The International Criminal Tribunal (ICTY) for the Former Republic of Yugoslavia (FRY)

was established by United Nations Security Council Resolution 827,1 pursuant to UN

Security Council Resolution 8082 in order to prosecute “persons responsible for serious
violations of international humanitarian law in the territory of the former Yugoslavia since
1991.3 As a result of criticisms of the NATO bombing of FRY from 24 March to 9 June
1999,4 the then Prosecutor, Louise Arbour (from Canada, a NATO member) established
a Review Committee to “assess whether or not there is a sufficient basis to proceed with
an investigation into some or all of the allegations or into other incidents related to the
NATO bombing”.5 The Review Committee was set up within the context of the
Prosecutor’s wide-ranging rights under Article 18 of the ICTY statute to initiate
investigations “ex officio or on the basis of information obtained from any source”. The
Committee’s opinion was not binding on the Prosecutor, who has the sole authority to
make a judgment on whether an investigation should be initiated.

The ostensible purpose of the NATO bombing campaign was to prevent further ethnic
cleansing and genocide in Kosovo by the forces of the FRY and the primary purpose of
the ICTY was to investigate crimes committed during the conflict in the former
Yugoslavia. However, the ICTY Statute does not set an end-date limiting when alleged
crimes can be investigated or prosecuted, nor does it set a limit on the nationalities of
individuals that it can prosecute. As a result, by accident or design, the ICTY has legal
competence to investigate alleged NATO war crimes. Ultimately, however, the
Committee Report (hereinafter “the Report”) recommended that “no investigation be
commenced by the OTP in relation to the NATO bombing campaign or incidents
occurring during that campaign” 6 and this recommendation was followed by the
Prosecutor.

The purpose of this essay is to examine the purpose and credibility of the Committee
decision from a number of different angles. It will look at the political situation
surrounding the Committee’s deliberations, the overall quality of the report that was
presented, including the parameters that the Committee was set and that it set itself,
before taking two of the five instances reviewed by the Committee and assessing the
judgment that was made. This will lead to a conclusion regarding the actual aim of the
Committee being established and whether or not this aim was achieved.

Political Context

1
S/RES/827 (1993, adopted 25 May 1993).
2
S/RES/808/ (1993, adopted 22 February 1993).
3
S/RES/808/ (1993, adopted 22 February 1993, paragraph 1).
4
The various allegations are enumerated in Final Report to the Prosecutor by the Committee Established to Review the
NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000.
5
Ibid, Paragraph 3.
6
Ibid, Paragraph 91.

1
It appears beyond question that serious breaches of international humanitarian law and
war crimes took place on the territory of the FRY both before and during the conflict in
Kosovo. From a moral, professional and political perspective, the two Chief Prosecutors
(Arbour from 1996 until 15 September 1999 when Del Ponte took over) had a duty to
ensure that justice was done and seen to be done, to the extent that this was possible.
The dividing line between the possible and the impossible appears to have been
unequivocally circumscribed by NATO from the outset. At a NATO press briefing in May
1999, NATO Spokesman Jamie Shea pointed out that the Tribunal’s activities were only
possible if NATO permitted them from a practical (“I believe that when Justice Arbour
starts her investigation, she will because we will allow her to“7) and from a financial
(“NATO countries are those that have provided the finance to set up the Tribunal, we are
amongst the majority financiers”8) perspective. This makes clear the risks that the whole
process in the ICTY would have run, had a decision to launch an investigation into NATO
activities been taken.

It must be remembered also that the deliberations of the ICTY happened at the same
time as discussions regarding the Rome Statute on the International Criminal Court, and
the US position on its own citizens being subject to the ICC’s jurisdiction were (and are)
very clear. The US Ambassador-at-large for War Crimes Issues was unequivocal - “It is
simply and logically untenable to expose the largest deployed military force in the world
[…] to the jurisdiction of a criminal court […] whose authority over U.S. citizens the
United States does not recognise”.9

Bearing in mind:

a. the position of the US regarding the ICC (and what one could therefore expect of
the US, if the ICTY were to try to prosecute it),
b. the unsubtle description of the ICTY’s subservience to NATO provided by Jamie
Shea,
c. the practical difficulties of the ICTY carrying out an investigation on possible war
crimes by NATO,

there appear to have been formidable and intimidating barriers to an investigation being
launched, barriers of a magnitude that could have risked the very existence of the
Tribunal.

