Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia. Part III. ICTY (13 June 2000)

Source: http://www.un.org/icty/pressreal/nato061300.htm
Accessed 15 June 2000
ICTY

Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia

Part III

Part I Part II

Table of Contents

Recommendations

(ii) The Attack on the Djakovica Convoy on 14/4/99

63. The precise facts concerning this incident are difficult to determine. In particular, there is some confusion about the number of aircraft involved, the number of bombs dropped, and whether one or two convoys were attacked. The FRY Ministry of Foreign Affairs Report (White Book) describes the incident as follows:

"On April 14, 1999 […] on the Djakovica-Prizren road, near the villages of Madanaj and Meja, a convoy of Albanian refugees was targeted three times. Mostly women, children and old people were in the convoy, returning to their homes in cars, on tractors and carts. The first assault on the column of over 1000 people took place while they were moving through Meja village. Twelve persons were killed on that occasion. The people from the convoy scattered around and tried to find shelter in the nearby houses. But NATO warplanes launched missiles on those houses as well, killing another 7 persons in the process. The attack continued along the road beween [the] villages [of] Meja and Bistrazin. One tractor with trailer was completely destroyed. Twenty people out of several of them on the tractor were killed. In the repeated attack on the refugee vehicles, one more person was killed." (Vol 1, p.1)

Total casualty figures seem to converge around 70-75 killed with approximately 100 injured. The FRY publication NATO War Crimes in Yugoslavia states 73 were killed and 36 were wounded.

64. NATO initially denied, but later acknowledged, responsibility for this attack. Assuming the facts most appropriate to a successful prosecution, NATO aircraft flying at 15000 feet or higher to avoid Yugoslav air defences attacked two vehicle convoys, both of which contained civilian vehicles. On 15 April, NATO confirmed that the aircraft had been flying at an altitude of 15,000 feet (approximately 5 km) and that, in this attack, the pilots had viewed the target with the naked eye rather than remotely. The aim of the attack was to destroy Serb military forces, in the area of Djakovica, who had been seen by NATO aircraft setting fire to civilian houses. At a Press Conference of 15 April 1999, NATO claimed that this was an area where the Yugoslav Special Police Forces, the MUP, were conducting ethnic cleansing operations over the preceding days. The road between Prizren and Djakovica served as an important resupply and reinforcement route for the Yugoslav Army and the Special Police.

65. A reconstruction of what is known about the attack reveals that in the hours immediately prior to the attack, at around 1030, NATO forces claimed to have seen a progression of burning villages, and that a series of fires could be seen progressing to the south east. They formed the view that MUP and VJ forces were thus methodically working from the north to the south through villages, setting them ablaze and forcing all the Kosovar Albanians out of those villages. At around 1030, the pilot spotted a three-vehicle convoy near to the freshest burning house, and saw uniformly shaped dark green vehicles which appeared to be troop carrying vehicles. He thus formed the view that the convoy comprised VJ and MUP forces working their way down towards Djakovica and that they were preparing to set the next house on fire. In response, an F-16 bombed the convoy’s lead vehicle at approximately 1110; the pilot relayed a threat update and the coordinates of the attack and departed the area to refuel. A second F-16 aircraft appears to have arrived on the scene around 1135, and visually assessed the target area as containing large vehicles which were located near a complex of buildings. A single GBU-12 bomb was dropped at 1148. Contemporaneously, a third aircraft identified a large convoy on a major road south east out of Djakovica and sought to identify the target. The target was verified as a VJ convoy at 1216 and an unspecified number of bombs were dropped at 1219. In the next 15 or so minutes (exact time unspecified), the same aircraft appears to have destroyed one further vehicle in the convoy. Simultaneously, two Jaguar aircraft each dropped 1 GBU-12 bomb each, but both missed their targets. Between 1235 and 1245, the first F-16 aircraft appears to have dropped three further bombs, at least one of which appears to have missed its target.

