LEGAL STANDARDS IN THE KOSOVO CONFLICT
Human Rights Watch reported extensively on human rights abuses in Kosovo from 1990, the year Kosovo's autonomy was revoked, through 1997.1 The police abuses, arbitrary arrests, and violations of due process that characterized the state's treatment of ethnic Albanians during that period were violations of the International Covenant on Civil and Political Rights, to which the Federal Republic of Yugoslavia is a party, and were additionally prohibited under Yugoslav domestic law. The growth of armed opposition to abusive direct rule from Belgrade, in the form of the Kosovo Liberation Army, and the intensification of fighting between government forces and this armed insurgency from the spring of 1998, altered the nature of the conflict, the types of abuses committed, and the applicable law.
From February 28, 1998, fighting between the various Serbian and Yugoslav security forces and the KLA could be characterized as a non-international (internal) armed conflict under international humanitarian law (the laws of war). The law applicable during this period includes Article 3 common to the four Geneva Conventions of 1949, Protocol II to those conventions, and the customary laws of war-all of which apply to both government forces and armed insurgents. Documented violations of international humanitarian law during this period included the execution of non-combatants, the use of disproportionate military force, indiscriminate attacks against civilians, and the systematic destruction of civilian property by the Serbian special police and the Yugoslav army, as well as serious violations by the KLA, such as forced expulsions, hostage-taking, and summary executions.
With the initiation of NATO bombing on March 24, 1999, the conflict in Kosovo and in all of the Federal Republic of Yugoslavia, to the extent it involved NATO and Serbian or Yugoslav forces, bcame an international armed conflict to which the full body of international humanitarian law applied. During this period, NATO committed violations of humanitarian law in its bombing campaign in the Federal Republic of Yugoslavia (see The NATO Air Campaign). Serbian and Yugoslav security forces were responsible during this period for the mass deportations and widespread killing of ethnic Albanian civilians between March and June 1999. The withdrawal of Serbian and Yugoslav forces from Kosovo and the cessation of the NATO bombing campaign on June 12, 1999, ended the state of armed conflict in Kosovo. Protocol I provides that application of the Geneva Conventions shall cease on the close of military operations.
KOSOVO AS AN INTERNAL ARMED CONFLICT
International humanitarian law makes an important distinction between international and non-international (internal) armed conflicts, which determines the applicable law. 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.3
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 internal tensions, disturbances, 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 pertinent guidelines. First and foremost among these is whether the party in revolt against the de jure government, in this case the KLA, "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."4
Other conditions outlined in the convention's commentary deal with the government's response to the insurgency. Another indication that there is an internal armed conflict is the government's recognition that it is obliged to use its regular military forces against an insurgency.5
Internal armed conflicts that reach a higher level of hostilities are governed by the 1977 Protocol II to the Geneva Conventions, which is more elaborate 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.6
Finally, internal armed conflicts are also governed by customary international law, such as the customary international norms enunciated in United Nations General Assembly Resolution 2444.7 Adopted by unanimous vote on December 19, 1969, this resolution expressly recognizes 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.8
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," such as Protocol II to the Geneva Convention.9
THE APPLICABILITY OF COMMON ARTICLE 3 AND PROTOCOL II
As of February 28, 1998, the hostilities between the KLA and government forces had reached a level of conflict to which the obligations of Common Article 3 apply. Given the subsequent intensity of the conflict until June 1999, Human Rights Watch is also evaluating the conduct of the KLA and government forces based on the standards enshrined in Protocol II to the Geneva Convention.10
On February 28, Serbian special police forces launched their first large-scale, military attack on the Drenica villages Likosane and Cirez which were suspected of harboring KLA members (see "Background"). Between that date and the withdrawal of Serbian and Yugoslav forces from Kosovo in June 1999, the KLA and the government were engaged in ongoing hostilities involving military offensives, front lines, and the use of attack helicopters and heavy artillery (the latter two exclusively by the government). The KLA possessed small arms and light artillery.
Although the KLA was primarily a guerrilla army without a strong centralized hierarchy and with strong regional divisions, the insurgency was an organized military force for the purposes of international humanitarian law. The KLA had seven "operational zones," each with a commander, chief of staff, brigades, and battalions. The General Staff ("Shtabi i Pergjishme"), albeit without total control over the regional commanders, coordinated military actions and political activities, a structure which allowed decisions to be transmitted down to the fighters.
During 1998, seasoned war correspondents, as well as Human Rights Watch researchers who encountered the KLA, at times observed discipline among KLA fighters manning checkpoints and their tendency to apply similar policies and procedures (for example, with regard to granting journalists access to areas under KLA control). Such discipline was an indication that the fighters were receiving orders regarding policy and that the fighters were answerable at least to regional commanders. There were also cases, however, when a clear lack of discipline and training was observed, which points to some structural weaknesses within the KLA. Despite this, it was clear by mid-1998 that the KLA 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. Arms flowed regularly from Albania's north. This coordination only increased as the war progressed, although the KLA always maintained a distinctly regional character.