Report quality

The fact that the document is not dated and the authors are not listed cannot fail but to
give the impression that the Report is not intended to be seen as a serious legal text.

7
Press Conference Given by NATO Spokesman Jamie Shea and SHAPE Spokesman Major General Walter Jertz, 16
May 1999.
8
Ibid.
9
Scheffer, David J, “The United States and the International Criminal Court”, The American Journal of International Law,
Vol 93, No. 1, (Jan 1999), P.18.

2
The choice of words, sometime inappropriate, and once simply wrong, is worthy of note,
particularly as it consistently points towards a particular point of view and a US/UK
perspective. Judicial diligence, if nothing else, should ensure that everything is done
both to be impartial, but also to be seen to be impartial. One has to wonder, therefore,
about the wisdom of the authors using both imperial measures (used only by the US and
UK among the NATO coalition in Kosovo) and American English (“plowed” for example,
although the use of American English is not consistent throughout the document) in their
final Report.

Similarly, the Committee Report chooses to mirror NATO use of particular militaristic
words used to describe possibly non-military objects. For example, lines of vehicles, are
referred to in the Report as “convoys”10 (a convoy being described inter alia by the
Oxford English Dictionary as “an armed force accompanying or escorting any person or
persons, goods, provisions, or munitions of war; a protecting escort”). This, whether
deliberately or not, creates the impression on the part of the reader that the object of the
attack in question appeared to be a military (and therefore legitimate) target. It seems
appropriate, bearing in mind the purpose of the Report, to use a more neutral term, in
order to avoid giving the impression of bias.

Similarly, the word “complex” as used in the Report, implies military or infrastructure
value, and is consequently an inappropriate word, as in paragraph 65 where a “complex
of buildings”, is referred to in the Committee analysis of the attack on the Djakoica
“convoy”. While the target could have been described as a “group of buildings” or a
“cluster of houses”, the Committee uses a collective term that, according to the Oxford
English Dictionary, means “a whole comprehending in its compass a number of parts,
esp. (in later use) of interconnected parts or involved particulars; a complex or
complicated whole”. There was no evidence at all in the Report that the buildings in
question were a “complex” according to the ordinary meaning of the word. Again, it
seems reasonable to argue that an attack on a “complex of buildings” appears
significantly more valid from a military perspective than bombing a “group of buildings”
and, consequently, a more neutral term would have been more appropriate in the
circumstances.

Similarly, the Committee found it appropriate to quote US Deputy Defence Secretary

Harmre as he described the problems facing the pilot who twice hit a passenger train as
it “raced to the aim point”.11 While the report does concede that there was “some
doubt”12 about the version of events presented by NATO, the reality was that the video
used by NATO as evidence that the train “raced”13 towards the bridge had been speeded
up by a factor of at least 2.7, a fact that was known for six months prior to the publication

10
Such as “the journalists convoy Prizren-Brezovica Road” in paragraph 9.
11
Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the
Federal Republic of Yugoslavia, 13 June 2000, Paragraph 59.
12
Review Committee Report, Paragraph 60.
13
Review Committee Report, Paragraph 59

3
of the report.14 Particularly bearing in mind that the NATO evidence, as will be described
below, was given such credence, use of testimony that was demonstrably false was a
very curious choice – and the fact that the Report’s only description of the train moving
towards the bridge was a NATO General’s choice of words saying that it “raced”15
appears negligent, at best.

Perhaps the oddest choice of words of all is reserved for the Report’s analysis of
“proportionality”. Paragraph 48 explains “for example, bombing a refugee camp is
obviously prohibited if its only military significance is that people in the camp are knitting
socks for soldiers. Conversely, an air strike on an ammunition dump16 should not be
prohibited merely because a farmer is plowing a field in the area”. The “mere” (meaning
“insignificant, ordinary; inadequate, feeble” according to the Oxford English Dictionary)
immediate risk of the loss of the life of the innocent civilian appears, according to the
words chosen by the Committee, not a proportionate reason to stop a bombing attack.
In keeping with the curiously low standards of the Report, the word “conversely” is used
incorrectly, as the opposite of “obviously prohibited” is “obviously permitted”, which does
not appear to be what the authors are trying to say.

