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Program 0015
April 11, 2000

This text has been professionally transcribed. However, for timely distribution, it has not been edited or proofread against the tape.

KENNETH ROTH: Clearly Belgrade does share some of the blame. But it nonetheless is fair to attribute roughly five hundred civilian deaths to NATO. Some of those are just accidents. I mean, there are deaths that occur in any war. But up to half of them were not just accidents. They were accidents that could have been avoided.

KRISTIN MCHUGH: This week on Common Ground, assessing the aftermath of war in Kosovo.

SCOTT CARLSON: A lot of the players who’ve been out there collecting this information have been protective of that information, and there’s very good reason for that. They want to make sure that the confidentiality of the witnesses who are giving their testimony is preserved and protected.

KEITH PORTER: Common Ground is a program on world affairs and the people who shape events. It’s produced by the Stanley Foundation. I’m Keith Porter.

MCHUGH: And I’m Kristin McHugh. One year after the start of the NATO bombing campaign over Kosovo, the Western military alliance is still assessing the damage. A Pentagon review says the eleven-week campaign was “the most precise and lowest collateral damage air operation ever conducted.” But a recently released Human Rights Watch report disputes the Pentagon claim. Kenneth Roth is the Executive Director of Human Rights Watch. He says his organization’s findings show NATO didn’t do enough to keep civilians safe in Kosovo.

ROTH: The first thing that we did was to simply itemize the number of civilians who died as a result of NATO’s bombing campaign in Yugoslavia. And up until this point the Pentagon had refused to give a number of civilians killed. It had only given the number of incidents in which civilians died. It said there were twenty to thirty incidents. In fact, we found that there were ninety incidents and that there were approximately five hundred civilians who died as a result of a NATO bombing. And that is obviously much more than the Pentagon had admitted to; it’s significantly less than Belgrade had claimed, because Belgrade had talked in terms of the number of deaths being between 1,200 and 5,000. So we ended up somewhere in the middle. We’re quite confident that we are very close to accurate, because we actually have a list of the people who died, and we were able to visit the sites of many of those bombings and actually take testimony from witnesses or survivors.

We then began to analyze “why is it that these people died?” Since NATO appropriately had said that it would be doing everything feasible to try to avoid civilian casualties. And what we found was that in a series of decisions that NATO made, it actually didn’t do everything that it could have to avoid civilian casualties, and that, indeed, about a third of these incidents, and up to about half of the deaths, could have avoided had NATO done everything that it should have under international humanitarian law to avoid harm to civilians.

MCHUGH: How did they do that? I mean, how did they violate?

ROTH: Well, let me give you one example. There is an absolute duty on the part of any military force, and certainly NATO with its tremendous technological ability, to first of all aim only at military targets, not at civilians; and second, to use the means that would allow it with reasonable certainty to hit that military target, and not to hit civilians who happen to be nearby. Now one weapon that we know is distinctly not capable of that kind of precision is a weapon called cluster bombs. These are bombs that explode up in the air and release a series of little bomblets, several hundred bomblets, that scatter over a wide area. They’re great if you’re in the middle of a desert. But they’re not at all effective if you’re in an urban area, because a little puff of wind sends them sailing off into heavily populated areas, and many, many civilians died because these little bomblets are highly volatile, extremely explosive, and they kill anybody around them when they explode.

So what we found is that of the five hundred civilians who died of the NATO bombing, up to 150 of them died as a result of cluster bombs being used in urban areas or populated areas. The Pentagon knew that this danger existed. In fact, this was a danger that we had already pointed out during the Gulf War. Human Rights Watch actually put out a report in the middle of the Yugoslav War highlighting the ongoing danger of the use of cluster bombs. And we’re happy to report that President Clinton issued a secret executive order just two days later, in which he prohibited US forces from continuing to use cluster bombs. So even the President understood the dangers involved. He probably was doing this more for political reasons than for legal reasons, but it’s a very important precedent that we want to highlight, because we believe that the only appropriate interpretation of the duty to everything feasible to avoid civilian casualties is not to use cluster bombs in urban areas. If President Clinton had taken that decision at the beginning of the war rather than in midstream, between ninety and 150 people would be living today.

MCHUGH: Can you blame all of the deaths, though, on the NATO air raids for the civilian deaths? There are reports that Yugoslavia used folks as civilian shields, basically.