66. It is claimed by one source (report on file with the OTP) that the Yugoslav TV broadcast of the attack on the Djakovica convoy on 15 April 1999 recorded a conversation between one F-16 pilot involved in the attack and the AWACs. This conversation is alleged to establish both that the attack on the convoy was deliberate and that a UK Harrier pilot had advised the F-16 pilot that the convoy was comprised solely of tractors and civilians. The F-16 pilot was then allegedly told that the convoy was nevertheless a legitimate military target and was instructed to fire on it. This same report also suggests that the convoy was attacked with cluster bombs, indicated by bomb remnants and craters left at the site. However, these claims – both with regard to the foreknowledge of the pilot as to the civilian nature of the convoy and of the weapons used – are not confirmed by any other source.

67. NATO itself claimed that although the cockpit video showed the vehicles to look like tractors, when viewed with the naked eye from the attack altitude they appeared to be military vehicles. They alleged that several characteristics indicated it to be a military convoy including movement, size, shape, colour, spacing and high speed prior to the attack. There had also been reports of Serb forces using civilian vehicles. An analysis of the Serb TV footage of the attack on Djakovica by the OTP indicates that at approximately 1240, some point during the attack, doubt was conveyed that Serb convoys do not usually travel in convoys of that size. However, the on-scene analysis of the convoy appeared to convey the impression that the convoy comprised a mix of military and civilian vehicles. At around 1300, an order appears to have been issued, suspending attacks until the target could be verified.

68. NATO has consistently claimed that it believed the Djakovica convoy to be escorted by Serb military vehicles at the time of the attack. Human Rights Watch has commented on the incident as follows:

"General Clark stated in September that NATO consistently observed Yugoslav military vehicles moving on roads "intermixed with civilian convoys." After the Djakovica-Decane incident, General Clark says, "we got to be very, very cautious about striking objects moving on the roads. Another NATO officer, Col. Ed Boyle, says: "Because we were so concerned with collateral damage, the CFAC [Combined Forces Air Component Commander] at the time, General [Michael] Short, put out the guidance that if military vehicles were intermingled with civilian vehicles, they were not to be attacked, due to the collateral damage." When this directive was actually issued remains an important question. Nevertheless, the change in NATO rules of engagement indicates that the alliance recognized that it had taken insufficient precautions in mounting this attack, in not identifying civilians present, and in assuming that the intended targets were legitimate military objectives rather than in positively identifying them."

69. It is the opinion of the committee that civilians were not deliberately attacked in this incident. While there is nothing unlawful about operating at a height above Yugoslav air defences, it is difficult for any aircrew operating an aircraft flying at several hundred miles an hour and at a substantial height to distinguish between military and civilian vehicles in a convoy. In this case, most of the attacking aircraft were F16s with a crew of one person to fly the aircraft and identify the target. As soon as the crews of the attacking aircraft became aware of the presence of civilians, the attack ceased.

70. While this incident is one where it appears the aircrews could have benefitted from lower altitude scrutiny of the target at an early stage, the committee is of the opinion that neither the aircrew nor their commanders displayed the degree of recklessness in failing to take precautionary measures which would sustain criminal charges. The committee also notes that the attack was suspended as soon as the presence of civilians in the convoy was suspected. Based on the information assessed, the committee recommends that the OTP not commence an investigation related to the Djakovica Convoy bombing.

iii) The Bombing of the RTS (Serbian TV and Radio Station) in Belgrade on 23/4/99

71. On 23 April 1999, at 0220, NATO intentionally bombed the central studio of the RTS (state-owned) broadcasting corporation at 1 Aberdareva Street in the centre of Belgrade. The missiles hit the entrance area, which caved in at the place where the Aberdareva Street building was connected to the Takovska Street building. While there is some doubt over exact casualty figures, between 10 and 17 people are estimated to have been killed.

72. The bombing of the TV studio was part of a planned attack aimed at disrupting and degrading the C3 (Command, Control and Communications) network. In co-ordinated attacks, on the same night, radio relay buildings and towers were hit along with electrical power transformer stations. At a press conference on 27 April 1999, NATO officials justified this attack in terms of the dual military and civilian use to which the FRY communication system was routinely put, describing this as a

"very hardened and redundant command and control communications system [which …] uses commercial telephone, […] military cable, […] fibre optic cable, […] high frequency radio communication, […] microwave communication and everything can be interconnected. There are literally dozens, more than 100 radio relay sites around the country, and […] everything is wired in through dual use. Most of the commercial system serves the military and the military system can be put to use for the commercial system […]."