The basis of the Committee’s final recommendation is also somewhat bewildering. The
Report explains that, “in all17 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”.18 It is difficult to understand how the drafters of the Report could fail
to see the contradiction between their own description of their terms of reference,
namely to “assess the allegations and material accompanying them, and advise the
Prosecutor and Deputy Prosecutor whether or not there is a sufficient basis to proceed
with an investigation into some or all the allegations or into other incidents related to the
NATO bombing”,19 and then basing one of its two reasons not to launch an investigation
on an issue that it was not asked to consider – namely whether the law was sufficiently
clear to permit a prosecution. The other pillar on which the Report’s recommendation is
based is scarcely more credible – having not obtained clear information from NATO and
not having “spoken to those involved in directing or carrying out the bombing
campaign”,20 and not having even tried to obtain information from the FRY authorities21, it
is very difficult to imagine how the Committee could have come to an informed decision

14
AFP, “NATO used speeded-up film to excuse civilian deaths in Kosovo” 06 January 2000, using news broken by
Frankfurter Rundschau on the same day.
15
Review Committee Report, Paragraph 59
16
It seems reasonable to assume that the example of an ammunition dump was chosen due to the increased risk to the
innocent civilian from an explosion – otherwise the Review Committee would have referred to a generic “military
installation”.
17
Emphasis added.
18
Review Committee Report, Paragraph 90.
19
Review Committee Report, Paragraph 3.
20
Review Committee Report, Paragraph 90.
21
Review Committee Report, Paragraph 7.

4
that investigations were “unlikely to result in the acquisition of sufficient evidence”. As
Natalino Ronzitti22 points out, a “quick perusal of these provisions makes it clear that the
Prosecutor enjoys substantial powers for collecting evidence and that the Committee’s
conclusion is unduly pessimistic”.

Evidence Gathering

It would appear reasonable to expect that the Review Committee would take a
completely neutral position towards NATO when assessing the liability of any of its
members. Instead, the Report stated both that it relied “heavily”23 on NATO press
statements and did not solicit evidence from the FRY, 24 thus undermining the very
semblance of objectivity, perfectly in keeping with the linguistic analysis above.

The Report admits relying heavily25 on NATO press statements at a time when one of
NATO’s primary concerns was ensuring unity because “it seemed possible that NATO
unity might crack before Yugoslav morale did”.26 The propaganda needs of the NATO
alliance were publicly stated on numerous occasions and the need for preserving the
alliance intact meant, possibly even more than in a normal conflict, news management
was of central concern to those involved in the military operation. It is hardly cynical to
suggest that NATO news reports, in such circumstances, were unlikely to be entirely
reliable sources of factual evidence.

On 14 October 1999, the US Department of Defense listed five reasons that there were
why Milosevic “acquiesced” in the end. These included the solidarity of the NATO
alliance, and the “increasing public discussion [in the FRY] of the possibility of and
planning for the use of ground forces”.27 The same document listed NATO’s credibility as
one of only three strong interests at stake during the Kosovo crisis. In a situation where
NATO solidarity (where public opinion in the weakest link of the chain was obviously
crucial) and the perception of NATO’s credibility were openly described by leading NATO
countries as being crucial to the war effort, it seems somewhat less than diligent to place
as much faith in their news releases as the Review Committee did. Indeed, it seems
illogical to place so much faith in press statements of NATO, and yet to ignore or treat as
insignificant the many statements made by NATO regarding the crucial importance of
public opinion for their military efforts.

22
Ronzitti, N, “Is the non liquet of the Final Report by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia acceptable?”, International Review of the Red Cross, No 840, pp 1017-1028.
Quotation taken from online edition which does not have page numbers from the print edition.
23
Review Committee Report, Paragraph 7.
24
Ibid.
25
Review Committee Report, Paragraph 7.
26
Fromkin, D, “Kosovo Crossing”, The Free Press, New York 1999, Prologue.
27
United States Department of Defense, “Joint Statement on the Kosovo After Action Review”, Joint statement on the
Kosovo After Action Review presented by the Secretary of Defense, William Cohen and General Henry Shelton, Chairman
of the Joint Chiefs of Staff, before the Senate Armed Services Committee, 14 October, 1999.

