15

(iii) the ability to implement the Protocol.¹³

These criteria evidently restrict the applicability of Protocol II to conflicts of a certain degree of intensity. Thus, not all cases of non-international armed conflict are covered, as is the case with common article 3.

In light of all of these considerations and bearing in mind that the application of Additional Protocol II, as such, is not being sought, but rather the fundamental protections of international humanitarian law in times of internal armed conflict, such as to trigger the jurisdiction of the International Tribunal in their breach, it is here submitted that only a relatively low threshold of demonstrated "organisation" of an armed group need be satisfied by the forces involved in the Kosovo conflict. There therefore follows a brief description of the Kosovo Liberation Army and a preliminary consideration of the extent of the fighting between these forces and those of the Serbian/FRY authorities.

(ii) The Kosovo Liberation Army as an organised armed group engaged in protracted armed violence

While reliable information on the size and organisation of the Kosovo Liberation Army throughout 1998 is difficult to gather, and a certain degree of speculation about its strength and activities has been published in the media, it is possible to establish certain basic facts by utilising press sources, NGO reports and through discussions with professed members or associated persons.¹⁴

The group calling itself the Kosovo Liberation Army (Ushtria Clirimtare e Kosoves in Albanian, referred to as the "UCK" throughout this report) emerged in 1996 and 1997, apparently in response to the mounting repression of the Kosovar population by the Serbian/FRY authorities during the course of the preceding decade.¹⁵ The initial activities of the UCK were limited to isolated attacks on police vehicles and stations in Kosovo and then the targeting of Serbs and Kosovars loyal to the Serbian regime. By the end of 1997, however, it was demonstrating its ability to launch co-ordinated operations over a fairly wide area, indicating the emergence of a high degree of organisational structure, which many speculated came from members based outside of the FRY, particularly in Germany, Austria and

13. According to the ICRC Commentary,
    "This is the fundamental criterion which justifies the other elements of the definition: being under responsible command and in control of a part of the territory concerned, the insurgents must be in a position to implement the Protocol. The threshold for application therefore seems fairly high. Yet apart from the fact that it reflects the desire of the Diplomatic Conference, it must be admitted that this threshold has a degree of realism. The conditions laid down in this paragraph 1, as analysed above, correspond with actual circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since they have the minimum infrastructure required therefor."
14. Members of the team researching the present report were granted access to one of these bases in Kosovo in early December 1998 and spent two days discussing the organisation and activities of the UCK with various of its members.
15. See further below in Section III. A.