'NATO Case' - Tribunal prosecutors' final report made public.

Sunday, 18 June, 2000

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IWPR

Institute for War & Peace Reporting

This was the first time the Office of the Prosecutor at The Hague has made public the internal considerations behind a decision on whether to launch a formal investigation. Del Ponte said the report was published because it is "important for all to see how we worked and how we reached certain conclusions." The committee, she said, had gone into the details of each incident suspected of representing a violation of the laws of war and had analysed "facts in the light of the applicable law."

Del Ponte clearly hoped such unprecedented transparency would silence those critics who have pilloried the Tribunal for allegedly covering up NATO responsibility for civilian casualties during the bombing campaign.

Such is the controversy surrounding the so-called "NATO case", however, that publication of the OTP committee's report is unlikely to bring the matter to a close.

Amnesty International produced their own report on June 7, which reviewed the same "facts and laws" but arrived at the opposite conclusion and called for a full investigation into NATO's conduct of the bombing campaign. (See http://www.amnesty.org/news/2000/47002500.htm)

Del Ponte offered Tribunal Update three possible explanations for this conflicting conclusion. The Tribunal, she said, has a pool of much more experienced experts on issues of humanitarian law, war crimes and crimes against humanity. Secondly del Ponte said it was possible Amnesty did not have all the information at the disposal of the Tribunal committee.

"Last, but not the least, we as the prosecution have an obligation to collect evidence, criminal evidence, that will withstand verification beyond reasonable doubt before the court. Only with such evidence we can issue indictments and go before the judges. That is not the case with Amnesty International," del Ponte said.

The 44-page report - entitled the "Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia" - is available in full at http://www.un.org/icty/pressreal/nato061300.htm).

The report said the committee had reviewed allegations and documents on alleged NATO war crimes submitted by individuals, governments and groups, including Amnesty International, Human Rights Watch, the Russian Parliamentary Commission and the Federal Republic of Yugoslavia, FRY, Ministry of Foreign Affairs. The committee had also reviewed public documents made available by NATO and the United States and British Defence departments.

The report said, however, "When the OTP requested NATO to answer specific questions about specific incidents, NATO's reply was couched in general terms and failed to address the specific incidents."

The committee applied the same criteria to NATO activities as the Office of the Prosecutor has applied to the activities of other parties in former Yugoslavia.

The report said, for example, the committee applied the same "threshold test" used by former Chief Prosecutor Louise Arbour when determining whether to launch an investigation into alleged crimes committed by Serbian forces in Kosovo.

That test was advanced to explain in what situation the Prosecutor would consider, for jurisdiction purposes, that she had a legal entitlement to investigate. (As a corollary, any investigation failing to meet the test could be said to be arbitrary and capricious, and to fall outside the Prosecutor's mandate).

Accusations that NATO unlawfully applied force against the FRY failed that "threshold test", the committee concluded. "If such activity was unlawful," the report said, "it could constitute a crime against peace, and the ICTY has no jurisdiction over this offence."

Although the report said the bombing campaign did cause "some damage to the environment", the committee concluded this fell short of the stringent criteria listed in Article 35 (3) of Additional Protocol I of the Tribunal Statute:

"[It] is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment."

The report said this "triple, cumulative standard" needed to be fulfilled and that on this basis the NATO bombing campaign "does not reach the Additional Protocol I threshold."

At present, the report went on, there are no specific treaty provisions prohibiting the use of depleted Uranium and cluster bombs. Nor is there any "general legal consensus" that the use of such weapons violates "general principles of the law applicable to use of weapons in armed conflict."

Regarding target selection, the report said the starting point must be a commander's obligation to direct operations against military objectives. Secondly, when directing operations against military objectives, "to ensure that the losses to the civilian population and damage to civilian property are not disproportionate to the concrete and direct military advantage anticipated."

With respect to "disproportionate damage", a commander could be held responsible if the attack was carried out with an "intention or recklessness, not simple negligence."

The report concluded that "specific incidents" could not be used as a basis for determining if efforts to distinguish between military and civilian objects had been inadequate.

"If precautionary measures have worked adequately in a very high percentage of cases," the report said, "then the fact they have not worked well in a small number of cases does not necessarily mean they are generally inadequate."

On the question of proportionality, the committee said the difficulty lay in applying that principle in practice.

"It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects," the report said. "Unfortunately, most applications of the principle of proportionality are not quite clear cut. It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective."

The report said that much of the material submitted to the OTP consisted of reports that civilians had been killed, "often inviting the conclusion to be drawn that crimes had therefore been committed."

Collateral casualties to civilians and collateral damage to civilian objects, the report said, can occur for a variety of reasons. Civilians present within or near military objectives must, however, be taken into account in the proportionality equation, it said, even if a party to the conflict has failed to exercise its obligation to remove them.

The report went on to analyse in detail five specific incidents deemed by the committee to be the most problematic - the attack on a civilian passenger train in the Grdelica Gorge (at least 10 people killed and 15 injured); the attack on Djakovica convoy (70-75 killed and approximately 100 injured); the bombing of the RTS building in Belgrade (16 dead); the attack on the Chinese Embassy (3 killed, 15 injured); and the attack on Korisa village (87 killed, 60 wounded).

Each of the five incidents was "reviewed with particular care", the report said. The committee assessed that none of incidents justified an OTP investigation. NATO had admitted mistakes had been made and that errors of judgement may have occurred, the report said.

"Selection of certain objectives for attack may be subject to legal debate," the report concluded. "On the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences."