Armed Conflicts in the former Yugoslavia Case Study
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages
a. Taking into account its title reading prisoner exchanges, does Art. IX of Annex 1-A provide for a unilateral obligation to release prisoners? Is the obligation unilateral under IHL or may it be subject to reciprocity? May the Dayton Agreement differ from IHL, subjecting the obligation to reciprocity? (GC III, Arts 6 and 118; GC IV, Arts 7 and 133; CIHL Rule 128; Agreement No.1, Art. 2(3)(2))
b. Does Art. IX go beyond the obligations provided for by IHL? (GC III, Arts 118, 122, 123 and 126; GC IV, Arts 133, 134, 137, 138, 140 and 143; CIHL Rule 128)
c. Is Art. IX compatible with the obligations provided for by IHL in the case of grave breaches? Must a Party release a prisoner it suspects of a war crime but for whom the ICTY does not request arrest, detention, surrender, or access, at the end of the period of consultations under Art. IX(1)? Under IHL? May a Party release such a person under IHL? Was the further agreement of the Parties, concluded in Rome, under which no person may be retained or arrested under war crimes charges, except with the permission of ICTY, compatible with IHL? Can you imagine why the US urged the Parties to conclude such an agreement? (GC III, Arts 118, 119(5) and 129-131; GC IV, Arts 133 and 146-148; CIHL Rules 128 and 158)
d. Why did the ICRC refuse to link the release of prisoners with the problem of missing persons? Is not a missing person for whom a testimony of arrest by the enemy exists or whom the ICRC once visited, a prisoner to be released under IHL?
e. What are the risks for a humanitarian organization like the ICRC when the massive international political, economic, and even military pressure are the only reasons why it managed to carry out a humanitarian operation like the release of all prisoners (which is part of the implementation of IHL)? In particular, if that pressure is mainly directed at one side? Is that compatible with the Red Cross principles of neutrality and impartiality? Could the ICRC have avoided constantly informing the international community about the (extent of) non-compliance of each party with its obligations? Could the ICRC have pursued its traditional bilateral and confidential approach with each party separately?
22. When the conflict in Bosnia-Herzegovina ended, families continued to report nearly 20,000 missing persons [among them, as of July 1997, 16,152 Bosnian Muslims (including more than 7000 from Srebrenica), 2331 Bosnian Serbs, and 621 Bosnian Croats]. Article V in Annex 7 of the Dayton Peace Agreement stipulates that: The Parties shall provide information through the tracing mechanisms of the ICRC on all persons unaccounted for. The Parties shall also cooperate fully with the ICRC in its efforts to determine the identities, whereabouts and fate of the unaccounted for. Art. IX(2) of its above-mentioned Annex 1-A furthermore obliged the Parties to give each others grave registration personnel, within a mutually agreed period of time, access to individual and mass graves for the limited purpose of proceeding to such graves, to recover and evacuate the bodies of deceased military and civilian personnel of that side, including deceased prisoners.
On this basis, the ICRC proposed that the former belligerents set up a Working Group on the Process for Tracing Persons Unaccounted for in Connection with the Conflict on the Territory of Bosnia-Herzegovina a convoluted title reflecting the nature of the political negotiations that led to the establishment of this body. While the Parties endorsed the proposal itself, they engaged in endless quibbling over the wording of the Rules of Procedure and of the Terms of Reference drafted by the ICRC. Nevertheless, the Working Group, which is chaired by the ICRC, has met ten times in 1996 in the presence of representatives of other international institutions involved, Croatia, and the Federal Republic of Yugoslavia. Most of the tracing requests registered by the families have been submitted, during sessions of the Working Group, to the Party responsible (16,000 to the Bosnian Serbs, 1700 to the Bosnian Muslims, and 1200 to the Bosnian Croats). The Working Group has adopted a rule whereby the information contained in the tracing requests, as well as the replies that the Parties are called on to provide, are not only exchanged bilaterally between the families and the Parties concerned through the intermediary of the ICRC, but are also communicated to all the members of the Working Group, that is, to all the former belligerents and to the High Representative. Since 1996, the ICRC has submitted to the concerned Parties close to 20 000 names of missing persons, requesting them to provide the information necessary to clarify their fate, in conformity with their obligations under the Dayton Agreement. (See http://www.icrc.org/eng)
a. Which elements of the ICRC action to trace missing persons in Bosnia-Herzegovina go beyond IHL? Under IHL, does a party to an international armed conflict have, at the end of the conflict, an obligation:
to search for persons reported missing by the adverse party?
