Equipo Nizkor Information Derechos

Appendix to the April 4, 1999 statement by human rights organizations.

Several European human rights organizations released a statement last April 4, 1999 (see http:/www.derechos.org/nizkor/press/kosovo2.html). In spite of the silence with which it was received, the time elapsed since then has only affirmed the content of it.

Following the 8-issue proposal for peace in Yugoslavia made by the G-8, we now wish to reiterate the content of our initial declaration and also express once again our condemnation of war. War is the most egregious crime against peace, and the crime of aggression is a crime against humanity.

The use of any military force as a way of solving conflicts is considered by any human rights organization, as such, as totally opposed to its basic and fundamental ideas.

Peace is not a result of war, peace is a result of reason, tolerance and fraternity. It is not true that the only alternative available in this conflict, as in many others, was just force; it is justice instead and, only through justice, peace will be achieved.

We expressly condemn the attitude adopted by those who, by using human rights-based arguments -- a posture also adopted by some others that consider themselves as human rights organizations -- are now holding that war should be continued.

From that point of view, we would like to emphasize again that "Where anyone vested with authority would act justly, he will be respected; otherwise, he will be despised; as for those who have no authority, but have taken on power, the rational world would want nothing more to do with them" ("The Rights of Man", Thomas Paine, 1791).

We therefore declare as follows:

1) NATO's General Secretariat, and its highest responsible official, Secretary General Javier Solana, have permanently acted on the fringes of international legality, even the national legality of the countries that are parties to the Alliance. A conduct that shows no regard for the prevailing law and, very particularly, for the United Nations system as developed since the Second World War, makes all staffmembers in the General Secretariat, starting with its Secretary General, responsible for crimes involving a breach of the humanitarian laws and, sooner or later, they all will be hold accountable before a court. The Nuremberg judgment itself states: "Crimes against international law are committed by men, not by any abstract entities, and only by punishing the individuals who commit such crimes can the provisions of international law be enforced".

The members of NATO's General Secretariat, starting with its Secretary General, have all deliberately lied to the European citizens, and have carried out military policies and actions for which they do not have, have never had, nor will ever have, any own and autonomous competences that may entitle them to act in such a way.

The autonomy of military and war policy is opposed to any form of democracy and rule of law; its mere enunciation constitutes a deliberate attack against civil liberties and human rights. Such a form of thinking is nothing else than a new form of technocratic terrorism.

Suffice it to remind here that subsection 5.6 of the Document issued by the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe (June 29, 1990) states: "Military forces and the police will be under the control of, and accountable to, the civil authorities"; and subsection 5.7 establishes that: "Human rights and fundamental freedoms will be guaranteed by law and in accordance with their (those of the participating States) obligations under international law".

Any changes in NATO's strategic functions (see http://www.nato50.gov/text/99042411.htm , 24Apr99) will be null and void as a matter of law until discussed and ratified by the parliaments and citizens of all EU countries; as long as this does not take place, the Alliance will remain in breach of the legality and in deliberate violation of the United Nations Charter as well as the civil rights of all EU citizens.

We would like to remind the Secretary General that he is actually a Spanish citizen and subject, therefore, to the general provisions of the Spanish law and Constitution. There is no, and there cannot be any categories of European officials and/or ministers of foreign affairs who may violate, on their own initiative, the will of people expressed on a free basis.

To this effect, the participating States of the Conference on Security and Co-operation in Europe (CSCE) at the summit held in Paris on November 19-21, 1990 -- Austria, Belgium, Bulgaria, Canada, Cyprus, Czech and Slovak Federal Republic, Denmark, Finland, France, Germany, Greece, Holy See, Hungary, Iceland, Ireland, Italy-European Community, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Spain, Sweden, Switzerland, Turkey, Union of Soviet Socialist Republics, United Kingdom, United States of America and Yugoslavia --, signed the so called Charter of Paris for a New Europe, setting forth their commitment to Human Rights, Democracy and the Rule of Law as follows:

"We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavour, we will abide by the following: Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an over-mighty State. Their observance and full exercise are the foundation of freedom, justice and peace. Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person. Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law." (Charter of Paris for a New Europe. November 21, 1990).