5
Even more suspect, when one considers that the outcome of the Report was that there
was that investigations were “unlikely to result in the acquisition of sufficient evidence to
substantiate charges against high level accused or against lower accused for particularly
heinous offences”, was the admission that attempts to obtain information about specific
incidents from NATO provoked answers that were “couched in general terms and failed
to address the specific incidents”. If one judges NATO by the British government’s
subsequently oft-stated standard that “if you have nothing to hide, you have nothing to
fear”,28 NATO’s unwillingness to provide the requested information takes on a sinister air.
This appears to have raised little or no suspicion among Committee members. On the
other side of the coin, there is an absence of any statement regarding similar reliance on
FRY press statements.

Attack on a Civilian Passenger Train at the Grdelica Gorge

On approximately noon29 on 12 April, 1999, a NATO aircraft launched an attack on a
bridge that, according to NATO, was a valid military target. When the pilot launched the
first bomb, a passenger train was just arriving at the bridge. There is no evidence that
the pilot knew the train was arriving. The bomb hit the train just before it reached the
bridge, resulting in significant damage to the train but none to the bridge.

According to the Review Committee’s description of what happened, the pilot then
targeted the other side of the bridge, as it was still intact. Subsequently, because the
train, after it “raced”30 to the bridge, had moved forward “as a result of the original
impact”31 (and not, apparently, because a racing five-carriage train might have had some
momentum when it was struck), the vehicle was struck for a second time. For
comparison, a British intercity train travelling at 160km per hour would need 1.6
kilometres32 to stop when applying maximum braking power – yet the fact that the train
moved forward several metres after impact was described by General Clark as “an
uncanny accident”.33 Furthermore, it should have been obvious that any part of the train
which ended up on the bridge after the first attack would have been in serious danger of
falling into the gorge beneath if the bridge was damaged by further bombing.

28
UK Foreign Minister Jack Straw has made this assertion in a wide variety of circumstances and forums, in relation to
Saddam Hussein and weapons of mass destruction, the introduction of ID cards in the UK, etc. For just one example, see
Happold, T, Straw warns against interference in Iran”, The Guardian, 17 June 2003.
29
Federal Republic of Yugoslavia Committee for Compiling Data on Crimes Against Humanity and International Law,
“Attacks on Civilian Transport Means”, Undated document available from http://www.gov.yu/cwc/ transpor1.htm (last
visited 25 March 2006).
30
Review Committee Report, Paragraph 59
31
Review Committee Report, Paragraph 58
32
Railway Technical Web Pages, “The Development and Principles of UK Signalling”, undated document available at
http://www.railway-technical.com/sigtxt1.html#ASafeBrakingDistance, last visited 25 March.
33
Review Committee Report, Paragraph 59.

6
From the perspective of the pilot and the NATO control team that was monitoring the
mission, there could logically only have been three possible outcomes from the second
bomb being dropped. It would either miss both the bridge and the train, or hit either one
or the other. In the best case from NATO’s perspective, the bridge would have been
blown up – inevitably resulting in reduced access for rescuers to the casualties of the
first bomb. Bearing in mind:

1. the inaccuracy of the first bomb

2. the likelihood that momentum would have brought the train onto the bridge
3. that the bridge was only 50 metres34 long, meaning that the margin of error was
minimal and
4. that significant casualties were likely to have occurred when the train was first hit,

it stretches credulity somewhat to believe that Article 57.2 a.ii (“all feasible precautions
shall be taken”), 57.2.a.iii (“refrain from deciding to launch an attack which may be
expected to cause incidental loss of civilian life”) and 57.2.b of Additional Protocol I35
(“An attack shall be cancelled or suspended if [..] the attack may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects […]which
would be excessive in relation to the concrete and direct military advantage anticipated”)
were not breached by the decision to launch the second bomb.