to provide all information it has on the fate of such persons?
to identify mortal remains of persons it must presume to have belonged to the adverse party?
to provide the cause of death of a person whose mortal remains it has identified?
to inform unilaterally about the results of such identification?
to return identified mortal remains to the party to which the persons belonged?
to properly bury identified and non-identified mortal remains?
to provide families of the adverse side access to graves of their relatives?
(GC I, Arts 15-17; GC III, Arts 120, 122 and 123; GC IV, Arts 26 and 136-140; P I, Arts 32-34; CIHL, Rule 114-116)
b. Why does the ICRC only submit cases of missing persons registered by their families? Does IHL support that decision? Does IHL also give a party the right to submit tracing requests? Has the ICRC an obligation to accept such requests? (GC I, Art. 16; GC III, Arts 122(3), (4) and (6) and 123; GC IV, Arts 137 and 140; P I, Art. 32; CIHL Rule 116)
c. What are the reasons, advantages, and risks regarding the solution to communicate all tracing requests and replies to all members of the ICRC chaired Working Group? Does that prevent politicization?
d. Does Art. IX(2) go beyond the obligations provided for by IHL? Does this provision provide for a unilateral obligation on each side to give the other sides grave registration personnel access? May a party use evidence for war crimes obtained by its grave registration personnel acting under Art. IX(2) in war crimes trials? (P I, Art. 34; CIHL Rules 114-116)
23. During the conflicts in Croatia and Bosnia-Herzegovina, the ethnic Albanian Kosovans spoke out in favour of independence for Kosovo and set up parallel health and educational facilities in the province. Their resistance was essentially non-violent. The Yugoslav authorities kept military control over the whole Kosovo. Repression mainly consisted of short-term detention, administrative and police harassment. The Kosovo Liberation Army (UCK) was formed in the mid-1990s; it urged armed resistance against the Serbs. In 1996, it started to carry out armed attacks against the Serbian police forces in Kosovo, which struck back at UCK militants with violence.
a. Can this situation be qualified as an armed conflict? If so, is it a non- international or an international armed conflict? Can the UCK be considered a national liberation movement? (GC I-IV, Arts 2 and 3; P I, Art. 1(4); P II, Art. 1)
b. Can the UCK armed attacks against the Serbian police forces and the police attacks against UCK members be considered as attacks against civilians? (P I, Arts 43, 50 and 51(3); CHIL Rules 1-6 )
24. The conflict escalated in February 1998. The UCK wrested temporary control over parts of Kosovo. Serb forces and ethnic Albanian independence fighters clashed chiefly in the Drenica region, where the Serbian police forces and the Yugoslav army bombed several villages, expelling the inhabitants from areas in which the UCK was operating. Nearly 2,000 people died and almost 300,000 fled as a result. In March 1998, the Security Council reacted by adopting resolution 1160 (1998) condemning the excessive use of force by the Serbian police forces against civilians and establishing an arms embargo. On 23 September, it adopted resolution 1199 (1998), in which it demanded a cease-fire in Kosovo, the withdrawal of Serbian forces and the opening of direct negotiations. The resolution referred to the conflict as a threat to peace and security in the region.
a. Can this situation be qualified as an armed conflict? If so, is it a non-international or an international armed conflict? Can the UCK now be considered a national liberation movement? Did the Security Council resolutions influence your answer? (GC I-IV, Arts 2 and 3; P I, Preamble para. 5 and Art. 1(4); P II, Art. 1)
b. Could civilians be expelled on the grounds that UCK fighters had to be isolated? If the deportation was intended to shield them from the fighting? Is deportation a war crime? (GC IV, Arts 49 and 147; P II, Art. 17; ICC Statute, Art. 8(2)(a)(vii) and (2)(e)(viii)) [See The International Criminal Court, [Part A.]]
