b. Most legal scholars clearly see NATO's activities in Kosovo as
amounting to international armed conflict. Although the U.S. government
initially described the capture of three American soldiers as an unlawful
abduction because they were non-combatants, this assertion is
questionable.(1)Had they been members of a UN mission, and had the US not been
simultaneously bombing Serbia, the US position may have been
justified. See Convention on the Safety of United Nations and
Associated Personnel, G.A. Res. 49/59,49 U.N. GAOR Supp. (No.
49), at 299, U.N. Doc. A149149 (1994).(2)However, the UN mission in Macedonia had ended in February of
1999; they were captured on 3 1 March 1999. Forces in Macedonia
had stopped wearing the traditional UN Blue Helmets; they were now
part of the NATO mission. The captives were on a reconnaissance
mission, carrying small arms and had a .50 caliber machine gun fixed
to their vehicle. The forces in Macedonia were poised for possible
ground operations in Kosovo.(3)There is nothing in the law of war that requires a party to a conflict to
limit its combat activities to the same geographical area that another
party has limited its activities to. Even if Macedonia had still been a
UN mission, it is arguable that the combatant activities in Kosovo
meant that all US forces capable of supporting or reinforcing those
activities became legitimate targets. This means that all US forces, no
matter where they were located, became potential targets on the 24th of
March. If they can be targeted, they can be taken as POW'S.c. Whether or not a conflict rises to the level of common Article 2 is a
q~lestion of fact.26 Factors one should consider are:(1)Has international recognition of the belligerents occurred?(2)Are there de facto hostilities?26 According to Pictet:
Any difference arising between two States and leading to the intervention of members of the armed
forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the
existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter
takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power
to have captured adversaries falling within the scope of Article 4. Pictet at 23.