Accordingly, NATO stressed the dual-use to which such communications systems were put, describing civilian television as "heavily dependent on the military command and control system and military traffic is also routed through the civilian system" (press conference of 27 April, ibid).

73. At an earlier press conference on 23 April 1999, NATO officials reported that the TV building also housed a large multi-purpose communications satellite antenna dish, and that "radio relay control buildings and towers were targeted in the ongoing campaign to degrade the FRY’s command, control and communications network". In a communication of 17 April 1999 to Amnesty International, NATO claimed that the RTS facilities were being used "as radio relay stations and transmitters to support the activities of the FRY military and special police forces, and therefore they represent legitimate military targets" (Amnesty International Report, NATO/Federal Republic of Yugoslavia: Violations of the Laws of War by NATO during Operation Allied Force, June 2000, p. 42).

74. Of the electrical power transformer stations targeted, one transformer station supplied power to the air defence co-ordination network while the other supplied power to the northern-sector operations centre. Both these facilities were key control elements in the FRY integrated air-defence system. In this regard, NATO indicated that

"we are not targeting the Serb people as we repeatedly have stated nor do we target President Milosevic personally, we are attacking the control system that is used to manipulate the military and security forces."

More controversially, however, the bombing was also justified on the basis of the propaganda purpose to which it was employed:

"[We need to] directly strike at the very central nerve system of Milosovic’s regime. This of course are those assets which are used to plan and direct and to create the political environment of tolerance in Yugoslavia in which these brutalities can not only be accepted but even condoned. [….] Strikes against TV transmitters and broadcast facilities are part of our campaign to dismantle the FRY propaganda machinery which is a vital part of President Milosevic’s control mechanism."

In a similar statement, British Prime Minister Tony Blair was reported as saying in The Times that the media "is the apparatus that keeps him [Milosević] in power and we are entirely justified as NATO allies in damaging and taking on those targets” (24 April, 1999). In a statement of 8 April 1999, NATO also indicated that the TV studios would be targeted unless they broadcast 6 hours per day of Western media reports: "If President Milosevic would provide equal time for Western news broadcasts in its programmes without censorship 3 hours a day between noon and 1800 and 3 hours a day between 1800 and midnight, then his TV could be an acceptable instrument of public information."

75. NATO intentionally bombed the Radio and TV station and the persons killed or injured were civilians. The questions are: was the station a legitimate military objective and; if it was, were the civilian casualties disproportionate to the military advantage gained by the attack? For the station to be a military objective within the definition in Article 52 of Protocol I: a) its nature, purpose or use must make an effective contribution to military action and b) its total or partial destruction must offer a definite military advantage in the circumstances ruling at the time. The 1956 ICRC list of military objectives, drafted before the Additional Protocols, included the installations of broadcasting and television stations of fundamental military importance as military objectives (para. 39 above). The list prepared by Major General Rogers included broadcasting and television stations if they meet the military objective criteria (para. 38 above). As indicated in paras. 72 and 73 above, the attack appears to have been justified by NATO as part of a more general attack aimed at disrupting the FRY Command, Control and Communications network, the nerve centre and apparatus that keeps Milosević in power, and also as an attempt to dismantle the FRY propaganda machinery. Insofar as the attack actually was aimed at disrupting the communications network, it was legally acceptable.