ROTH: Yes. And in fact, what we try to do is to distinguish very carefully between civilian deaths who clearly are NATO’s responsibility, and other deaths that are more fairly attributable to Yugoslav forces. Let me give you an example. There is a prison in Kosovo called Dubrava Prison. And we found there that NATO bombs fell on it and killed initially nineteen people. And so we attribute those nineteen deaths to NATO. We then found that Serb and Yugoslav forces, trying to create a public embarrassment for NATO, went and executed eighty other civilians. Now, needless to say we don’t count those eighty against NATO. So clearly, Belgrade does share some of the blame. But it nonetheless is fair to attribute roughly five hundred civilian deaths to NATO. Some of those are just accidents. I mean, there are deaths that occur in any war. But up to half of them were not just accidents. They were accidents that could have been avoided, had NATO done everything that it should have to try to spare civilians the hazards of war.

MCHUGH: The report is really critical of the way that the Pentagon reported deaths throughout the war. Do you think that the Pentagon didn’t have enough information or was propaganda at play?

ROTH: On the one hand, clearly the Pentagon did not have the same kind of access to Serbia that Human Rights Watch did. We were given full access. We were able to travel anyplace we wanted, we were able to interview anybody we wanted to, and so, yes, we had had certain advantages in terms of collecting information over the Pentagon. That’s part of why the Pentagon has been so interested in seeing our information. But that doesn’t sum it up. Because the Pentagon indeed has tried to avoid the whole question of civilian casualties. They just issued—in fact the day after Human Rights Watch issues our report, the Pentagon issued what they called their “after action report,” which is their big analysis of what happened during the bombing campaign. And there was not a word in there about civilian casualties other than these summary statements: “This was the cleanest war ever,” which was blatantly false. I mean, for every bomb dropped in Yugoslavia, a civilian was twice as likely to die as a bomb dropped in Iraq. And there are a variety of reasons for that, but part of the reason is that NATO didn’t do everything it should have to spare civilians.

MCHUGH: Well, five hundred deaths, I mean certainly all of them are tragic, but that’s relatively a small number in comparison to the folks, the number of folks displaced because of that war. Don’t you expect to have some sort of casualty numbers that are civilians?

ROTH: Five hundred deaths was too much. Because a large number of them could have been avoided. But in no sense do I want to equate NATO’s wrongdoing here with the deliberate killing of Milosevic. Milosevic sent troops into Kosovo and executed people. He wanted people to die. NATO, on the other hand, clearly took substantial steps to try to avoid civilian casualties. And so we don’t claim that NATO’s violations of humanitarian law rose to the level of a war crime. They were not deliberate killings; they were not reckless disregard for the consequences of their actions. Nonetheless, there really are steps that could have been taken. I mentioned the cluster bombs. There were actually two other cases where, in the middle of the war, NATO took steps that we believe they should have taken at the beginning of the war, to try to protect civilians. And indeed, had they done it at the beginning of the war, again, many more civilian lives would have been saved.

One example is that we criticize NATO for being indifferent to the time of day when they were bombing in urban areas. Particularly bridges, which often are located next to market areas. And you know, with a target like that, that if you bomb during the day and miss, you’re going to hit a lot of civilians. Whereas if you bomb at night, where there’s nobody in the adjacent market, it doesn’t matter so much. Similarly, we criticize NATO for firing on mobile targets in Kosovo without really knowing what they were hitting. We’re all aware that the NATO planes frequently were flying at 15,000 feet in order to protect the pilot. Fair enough. But if that means that you don’t know what you’re striking at on the ground, you shouldn’t shoot. Simple rule. In Kosovo they didn’t follow that rule at the beginning, with several devastating results. One of the worst incidents we described was on the Jakivitza-Deconi Road, where NATO thought it was firing at a military convoy and it turned out it was firing at a civilian refugee convoy. Seventy-three civilians lost their lives there. That could have been avoided had NATO early on in the conflict applied the rule that by the end it was applying, which is that you don’t shoot until you know what it is. So these are the kinds of areas where decisions were made. These were not just accidents; these were decisions by NATO not to do everything that it should have, that it’s legally obliged to do, to avoid civilian casualties. And that’s why 500 civilian deaths are too many deaths, even given the magnitude of Milosevic’s crimes.

