By
Fred Abrahams
THE LAWS OF WAR [top]
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 coopulous areas that have military targets interspersed,
laying land mines that willrollary 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
p kill both soldiers and civilians for decades, and the use
of chemical and biological weapons that cannot distinguish
civilians from combatants.
LEGAL STANDARDS IN THE KOSOVO CONFLICT [top]
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.[2] 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,
became 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
[top]
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
[top]
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 Kosovo), 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 [top]
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 privilege[15]
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
[top]
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
[top]
The distinction
between civilians and combatants is fundamental to the laws
governing both internal and international 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
[top]
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 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
[top]
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
[top]
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, hygiene, health, safety,
and nutrition."
Yugoslav Domestic Law
[top]
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.
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]
FOOTNOTES
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. [top]
2. Yugoslavia acceded to the four Geneva Conventions on April
21, 1950, and to Protocols I and II on June 11, 1979. [top]
3. International Committee of the Red Cross, Commentary, III
Geneva Convention (International Committee of theRed Cross:
Geneva 1960), p. 23. [top]
4. International Committee of the Red Cross, Commentary, IV
Geneva Convention (International Committee of the Red Cross:
Geneva 1958), p. 35. [top]
5. Ibid. [top]
6. International Committee of the Red Cross Commentary to Protocol
II, p. 90. [top]
7. 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. [top]
8. 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 the civilian
population to the effect that the latter be spared as much
as possible. [top]
9. The Prosecution v. Dusko Tadic, Appeals Chamber Decision
on the Defense Motion for Interlocutory Appeal on Jurisdiction,
para. 89 ( October 2, 1995). [top]
10. Human Rights Watch also takes some concepts from Protocol
I, since it provides useful interpretive guidance on the rules
of war. [top]
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
[top]
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." [top]
13. Koha Ditore, July 12, 1998. [top]
14. KLA Communique Nr. 51, as published in Koha Ditore, August
26, 1998. [top]
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. [top]
16. International Committee of the Red Cross (ICRC), Commentary,
IV Geneva Convention (Geneva: ICRC, 1958), p. 226. [top]
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. [top]
18. 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. [top]
19. 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. [top]
20. A wounded or captured combatant is "out of the fighting,"
and so must be protected. [top]
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).
[top]
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.
[top]
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.
[top]
24. Ibid., p. 303.
[top]
25. ICRC, Commentary on the Additional Protocols, p. 619.
[top]
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.
[top]
27. Ibid., p. 303.
[top]
28. Protocol I, art. 52 (2).
[top]
29. Bothe, et.al., New Rules for Victims of Armed
[top]
30. Ibid., p. 362 (footnote omitted).
[top]
31. Ibid., p. 365.
[top]
32. ICRC, Commentary on the Additional
Protocols, p. 685.
[top]
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.
[top]
34. ICRC, Commentary on the Additional Protocols, p. 684.
[top]
35. Ibid., p. 626.
[top]
36. Ibid., p. 1472.
[top]
37. Ibid.
[top]
38. Constitution of the Federal Republic of Yugoslavia, Section
1, Article 9.
[top]
39. Official Gazette of the Federal Republic of Yugoslavia
43/94. Amendments to the law were published in the Official
Gazette 28/96. [top]
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. [top]
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