25. The period between April and August 1998 saw no let-up in the fighting between Yugoslav troops and ethnic Albanian independence fighters on the territory of Kosovo. On 15 May 1998, Yugoslav President Milosevic and Kosovo Albanian leader Ibrahim Rugova met under the auspices of American mediator Richard Holbrooke. Under the threat of NATO bombardments, the mediation resulted in October in President Milosevics agreement to withdraw Serbian forces, to call a halt to the fighting and to accept the deployment of 2,000 unarmed OSCE monitors in Kosovo. The UCK rejected the agreement. Nevertheless, on 26 October 10,000 Serbian policemen withdrew from Kosovo and NATO suspended its threat to conduct air raids. In December 1998, renewed fighting broke out between the UCK and Serbian forces.
On what principles of IHL can third States or international organizations propose or demand the deployment of monitors? (GC I-IV, Art. I, Arts 8/8/8/9 and 10/10/10/11 respectively; P I, Art. 89) What was the point in dispatching unarmed monitors to ascertain compliance with IHL? What could the monitors do if the Serbian authorities violated IHL? If UCK did so? What would have been the advantages and disadvantages of deploying armed monitors?
26. On 30 January 1999, NATO announced that it would carry out air strikes against the territory of the Federal Republic of Yugoslavia (FRY) if the latter did not meet the demands of the international community. Negotiations were held between the parties to the conflict from 6 to 23 February in Rambouillet and from 15 to 18 March in Paris. The resulting peace agreement was agreed by the Kosovo Albanian delegation. The Serbian delegation rejected it.
NATO considered that all efforts to reach a negotiated political settlement to the crisis in Kosovo had failed and decided to launch air strikes against the FRY, a step announced by NATO Secretary General on 23 March 1999. On the same day, the Federal Republic of Yugoslavia published a decree stating that the threat of war was imminent; the next day it declared a state of war.
[See Federal Republic of Yugoslavia, NATO Intervention]
a. Was there an international armed conflict between Yugoslavia and NATO? Between Yugoslavia and each of the NATO member States? Between Yugoslavia and each of the States participating in the air strikes? Was there a declaration of war? Is a declaration of war needed for international humanitarian law to apply?
b. Was the law of international armed conflict applicable to NATO forces, even though their objective was to protect Kosovo Albanians from Serbian repression? Would the answer be the same on the hypothesis that the bombings were the only means of protecting the Kosovans from genocide? (GC I-IV, Arts 1 and 2; P I, Preamble para. 5)
c. Does the disputed lawfulness of NATO air strikes, without any armed aggression on the part of Yugoslavia, and of Security Council authorization make the applicability of IHL to those attacks open to question? (P I, Preamble para. 5)
27. The air strikes lasted a little less than three months, from 24 March to 8 June 1999. They gave rise to several controversial incidents, some of which are described below.
A. On 12 April, a train transporting civilian passengers was destroyed as it came out of a tunnel on a bridge near Grdelica; 10 civilians were killed and at least 15 wounded. The United States said that its intention had been to destroy the bridge, which was part of Serbias communications network, and that the pilot would not have seen the train while aiming at the bridge.
B. On 14 April, a convoy of ethnic Kosovo Albanians fleeing to Djakovica was attacked (according to the Yugoslav authorities, between 70 and 75 civilians were killed and more than one hundred wounded). NATO explained that the British pilot, who was flying at high altitude to avoid Yugoslav anti-aircraft guns, thought he was attacking a convoy of armed and security forces that had just destroyed a number of Albanian villages to the ground.
C. The Pancevo petrochemical complex was bombed on 15 and 18 April, with no loss of life.
D. Electricity-generating and transmitting stations were repeatedly attacked, the aim being, according to some NATO officials, to cut off power to Yugoslavias military communications system; according to others, it was to stir civilian unrest against President Milosevic by depriving the population of electrical power.