76. If, however, the attack was made because equal time was not provided for Western news broadcasts, that is, because the station was part of the propaganda machinery, the legal basis was more debatable. Disrupting government propaganda may help to undermine the morale of the population and the armed forces, but justifying an attack on a civilian facility on such grounds alone may not meet the "effective contribution to military action" and "definite military advantage" criteria required by the Additional Protocols (see paras. 35-36, above). The ICRC Commentary on the Additional Protocols interprets the expression "definite military advantage anticipated" to exclude "an attack which only offers potential or indeterminate advantages" and interprets the expression "concrete and direct" as intended to show that the advantage concerned should be substantial and relatively close rather than hardly perceptible and likely to appear only in the long term (ICRC Commentary on the Additional Protocols of 8 June 1977, para. 2209). While stopping such propaganda may serve to demoralize the Yugoslav population and undermine the government’s political support, it is unlikely that either of these purposes would offer the "concrete and direct" military advantage necessary to make them a legitimate military objective. NATO believed that Yugoslav broadcast facilities were "used entirely to incite hatred and propaganda" and alleged that the Yugoslav government had put all private TV and radio stations in Serbia under military control (NATO press conferences of 28 and 30 April1999). However, it was not claimed that they were being used to incite violence akin to Radio Milles Collines during the Rwandan genocide, which might have justified their destruction (see para. 47 above). At worst, the Yugoslav government was using the broadcasting networks to issue propaganda supportive of its war effort: a circumstance which does not, in and of itself, amount to a war crime (see in this regard the judgment of the International Military Tribunal in Nuremberg in 1946 in the case of Hans Fritzsche, who served as a senior official in the Propaganda ministry alleged to have incited and encouraged the commission of crimes. The IMT held that although Fritzsche clearly made strong statements of a propagandistic nature, it was nevertheless not prepared to find that they were intended to incite the commission of atrocities, but rather, were aimed at arousing popular sentiment in support of Hitler and the German war effort (American Journal of International Law, vol. 41 (1947) 328)). The committee finds that if the attack on the RTS was justified by reference to its propaganda purpose alone, its legality might well be questioned by some experts in the field of international humanitarian law. It appears, however, that NATO’s targeting of the RTS building for propaganda purposes was an incidental (albeit complementary) aim of its primary goal of disabling the Serbian military command and control system and to destroy the nerve system and apparatus that keeps Milosević in power. In a press conference of 9 April 1999, NATO declared that TV transmitters were not targeted directly but that "in Yugoslavia military radio relay stations are often combined with TV transmitters [so] we attack the military target. If there is damage to the TV transmitters, it is a secondary effect but it is not [our] primary intention to do that." A NATO spokesperson, Jamie Shea, also wrote to the Brussels-based International Federation of Journalists on 12 April claiming that OperationAllied Force "target[ed] military targets only and television and radio towers are only struck if they [were] integrated into military facilities … There is no policy to strike television and radio transmitters as such" (cited in Amnesty International Report, ibid, June 2000).

77. Assuming the station was a legitimate objective, the civilian casualties were unfortunately high but do not appear to be clearly disproportionate.

Although NATO alleged that it made "every possible effort to avoid civilian casualties and collateral damage" (Amnesty International Report, ibid, June 2000, p. 42), some doubts have been expressed as to the specificity of the warning given to civilians by NATO of its intended strike, and whether the notice would have constituted "effective warning … of attacks which may affect the civililan population, unless circumstances do not permit" as required by Article 57(2) of Additional Protocol I.

Evidence on this point is somewhat contradictory. On the one hand, NATO officials in Brussels are alleged to have told Amnesty International that they did not give a specific warning as it would have endangered the pilots (Amnesty International Report, ibid, June 2000, at p. 47; see also para. 49 above re: proportionality and the extent to which a military commander is obligated to expose his own forces to danger in order to limit civilian casualties or damage). On this view, it is possible that casualties among civilians working at the RTS may have been heightened because of NATO’s apparent failure to provide clear advance warning of the attack, as required by Article 57(2).

On the other hand, foreign media representatives were apparently forewarned of the attack (Amnesty International Report, ibid). As Western journalists were reportedly warned by their employers to stay away from the television station before the attack, it would also appear that some Yugoslav officials may have expected that the building was about to be struck. Consequently, UK Prime Minister Tony Blair blamed Yugoslav officials for not evacuating the building, claiming that "[t]hey could have moved those people out of the building. They knew it was a target and they didn’t … [I]t was probably for … very clear propaganda reasons." (ibid, citing Moral combat – NATO at war, broadcast on BBC2 on 12 March 2000). Although knowledge on the part of Yugoslav officials of the impending attack would not divest NATO of its obligation to forewarn civilians under Article 57(2), it may nevertheless imply that the Yugoslav authorities may be partially responsible for the civilian casualties resulting from the attack and may suggest that the advance notice given by NATO may have in fact been sufficient under the circumstances.

