International Humanitarian Law and the conflict in the Balkans

23 April 1999 - http://www.icrc.org/icrceng.nsf/

International Humanitarian Law and the conflict in the Balkans - Red Cross - Questions and Answers

1. What is IHL?

IHL is a set of rules which, for humanitarian reasons, seek to limit the effects of armed conflict. It protects those who are not, or are no longer, taking part in the fighting and restricts the means and methods of warfare. IHL is also called the "law of war" and the "law of armed conflict".

2. Does IHL apply to the conflict in Kosovo?

IHL applies only in cases of armed conflict. Actually, there are two armed conflicts underway; an international armed conflict between the Federal Republic of Yugoslavia and the members of NATO and NATO itself. The second is a non-international armed conflict between the Federal Republic of Yugoslavia and the Kosovo Liberation Army.

3. What are the main rules of IHL applicable?

IHL protects those who do not take part in the fighting such as civilians. It also protects those who no longer take part in the fighting such as the wounded or those who have been taken prisoner. Combatants must make a clear distinction between those taking part in the fighting and those, such as civilians who are not. IHL prohibits the destruction of property unless it is imperatively required by military necessity. Attacks which may be expected to cause incidental loss of life among the civilian population or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated are also prohibited.

Certain places and objects, such as hospitals, ambulances and places of worship (e.g. mosques and churches), enjoy a special protection and must not be attacked. A number of clearly recognizable emblems and signals can be used to identify protected people and places, including the Red Cross and Red Crescent.

4. Does IHL protect civilians in Kosovo?

Civilians are those men, women and children who do not participate in the fighting. A core rule of IHL is that civilians in war should not be attacked, their property respected and not forcibly removed from their homes. In fact, all authorities and combatants have an obligation to ensure that civilians in war are respected and they receive the necessary food and other needs for survival.

5. What about the air strikes and IHL?

Under IHL, military actions must not be directed at civilians or civilians objects. When targeting military objects or personnel, all effort must be made to avoid or at least minimize as much as possible loss of civilian lives and damage to civilian property. The military must assess what military advantage they will gain in targeting a military objective in proportion to the damage to the civilian population and civilian objects. Clearly, objects essential to the survival of the civilian population, such as food stocks and drinking water installations cannot be attacked. Even when a military mission is underway and it becomes clear that the objective is not a military one, the mission has to be aborted.

The ICRC is of the opinion that the legality of the NATO airstrikes in Kosovo is not something any component of the International Red Cross and Red Crescent Movement can comment on. This is a question of jus ad bellum (the lawfulness or not of war) and not of jus in bello (the laws of war), and therefore outside the Movement's competency.

[SEE BELOW Statement by the ICRC on The Balkan conflict and respect for International Humanitarian Law ]

6. Are the American and Yugoslav soldiers that have been captured considered prisoners of war?

Yes, these captured combatants have the status of prisoners of war under the Third Geneva Convention. This means they must be treated humanely and are entitled to be visited by the ICRC. The Third Geneva Convention contains detailed rules for prisoners of war, including the provision of adequate food and shelter. Prisoners of war cannot be tried for their mere participation in the fighting and they must be released at the end of the conflict.

7. How is IHL enforced in a conflict?

It is the responsibility of States to prevent and where necessary, punish all grave breaches of IHL. IHL must be incorporated in military operational procedures and regulations, as well as in the country's criminal legislation. Depending upon the legal system of a country, people accused of violating IHL would normally be tried in civilian or military courts or tribunals. Ad-hoc international tribunals have been created to punish acts committed in two conflicts (Rwanda and former Yugoslavia).

8. Given what we hear about the conflict in Kosovo and war in general, does IHL really work?

Tragically there are countless examples of violations of IHL in conflicts around the world. Ever-increasingly the victims of warfare are civilians. However, there are important cases where IHL has made a difference in protecting civilians, prisoners, the sick and wounded and restricting the use of barbaric weapons. Given that it applies during times of extreme trauma, the application of IHL will always pose severe difficulties: its effective application remains as urgent as ever.

Ref. LG-1999-048-ENG

The Balkan conflict and respect for International Humanitarian Law Statement by the International Committee of the Red Cross

Since NATO operations began against the Federal Republic of Yugoslavia there have been two concurrent and overlapping conflicts taking place in the country: that between Yugoslavia and the NATO member States which began on March 24, and that between Yugoslav forces and the Kosovo Liberation Army (KLA) which predates the latest events.

