsoever was ever produced to indicate Serb responsibility for any of the deaths, though Tanjug reported the deaths of three Serbian "policemen" in the bombings who it said "were securing the safe passage for the convoy."9 This tends to suggest that military or police were present among the refugee vehicles, but Human Rights Watch found no basis to support the claim that the convoys themselves were primarily composed of military vehicles.10
General Clark stated in September that NATO consistently observed Yugoslav military vehicles moving on roads "intermixed with civilian convoys." After the Djakovica-Decan incident, General Clark said, "we got to be very, very cautious about striking objects moving on the roads.11 Another NATO officer, Col. Ed Boyle, said: "Because we were so concerned with collateral damage, the CFAC [Combined Forces Air Component Commander] at the time, General [Michael] Short, put out the guidance that if military vehicles were intermingled with civilian vehicles, they were not to be attacked, due to the collateral damage."12 When this directive was actually issued, and why it may not have served to avoid the subsequent three incidents, remains an important question. Nevertheless, the reported change in NATO rules of engagement would indicate that the alliance recognized it had taken insufficient precautions in mounting this attack, in not identifying civilians present, and in assuming that the intended targets were legitimate military objectives.
Displaced Civilians in the Korisa Woods
On May 13, almost a month after the Djakovica-Decan incidents, as many as eighty-seven displaced Kosovar civilians were killed and sixty wounded when bombs were dropped during the night on a refugee camp in a wooded area on the Prizren-Suva Reka road, near the village of Korisa. There have been various conflicting reports of the number of dead, from 48 to 87.13 The Yugoslav government claimed the attackers used cluster bombs, and the White Book published by the Ministry of Foreign Affairs includes photographs of the remains of tactical munitions dispensers (TMDs) it says are from the site. NATO spokespersons vociferously denied the use of cluster bombs,14 and Human Rights Watch has been unable independently to confirm that cluster bombs were indeed used in this attack.
In an official statement on May 15, NATO spokesman Maj. Gen. Walter Jertz acknowledged the attack, deeply regretting any "accidental civilian casualties." He insisted, nonetheless, that the attack was against Yugoslav army forces in the field:
This was a legitimate military target. The Serb claims of an attack involving cluster bombs against a non-military target are both false. NATO identified Korisa as a military camp and command post. Military equipment including an armored personnel carrier and more than ten pieces of artillery were observed at this location. The aircraft observed dug-in military positions at the target before executing the attack. NATO cannot confirm the casualty figures given by the Serbian authorities, nor the reasons why civilians were at this location at the time of the attack.15
The NATO statement further stressed that military positions had been positively identified and that the bombs employed included laser-guided precision guided missles and non-guided gravity bombs:
Immediately prior to the attack at 23:30-11:30 p.m.-local time Thursday night an airborne forward air controller confirmed the target, so the identification and attack system of his aircraft, having positively identified the target as what looked like dug in military reveted positions, he dropped two laser guided bombs. Following his attack, he cleared his wingman to also attack the same target using two more laser guided bombs. Approximately 10 minutes later, the third aircraft engaged the target with . . . six gravity bombs. A total of 10 bombs were dropped on the target.16
The same day, Pentagon spokesman Kenneth Bacon said at a news briefing that the incident would be reviewed, but that major changes in operations should not be expected:
This accident at Korisa did not shake NATO's resolve in any way. . . . NATO deeply regrets civilian casualties. . . . We try very hard to avoid these casualties, but combat is inherently dangerous and accidents cannot be avoided ._._. this mission, like every other, will be reviewed, and the airmen and their commanders will learn what they can from it and continue. But I don't anticipate that there will be a sweeping change. We can't cross legitimate military targets off the list, and we won't.17
On May 16, a Kosovar refugee who witnessed the NATO strike on Korisa reported to Deutsche Welle that FRY police forced some 600 displaced Kosovars to serve as human shields there before the attack. "We were told something bad would happen to us if we left the place," said the eyewitness, interviewed by the station's Albanian service. He said Serbian police hinted at what was about to happen. "Now you'll see what a NATO attack looks like," the refugee quoted one policeman as saying. The refugee said he finally went to sleep underneath a tractor only to be woken up by explosions and the cries of children and adults. He said he and others managed to scale a two-meter wall surrounding the plot and fled in the direction of the village as Serbian paramilitaries fired bullets around them.18 On the basis of available evidence it is not possible to determine positively that Serbian police or Yugoslav army troops deliberately forced civilians to group near them, nor to establish the motive for such action.
The laws of war expressly forbid shielding. Article 28 of the Geneva Convention IV stipulates that "The presence of a protected person may not be used to render certain points or areas immune from military operations." Protocol I, article 51(7), elaborates:
The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.
The protocol stresses, however, in art. 51(8), that such violations of the laws of war do not in any way release an adversary from obligations to respect civilian immunity. An authoritative new commentary on humanitarian law states: "If one party to a conflict breaks this rule, this does not exempt the other side from the regulations applicable in military attacks. . . . The military commander must therefore take into account the column of refugees used by the adversary as a shield."19
For NATO, then, the question is whether its target designation was made with the knowledge that hundreds of displaced civilians were present in this wooded area-there is no evidence to this effect-and secondly, whether sufficient measures were taken to verify that the target had no such concentrations of civilians. On this score, the excessive civilian death toll in what NATO has itself described as a lamentable accident suggests that verification was inadequate.
Bombing of Dubrava Prison
Another case of Yugoslav deception involves civilian deaths and NATO bombing that damaged the large Dubrava prison complex near Istok. According to NATO and former Dubrava prisoners interviewed by Human Rights Watch, Yugoslav Army and Serbian police forces were based adjacent to the penitentiary, which was fully operational well into the NATO air campaign, housing common criminal offenders and political detainees serving out their terms.
