CYIL vol. 8 (2017)

TUOMAS HEIKKINEN – MARTIN FAIX CYIL 8 ȍ2017Ȏ listed as a possible measure in the 2016 ICRC Commentary of the Geneva Convention I. 78 Since the MMOs often base their legitimacy on the wide array of participating states, the threat of non-participation appears as a suitable and effective measure. Secondly, and more importantly, there are measures of legal character. These refer to theTCSs’ possibilities of influencing the MMOs by acting through the formal decision-making process of the MMO. This is particularly important in permanent alliances with highly formalised decision- making processes and substantial predictability of the results, such as NATO. 79 In the case of NATO, the targeting decisions and approvals for selected targets have been done unanimously in the North Atlantic Council seating the representatives of all of the NATO member states. 80 Therefore, everyTroop Contributing State of NATOwould have a veto power over the “targeting” decisions. This would enable TCSs to ensure respect of the IHL by the other TCSs and NATO as a whole, probably making the proceedings through the formal decision-making process the most important tool for ensuring respect of IHL for the MMO. Under the obligations arising from Common Article 1 the States participating on a particular MMO would be obligated to refuse targets that they do not deem legal under international humanitarian law. However, the practice shows partially a different picture. NATO deploys national “caveats” when their TCS’ legal obligations are deemed different. 81 The TCS that deems certain targets unlawful would then exempt themselves from the operations and let other TCS carry out the mission. One example of this is the famous Serbian Radio and TV Headquarters that NATO bombed during its Operation Allied Force. The attacks were highly controversial and even France, one of the main troop contributing states to the NATO operation questioned the legality of the attacks. 82 However, despite their doubts, the French did not veto the targeting decision and the attacks were carried out, killing between 10 and 17 people. 83 It might be noted that should France have vetoed their own presence in the operation, it would have fulfilled obligations not to aid or assist breaches of IHL. However, as explained in the previous chapters, it would not have sufficed to fulfil France’s obligation to the “ensure respect” part of Common Article 1, since for the fulfilment of the obligation mere non-participation in actions deemed illegal under IHL is not sufficient. However, there are reports of numerous cases where the TCS was able to veto targeting decisions, which they deemed illegal despite other troop contributing states accepting them, 84 making it possible that in the end of the negotiations regarding the TV station strikes the French were just ensured of their legitimacy. On the other hand, during NATO’s International Security Assistance Force (ISAF) operation in Afghanistan the targeting procedure was quite different. TCSs were only able to veto their own participation in the operations that they deemed illegal under their domestic or international law and there were no possibilities of vetoing the decisions in the formal 78 HENCKAERTS. op. cit, p. 58. 79 For an analysis of this issue in the context of EU military operations see: FAIX, Martin. Mezinárodnoprávny rámec zahraničněpolitických misí Európskej únie. Praha: Univerzita Karlova, 2011, pp. 149-151. 80 NATO. Allied Joint Doctrine for Joint Targeting. April 2016 AJP-3.9 p. 3.1. 81 OLSON. op. cit., p. 656. 82 Human Rights Watch. The Crisis in Kosovo [online]. Hrw.org 2000 [cit. on 12 th April 2017] Available at: 83 International Criminal Tribunal for Yugoslavia. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia . para. 71. 84 PETERS, John E. et al., European Contributions to Operation Allied Force: Implications for Transatlantic Cooperation. Rand publications, 2001. pp. 28-29.

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