Symposium : The International Legal Fallout from Kosovo

• Bothe, Michael

Abstract

A report to the Prosecutor of the ICTY concludes that there was no sufficient reason to institute proceedings against persons responsible for the NATO bombing campaign against Yugoslavia. The following rules of international humanitarian law were analysed in the report: protection of the environment in times of armed conflict; prohibition on attacking civilian objects; and the limitation of admissible collateral damage according to the proportionality principle. In relation to the protection of the environment, the report is too restrictive as it combines the test provided for by Protocol I Additional to the Geneva Conventions with a proportionality test. In relation to the protection of civilian objects, or the definition of military targets, the report practically sticks to the traditional assumption that traffic and communications infrastructure always constitutes a military objective. It fails, despite some lip service to the contrary, to ask the necessary critical question as to the real contribution of that infrastructure to the military effort of Yugoslavia. The proportionality principle requires a balancing of military advantage and civilian damage. The report's view concerning the value system which has to inspire this balancing process is highly questionable, in particular taking into account the humanitarian purpose of the entire operation.