Targeting after Kosovo: Has the Law Changed for Strike Planners
Borch, Frederic L., Naval War College Review
Recent reports published by Amnesty International1 and Human Rights Watch2 charge that the North Atlantic Treaty Organization 1999 air operations against Serbia-Operation ALLIED FORCE3-selected and attacked targets in violation of the law of armed conflict.4 While the two high-profile organizations clearly supported NATO's goal of stopping the bloodshed in Kosovo, both reports were sharply critical of some NATO combat operations.
Both claimed, for example, that an air strike on a Serbian radio and television station during the campaign was illegal because it was "a direct attack on a civilian object." Amnesty International and Human Rights Watch further charge that the bombing of two bridges was unlawful because too many civilians were on or near the structures during the attack. Finally, both groups contend that the deaths of civilians during NATO attacks on military targets necessarily meant that NATO had failed to obey the law's mandate to minimize harm to noncombatants. According to Amnesty International, "NATO forces did commit serious violations of the laws of war leading in a number of cases to the unlawful killings of civilians."5 Similarly, Human Rights Watch declared that NATO "illegitimate" attacks on nonmilitary targets resulted in excessive civilian casualties.6 If these and other allegations are true, General Wesley K. Clark, the regional commander responsible for the conduct of ALLIED FORCE, as well as the NATO planners who sequenced and synchronized the operation, violated the law-and incurred both personal liability and state responsibility for NATO members and the United States. Additionally, if the charges are true, commanders and their planners cannot look to ALLIED FORCE as a model for targeting in future military operations.7
So, what is the truth? Is it illegal to attack a government-owned television station? Must a commander instruct a pilot to refrain from attacking a bridge if civilians can be seen on it? Are commanders and their planners responsible if a large number of civilians are killed during an attack? This article concludes, after examining the law relating to targeting and analyzing the facts and circumstances surrounding targets that, allegedly, were illegally attacked, that Amnesty International and Human Rights Watch are wrong, on two grounds. In some instances the facts do not support their claims; where the facts are not in dispute, the two groups have drawn conclusions based on faulty interpretations of existing international law.
NATO selected and attacked legitimate military objectives in the Kosovo campaign. The methods and weapons it used to destroy or neutralize these targets were lawful and proportional to the military advantage expected. Finally, NATO distinguished between combatants and noncombatants and took proper precautions to avoid injuring or killing noncombatants.
OPERATION ALLIED FORCE
In 1998, Serbian military and police forces flooded into Kosovo and began systematically driving ethnic Albanians from their homes. Roughly 250,000 Kosovars were forced to flee; most of these refugees escaped to neighboring Albania and Macedonia, but the Serbs killed hundreds of men, women, and children in this act of "ethnic cleansing."8 When diplomatic efforts advanced by Germany, France, and Italy did not lead to a negotiated settlement with the president of the Federal Republic of Yugoslavia (FRY),9 Slobodan Milosevic,10 the United States and its NATO allies decided that only military action would stop the aggression. On 24 March 1999, after talks at Rambouillet, in France, failed to stop Serbian violence against ethnic Albanians in Kosovo, NATO launched Operation ALLIED FORCE. In a seventy-eight-day "phased" air operation, aircraft from thirteen (out of nineteen) NATO member states flew combat sorties against targets in the provinces of Kosovo and Vojvodina, Serbia proper, and Montenegro.
Ninety of every hundred bombs used in NATO's attacks on airfields; air defense emplacements; bridges; command, control, and communication sites; and police and troop barracks were precision-guided munitions (PGMs)-a significant fact when one considers that PGMs constituted only 9 percent of bombs dropped in DESERT STORM. …