May 13, 1999

The Honorable Javier Solana
Secretary General
North Atlantic Treaty Organization
Headquarters
B-1110
Brussels, Belgium

Dear Secretary General Solana:

We are writing to express our concern at the mounting civilian casualties in NATO's air war against Yugoslavia, particularly in circumstances that suggest possible violations of international humanitarian law. We understand that not every death or injury of civilians is avoidable or constitutes a violation of humanitarian law. Nevertheless, as the scope and pace of the bombing campaign have increased, so too have incidents that raise questions about NATO's compliance with the requirements of humanitarian law. We urge that these issues be scrutinized promptly and rigorously, that corrective steps be taken immediately to ensure NATO's strict compliance with humanitarian law, and that disciplinary or criminal investigations be launched into any possible violation or grave breach of this law.

We have two broad areas of concern: whether NATO is targeting objects that should be considered civilian or that should be spared because of the disproportionate harm to civilians, and whether, even in attacking military targets, NATO is taking all feasible precautions to avoid harm to civilians. Among recent incidents giving rise to these concerns are: the destruction of factories and other property belonging to political supporters of Yugoslav President Slobodan Milosevic; attacks on Yugoslavia's electrical transformers which primarily serve civilians; the destruction of several of Yugoslavia's television and radio stations; and the bombing of civilian vehicles because they were not seen or misidentified because of the height at which the attacking plane was flying. A brief summary of such incidents is appended to this letter.

Our first concern is whether civilian objects have been targeted, in violation of humanitarian law. Bridges, factories, broadcast installations, and public utilities are typically "dual-use" objects; while normally dedicated to civilian purposes, they may be put to military use as well. In the words of Article 52 of Protocol I additional to the 1949 Geneva.Conventions (Protocol I), these may legitimately be targeted only if, by their nature, location, purpose and use, they make an "effective contribution to military action," and their capture, neutralization or destruction, "in the circumstances ruling at the time, offers a definite military advantage."

A definite military advantage is one that is concrete, not potential or indeterminate. It does not encompass a purpose such as demoralizing the enemy's civilian population by, for example, silencing propaganda broadcasts or darkening the lights of its residential areas. It also does not include undermining an enemy leader's political, as opposed to military, supporters. Moreover, even assuming that all care has been taken to verify that a target is serving a military purpose at the time of attack, the attack is still forbidden under Article 57 of Protocol I if it can be expected to cause incidental death, injury or loss to civilians which would be excessive in relation to the "concrete and direct" military advantage anticipated.

We question with respect to several types of attacks whether NATO has been living up to these requirements, as detailed below. In each case, we request a concrete and detailed explanation from NATO as to why it believes the attacks in question comply with humanitarian law and what steps it is taking to ensure compliance in the future.

With regard to the decision to bomb television and broadcast facilities, we understand that these facilities theoretically can be used to broadcast military communications, but we are unaware of any allegation by NATO that they were being used for this purpose. Nor, to our knowledge, has it been claimed that they were being used to incite violence (akin to Radio Milles Collines during the Rwandan genocide), which might have justified their destruction. At worst, as far as we know, the Yugoslav government was using them to issue propaganda supportive of its war effort. And, in fact, NATO has stated that it bombed the television facilities because they were being used as a propaganda tool of the Milosevic government. While stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government's political support, neither purpose offers the "concrete and direct" military advantage necessary to make them a legitimate military target. Casualties among civilians working at these facilities may have been heightened because of NATO's apparent failure to provide clear advance warning of the attacks whenever possible, as required by Article 57(2) of Protocol I.

The decision to target civilian factories owned by political associates of Milosevic gives rise to similar concerns. Quite apart from civilian factories alleged to have served the military purpose of producing weapons or military supplies, several civilian factories seem to have been targeted simply because they were owned or operated by political cronies or supporters of Milosevic. These targets include a tobacco factory and warehouse in Nis that were struck by NATO on April 5, and tobacco plants in other cities. Despite the political motivation for these attacks, the destruction of these objects seems to have offered no "concrete and direct" military advantage that might have justified the attacks under humanitarian law.

