The Laws of War After Kosovo

Abstract

he 1999 Kosovo War between NATO members and the Federal Republic of Yugoslavia confirmed the importance of issues relating to the laws of war in contemporary conflicts, especially in coalition operations. It also exposed some problems in that body of law. A central issue in the war was the minimizing of civilian casualties. The NATO leadership recognized from the start that this was of major importance, for two main reasons: because the war was being fought with a stated purpose of protecting the inhabitants of Kosovo and also because international opinion would not have tolerated a war on civilians.1 An underlying question raised by the war is thus the extent to which international legal considerations and institutions can assist in protecting the civilian. The title of this paper calls for explanation. The terms “the laws of war” (jus in bello) and “international humanitarian law” are for most purposes interchangeable. They refer to the same body of law. Both terms are used in this paper. For most purposes I prefer the first of these terms, “laws of war” being older and simpler, and recognizing as it does that war is the central area of concern. However, the second term, “international humanitarian law,” sometimes with the suffix “applicable in armed conflicts,” is increasingly used in international diplomacy. In some usages, this term can also encompass relevant parts of the international law of human rights. The term may be particularly appropriate in reference to a situation (such as applied in Kosovo before March 24, 1999) in which there is no international armed conflict and only a