We do not intend to use here the evil mechanism of confusing causes for consequences, which is something typically inherent to any form of logical irrationalism. What we are actually denouncing is the implementation of a state of exception which allows the use of military forces not within the people's power. Such a systematic violation should not, and must not be related to the attacks on the former Yugoslavia which should have their own treatment as war crimes. From our viewpoint, the most serious violation is the loss of legitimation of the democratic system to which millions of citizens of the European Union have been subject. We are not, and we will not be an accessory to this sort of thinking proposal that necessarily entails forms of political irrationalism only compatible with the survival of the fittest and opposed to any sense of justice as well.

2) Any military commanders operating on behalf of governments that have failed to act in accordance with Chapter VII of the United Nations Charter are thus infringing their obligation to refuse to comply with obviously illegal orders and should be aware of the fact that, sooner or later, they will become accountable for their acts before either civilian and/or military courts.

There has been no previous legal proceeding of this type in which responsabilities had not been established.

All those senior officers -- and, very particularly those who, as members of the military staff , have been responsible for establishing civil targets and for crimes againt civil population -- should remind that due obedience to any evident illegal orders is not included within their military discipline codes.

NATO's military commanders should be well aware that they are actually violating the civil rights of millions of citizens, because the European citizenship has granted them no authority enabling them to use force and involve our countries in an unprecedented international conflict.

3) The displacement of civil population that has been provoked by this conflict constitutes a criminal responsibility on the part of NATO's military and civil commanders. Although when we issued our April 4th., 1999 statement there might have been some rational doubts as to the obligatory precautions to be taken by the Alliance in connection with civil population displacement, regardless of whether they were forced by either the former Yugoslavia Government policy or NATO's military actions, there can be no doubt now about the criminal negligence of the Alliance's commanders in connection with the lack of compliance with the provisions contemplated by international humanitarian law, in particular the 1977 Additional Protocols to the 1949 Geneva Conventions.

The 1992 Helsinski Summit Declaration leaves no room to any doubt at all. Its International Humanitarian Law section establishes:

"The participating States:

(47) Recall that international humanitarian law is based upon the inherent dignity of the human person;

(48) Will in all circumstances respect and ensure respect for international humanitarian law including the protection of the civilian population;

(49) Recall that those who violate international humanitarian law are held personally accountable;

(50) Acknowledge the essential role of the International Committee of the Red Cross in promoting the implementation and development of international humanitarian law, including the Geneva Conventions and their relevant Protocols;

(51 ) Reaffirm their commitment to extend full support to the International Committee of the Red Cross, as well as to the Red Cross and Red Crescent Societies, and to the United Nations organizations, particularly in times of armed conflict, respect their protective emblems, prevent the mis-use of these emblems and, as appropriate, exert all efforts to ensure access to the areas concerned;

(52) Commit themselves to fulfilling their obligation to teach and disseminate information about their obligations under international humanitarian law" (Helsinki Summit Declaration. 10 July 1992).

Similar terms were subsequently used by the CSCE countries during the 1994 Budapest Summit Declaration concerning international humanitarian law:

"33. The participating States deeply deplore the series of flagrant violations of international humanitarian law that occurred in the CSCE region in recent years and reaffirm their commitment to respect and endure respect for general international humanitarian law, in particular for their obligations under the relevant international instruments, including the 1949 Geneva Conventions and their additional protocols to thich they are a party.

34. They emphasize the potential significance of a declaration on minimum humanitarian standards applicable in all situations and declare their willingness to actively participate in its preparation in the framework of the United Nations. They commit themselves to ensure adequate information and training within their military services with regard to the provisions of international humanitarian law and consider that relevant information should be made available.