We also question the decision to attack Serbia's electrical transformers in light of the lessons learned from the devastating consequences to civilians caused by the destruction of Iraq's electrical capacity in 1991 and its consequent damage to Iraq's water supply, sanitation, health and agricultural systems. Article 54 of Protocol I prohibits the destruction of objects that are indispensable to the survival of a civilian population. In a modern society such as Yugoslavia's, the capacity to produce and distribute electricity should be considered such an indispensable good. We recognize that electricity also serves a military purpose by facilitating military communication and production. But the Iraqi experience suggests that a modern military such as Yugoslavia's will have back-up generators to service its military facilities, meaning that the attacks on civilian electrical transformers will have little if any lasting impact on the country's ability to wage war. Under the comparative assessment required by humanitarian law before an attack can be justified, we find it difficult to see how this marginal military benefit outweighs the predictable severe consequences to civilians of destroying Yugoslavia's electrical capacity. What is more, the intense attacks on communications and air defense targets, the very objects that NATO claims are being "degraded" and "disrupted" by targeting electricity, would tend to suggest that the limited transformer strikes have negligible military impact.

In addition to the above-mentioned rules governing the definition of a military target, humanitarian law sets limits on the means of attack that can be used. In a rule of particular relevance to bombing when aerial observation makes it difficult to distinguish military from civilian objects, Article 51 of the Protocol I forbids attacks "by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects. In addition, Article 57 requires that, in launching an attack, all feasible precautions be taken to avoid, or at least minimize, civilian deaths, injuries and losses, including the choice of weapons and the time of attack.

These rules raise questions about the conduct of NATO's bombing in light of its decision to have most of its pilots fly at high altitudes (above 15,000 feet) to avoid anti-aircraft missiles and fire. NATO could appropriately conclude that, because of its desire to avoid additional risks to its pilots, it would refrain from attacking certain targets because it could not adequately verify that they were appropriate military targets or take adequate steps to avoid endangering civilians. But it is troubling that in some cases NATO has apparently decided to elevate the protection of its pilots over all consideration of the potential harm to civilians, such as when it appears to have launched attacks even when its high-flying pilots have been unable to verify the military nature of a target or to take all feasible precautions to avoid civilian harm. Examples include the April 12 bombing of a civilian passenger train that was crossing a bridge and the April 14 attack on civilian refugee vehicles on the road between Djakovica and Decani. Again, we request that NATO provide a detailed analysis of whether, in its view, these specific attacks complied with humanitarian law and a detailed explanation of the steps it is taking to ensure that future attacks by high-flying aircraft comply with this law.

Similarly, attacks on non-military objects due to faulty intelligence can also raise questions of violations of humanitarian law when such errors result from a failure to take due care to protect civilian objects in close proximity. The erroneous targeting of the Chinese Embassy in Belgrade on May 7 must be evaluated in this light. Decisions on whether and how to attack military objects in close proximity to civilians must also be evaluated for whether the intelligence on which they were based was produced with due care. The May 7 decision to target an airfield in Nis with cluster bombs that resulted in an attack on a hospital and marketplace is an example. NATO should take concrete steps, including internal disciplinary measures, to prevent violations of humanitarian law through negligence.

Finally, we are concerned regarding NATO's choice of weaponry, particularly since the announcement by the U.S. Department of Defense at the end of April of a move toward the use of more "area weapons" in Operation Allied Force, including cluster bombs. Cluster bombs each disperse hundreds of submunitions over large areas; the high percentage of these "bomblets" that do not explode on impactóbut remain "live" long afterwardsócreates a grave lingering danger for the civilian population. The U.S. and Britain have acknowledged the use of cluster bombs in a number of attacks, including in a recent strike on the Nis airfield which went off target, hitting a hospital complex and adjoining civilian areas. In an earlier incident, five children playing with colorful unexploded submunitions were reported killed and two injured on April 24, near Doganovic in southern Kosovo. Human Rights Watch condemns NATO's use of cluster bombs in Yugoslavia, given the high proven dud rate of the submunitions employed, as indiscriminate in effect and the equivalent of using antipersonnel land mines.

Once more, Human Rights Watch calls on NATO to investigate immediately and vigorously each of the cases in which a civilian target was attacked or civilian loss of life occurred to determine the exact circumstances of the attack. The findings of such investigations should be made public and appropriate disciplinary or prosecutorial measures should be taken against those found responsible for any violations or grave breaches of humanitarian law.

Sincerely,

/s/