78. Assuming the RTS building to be a legitimate military target, it appeared that NATO realised that attacking the RTS building would only interrupt broadcasting for a brief period. Indeed, broadcasting allegedly recommenced within hours of the strike, thus raising the issue of the importance of the military advantage gained by the attack vis-à-vis the civilian casualties incurred. The FRY command and control network was alleged by NATO to comprise a complex web and that could thus not be disabled in one strike. As noted by General Wesley Clark, NATO "knew when we struck that there would be alternate means of getting the Serb Television. There’s no single switch to turn off everything but we thought it was a good move to strike it and the political leadership agreed with us" (ibid, citing "Moral combat, NATO at War," broadcast on BBC2 on 12 March 2000). At a press conference on 27 April 1999, another NATO spokesperson similarly described the dual-use Yugoslav command and control network as "incapable of being dealt with in "a single knock-out blow (ibid)." The proportionality or otherwise of an attack should not necessarily focus exclusively on a specific incident. (See in this regard para. 52, above, referring to the need for an overall assessment of the totality of civilian victims as against the goals of the military campaign). With regard to these goals, the strategic target of these attacks was the Yugoslav command and control network. The attack on the RTS building must therefore be seen as forming part of an integrated attack against numerous objects, including transmission towers and control buildings of the Yugoslav radio relay network which were "essential to Milosevic’s ability to direct and control the repressive activities of his army and special police forces in Kosovo" (NATO press release, 1 May 1999) and which comprised "a key element in theYugoslav air-defence network" (ibid, 1 May1999). Attacks were also aimed at electricity grids that fed the command and control structures of the Yugoslav Army (ibid, 3 May 1999). Other strategic targets included additional command and control assets such as the radio and TV relay sites at Novi Pazar, Kosovaka and Krusevac (ibid) and command posts (ibid, 30 April). Of the electrical power transformer stations targeted, one transformer station supplied power to the air-defence coordination network while the other supplied power to the northern sector operations centre. Both these facilities were key control elements in the FRY integrated air-defence system (ibid, 23 April 1999). The radio relay and TV transmitting station near Novi Sad was also an important link in the air defence command and control communications network. Not only were these targets central to the Federal Republic of Yugoslavia’s governing apparatus, but formed, from a military point of view, an integral part of the strategic communications network which enabled both the military and national command authorities to direct the repression and atrocities taking place in Kosovo (ibid, 21 April 1999).

79. On the basis of the above analysis and on the information currently available to it, the committee recommends that the OTP not commence an investigation related to the bombing of the Serbian TV and Radio Station.

The Attack on the Chinese Embassy on 7/5/99

80. On 7/5/99, at 2350, NATO aircraft fired several missiles which hit the Chinese Embassy in Belgrade, killing 3 Chinese citizens, injuring an estimated 15 others, and causing extensive damage to the embassy building and other buildings in the immediate surrounds. At the moment of the attack, fifty people were reported to have been in the embassy buildings. By the admission of US Government sources, the Chinese Embassy compound was mistakenly hit. The bombing occurred because at no stage in the process was it realised that the bombs were aimed at the Chinese Embassy. The Embassy had been wrongly identified as the Yugoslav Federal Directorate for Supply and Procurement (Yugoimport FDSP) at 2 Umetnosti Boulevard in New Belgrade. The FDSP was deemed by the CIA to be a legitimate target due to its role in military procurement: it was selected for its role in support of the Yugoslav military effort.

81. Under Secretary of State Thomas Pickering offered the following explanation for what occurred:

"The bombing resulted from three basic failures. First, the technique used to locate the intended target – the headquarters of the Yugoslav Federal Directorate for Supply and Procurement (FDSP) – was severely flawed. Second, none of the military or intelligence databases used to verify target information contained the correct location of the Chinese Embassy. Third, nowhere in the target review process was either of the first two mistakes detected. No one who might have known that the targeted building was not the FDSP headquarters – but was in fact the Chinese Embassy – was ever consulted."

According to US Government sources, the street address of the intended target, the FDSP headquarters was known as Bulevar Umetnosti 2 in New Belgrade. During a mid-April "work-up" of the target to prepare a mission folder for the B-2 bomber crew, three maps were used in an attempt to physically locate this address within the neighborhood: two local commercial maps from 1989 and 1996, and one US government (National Imagery and Mapping Agency or NIMA) map produced in 1997. None of these maps had any reference to the FDSP building and none accurately identified the current location of the Chinese Embassy.