MCHUGH: Is NATO taking your report seriously?

ROTH: Fortunately they’re taking it very seriously. I’m very happy to report that. Lord Robertson, who is the Secretary General of NATO, could only say complimentary things about it when it came out. It was almost

embarrassing. Similarly, with Jamie Shea, the chief NATO spokesman, I debated him on the BBC, and he was, it wasn’t a debate. He was not arguing the facts. He was saying there were important lessons to be learned from this. The US Defense Department, the Pentagon, has been a bit more reticent. Secretary Cohen wanted to use our report on the day it was issued to show that in fact Milosevic was lying about the number of civilian dead. And fair enough, but he didn’t say anything about the importance of using our report to learn lessons about what NATO did wrong. That’s at the political level. At the working level, the people who actually engage in the targeting for the Air Force, they have taken this quite seriously. In fact, they’ve invited us in to discuss our findings in more detail. And I am guardedly hopeful that we can perhaps change the Pentagon’s doctrine in this area. We certainly are not for war. But war sometimes happens, and we want to make sure that in the next, inevitable war, that the steps that we’ve outlined are taken and so that people who might die if the Pentagon went in its traditional course, won’t have to die.

MCHUGH: Does NATO deserve some sort of punishment because of the violations that you’ve outlined in the report?

ROTH: Well, we did give our report to the war crimes prosecutor, Carla Del Ponte, in The Hague. And we urged her, quite publicly, to formally investigate what NATO had done. We think just as a matter of principle it’s important that that happen, given the magnitude of the NATO military action. But we didn’t find evidence of war crimes. And we say that quite explicitly. And the distinction between a violation of humanitarian law, which is to say, “you didn’t do everything you should have,” which we believe NATO did commit, and a war crime, is an important distinction. We just did not find evidence that would bring these violations to the level of a war crime, in that these decisions not to do everything that was maximally possible to protect civilian life, were nonetheless made in the context of quite extensive efforts to protect civilian lives. But to say that there were not war crimes committed is not to absolve NATO. That’s the important thing to stress. Because NATO has an obligation, short of criminality, just as a legal obligation, and I would say moral obligation, to do what it can to protect civilians.

MCHUGH: Some would argue that the report will make countries gun shy in the future for getting involved in humanitarian crises. Do you think that’s really going to be the case?

ROTH: I actually don’t think so. You know, that same argument came up in perhaps a more pointed form around the creation of an International Criminal Court, the global war crimes tribunal that was agreed to a year and a half ago, and is in the process of being established. And some people said, “NATO would never go to war if it might be subject to criminal jurisdiction by an international tribunal. And what’s interesting about that is that the Kosovo War shows that that’s completely untrue. Because although the International Criminal Court is not yet established, the Yugoslav War Crimes Tribunal has direct criminal jurisdiction over NATO for every bomb that it dropped in Yugoslavia. And that didn’t make them hesitate for a moment in going to war to try to stop the slaughter in Kosovo. So, it’s a—and it’s a nice argument that Pentagon officials like to make, because they obviously don’t like to be held accountable, criminally, or otherwise, but the fact is, they can live with it and they have lived with it.

MCHUGH: Is military intervention in humanitarian crises the answer?

ROTH: It is the last answer. In many ways, when you have to intervene militarily, you’ve failed. And Kosovo is a perfect example of this. We at Human Rights Watch were warning about the problem of Kosovo ten years ago. When, at that stage Milosevic gave his famous speech, and the autonomous status of Kosovo was dissolved, it was just absorbed into Serbia. And a series of repressive steps were taken that actually led most Kosovar Albanians to establish their own separate society, a sort of a parallel society, as a way of trying to avoid Serb repression. It was clear for a long, long time that there were serious problems on the horizon in Kosovo. So the fact that the international community didn’t use the economic and diplomatic tools at its disposal early enough and forcefully enough to avoid the need to go to military force, is a real political failure on the part of the West. That said, there are times when you do have to fight, I believe. And it should be rare, but the classic example I can think of is the genocide in Rwanda, when 800,000 people were slaughtered in the course of two-and-a-half months. It is a scandal that the United States not only refused to intervene, but actually blocked other people from intervening to stop that kind of slaughter, when in fact very little could have gone a long way in stopping that kind of killing. So while a human rights group like Human Rights Watch is very reluctant ever to call for the use of military force, we nonetheless will on rare occasion do so when we feel that it is the last available alternative to stop genocide or its equivalent.