The Penitentiary Institute Istok, as it was officially called, was hit twice by NATO, causing civilian deaths among both prisoners and guards. In the first attack, at 1:15 p.m. on May 19, three prisoners and a guard were reported killed. The second attack occurred on May 21, in which at least nineteen prisoners were killed. An investigation undertaken by Human Rights Watch, based on eyewitness testimony, found that prisoners were lined up and fired upon by Serb police and prison guards inside the penitentiary walls after the May 21 attack, and some eighty or so prisoners were killed. (For detailed documentation of the killings, see the section on Dubrava prison in Istok Municipality).
The Yugoslav government initially reported that nineteen people were killed in the Dubrava Penitentiary as a result of the May 21 attack.20 However, four days later, the Yugoslav press reported from the official Tanjug agency that "in days-long bombardment of the Penitentiary Institute Istok, some 100 prisoners died, and some 200 were wounded." On May 27, Tanjug quoted Vladan Bojic, a judge in Pec's District Court, saying that ninety-six corpses had been pulled from the ruins. On May 29, the Yugoslav government stated that "The number of casualties in the Correctional Institution in Istok is increasing."21 On May 30, Tanjug reported a total of ninety-three killed.22 In July, the Yugoslav government claimed that NATO bombs killed ninety-five inmates and injured 196.23
While NATO readily acknowledged the air strikes at Istok and justified the attacks on the grounds that it had targeted military objectives "in the vicinity of a prison,"24 Human Rights Watch has determined that Yugoslav forces were likely responsible for the majority of the deaths which occurred after the bombing. On May 22, according to eyewitnesses, prison officials ordered approximately 1,000 prisoners to line up in the prison yard. After a few minutes, they were fired upon, and grenades were thrown at them from the prison walls and guard towers, killing at least seventy people. Over the next twenty-four hours, prison guards, special police, and possibly paramilitaries attacked prisoners who were hiding in the prison's buildings, basements, and sewers, killing at least another twelve people.
Journalists who visited the Dubrava prison on May 21, just after the morning bombing, reported seeing between ten and twenty bodies.25 Serb authorities again opened the prison for journalists on May 24. Reporting for the BBC, Jacky Rowland said it was unclear how the victims in the prison had died, but that three days after the first journalists' tour, the dead numbered forty-four. The condition of the prisoners' bodies viewed there did not conform with the government's claim that they had died in the bombing. Post-war visits to the prison by journalists confirmed that prisoners had been killed execution-style after the bombing.26
Given the degree of civilian casualties in the two attacks on the Dubrava prison, it appears that NATO did not apply adequate precautions in executing its airstrikes on nearby military objectives, and therefore must be held accountable for the civilian deaths that occurred as a direct result of those attacks. But Yugoslav forces must be held fully responsible for approximately eighty-six of the ninety-five deaths Yugoslav authorities acknowledged at Dubrava, as these were prisoners who were executed extrajudicially well after the NATO strikes.
NATO's Use of Cluster Bombs
One of the issues of most intense public interest that has emerged from Operation Allied Force is NATO's use of cluster bombs. There are seven confirmed and five likely incidents involving civilian deaths from cluster bomb use by the United States and Britain. Altogether, some ninety to 150 civilians throughout Yugoslavia died from NATO cluster bombs.
The most serious incident involving civilian deaths
and the use of cluster bombs occurred on May 7 in Nis, Serbia. The mid-day
attack on Nis airfield, which is located inside the urban zone, killed
fourteen civilians and injured twenty-eight. NATO confirmed the attack
on Nis airfield,27 and on May 8, NATO Secretary General Solana confirmed
NATO responsibility for the attack, stating that "NATO has confirmed that
the damage to the market and clinic was caused by a NATO weapon which missed
its target."28 According to U.S. Air Force sources, the CBU-87 cluster
bomb container failed to open over the airfield but opened right after
release from the attacking airplane, projecting submunitions at a great
distance into the city.29
AFTER THE INCIDENT IN NIS, THE WHITE HOUSE QUIETLY ISSUED A DIRECTIVE TO THE PENTAGON TO RESTRICT CLUSTER BOMB USE (AT LEAST BY U.S. FORCES).30 HUMAN RIGHTS WATCH CONSIDERS THIS TO HAVE BEEN THE RIGHT MOVE, BUT IS CONCERNED, GIVEN THESE RISKS, THAT CLUSTER BOMBS WERE BEING USED IN ATTACKS ON URBAN TARGETS IN THE FIRST PLACE. THE MID-MAY PROHIBITION AGAINST THE FURTHER USE OF CLUSTER BOMBS CLEARLY HAD AN IMPACT ON THE LEVEL OF CIVILIAN DEATHS AS THE WAR CONTINUED, PARTICULARLY AS BOMBING WITH UNGUIDED WEAPONS (WHICH WOULD OTHERWISE INCLUDE CLUSTER BOMBS) SIGNIFICANTLY INTENSIFIED TOWARDS THE END OF THE MONTH. NEVERTHELESS, THE BRITISH AIR FORCE CONTINUED TO DROP CLUSTER BOMBS (OFFICIAL CHRONOLOGIES SHOW USE AT LEAST ON MAY 17, MAY 31, JUNE 3, AND JUNE 4),31 INDICATING THE NEED FOR UNIVERSAL, NOT NATIONAL, NORMS REGARDING CLUSTER BOMB USE.
1 Discussion of bombing outside Kosovo
is beyond the scope of this report. For further information on bombing
elsewhere in the Federal Republic of Yugoslavia, see: Human Rights Watch,
"Civilian Deaths in the NATO Air Campaign," February 2000.