E. The bridge over the Danube in Novi Sad (located hundreds of kilometers from Kosovo) was destroyed.
F. The Chinese embassy in Belgrade was destroyed (3 civilians killed, 15 wounded). The United States explained that this was a mistake caused by their intelligence services failing to accurately situate the Yugoslav governments supply office, which was the intended target of the attack.
G. On 23 April, just after 2 a.m., NATO deliberately bombed a Radio Television Serbia building in Belgrade; 16 people died and another 16 were seriously wounded. Certain NATO representatives justified the attack on the grounds that the building was also used for military transmissions. Others, including the British Prime Minister, said that Yugoslav media propaganda enabled President Milosevic to stay in power and encouraged the population to take part in the violence against the Kosovans.
a. Analyze each of the above attacks so as to determine whether the controversy they gave rise to refers to whether they were aimed at a military objective, whether collateral civilian losses were admissible or whether the necessary precautions had been taken in the attack. Where different versions of the facts or different explanations have been given, deal with each separately. (P I, Arts 51, 52(2) and 57; CIHL Rules 14-24)
b. Can an attack that mistakenly (contrary to the attackers intent) targets or affects civilians violate IHL? Can it constitute a grave breach of IHL? A war crime? (P I, Arts 57 and 85(3); ICC statute, Arts 30 and 32; CIHL Rules 15-24)
c. Given that there was no international armed conflict between the United States and China, were the Chinese diplomats in Belgrade protected under IHL? Were they protected persons? (GC I-IV, Art. 2; GC IV, Art. 4; P I, Art. 50)
28. Furthermore, throughout the campaign, NATO forces used projectiles containing depleted uranium and fragmentation bombs against military objectives. After the conflict, the remnants of those munitions were deemed to put the civilian population and NATOs international staff and troops deployed in Kosovo in danger.
Are such munitions prohibited by IHL? Can the use of a means of warfare be prohibited against military objectives or combatants because of its long-term effects on the combatants? On the regions civilian population? On the environment? (P I, Arts 35, 36, 51(4)(a) and (5)(b) and 55; CIHL Rules 44-45, 70)
29. During NATO air strikes, three US soldiers stationed in Macedonia fell into the power of Yugoslavia. It was not known whether they were abducted in Macedonia or had mistakenly crossed into Kosovo. The ICRC was able to visit them only after four weeks of intense representations.
Are the US soldiers prisoners of war? Do doubts about the circumstances of their arrest in any way affect their status? When should they have been repatriated? If they were abducted in Macedonia, should they have been released before the end of the hostilities? (GC III, Arts 2, 4, 118 and 126(5); CIHL Rule 128)
30. With the launch of air strikes, the forces of the Federal Republic of Yugoslavia and of the Republic of Serbia stepped up their attacks against the Kosovo Albanians; in the following months they forcibly expelled over 740,000 ethnic Albanian Kosovans, about one third of the total ethnic Albanian population. An undetermined number of ethnic Albanian Kosovans were killed during operations conducted by the Yugoslav and Serbian forces. A smaller number were killed in NATO air strikes.
a. Was it unlawful for the Yugoslav and Serbian forces to forcibly expel the population of Kosovo? (GC IV, Arts 49 and 147; P II, Art. 17; ICC Statute, Arts 8(2)(a)(vii) and (2)(e)(viii))
b. If so, was the forced displacement of the population a war crime or a crime against humanity? (ICC Statute, Arts 7(1)(d), (2)(d), 8(2)(a)(vii), (2)(e)(viii))
c. Can it be said that acts of genocide were committed against the population of Kosovo? (ICC Statute, Art. 6)
d. Can deportation be justified by NATO air strikes and by the fact that UCK was allied with NATO and that the Albanian population of Kosovo wanted to be liberated by NATO? Since the massacres and population displacements intensified when the air strikes started, can NATO be partly held responsible for the plight of the civilian population?