The general approach concerning mens rea is described in Article 30 of the Statute of
the International Criminal Court, which the US signed, subsequently “unsigned” and,
therefore, never ratified. A person shall be criminally liable if he has “intent and
knowledge (30.1) and, in relation to a consequence (as in this case) “if he is aware of
what will occur in the normal course of events” (Article 30.2.b). As explained above,
there were only three options in relation to the normal course of events and only one, the
only one which could not possibly have been intended (that both the bridge and train be
missed), would not have lead to disproportionate harm to the civilians on the train.

General Clarke described the role of the pilot’s superiors in the attack, saying that he
“talked to the team who [sic] was directly engaged in this operation”.36 The question
has to be asked as to why there was no testimony from that team regarding what
happened, and why none appears to have been sought. Under Article 28 of the ICC
statue, the military commander or person acting in that capacity who fails to take
necessary steps to prevent a crime from happening is individually criminally liable. In
the same vein, Article 86 of Additional Protocol I states that “the fact that a breach of the
Conventions or of this Protocol was committed by a subordinate does not absolve his
superiors from penal or disciplinary responsibility”, while Article 7.1 of the ICTY statue
states that a person who takes part in the “planning, instigation, ordering, aiding or

34
Review Committee Report, Paragraph 62.
35
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol 1)
36
Review Committee Report, Paragraph 59, Emphasis added.

7
abetting of a crime shall be individually responsible for the crime”, and Article 7.2
removes immunity due to official position of the accused.

The Review Committee’s task was to establish (according to Paragraph 5 of the Report)
if there was “credible evidence tending to show that crimes within the jurisdiction of the
Tribunal may have been committed”37). The Report indicates that there were divided
opinions about the “element of recklessness involved”,38 in this incident. It is unclear
how the Committee could have members who had significant concerns regarding the
element of recklessness involved in this attack, which left ten or more people dead and
fifteen seriously injured39, but yet conclude that there was no evidence which even
tended to show that a crime may have been committed.

Attack on the RTS TV Station

On 23 April, at 2am, NATO bombed RTS, the state owned television station, in the
centre of Belgrade, resulting in the deaths of between 10 and 17 people.40 The aim of
the attack appears to have been clear, as various senior representatives of the NATO
forces both before and after the attack made it clear that they considered the Serbian
media to be a legitimate target.

On 8 April, Air Commodore Wilby warned that the RTS was a legitimate target as it was
“an instrument of propaganda and repression”41 and that it could only change this if it
provided a specified minimum amount of air time to Western news coverage. This
position was subsequently reiterated by French General Kelche42.

Subsequent to the attack, NATO leaders made it clear that they viewed attacks on media
installations as being militarily justified. The Committee itself quotes Tony Blair as
reiterating the threat that “TV studios would be targeted”43 unless a certain amount of
time was devoted to Western news broadcasts”. A similar statement was made by then
British Minister Clare Short, who said that, “the propaganda machine is prolonging the
war and it's a legitimate target”.44 This open-ended threat to civilian installations falls
disturbingly close to the US military definition of terrorism as “calculated use of violence
or the threat of violence to attain political or religious ideological goals through
intimidation, coercion, or instilling fear”.45

37
Emphasis added
38
Ibid.
39
Review Committee Report, Paragraph 9
40
Ibid
41
Press Conference, by NATO Spokesman Jamie Shea, Air Commodore David Wilby and Commander Fabrizio Maltini,
SHAPE, 8 April, 1999.
42
Amnesty International, “NATO/Federal Republic of Yugoslavia, ‘Collateral Damage’ or Unlawful Killings? Violations of
the Laws of War by NATO during Operation Allied Force” June 2000.
43
Review Committee Report, Paragraph 74, quoting The Times.
44
Norton-Taylor, R, “Serb TV station was legitimate target says Blair”, The Guardian 24 April 1999.
45
See, for example, US Marine Corps, “Field Manual Domestic Support Operations”, 8 October 2004, p.123.

8
Bearing in mind that senior UK, US and French sources openly and without equivocation
stated that the television station, due to its civilian use as a propaganda tool, was a
legitimate target, it seems curious that the Committee does not question whether the
possible military benefits of the attack were incidental (and the attack therefore
unlawful), but rather whether the attack was excusable due to the military benefit gained.