From April until mid-July, 1998, the KLA tenuously 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 KLA had held a number of strategic towns and villages, and manned checkpoints along some of Kosovo's important roads; by September 1998 their area of control had been reduced to some parts of Drenica and a few scattered pockets in the west, especially at night.11
Although the KLA's command structure was damaged as a result of the government's summer offensive, the nucleus of the organization continued to exist. A separate armed Albanian organization known as FARK (Forcat Armatosur e Republikes se Kosoves-Armed Forces of the Republic of Kosova), which had a separate base in Northern Albania and was mostly present in the Metohija (Dukagjin) region of Kosovo, was an added complication. By September 1998, it was clear that this alternative group, comprised mostly of ethnic Albanians with past experience in the Yugoslav Army and Serbian police, did not agree with the KLA's military strategy, criticizing its lack of professionalism. However, FARK and the KLA never engaged in hostilities against one another.
As mentioned in the chapter Forces of the Conflict, KLA spokesmen repeatedly expressed the organization's willingness to respect the rules of war, which is one of the factors to be considered in determining whether an internal armed conflict exists that would invoke Protocol II standards.12 In an interview given to the Albanian-language newspaper Koha Ditore in July 1998, KLA spokesman Jakup Krasniqi said:
From the start, we had our own internal rules for our operations. These clearly lay down that the KLA recognizes the Geneva Conventions and the conventions governing the conduct of war.13
KLA Communique number 51, issued by the KLA General Staff on August 26, stated that, "The KLA as an institutionalized and organized Army, is getting increasingly professional and ready to fight to victory."14
In November 1998, Human Rights Watch researchers had a meeting with two KLA representatives, Hashim Thaci and Fatmir Limaj, to discuss the KLA's commitment to the laws of war. The KLA representatives admitted that, in a war situation, "problems" did occur. But they stressed that the KLA was committed to the Geneva Conventions and respected international humanitarian law. Despite repeated requests, however, the representatives refused to provide any evidence of the KLA's stated commitment. The KLA has a soldiers' code of conduct, they said, but it could not be viewed. Disciplinary measures for abusive soldiers were in place, they claimed, but no details were provided. Detainees were treated humanely, they emphasized, but they could not be visited due to "security reasons."
There were reported but unconfirmed cases of KLA soldiers being disciplined by their own commanders for having harassed or shot at foreign journalists, but there are no reported cases of KLA combatants being punished for targeting ethnic Serb or Albanian civilians for murder, abusing those in detention, or any other violation of Common Article 3 or Protocol II.
Finally, through its words and actions, the Yugoslav government clearly recognized the KLA as an organized armed force. In addition to the Serbian regular and special police, which operate similar to a military organization, the government was obliged to use its regular military forces, the Yugoslav Army, against the insurgents. During the period between February 28, 1998, and June 12, 1999, the conditions of article 3 and Protocol II were satisfied. Human Rights Watch is, therefore, evaluating the conduct of both the government and the KLA based on the principles outlined in Common Article 3 and Protocol II.
COMMON ARTICLE 3 AND THE PROTECTION OF NONCOMBATANTS
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 KLA forces were 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 opposing party's obligation. That means that the Yugoslav government cannot excuse itself from complying with article 3 on the grounds that the KLA is violating article 3, and vice versa.
The application of article 3 does not confer any status upon the insurgent party, from which recognition of additional legal obligations beyond common article 3 would flow. Nor is it necessary for any government to recognize the KLA's belligerent status for article 3 to apply.
In contrast to international conflicts, the law governing internal armed conflicts does not recognize the combatant's privilege15 and therefore does not provide any special status for combatants, even when captured. Thus, the Yugoslav government was not obliged to grant captured members of the KLA prisoner of war status. Similarly, government combatants who were captured by the KLA need not be accorded this status. Any party can agree to treat its captives as prisoners of war, however, and all parties were required to treat captured combatants-and civilians-humanely. Summary executions, whether of combatants or civilians, violated the prohibition on "murder of all kind."
Because the KLA forces were not "privileged combatants," they could 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 NONCOMBATANTS
Protocol II elaborates upon Common Article 3's injunction of humane treatment and provides a more comprehensive 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.16
· Hostage taking.17
· Desecration of corpses.18 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
The distinction between civilians and combatants is fundamental to the laws governing both internal and inaternational armed conflicts. 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."19
Full-time members of the Serbian or Yugoslav governments' armed forces and KLA 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.20
Policemen without combat duties are not legitimate military targets, nor are certain other government personnel authorized to bear arms such as customs agents.21 Policemen with combat duties, however, would be proper military targets, subject to direct attack.