MCHUGH: That is Kenneth Roth, the Executive Director of New York-based Human Rights Watch. For more information on the organization’s report on NATO activities during the Kosovo War, visit the Human Rights Watch Web page at

PORTER: Coming up, an international effort has been launched to see what lessons can be learned from NATO involvement in Kosovo.

CHARLES RUDNICK: The very issue of why the refugees left Kosovo; was it because of the NATO bombing or was it because of ethnic cleansing by the Serbian military, is used by both sides as sort of a political


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PORTER: Late last year the government of Sweden, with moral support from the United Nations, organized the Independent International Commission on Kosovo. The aim of the commission is to examine key

developments before, during, and after the Kosovo War, to see what lessons can be learned. Such lessons may help the world prevent wars like this in the future or, at a minimum, help international agencies better cope with the humanitarian crises created by war. Richard Goldstone of South Africa, one of the world’s most respected judges, chairs the commission. One of the greatest challenges facing the commission is collecting reliable data and creating easy ways for researchers to access that data. Today we are joined by three people working very closely on this aspect of the commission’s work. Mark Ellis is Executive Director of the American Bar Association’s Central and East European Law Initiative. That project is sometimes referred to as ABA-CEELI.

MARK ELLIS: I act as the commission’s legal counsel and the commission will meet a total of five times during the year. And then at the end of September we’ll complete a report to be distributed, to be widely distributed, but primarily to be given to the UN secretary-general.

PORTER: Mark, there are a lot of people, I guess, who would just say that in our fast-paced world, Kosovo is old news.

ELLIS: Right.

PORTER: Why do we need to spend time talking about what happened there?

ELLIS: Because the lessons learned in Kosovo is not old news. I think it’s exceedingly important to look in depth at some of the key issues that affected Kosovo, that affected the region. Everything from the issue of military intervention for humanitarian purpose, something quite new, quite unique. The issue of how the Kosovo War affected regional, neighboring countries. The issue of atrocities, getting some definitive picture of what happened with the atrocities.

PORTER: We’re also joined by two people here playing a key role in the Independent Commission, Charles Rudnick from the Chicago Kent College of Law, and Scott Carlson from the American Bar Association. Mark, tell us, before we hear from Charles and Scott, tell us about the role they’re playing.

ELLIS: The Commission does not really have a secretariat. It has to rely on outside experts to provide assistance to the Commission. As the legal advisor to the Commission, I approached Scott and Charles, knowing of their expertise in this area and their work in the area of human rights violations, and particularly their work in Kosovo with the war crimes documentation project. And I asked them if they would take the lead for the Commission in putting together this chapter. And it is, I believe, in my opinion, the most important chapter of the entire report, the most difficult, and I’m very pleased that they both agreed to do this. And we’re excited about the work that they’re doing.

PORTER: Charles and Scott, why don’t you tell us something about the role you’ve undertaken here and what steps you’ve taken so far to fulfill it. I’m going start with Scott.

SCOTT CARLSON: Our role started sort of by accident quite some time ago. ABA-CEELI has a number of rule of law programs going on in the Balkans, some in Serbia proper, as well as Bosnia. And when the war broke out, our rule of law liaisons had to leave, and they were actually taking a sort of a refugee status themselves in Macedonia and Albania, and looking for a new task. And what came up at the time was that there was a need to have assistance in interviewing of some of the refugees that were flowing out during the wartime. And the interviewing was basically looking for evidence of war crimes violations and other massive human rights violations. And we began working with domestic NGOs, both in Albania and Macedonia, with these liaisons, to interview them. We later began putting these interviews in a database which was developed both by the OSE and the State Department. And today we have about 2,000 interviews in this database.

Well, while we were in the process of putting this material into the database we basically discovered that the database was not necessarily a state-of-the-art database, and not particularly user friendly, and at the time I knew that Charles Rudnick and the folks at Chicago Kent had some resources that could help with the modification of the database. So I basically rang up Charles and suggested that we collaborate on some of these things and see if we could work out a bit more user-friendly database. Based on the initial results of our programming as well, simultaneously we got some additional funding from the US State Department which allowed us to expend some resources and engage in this sort of long-term database development program which we’re currently engaged in with Chicago Kent.