35. They highly value the developing co-operation between the CSCE and the International Committee of the Red Cross (ICRC), in particular in the case of CSCE missions, and welcome the readiness of the ICRC to develop this co-operation and commit themselves to further extend support to the ICRC, in particular by strengthening contacts already established between CSCE missions and the ICRC's delegations in the field.'' (Budapest Summit Declaration. Towards a Genuine Partnership in a New Era. 6 December 1994).

However, as in many other cases, the most serious violations have been directed against the own criminal jurisdiction of NATO's member countries, against the constitutional rights of millions of citizens whose opinion has never been taken and whose rights have also been infringed. The characteristics of these crimes are equivalent to those of uprising crimes and much coincident with the so called "state of exception" thesis sustained, among others, by Carl Schmitt and defended by neo liberal theoreticians in 1973, when a "coup d'etat" was carried out in Chile. Attempts are being made to surpass the Rule of Law by violating people's sovereignty to defend democracy. This evil reasoning was used by Augusto Pinochet Ugarte and the Public Prosecutors's Office of the Spanish Audiencia Nacional, represented by Mr. Eduardo Fungairinho (see http://www.derechos.org/nizkor/arg/espana/fuga.html )

4) We ask for the presence of reputed civil scientifics and technicians, having no commitments to any weapons industry and markets, in order to carry out, within the framework of a judicial investigation, an expert study of NATO's computer systems as well as those of the General Staffs engaged in the planning of operations, in order to be able to determine what conflict's simulation strategies were elaborated in advance of the outbreak of the war activities. Such a study should include system analysis manuals and operating manuals for weapon systems with on-line activation controls, including any data back-up systems used, whether they are visual, optical or of analogical or digital signs, and wherever such information may be physically stored.

Likewise, all computer files and records of both operating plans and simulation plans for the displacementt of civil populations, establishment of topographic targets, supplying logistics, and in particular, the dates of determination of missile supplying for the conflict, as well as the determination of passive defense systems implemented to face the threaten of an attack from enemy forces, including simulated analysis of the compared military danger posed by the former Republic of Yugoslavia, should be revised and placed at the court's disposal.

We hold the Alliance's leading officials responsible for the possible destruction of any computer files and records collecting this information and very particularly, Mr. Solana, since it is within the European jurisdiction where he must be accountable for his criminal responsibilities.

We demand that all this material be delivered to justice for a clear "screening" of the individual responsibilities of each and every one of those responsible for such plans.

5) We base our demands on the initial constitutive documents of the United Nations, whose legal value cannot be disputed within the European penal jurisdiction.

We refer to the Nuremberg Tribunal Charter, whose international law principles were ratified by the United Nations General Assembly in its resolution 95 (I) of December 11, 1946, through which the General Assembly took note of the Agreement for the establishment of an International Military Tribunal entrusted with the trial and punishment of major war criminals from the European Axis, signed on August 8, 1945 in London, and the Statute of such a Tribunal, as well as of the fact that similar principles were adopted by the Charter of the International Military Tribunal for prosecuting major war criminals in the Far East, enacted in Tokyo on January 19, 1946."

It therefore affirms the international law principles acknowledged by the Charter of the Nuremberg Tribunal and its Judgement. Also in that resolution, the General Assembly instructs the International Law Codification Committee to incorporate the principles acknowledged in the Nuremberg Charter and Judgment into the text of the Code of Crimes Against the Peace and Security of Mankind.

We also refer to all resolutions prior to the creation of the United Nations and the rules establishing military responsibilities for commanders and Heads of State as concerns to "no sovereign immunity".

The London Charter under which the Nuremberg Tribunal was created explicitly declares (Article 7) that: " The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment". Article 6 of the Charter specifies that individuals will be responsible for felonies as defined in it.