Civilians may not be subject to deliberate individualized attack since they pose no immediate threat to the adversary.22 The term "civilian" also includes some employees of the military establishment who are not members of the armed forces but assist them.23 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.24 "[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.25
"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.26 Examples are provided in an United States Army Field Manual cited by the ICRC, 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 weapons 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.27
Persons protected by Common Article 3 include members of both government and KLA forces who surrender, are wounded, sick or unarmed, or are captured. They are hors de combat, literally, out of combat.
DESIGNATION OF MILITARY OBJECTIVES
The fundamental distinction between civilians and the military also applies to the nature of facilities that may be legitimate objects of attack. To constitute a legitimate military objective, the object or target, 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.28
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)].29
To constitute a legitimate military object, the target must 1) contribute effectively to the enemy's 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 enemy's military action, they can lose their immunity from direct attack. The presumption that an object is civilian in nature would not include objects such as transportation and communications systems that can have a military purpose. In such circumstances, it is necessary to analyze whether the facility or utility meets the two-part test, above.
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."30
Prohibition of Indiscriminate Attacks _and the Principle of Proportionality
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."31
Creating conditions "conducive to surrender by means of attacks which incidentally harm the civilian population"32 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."33
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."34 There is never a justification for excessive civilian casualties, no matter how valuable the military target.35
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:
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 meticulous assessment of the circumstances"36 because such reasons are so capable of abuse. As the ICRC 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.37
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, hy-giene, health, safety, and nutrition."
Yugoslav Domestic Law
The federal constitution of Yugoslavia, promulgated in 1992, established Yugoslavia as a democratic state "founded on the rule of law."38 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. Pre-trial 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.
Section 1, Article 11 of 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." Section 1, 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 restrictions on free association for minorities that are susceptible to a broad and arbitrary interpretation.
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 ratified and promulgated in conformity with the present Constitution and generally accepted rules of international law shall be a constituent part of the internal legal order.
Regarding combatants' respect for international humanitarian law, Yugoslav law is also very clear. The Yugoslav Law on Defense, article 19, obliges soldiers to respect international law dealing with the wounded, prisoners, and civilians. The article says:
Members of the Yugoslav Army participating in an armed conflict are obliged under all circumstances to abide by the rules of international humanitarian law and other rules on humane treatment of wounded and prisoners, and on the protection of civilians.39
Serbia's Law on Internal Affairs also addressed
the behavior of the police. Article 33 states that employees of the Ministry
of Internal Affairs are obliged to carry out all orders by the minister
or their superior, "with the exception of the ones ordering performance
of a deed that constitutes a criminal act."40
1 Human Rights Watch reports from
this period are: "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.
(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 the civilian population to the effect that the latter be spared as much as possible.
9 The Prosecution v. Dusko Tadic, Appeals Chamber Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, para. 89 ( October 2, 1995).
10 Human Rights Watch also takes some concepts from Protocol I, since it provides useful interpretive guidance on the rules of war.
11 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."
12 The ICRC Commentary on Common Article 3, paragraph 1, states that, among other criteria, an internal armed conflict exists when, "the insurgent civil authority agrees to be bound by the provisions of the Convention."
13 Koha Ditore, July 12, 1998.
14 KLA Communique Nr. 51, as published in Koha Ditore, August 26, 1998.
15 The "combatant's privilege" is a license to kill or capture enemy troops and destroy military objectives. 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 W. 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.
16 International Committee of the Red Cross (ICRC), Commentary, IV Geneva Convention (Geneva: ICRC, 1958), p. 226.
17 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.
18 Protocol II, article 8, states:
20 A wounded or captured combatant is "out of the fighting," and so must be protected.
21 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).
22 M. Bothe, K. Partsch, and 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.
23 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.
24 Ibid., p. 303.
25 ICRC, Commentary on the Additional Protocols, p. 619.
26 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.
27 Ibid., p. 303.
28 Protocol I, art. 52 (2).
29 Bothe, et.al., New Rules for Victims of Armed Conflicts, pp. 306-07.
30 Ibid., p. 362 (footnote omitted).
31 Ibid., p. 365.
32 ICRC, Commentary on the Additional Protocols, p. 685.
33 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.
34 ICRC, Commentary on the Additional Protocols, p. 684.
35 Ibid., p. 626.
36 Ibid., p. 1472.
38 Constitution of the Federal Republic of Yugoslavia, Section 1, Article 9.
39 Official Gazette of the Federal Republic of Yugoslavia 43/94. Amendments to the law were published in the Official Gazette 28/96.
40 Official Gazette of the Republic of Serbia 44/91. Amendments to the law were published in the Official Gazette 79/91 and 54/96.