The International Committee of the Red Cross (ICRC) has consistently reminded all those taking part in the hostilities of their obligation to respect international humanitarian law. However, the organization has become increasingly concerned about compliance with the rules and principles of that law, in particular the impact that this dual conflict is having on the civilian population. Over the past four weeks, the ICRC has been in constant touch with all the warring parties to make known its concerns. The present statement specifies those concerns and calls for every effort to be made to ensure full compliance with the Geneva Conventions and their Additional Protocols as well as with all other treaty-based and customary rules and principles of applicable law.

Civilian population driven from their homes

Hundreds of thousands of Kosovo Albanian civilians have arrived in neighbouring countries and in the republic of Montenegro. They have stated that they had been forced to leave their homes, assaulted, robbed and in many cases threatened with death. There are also widespread reports of civilians being killed. The condition of these refugees and displaced people - their destitution and their terror - strongly support their claims of forced departure.

All of this leaves the ICRC in no doubt about the plight of those civilians still remaining in Kosovo. It therefore regards its return to the province as increasingly imperative.

T

he misery of those who have fled has been compounded by the conditions at the arrival points, where they have sometimes been forced to wait for days before receiving shelter and other assistance, and by the fact that they do not know what future awaits them. While the ICRC supports the principle that borders must be kept open to provide temporary sanctuary for refugees, this must be done in a humane manner that takes into account individual wishes and respects personal dignity. Thousands of Serb and Romany families also face an uncertain future, having fled their homes in Kosovo out of fear of airstrikes or retaliation.

Among the essential principles of international humanitarian law are the requirements that civilians must be spared violence, that they must be treated humanely in all circumstances, that they may not be forcibly displaced and that their property must be respected. In particular, Article 3 common to the four Geneva Conventions stipulates that those persons who do not take part directly in the hostilities be treated with humanity in all circumstances. It also prohibits threats to their lives, their physical integrity and their dignity. In addition international humanitarian law prohibits the forced displacement of civilians.

Civilian victims of airstrikes

It is an obligation under international humanitarian law to avoid civilian casualties as far as possible.

During the first week or so of airstrikes, the number of civilian casualties did in fact appear to be low. As the air campaign has intensified, however, and the ICRC together with the Yugoslav Red Cross has conducted on-the-spot assessments of the need for humanitarian aid, both a corresponding rise in the number of Serbian civilian victims and increased damage to civilian objects have been observed. The destruction of industrial installations has deprived hundreds of thousands of civilians of their livelihood.

Major incidents involving civilians have been the destruction of a passenger train on a bridge and the attack on civilian vehicles in Kosovo. Both resulted in deaths and injuries.

An impartial and independent body must be allowed to survey requirements and provide assistance to the victims, whoever and wherever they may be.

According to international humanitarian law, the parties to the conflict must take every feasible precaution when carrying out attacks. This includes aborting missions if it becomes clear that the objective is not military in nature or that the attack may be expected to cause incidental loss of civilian life that would be excessive in relation to the military advantage anticipated.

Persons deprived of their freedom or unaccounted for

Since the beginning of the Kosovo crisis the ICRC has been actively addressing the issue of people detained by the Yugoslav authorities, held by the KLA, or whose whereabouts are simply unknown. The organization's staff has been able to visit 720 of some 1,000 prisoners of whom it has been officially notified by the Yugoslav authorities and has been seeking clarification regarding people reportedly in the hands of the KLA.

The ICRC will continue to gather information on persons reportedly arrested and to seek official notification of detention, and access to, persons - civilian or military - who have been captured and are thus protected by international humanitarian law.

For over three weeks now, three United States servicemen have been held by the Yugoslav authorities, who have neither notified the ICRC of their capture nor granted it permission to visit them and enable them to write to their families. The ICRC regrets this lack of access and calls on the Yugoslav authorities to comply with their obligations under the Third Geneva Convention by allowing the ICRC immediate access to the prisoners of war.

Prisoners of war and civilian foreign nationals who are either interned or detained are protected by the Third and Fourth Geneva Conventions respectively. They are thus entitled to be visited by representatives of a duly designated protecting power and by the ICRC.

The ICRC therefore urgently calls on all those involved in the hostilities being waged in the Federal Republic of Yugoslavia to respect international humanitarian law, to investigate incidents in which that law might have been violated and to take every step to put an end to such violations and prevent them from recurring.

It further reminds all 188 States party to the Geneva Conventions that they share the obligation to ensure that those Conventions, and more generally all customary humanitarian rules, are respected.

The ICRC will continue to assist those who fled Kosovo by providing food and medical aid and re-establishing family links. It is determined to return to the province as soon as it receives the guarantees of security and of respect for its principles and working procedures in order to assist and protect those urgently in need of help. Visits to those held on all sides is also an urgent priority.

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