e. Does IHL also protect the Kosovans against NATO? (P I, Arts 49(2) and 50)
Paragraphs 31 to 37
31. The ICRC withdrew its 19 representatives from Kosovo on 29 March 1999 because of the worsening security situation brought about by the Serb paramilitary forces. It remained active, however, in the neighboring republics, assisting Kosovan refugees. After having negotiated its return to Kosovo with the Serbian authorities and following a survey on security conditions, the ICRC re-opened its office and resumed its humanitarian activities in the province in late May 1999.
a. Was the ICRC entitled to be present in Kosovo? In Belgrade? (GC I-IV, Art. 3, Arts 9/9/9/10 respectively; GC III, Art. 126(5); GC IV, Art. 143(5))
b. Was the ICRC entitled to be in Kosovo by virtue of IHL or by virtue of a bilateral agreement with Yugoslavia? Was Yugoslavia obliged to ensure adequate conditions of security for ICRC delegates? (GC III, Art. 126(5); GC IV, Art. 143(5))
c. Was the ICRC mission in Kosovo a failure because it withdrew? Should the ICRC have withdrawn from all of Yugoslavia? In what circumstances does the ICRC withdraw from a country?
d. If the ICRC had been able to stay in Kosovo throughout the conflict, what could it have done to help the Albanian population?
32. On 27 May 1999, the Chief Prosecutor of the ICTY, Ms Louise Arbour, issued an indictment against Slobodan Milosevic, charging him with crimes against humanity and violations of the law and customs of war in Kosovo. (See ICTY web site: http://www.icty.org)
a. Why was Slobodan Milosevic not indicted for grave breaches of the Geneva Conventions in Kosovo? (GC IV, Arts 2, 4 and 147)
b. Given that Slobodan Milosevic in person did not necessarily commit crimes against humanity and violations of the laws and customs of war, by virtue of what principle was the ICTY Chief Prosecutor able to indict him for those crimes? (ICTY Statute, Art. 7) [See UN, Statute of the ICTY [Part C.]]
c. As head of State, didnt Slobodan Milosevic benefit from immunity for acts committed while he was in office?
33. On 3 June 1999, the Serbian parliament agreed to an international plan that brought an end to the conflict in Kosovo. The plan provided for the deployment of an international force under United Nations auspices, the withdrawal of Serbian forces from Kosovo and the return of refugees. On 10 June 1999, the Serbian forces that left Kosovo were replaced by an international NATO force of 35,000 men mandated by United Nations Security Council resolution 1244 (1999): KFOR. The Security Council resolution also established the United Nations Interim Administration Mission in Kosovo (UNMIK) to administer the territory on a provisional basis. Kosovo was thus placed under international administration but remained under Yugoslav sovereignty. On 21 June, an agreement to demilitarize the UCK was signed between the prime minister of the provisional government and the KFOR Commander. All legislative and executive authority relating to Kosovo, including the administration of justice, was conferred on UNMIK and exercised by the Secretary-Generals Special Representative (initially Bernard Kouchner, then Soren Jessen-Petersen, and at present [in 2010] Lamberto Zannier).
The end of the bombings did not spell the end to the climate of political violence in Kosovo. Non-Albanians were the victims of acts of violence referred to by some people as reverse ethnic cleansing. It was in this context that the bodies of 14 murdered Serbs were discovered in the village of Gracko, on 23 July 1999. Although almost 800,000 ethnic Albanian refugees were able to return to their homes, about 200,000 Serbs and Roma people had to leave.
