Last weekend I was due to travel to Varvarin in Serbia. A place where, on 30 May 1999, during the Kosovo war, two consecutive NATO airstrikes leaving 10 people dead and 30 injured. All of those killed and injured were civilians. Together with colleagues I had been representing survivors of the attack in a case before the German constitutional court since 2006, but this would have been my first visit to Varvarin.
How did the Serbian claimants end up taking a case before German courts? Shortly after the bombings, survivors and relatives of those killed – supported by a group of German peace activists – lodged a compensation claim against the German state with the regional court in Bonn, where the Federal Ministry of Defense has its headquarters. The claimants argued that the attack on Varvarin breached international humanitarian law and that Germany was therefore in violation of its obligations, even if the bombs were dropped by British or American planes. They pointed out that as part of the NATO North Atlantic Council, Germany had approved target lists that classified the bridge in Varvarin as a suitable NATO target.
The claimants argued that Varvarin was not a legitimate military objective and that the attack illegally targeted the civilian population. The Ministry defended the action by claiming the bridge could have been used for troop movements, a justification that fails to stand up to scrutiny. NATO for its part claimed that the attack, while a breach of international humanitarian law, was legitimate since the military alliance was acting out of humanitarian concerns. They were obliged to intervene, they argued, because of the grave human rights violations suffered by the Kosovar population. In other words, in order to save Kosovar civilians, bombs were dropped on Serbian civilians a few hundred kilometers away. None of these explanations are particularly convincing, particularly given that the attack was carried out in broad daylight and on Orthodox Pentecost, a busy market day, or given the many additional deaths caused by the second attack after people had run towards the bridge to come to the assistance of those that had been struck in the initial bombing.
NATO stands accused of a series of other similar attacks on civilians. Calls from Amnesty International and others for these war crimes to be investigated by the Tribunal for the former Yugoslavia have gone unheeded. In her memoirs, Carla del Ponte, Chief Prosecutor in The Hague at the time, writes that political pressure was the reason that no investigations were
launched into the attack.
So the Varvarins were left with little choice but to bring proceedings in Germany. They lost their case at the regional court, the higher regional court, the federal high court and finally, after 15 years of legal proceedings, at the federal constitutional court as well. The constitutional court was critical of the earlier court decisions but ultimately found the deficiencies to be of insufficient importance. Decisive factors for the court’s decision were that Germany was not directly involved in the bombing and that it could not be proven that Germany had concrete knowledge of the attack. The court rejected the claimants’ argument that all NATO states should be held jointly liable for the harm caused.
The decision marked a defeat for us, probably one we could have foreseen. But we console ourselves with the hope that the judgment might provide some useful arguments to the victims of the airstrike in Kunduz in September 2009 who are currently involved in proceedings at the higher regional court in Cologne. For the victims and relatives in Varvarin, however, the court’s decision represented a betrayal of the highest order.
I was forced to cancel my travel plans at short notice after heavy rainfall flooded the entire region, leading to a state of emergency and the cancellation of all planned memorial services. My presence there would have been more of a hindrance than a help.