HRW Backgrounder on International Law Relating to FRY/Kosovo
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Subject: HRW Backgrounder on International Law Relating to FRY/Kosovo
From: MINELRES moderator <[email protected]>
Original sender: Panayote Elias Dimitras <[email protected]>
HRW Backgrounder on International Law Relating to FRY/Kosovo
Human Rights Watch has prepared this backgrounder on international law
relating to the current crisis in Kosovo and Yugoslavia.
http://www.hrw.org/hrw/campaigns/kosovo98/intlaw.htm
BOTH NATO AND YUGOSLAVIA MUST BE JUDGED BY INTERNATIONAL LAW
Q: What are the "laws of war"? How do they apply to the conflict over
Kosovo?
A: 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 corollary 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 populous areas
that have military targets interspersed, laying land mines that will
kill both soldiers and civilians for decades, and the use of chemical
and biological weapons that cannot distinguish civilians from
combatants.
Q: What does international law say about bombing densely populated
areas such as Belgrade?
A: Bombardment which treats a number of clearly separated and distinct
military objectives located in a city or town where civilians are
concentrated as a single military objective is indiscriminate, and
therefore prohibited. The warring parties bear a responsibility to
take precautions, such as doing everything feasible to verify targets
are not civilian objects, minimizing incidental loss of civilian life,
removing the civilian population from the vicinity of military
objectives, effectively warning the civilian population in advance of
attack unless circumstances do not permit, and avoiding locating
military objectives within or near densely populated areas.
Q: Should the three Americans captured by Serb forces be considered
prisoners of war?
A: Yes. Prisoners of war (POWs) are combatants who "have fallen into
the power of the enemy." POWs are protected by a very detailed set of
rules enshrined in the Geneva Convention relative to the treatment of
prisoners of war. In particular POWs are entitled to respect for
their persons and their honor at all times. They must at all times be
humanely treated; they must be protected against acts of violence or
intimidation and against insults and public curiosity and they cannot
be subject to reprisals.
Q: Is the mass expulsion of Kosovar Albanians and incidents of
killings of civilians genocide?
A: Genocide is a rare and narrow crime that is distinct from the types
of atrocities often inflicted against civilian populations in war.
The Convention on the Prevention and Punishment of the Crime of
Genocide defines genocide as certain acts committed with the intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group as such. The proscribed acts include killings,
causing serious bodily or mental harm, imposing measures intended to
prevent births within the group, forcibly transferring its children to
another group, or deliberately inflicting on the group conditions of
life calculated to bring about its destruction in whole or in part.
What is key here is that these acts must be inflicted not just as part
of a campaign of war, or a "scorched earth" policy, but with the
express purpose of destroying the group's very existence and identity
as a group. Mass expulsions of the civilian population as such do not
rise to the level of genocide, nor do killings of civilians - even of
large numbers of civilians - absent a clear pattern showing a policy
of exterminating the group to which they belong. Other acts can also
be evidence of genocide, such as internment of the population in
concentration camps, starvation, or rape and forced pregnancy
committed for the purpose of breaking families and foreclosing births
among the targeted group.
There have been allegations by NATO that the abuses Yugoslav forces
are inflicting on the Kosovar Albanians amount to genocide but
relatively little independent corroboration of these abuses. Human
Rights Watch has researchers at the border with Albania and in
Macedonia, gathering information from refugees. We are mindful that
"ethnic cleansing" in Bosnia began with just such acts of expulsion
and murder, and escalated to a level that showed a clear purpose to
exterminate Muslim Bosniaks as a group, and so we are monitoring the
situation carefully.
There is no doubt that the abuses being inflicted on the Kosovar
Albanians are horrendous, and that regardless of whether they can be
called "genocide," they do amount to crimes against humanity, an
extremely serious offense in international law which is punishable by
every nation on earth. Crimes against humanity, whether committed in
armed conflict or peacetime, are systematic or widespread attacks
against the civilian population, including murder, extermination,
deportation, imprisonment, torture, disappearances, or other inhumane
acts. Crimes against humanity, an offense in customary international
law, have been included in the statutes of the ad hoc tribunals on
Rwanda and former Yugoslavia, as well as the statute of the
International Criminal Court.
Acts of expulsion and murder of the civilian population are also grave
breaches of the Geneva Conventions and punishable as extremely serious
war crimes.
Q: What is the duty of other nations towards the Kosovar Albanians
who are fleeing their homes?
A: The Kosovar Albanians, having fled persecution on account of their
ethnicity, are entitled to the full protection of the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol relating to
the Status of Refugees. This means they must be recognized as
refugees, and most importantly, countries to which they have fled or
where they are now being sheltered must not push them back to Kosovo
until there is no reason to fear persecution there. Although the
sudden mass influx of Kosovar Albanians has burdened the neighboring
countries of Macedonia and Albania, both states are obligated to hold
open their borders.
Refugees, like all people, are entitled to basic human rights, among
them the rights to life, to health, to food and to shelter. There had
been no preparation for the contingency of mass flight, and Human
Rights Watch welcomes the belated mobilization of relief and
willingness of NATO countries to shelter these people. The
international community, and NATO governments in particular, have a
responsibility to increase and maintain humanitarian relief to all
those displaced by the conflict.
Refugees under the Convention have specific rights to identity papers
and travel documents, and these are of critical importance to the
Kosovar Albanians who have been systematically stripped of all proof
of identity and residence by those who forced them to flee.
Another basic human right is the right to return to one's home.
Kosovar Albanians retain this right, but no country may force them to
return against their will while conditions justifying a fear of
persecution persist.
The systematic, mass displacement of Kosovar Albanians from their
homes is a violation of humanitarian law. Forced displacement of the
civilian population is prohibited except where displacement is
essential to ensure the safety of the population itself, or for
overriding military reasons. Kosovar Albanians who remain in Kosovo
are entitled to the general protections of international humanitarian
law with respect to civilians: they must not be attacked, terrorized,
starved, or deprived of goods essential to their survival.
_______________________________________
Greek Helsinki Monitor
P.O. Box 51393
GR-14510 Kifisia
Greece
Tel. +30-1-620.01.20
Fax +30-1-807.57.67
e-mail: [email protected]
http://www.greekhelsinki.gr
_______________________________________
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