Maybe I should let Charles tell you a little bit about that database development program now.

PORTER: Okay. Charles, go ahead.

CHARLES RUDNICK: Sure. Well, you know our school has, is one of the only law schools in the United States affiliated with a technological institution, the Illinois Institute of Technology. As a result, we’ve developed some innovative programs that combine technology and law, through a new class we created called “An Interprofessional Project,” this brings together some of our technical students with our law students. And in the international arena we’ve used this interprofessional project, or IPRO, to have this coalition of students address problems and assist legal institutions in emerging democracies. This is when Scott and ABA-CEELI’s work and ours intersected. Our IPRO team had already been developing a sophisticated new database in connection with the International Red Cross and others for use in tracking refugee types of data. So when we, when Scott called and asked if we would get involved in the war crimes documentation project at ABA-CEELI we were more than delighted to use this as a chance to collaborate and to build on the experience that our team had already acquired in developing some sophisticated new databases. And so that collaboration was already in place when Mark asked Scott and me to head up the section on atrocities for the Independent International Commission on Kosovo. And Scott, maybe I can turn it back to you to explain a little bit more about what we were planning to do in that regard.

CARLSON: In addition to our own efforts there are a host of other players out there in the field that have been collecting information on atrocities. And what we’ve been attempting to do is identify all the existing reports and information out there and task various people with going through that, conducting an analysis of the reports, and summarizing those. So that we can bring together a holistic picture of what exactly occurred in Kosovo during this time of crisis.

RUDNICK: I might add that as we’re speaking our students back at Chicago Kent and our technical students are busy working on both aspects of our project. One the one hand they are collecting, in connection with some of our partners at Human Rights Watch and the Physicians for Human Rights, they are collecting all the available reports and data that they can about the human rights violations in Kosovo, and are beginning to analyze them and track the information collected there for purposes of our section of the Commission’s report. In addition, our technical team and our database team are meeting with another one of our partners, the American Academy for the Advancement of Science, in Washington, to make sure that our new and updated database will have the most sophisticated capabilities for statistical analysis.

PORTER: In your data collection, are you getting the cooperation you need from NATO or other authorities or KFOR or whoever you have to deal with there? Are you getting the cooperation you need?

CARLSON: I would say we have some additional ground to cover. I think that a lot of the players who’ve been out there collecting this information have been protective of that information, and there’s very good reason for that. They want to make sure that the confidentiality of the witnesses who are giving their testimony is preserved and protected. And we’ve done everything necessary to ensure that that confidentiality will be protected.

PORTER: Anything preliminarily at least in the data that you find surprising or interesting?

CARLSON: Throughout the summer we were processing this information and putting it into the database. Sometimes we were working an entire weekend keying in this information. And when you read story after story of atrocities, I’m not gonna say you become numb to it; you go through a number of different stages, from shock, disbelief, etc. And I think now I’m sort of in a recovery mode on that. I’m not, I’m not surprised by the new data that’s coming in from the other organizations. I would say it more tends to confirm what we already say in the preliminary stages.

RUDNICK: The very issue of why the refugees left Kosovo; was it because of the NATO bombing or was it because of ethnic cleansing by the Serbian military, is used by both sides as sort of a political tool. It’s using sort of a fact, refugee flows, and interpreting it in different ways for political purposes. And we hope that the Commission will be able to analyze all available data and draw some objective lessons learned to help

understand future conflicts.

PORTER: All right, Mark Ellis, when can we expect the full report from the Independent Commission on Kosovo?

ELLIS: The report will, should be finalized in October. The Commission will meet three more times. Its met twice now. And it has its next meeting in Budapest with our European colleagues. And then the report will, we will start to finalize the report from May on through the summer.

PORTER: That is Mark Ellis, Executive Director of the American Bar Association’s Central and East European Law Initiative. He is Legal Counsel to the Independent International Commission on Kosovo. We were also joined by Scott Carlson, of the American Bar Association; and Charles Rudnick, Assistant Dean for International Law and Policy Development at Chicago Kent College of Law. Carlson and Rudnick are the coordinators of data collection for the Independent International Commission on Kosovo. For Common Ground, I’m Keith Porter.

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