a. How would you qualify the situation in Kosovo after the withdrawal of the Serbian forces? (GC I-IV, Arts 2 and 3; P I, Art. 1)
b. Did the reverse ethnic cleansing violate IHL? (GC IV, Arts 3, 27 and 32; P II, Arts 4(2)(a) and (b) and 17; CIHL Rules 87 and 90)
c. Does the fact that the Serbian victims of reverse ethnic cleansing previously tolerated much harsher abuse of the Albanian population justify the abuse to which they were subjected? Justify a degree of understanding on the part of KFOR and UNMIK for that subsequent abuse? (GC IV, Arts 3, 27 and 33(3); P II, Art. 4(2)(a) and (b))
d. Is Kosovo a territory occupied by KFOR? Even though its deployment was provided for in a Security Council resolution? Even though that deployment was in the interests of the local population? Even though it was agreed to by Yugoslavia? (GC IV, Art. 2; P I, Preamble para. 5)
e. What rules of the Fourth Geneva Convention on occupied territories are incompatible with the objectives of the KFOR and UNMIK presence? What rules might UNMIK find useful? If IHL were applicable, would UNMIK be obliged to prevent the attacks against the minorities in Kosovo? In that case, could all legislative and executive authorities relating to Kosovo, including the administration of justice, be conferred on an international civil servant? (HR, Arts 42 and 43; GC IV, Arts 64-66)
34. At the end of 2000, ethnic Albanians in Presevo Valley (southern Serbia) formed the Ushtria Clirimtare e Presheva, Medvegja e Bujanovc (UCPMB), an armed movement that mirrored the UCK. The movement sought to make Presevo Valley, a 5-kilometer-wide strip of land bordering Kosovo, a part of the province. Although the valley was situated in Serbia, the Yugoslav army had had to withdraw from it under the agreements with KFOR. The population was about 80 per cent Albanian. The UCPMB launched a guerrilla war pitting its forces against those of Serbia.
What is the status of this situation under IHL? What would be its status if the allegations that the UCPMB was equipped and financed by the UCK were true? If the UCK had overall control on the UCPMB? What were KFORs and UNMIKs obligations towards the UCPMB? (GC I-IV, Arts 1-3; P II, Art. 1)
35. In the Former Yugoslav Republic of Macedonia, the Albanian minority considered that it was not equitably represented on State bodies. There were few Albanian-speakers, for example, in the security forces, even in areas where Albanian-speakers lived in majority. On 16 February 2001, the UCKM (the Macedonian faction of the UCK) started to occupy a few Albanian-speaking villages situated near the borders with Kosovo and Serbia. In March 2001, it started to promote the secession of the north-western part of Macedonia and its Albanian majority. On 14 March 2001, during an Albanian demonstration on the streets of Tetovo, a dozen UCKM members dispersed among the demonstrators shot at the police. The next day, the UCKM shelled the centre of Tetovo, which was controlled by Macedonian forces.
a. How would you qualify this situation under IHL? How would it be qualified if the allegations that the UCKM was equipped and financed by the UCK were true? If the UCK had overall control on the UCKM? (GC I-IV, Arts 2 and 3; P II, Art. 1)
b. Does IHL prohibit UCKM members from mixing with the demonstrators? From attacking, thus scattered among the demonstrators, the Macedonian police forces? (P I, Arts 37 (1)(c), 44(3) and 51(7); CIHL Rule 65)
36. Civilians suffered during hostilities, in particular in the Tetovo region, where it was extremely difficult to obtain food, medicines and other basic necessities. Hundreds of people were forced by the fighting to flee their homes. Issuing an ultimatum, the Macedonian security forces encouraged the Albanian-speaking civilians to leave the villages controlled by the UCKM so that they could attack the combatants without endangering the civilian population. The UCKM often prevented the civilians from leaving.
a. Were the Macedonian authorities obliged to allow supplies into the villages controlled by the UCKM? What prior conditions could they set? Would those conditions have been realistic? (GC IV, Art. 23; P I, Art. 70; P II, Art. 18(2))
b. Were the authorities efforts to make civilians living in the villages controlled by the UCKM flee lawful under IHL? (GC IV, Arts 49 and 147; P II, Art. 17)
c. Can the UCKM prevent civilians from leaving the villages it controls? (P I, Arts 51(7) and 58; CIHL Rules 22-24)
37. On 13 August 2001, after seven months of clashes between the UCKM rebels and the security forces, all the parties concerned signed a peace agreement that provided for enhanced rights for the Albanian-speaking minority, the disarmament of the UCKM and an amnesty for the rebels. On 22 August, the first NATO contingents were deployed in Macedonia as part of Operation Essential Harvest, to collect the rebels weapons. The first UCKM weapons were collected on 27 August 2001.
[The length of this case study reflects the endless waves of conflict that ravaged the Balkans for many years. The authors are hopeful that future events will not add to it.]
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