82. The root of the failures in target location appears to stem from the land navigation techniques employed by an intelligence officer in an effort to pinpoint the location of the FDSP building at Bulevar Umetnosti 2. The officer used techniques known as "intersection" and "resection" which, while appropriate to locate distant or inaccessible points or objects, are inappropriate for use in aerial targeting as they provide only an approximate location. Using this process, the individual mistakenly determined that the building which we now know to be the Chinese Embassy was the FDSP headquarters. This method of identification was not questioned or reviewed and hence this flaw in the address location process went undetected by all the others who evaluated the FDSP headquarters as a military target. It also appears that very late in the process, an intelligence officer serendipitously came to suspect that the target had been wrongly identified and sought to raise the concern that the building had been mislocated. However, throughout a series of missed opportunities, the problem of identification was not brought to the attention of the senior managers who may have been able to intervene in time to prevent the strike.

83. Finally, reviewing elements in, inter alia, the Joint Staff did not uncover either the inaccurate location of the FDSP headquarters or the correct location of the Chinese Embassy. The data base reviews were limited to validating the target data sheet geographic coordinates and the information put into the data base by the NIMA analyst. Such a circular process did not serve to uncover the original error and highlighted the system’s susceptibility to a single point of data base failure. The critical linchpin for both the error in identification of the building and the failure of the review mechanisms was thus the inadequacy of the supporting data bases and the mistaken assumption the information they contained would necessarily be accurate.

84. The building hit was clearly a civilian object and not a legitimate military objective. NATO, and subsequently various organs of the US Government, including the CIA, issued a formal apology, accepted full responsibility for the incident and asserted that the intended target, the Federal Directorate for Supply and Procurement, would have been a legitimate military objective. The USA has formally apologized to the Chinese Government and agreed to pay $28 million in compensation to the Chinese Government and $4.5 million to the families of those killed or injured. The CIA has also dismissed one intelligence officer and reprimanded six senior managers. The US Government also claims to have taken corrective actions in order to assign individual responsibility and to prevent mistakes such as this from occurring in the future.

85. It is the opinion of the committee that the aircrew involved in the attack should not be assigned any responsibility for the fact they were given the wrong target and that it is inappropriate to attempt to assign criminal responsibility for the incident to senior leaders because they were provided with wrong information by officials of another agency. Based on the information available to it, the committee is of the opinion that the OTP should not undertake an investigation concerning the bombing of the Chinese Embassy.

The Attack on Korisa Village on 13/5/99

86. On 14 May 1999, NATO aircraft dropped 10 bombs on the village of Korisa, on the highway between Prizren and Pristina. Much confusion seems to exist about this incident, and factual accounts do not seem to easily tally with each other. As many as 87 civilians, mainly refugees, were killed in this attack and approximately 60 appear to have been wounded. The primary target in this attack was asserted by NATO to be a Serbian military camp and Command Post which were located near the village of Korisa. It appears that the refugees were near the attacked object. However, unlike previous cases where NATO subsequently claimed that an error had occurred in its targeting or its military intelligence sources, NATO spokespersons continued to affirm the legitimacy of this particular attack. They maintained that this was a legitimate military target and that NATO intelligence had identified a military camp and Command Post near to the village of Korisa.

87. According to NATO officials, immediately prior to the attack, the target was identified as having military revetments. The pilot was able to see silhouettes of vehicles on the ground as the attack took place at 2330, when two laser guided bombs were dropped. Ten minutes later, another two laser guided bombs and six gravity bombs were dropped. In a press conference on 15 May, NATO stated that the attack went ahead because the target was confirmed by prior intelligence as being valid and the pilot identified vehicles present. There were never any doubts, from NATO spokespersons, as to the validity of this target.

