The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia

Abstract

The author analyses the report on the NATO bombing campaign against Yugoslavia, prepared by the Review Committee created by the ICTY's Prosecutor, and observes that the recommendation that no investigation be commenced because ‘either the law is not sufficiently clear or investigations are unlikely to result in the acquisition of sufficient evidence’ appears prima facie questionable. The author points out the shortcomings of the Committee's ‘Work Program’ arising from the unbalanced evidence on which the Committee's statements are founded and by the restriction of the collateral damages of the campaign to the civilian casualties. Moreover, the Committee's assessment of general issues (damage to environment, legality of weapons, target selection, proportionality) shows a poor grasp of legal concepts, and deviates from well‐established ICTY case law. The Committee's assessment of specific incidents is also characterized by shortcomings: inter alia, the report frequently slips from the level of individual criminal responsibility to that of state responsibility. In his conclusion, the author observes that other fora are likely to verify some of the incidents occurring during the bombing campaign. Proceedings have started before the European Court of Human Rights and there are grounds for the European Court to affirm its jurisdiction.