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NATO's War in Kosovo and the Final Report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia

20 Pages Posted: 7 Aug 2003  

Aaron Schwabach

Thomas Jefferson School of Law

Abstract

The Office of the Prosecutor (OTP) of the International Criminal Tribunal for the Former Yugoslavia rejects Yugoslavia's allegations of NATO war crimes committed during the 1999 war. In "NATO's War in Kosovo and the Final Report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia," Professor Schwabach evaluates the OTP's report. The author, though pleased with the report's outcome, is troubled by its reasoning.

The article first defines the scope and sources of authority of international reviewing bodies. The author explains that the OTP relied both on conventional international law (such as Protocol I to the Geneva Conventions) and customary international law. The article then categorizes the primary allegations: use of depleted uranium projectiles and cluster bombs, damage to the environment, and problems relating to target selection.

Of particular concern to the author is the OTP's reasoning regarding environmental damage. He explains that the issue can be easily disposed of because the alleged pollution probably preceded the NATO attacks. Instead, the OTP set a standard for environmental damage that will likely never be met.

The author's second major concern surrounds the concept of casualty-averaging: The OTP fails to recognize the value of an individual life in calculating problems of proportionality.

Finally, the author criticizes the report's treatment of the Chinese Embassy bombing. The OTP avoided assessing individual liability because senior leaders were provided faulty information. Professor Schwabach explains how this reasoning allows, and encourages, nations to escape liability for wrongful actions if the decision-making process is sufficiently decentralized.

JEL Classification: K33

Suggested Citation

Schwabach, Aaron, NATO's War in Kosovo and the Final Report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia. Tulane Journal of International and Comparative Law, Vol. 9, Spring 2001. Available at SSRN: https://ssrn.com/abstract=412182

Aaron Schwabach (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4304 (Phone)

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