88. Information about NATO’s position on the bombardment of Koriša was released at the press conference on the following day, 15 May. At this conference, General Jertz twice affirmed that the target was, in NATO’s opinion, legitimate since military facilities were present at the site:

"As already has been mentioned, it was a legitimate military target. NATO reconnaissance and intelligence orders identified just outside Koriša a military camp and command post, including an armoured personnel carrier and 10 pieces of artillery. Follow-up intelligence confirmed this information as being a valid military target. Immediately prior to the attack at 23.30-11.30 pm – local time Thursday night an airborne forward air controller identified the target, so the identification and attack system of his aircraft, having positively identified the target as what looked like dug-in military reveted positions, he dropped two laser guided bombs. Approximately 10 minutes later, the third aircraft engaged the target with gravity bombs, with six gravity bombs. A total of 10 bombs were dropped on the target."

When questioned about the presence of civilians on the ground, General Jertz indicated:

"What I can say so far is when the pilot attacked the target he had to visually identify it through the attack systems which are in the aircraft, and you know it was by night, so he did see silhouettes of vehicles on the ground and as it was by prior intelligence a valid target, he did do the attack […] it was a legitimate target. Since late April we knew there were command posts, military pieces in that area and they have been continuously used. So for the pilot flying the attack, it was a legitimate target. But when he is in the target area for attacking, it is his responsibility to make sure that all the cues he sees are the ones which he needs to really attack. And at night he saw the silhouettes of vehicles and that is why he was allowed to attack. Of course, and we have to be very fair, we are talking at night. If there is anybody sleeping somewhere in a house, you would not be able to see it from the perspective of a pilot. But once again, don’t misinterpret it. It was a military target which had been used since the beginning of conflict over there and we have all sources used to identify this target in order to make sure that this target was still a valid target when it was attacked." (Emphasis added).

The NATO position thus appears to be that it bombed a legitimate military target, that it knew nothing of the presence of civilians and that none were observed immediately prior to the attack. Indeed, NATO stated that they believed this area to have been completely cleared of civilians. There is some information indicating that displaced Kosovar civilians were forcibly concentrated within a military camp in the village of Koriša as human shields and that Yugoslav military forces may thus be at least partially responsible for the deaths there.

89. The available information concerning this incident is in conflict. The attack occurred in the middle of the night at about 2330. The stated object of the attack was a legitimate military objective. According to NATO, all practicable precautions were taken and it was determined civilians were not present. It appears that a relatively large number of civilians were killed. It also appears these civilians were either returning refugees or persons gathered as human shields by FRY authorities or both. The committee is of the view that the credible information available is not sufficient to tend to show that a crime within the jurisdiction of the Tribunal has been committed by the aircrew or by superiors in the NATO chain of command. Based on the information available to it, the committee is of the opinion that OTP should not undertake an investigation concerning the bombing at Koriša.

V Recommendations

90. The committee has conducted its review relying essentially upon public documents, including statements made by NATO and NATO countries at press conferences and public documents produced by the FRY. It has tended to assume that the NATO and NATO countries’ press statements are generally reliable and that explanations have been honestly given. The committee must note, however, that when the OTP requested NATO to answer specific questions about specific incidents, the NATO reply was couched in general terms and failed to address the specific incidents. The committee has not spoken to those involved in directing or carrying out the bombing campaign. The committee has also assigned substantial weight to the factual assertions made by Human Rights Watch as its investigators did spend a limited amount of time on the ground in the FRY. Further, the committee has noted that Human Rights Watch found the two volume compilation of the FRY Ministry of Foreign Affairs entitled NATO Crimes in Yugoslavia generally reliable and the committee has tended to rely on the casualty figures for specific incidents in this compilation. If one accepts the figures in this compilation of approximately 495 civilians killed and 820 civilians wounded in documented instances, there is simply no evidence of the necessary crime base for charges of genocide or crimes against humanity. Further, in the particular incidents reviewed by the committee with particular care (see paras. 9, and 48-76) the committee has not assessed any particular incidents as justifying the commencement of an investigation by the OTP. NATO has admitted that mistakes did occur during the bombing campaign; errors of judgment may also have occurred. Selection of certain objectives for attack may be subject to legal debate. On the basis of the information reviewed, however, the committee is of the opinion that neither an in-depth investigation related to the bombing campaign as a whole nor investigations related to specific incidents are justified. In all cases, either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence to substantiate charges against high level accused or against lower accused for particularly heinous offences.

91. On the basis of information available, the committee recommends that no investigation be commenced by the OTP in relation to the NATO bombing campaign or incidents occurring during the campaign.

Part I Part II