REPORT: RTS Bombing Case Opened

Thursday, 17 November, 2011

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Marjorie Farquharson

The world is consumed with the effort to obtain justice for office workers in New York City whose building was destroyed in September while they went about their lawful business. On October 24, five families and one survivor brought a landmark case before the European Court of Human Rights in Strasbourg, seeking redress for office workers, employees of Radio Television Serbia, who were killed or injured when NATO bombed their building at the height of the 1999 Kosovo campaign.

On the very day that NATO was celebrating its fiftieth anniversary, the applicants or their relatives were working in one of the production centers of RTS on Takovska Street in central Belgrade. The premises were shared during the NATO campaign by numerous foreign broadcasting companies, including the BBC, CNN and Reuters.

At 2:03 AM on April 23, the building was hit by an air-launched cruise missile. Two of the four floors collapsed, and the master control room was destroyed. Sixteen people - technicians, a make-up assistant and others - were killed, and one, Dragan Sukovic, was injured. RTS stopped broadcasting for five hours, and then resumed transmitting via its main distribution center in Kosutnjak, outside Belgrade.

Later that day, at the anniversary meeting, a NATO spokesperson stated, "Strikes against TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY propaganda machinery, which is a vital part of Milosevic's control mechanism". No foreign journalists were in the building on the night of the attack, and the complainants argue that there is compelling evidence that the former were warned of the bombing.

The complainants, one survivor and relatives of killed staff, all citizens of the Federal Republic of Yugoslavia, claim that their rights under the European Convention on Human Rights to life, freedom of expression and effective judicial remedy (Articles 2, 10 and 13) were violated by the NATO action.

The October hearing in the case, Bankovic and others v. NATO, concerned the admissibility of the case before the European court and whether the 17 NATO member states named have a case to answer. The charges are brought against those member states which are also parties to the European Convention on Human Rights, which means all NATO members except Canada and the United States. A decision on the admissibility of the case could be handed down in November, and if it is established, without a second hearing any decision on the merits could be announced by the end of the year.

If the court decides on the merits, they could give compensation and pass a general measure to prevent similar human rights violations in the future.

The case could set a number of important precedents for the human rights court. The Federal Republic of Yugoslavia is not a member of the Council of Europe, and therefore not a party to the European Convention on Human Rights. The applicants have brought their case on the grounds that any state that is a party - such as the 17 states named - is obliged to guarantee those rights on any territory under its jurisdiction.

Representing the 17 NATO states, the UK's Martin Eaton argued that the incident took place beyond the borders of any NATO country - and thus that it is not covered by the terms of the human rights convention. The applicants asserted that, at the time of the attack, these NATO members exercised effective control over Yugoslav airspace and therefore remained responsible. The main question facing the court is therefore whether effective control of the sky put Yugoslav territory under the jurisdiction of the 17 NATO states?

Multi-national organisations can be a party to the European Convention on Human Rights. But since the United States and Canada, NATO members, are not in Europe, the military alliance itself cannot be a party to the convention. But the complainants argue that NATO's decision-making process means that each member state retains complete sovereignty and responsibility for its own decisions. They claim that the actions of NATO forces can therefore be imputed to the governments of the member states.

The convention does offer states an escape clause from its obligations. In times of war or public emergency, states can lodge a derogation under Article 15 seeking exemption from specific obligations, which they must name. In the case of the attack on RTS, no NATO member state had done so. Even if they had, the complainants argue that Article 15 is inapplicable, as the war in question did not threaten the life of any NATO member state.

The complainants further argue that RTS did not constitute a military objective within the meaning of the four Geneva Conventions of 1949 and the Protocols of 1977. NATO forces never suggested that the station was used to relay military communications and its destruction did not offer NATO any military advantage.

Under the terms of the convention, governments have some freedom in interpreting the right to life and freedom of expression, provided they can demonstrate that any restrictions are "lawful, proportionate and necessary in a democratic society". If the case goes forward, the court would have to decide if the bombing met these requirements.

The applicants argue that it did not, because the RTS staff and their broadcasts did not pose a threat of unlawful violence to the Kosovo Albanians; as such, destroying the station was not necessary, let alone strictly proportionate, to NATO's stated military aim.

In view of the risk of civilian casualties, under Article 57 of Protocol 1 of the Geneva Conventions, NATO states should have expressly warned those in charge of the station. The absence of foreign journalists suggests that they were warned, while local staff were not. NATO sources subsequently insisted that Belgrade authorities were also warned, but that these warnings were not passed on to staff in the building. (In a separate proceeding in a Belgrade court, the RTS station director is accused for not passing on this warning.)

The net result of the bombing was to block transmission for only five hours at the cost of a significant number of employees' lives. The applicants contend that this outcome could have been achieved more effectively by other, more proportionate, means.

Furthermore, the employees were killed not only while they were exercising their democratic right to impart information under Article 10, but were targeted specifically for doing so. In previous cases, the European Court of Human Rights has confirmed that journalists merit special protection - regardless of the quality of their journalism - because of the importance of free expression to a democratic society.

To the applicants' knowledge, no investigation into the destruction of the RTS building has been carried out by the 17 NATO states named in the case, depriving them of any means to challenge the assumption that the building was a "lawful target". For this reason, they assert under Article 13 that they have been denied an effective legal remedy.

In legal terms, the case demonstrates the remarkable scope of the European convention as a mechanism for enforcing human rights, potentially ruling on a case even though two principal entities - NATO and Yugoslavia - are not parties to it. The case will be watched carefully in the Russian Federation, which is a Council of Europe member but was opposed to the NATO air strikes against Yugoslavia. Coming before the court when the 19 NATO allies have bombed civilian targets in Afghanistan, another non-member state of the Council of Europe, the case could resonate well beyond Europe.

Marjorie Farquharson was an assistant to the UN Special Rapporteur on Human Rights in the Former Yugoslavia Tadeusz Mazowiecki in 1993.