The question which the Committee asked itself was whether, in line with Article 52 of
Additional Protocol I of 1977, the military value of the attack was high enough as to be
proportionate to the goals achieved. The Committee reached the judgment that the dual
use nature of the TV station, (which it does not question beyond the evidence given by
NATO) was sufficiently significant as to have been proportionate to the number of deaths
caused. The lack of obvious military benefit was explained by NATO was due to the fact
that the Serbian command and control system was “incapable of being dealt with in a
“single knockout blow”.46 This view is explained in detail in paragraph 78 of the Review
Committee report, which contains no less than nine quotations from NATO sources to
back up its view that an investigation was not necessary because “insofar as the attack
actually was aimed at disrupting the communications network, the attack was justified”.47

This position is not only curious in that it decides that a possible military benefit logically
must have been the reason for the attack being launched, but also because it assumes,
without any clarification, that this ostensible, assumed and unquantified benefit must
have been proportionate to the deaths caused. The proportionality requirement of Article
51.5.b of Additional Protocol 1 is not addressed. The report concludes on this point that
“assuming the station was a legitimate objective, the civilian casualties were
unfortunately high but do not appear to be clearly disproportionate”.48 In order to
measure the proportion between any two things, each thing needs to be quantifiable in
some form or another. It appears to be simply illogical to argue that a military objective
so diffuse that it needs to be “assumed” can be measured against a specific and
“unfortunately high” number of deaths and injuries and deemed to be proportionate.

Less than a month after the publication of the Report, the Guardian quoted US officials
interviewed for Jane’s Defence Weekly as saying that “planners assessed which parts of
the television and party building were most likely to contain the controls for fire alarms
and sprinkler systems and the missiles were programmed to hit these spots - they were
directed into the sixth floor and on to the roof - to increase the chance that any fire they
caused would spread”.49 The article goes on to quote a “senior US naval official“ who
highlighted the propaganda value of having a well-known and highly visible government
building lighting up the Belgrade skyline”50. This casts major doubts on the assumption
of the Report as to the attack having been for military rather than propaganda purposes.

46
Review Committee Report, Paragraph 78, quoting a NATO press conference.
47
Review Committee Report, Paragraph 75.
48
Review Committee Report, Paragraph 77.
49
Norton-Taylor, R, “NATO picked Belgrade Targets for propaganda targets”, 21 July, 2000.
50
Ibid

9
It also casts into serious question the extent to which evidence was seriously sought by
the Prosecutor or the Committee and the conclusion that an investigation was “unlikely
to result in the acquisition of sufficient evidence to substantiate charges”51.

It is also peculiar to note that the lack of a warning on the part of NATO is not given a
great deal of analysis in the Report. Article 57.2.c of Additional Protocol 1 requires that
“effective warning shall be given of attacks which may affect the civilian population,
unless circumstances do not permit”. The Reports conclusion is rather strange. It
states “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”.52 The fact that
Yugoslav authorities may have been partially responsible, suggests that NATO may also
have been partially responsible (in breach of Additional Protocol 1). Similarly, a fact that
“may suggest” that the implicit, unspecific and indirect advance notice was sufficient
suggests the need for further investigation, and is hardly a reason to draw a line under
an incident where between ten and seventeen human beings lost their lives. 53

The fact that Article 52.3 of Additional Protocol 1 states that, if there is “any doubt as to
whether an object which is normally dedicated to civilian purposes [...] is being used to
make an effective contribution to military action it shall be presumed not to be so used”
does not appear to have had a significant effect on the Committee’s views. It seems odd
that all doubt of the Committee was dispelled simply based on testimony from one side –
to the extent that the incident was deemed not to warrant further investigation. The
decision to accept as fact the NATO arguments becomes even odder when one
considers the clarity and sheer number of statements made saying that civilian media
were a legitimate target.

Criminal negligence by the Tribunal?

