Monday, 26 January, 2004

The ruins of the Radio Television Serbia (RTS) building in Belgrade, bombed on 23 April 1999. Below: NATO cluster bombs aimed at an airfield target in the Yugoslav city of Nis accidentally hit a residential area on 7 May, 1999.   - listen to the interview,  3´45

Former Dutch leaders are to appear in court today to answer questions about their role in the 1999 NATO bombing of the Serbian state radio and television building in Belgrade, in which 16 people died, and the cluster bombing of the city of Nis, which claimed 14 civilian lives. Dutch aircraft took part in the sustained US-led bombing campaign that forced an end to the Milosevic government's ethnic cleansing of the Serbian province of Kosovo.

Among those testifying today are former Prime Minister Wim Kok, former Defence Minister Frank de Grave and former Foreign Minister Jozias van Aartsen. The court is to judge whether the two NATO attacks violated the principles and norms of international humanitarian law and whether the Netherlands might be held responsible.

Avril McDonald is an international justice expert from the Asser Institute in The Hague. In this interview with Radio Netherlands, she asserts that the Belgrade TV station was a legitimate target and that the question of responsibility is much more elusive.

"I think there was probably not a violation, the orthodox view – and I think the court would reach this conclusion – being that a radio-TV station is a legitimate military target. It relays communications amongst the enemy, it relays propaganda, and for that reason it's a legitimate target."

"Now, that's in the abstract. In this particular case, let's look at the facts. The bomb was dropped following I understand a warning given to the state and to the owners of the television station that the bomb would be dropped. This was subsequent to an apparent request that the station should give equal time to the allied propaganda as well as to Serbian propaganda. Besides, the bomb was dropped overnight. Given all of those facts, I think that this was not a war crime."

RN: "What about the cluster bombing of Nis which is also claimed to be a violation of humanitarian law. Do you think they have a case there?"

"It's a tricky question, for the simple reason that the law has just changed regarding cluster bombs. There's just been the adoption of a new prohibition on the use of cluster bombs. At the time of the Kosovo war of course, there was no such prohibition. So, certainly under conventional law, when they dropped those bombs, in principle the use of the bomb in a non-discriminate way would not be a violation of conventional humanitarian law."

Summoned to court: former Dutch Defence Minister Frank de Grave and Prime Minister Kok and

"Now, of course some might argue that the adoption of this new protocol on cluster bombs was simply recognising a pre-existing customary norm, so at the time of the Kosovo war, these were already banned."

"I think you also need to look at the way that the bombs were dropped. A cluster bomb is an inherently indiscriminate weapon in fact, which is why they have now been banned. But of course, if you were to drop a cluster bomb on an isolated military target where few, if any, civilians were killed, I think that this in principle would not be have been a violation at that time."

RN: "Suppose the court decides that it was a violation, that these were illegitimate civilian targets and not military targets, does that make the individual Dutch ministers responsible for these acts?"

"There are many legal questions which would have to be considered in this case of course. One of them indeed would be the responsibility of coalitions. The Netherlands was only one of all of the NATO states that took part in this operation. The law has developed based on the actions of states acting alone rather than in coalitions, and the law relating to the responsibility of individual members of a military coalition is not entirely settled."

"Nevertheless, I think it would not be unreasonable for a court to find that the member states of a coalition are responsible for collective decision-making. If in this case it has been suggested that the Dutch were actually kind of out of the loop and that the planning was taking place at the Pentagon, I still think there would be residual liability because of the very nature of being a member of the coalition."

"To me, it's a completely separate issue whether they communicate amongst each other as to what targets they bomb. That's not a legal question as far as I'm concerned, that's just a question of bad communication. I mean, of course, the whole point of coalition warfare doesn't mean that it gives individual states carte blanche to do what they want in an individual capacity. Of course not. Every state would always remain individually responsible for whatever it does. There might just be another layer of responsibility as well."

"So, it's not unforeseeable that the court could recognise that and there has been very limited jurisprudence to support this position: in Germany, for instance, and in Greece. It would be a brave step of the Dutch court to find this, but it wouldn't be an unprecedented step."