This Article addresses the report by the Office of the Prosecutor (OTP) of the International Criminal Tribunal for the Former Yugoslavia (ICTY) concerning war crimes allegedly committed by the North Atlantic Treaty Organization (NATO) during the conduct of its war with Yugoslavia. International law regarding the conduct of war, or jus in bello, governs what are popularly thought of as “war crimes.” This body of law is currently in flux; while the OTP is not in any sense a rule-making body, its actions may give some guidance as to the direction that the development of this body of law will follow.The OTP considered NATO attacks on twenty-one targets in Yugoslavia as possible violations of existing jus in bello norms. The OTP categorized the issues raised by the accusations under the headings of environmental damage, use of depleted uranium projectiles, use of cluster bombs, and improper target selection. The first and last categories have the potential for the greatest impact on the formation of normative expectations regarding the conduct of war. The fourth problem can also be divided into two major subcategories: problems of discrimination and problems of proportionality. In each instance, the OTP found that NATO's actions did not violate existing norms, although in one instance the panel found itself divided. These outcomes were correct. The reasoning underlying the outcomes, though, is troubling. The rules of law it states and applies would exonerate not only NATO, but also the perpetrators of far more deliberate and destructive acts. The OTP seems to ignore the development of the jus in bello during the past decade, and perhaps during the past three decades. While the OTP is to be applauded for its decisions, its report nonetheless contains troubling assumptions about current normative expectations relating to the conduct of war.¶
Aaron Schwabach, Nato's War in Kosovo and the Final Report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, 9 Tul. J. Int'l & Comp. L. 167 (2001).