Judge Shahabuddeen makes some relevant points in his dissenting opinion on the
Hadzihasanovic54 case. This case involved assessing whether Mr Hadzihasanovic could
be held liable for failing to take action, upon taking command, against subordinates
known to have participated in criminal activities prior to his promotion,. Judge
Shahabuddeen argues that, while Article 7.3 of the ICTY Statute states that, when a
commander knows or has reason to know that a crime is about to be or is being
committed by a subordinate and must act, “there may but need not be a coincidence of
the superior/subordinate relationship with the commission of the act”.55 This, according
to the Judge, is backed up by Paragraph 56 of the Report to the Secretary-General on
the Establishment of the International Tribunal, which says that the imputed
responsibility of the superior is “engaged if the person in superior authority knew or had

51
Review Committee Report, Paragraph 90.
52
Review Committee Report, Paragraph 77, emphasis added.
53
Review Committee Report, Paragraph 71
54
Hadzihasanovic and Kubura, Case IT-01-47
55
Article 28 of the Dissenting Opinion.

10
reason to know that his subordinates were about to commit or had committed crimes
and yet failed to take the necessary and reasonable steps to prevent or repress the
commission of such crimes or to punish those who had committed them”.56

The legal basis for making an individual liable for failure to punish crimes committed in
his absence and outside his control appears also in the Mucic case (“a duty is placed
upon the superior to exercise this power so as to prevent and repress the crimes
committed by his subordinates, and a failure by him to do so in a diligent manner is
sanctioned by the imposition of individual criminal responsibility in accordance
with the doctrine57). Similarly, in the Kordic and Cerkez58 case the judgment stated that
“it is necessary to prove that he ‘knew or had reason to know’ of the offences and failed
to act to prevent or punish their occurrence”.

If we accept, therefore, that there was at least the likelihood that there was a case to be
answered by the NATO countries involved in the Grdelica Gorge and RTS cases, as well
as the other cases listed in Paragraph 9 of the Report, it is the Review Committee (and,
therefore, the Prosecutor) that knew or had had reason to know that offences had taken
place and had failed to punish (or even properly investigate) their occurrence.
Furthermore, they failed to create a legal environment where such offences were less
likely to be committed in the future. As a result, using the same logic as the ICTY used
in some of its own judgments, there appear to be realistic grounds for arguing that, both
morally and legally, the Review Committee (and, consequently, the Prosecutors) could
be considered guilty of a breach of Article 7.3 of the ICTY Statute.

Conclusion

The Prosecutors, first Arbour and, subsequently, Del Ponte, needed somehow to answer
the allegations that NATO had committed war crimes during the campaign against the
FRY. They had to do this while maintaining the long-term future of the Tribunal and their
own credibility. It appears likely that the long-term survival of the Tribunal would have
been put in question had the Prosecutor decided to launch a serious investigation
against activities carried out under the NATO umbrella, and most particularly if the
investigations covered US missions.

At the same time, if the Prosecutors had personally provided analysis of why a
prosecution should not take place when there is so much evidence to the contrary, their
credibility would have risked being seriously undermined. This too, would have risked
damaging the credibility of the ICTY. Consequently, the creation of an anonymous
committee to divert and diffuse the criticism of the decision not to take action appears to
have been the most politically astute, and possibly the only, option.

56
Article 29 of the Dissenting Opinion.
57
Appeals Chamber, February 20, 2001, para. 197, 239, emphasis added.
58
Trial Chamber, February 26, 2001, para. 369.

11
The Review Committee Report appears to go out of its way to provide clues that its
Report should not be considered a serious legal text. These include the fact that the
authors are not named, that the document is not dated, the linguistic anomalies, poor
and inconsistent drafting and the tenuous reasoning behind the overall decision to
recommend that no investigation should be undertaken. On this basis, there is strong
evidence to support the argument that the Report is political, rather than a legal
document, which aimed to make the best out of a difficult situation. Ms Del Ponte’s
forced withdrawal from the International Criminal Tribunal for Rwanda, which she claims
came about due to her efforts to investigate both sides in that dispute gives credibility to
this analysis.59

In summary, if the purpose of the Review Committee was to provide a coherent,

consistent and credible review of the NATO bombing campaign in the FRY, it failed in
this task. If it was a political tool designed as a compromise in order to allow Yugoslav
war criminals to be prosecuted, albeit while leaving possible NATO crimes unpunished,
then it fulfilled its role as well it could have.

“Impunity cannot be tolerated, and will not be.

In an interdependent world, the Rule of the Law must prevail."

Kofi Annan, at the ICTY 1997.

59
Edwards, S, “Del Ponte says UN caved in to Rwandan Pressure”, National Post, September 17, 2003

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