At present, the principle of individual criminal responsibility for ordering the commission of a crime is covered by article 49 of the First Geneva Convention; article 50 of the Second Geneva Convention; article 129 of the Third Geneva Convention and article 146 of the Fourth Geneva Convention. Furthermore, the Statute of the International Criminal Tribunal for the Former Yugoslavia, article 7, paragraphs 1 and 2, provides as follows:

"A person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the present Statute (relating, among others, to war crimes and violations of the 1949 Geneva Conventions), shall be individually responsible for the crime", and

"The official position of any accused person, whether as Head of State or as a responsible Government official, shall not relieve such person of criminal responsibility or mitigate punishment".

As stated before, practically all agreements signed within the frame of the Organization for the Security and Co-operation in Europe, which are all integrated into the European human rights protection system, have been violated. And therefore:

1. Helsinki Final Act. August 1, 1975.

2. Concluding Document of the Vienna Meeting 1986 of representatives of the participating States of the Conference on Security and Co-operation in Europe.

3. Document of the Copenhagen Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe. June 29, 1990.

4. Charter of Paris for a New Europe. November 21, 1990.

5. Document of the Moscow Meeting of the Conference on the Human Dimension of the Conference on Security and Co-operation in Europe. October 3, 1990.

6. Helsinski Document 1992 of the Conference on Security and Co-operation in Europe. July 10, 1992.

7. Document of the 1993 Rome Meeting of the Council of the Conference on Security and Co-operation in Europe. December 1, 1993.

8. Vienna Document 1994 of the Meeting of Representatives of the Participating States of the Conference on Security and Co-operation in Europe. November 28, 1994.

9. Budapest Summit Declaration 1994 of the Conference on Security and Co-operation in Europe. December 6, 1994.

As mentioned above, the Helsinski Final Act of August 1, 1975, concerning security issues in Europe and including the Declaration of Principles that will govern the relations among the participating States has also been violated. The second of these principles deals with refraining from the threat or the use of force. Its literal text is as follows:

"II. Refraining from the threat or use of force.

The participating States will refrain in their mutual relations, as well as in their international relations in general, from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations and with the present Declaration. No consideration may be invoked to serve to warrant resort to the threat or use of force in contravention of this principle.

Accordingly, the participating States will refrain from any acts constituting a threat of force or direct or indirect use of force against another participating State. Likewise, they will refrain from any manifestation of force for the purpose of inducing another participating State to renounce the full exercise of its sovereign rights. Likewise they will also refrain in their mutual relations from any act of reprisal by force.

No such threat or use of force will be employed as a means of settling disputes, or questions likely to give rise to disputes, between them." (Helsinki Final Act. August 1, 1975).

This principle was ratified by the participating States in the Charter of Paris for a New Europe of November 21, 1990.

Principle X of the Helsinki Final Act is related to the bona fide compliance with the obligations acquired under international law: "The participating States will fulfill in good faith their obligations under international law, both those obligations arising from the generally recognized principles and rules of international law and those obligations arising from treaties or other agreements, in conformity with international law, to which they are parties.


The participating States confirm that in the event of a conflict between the obligations of the Members of the United Nations under the Charter of the United Nations and their obligations under any treaty or other international agreement, their obligations under the Charter will prevail, in accordance with Article 103 of the Charter of the United Nations. " (Helsinki Final Act. August 1, 1975).

6) We insist again that the International Criminal Tribunal for the Former Yugoslavia is competent to investigate all of the crimes committed to date by all parties and that NATO's Secretary General and other responsible officials in the Alliance are obligated to respect its jurisdiction; so far they have not only deliberately refused to collaborate with the Tribunal, but have also failed to answer, in a valid manner from a legal point of view, within the European criminal jurisdiction, the letter addressed to them by the Tribunal's President on April 8,1999. It is clear then, that they have all incurred in crimes that must be tried by any domestic ordinary courts in any member country. (See http://www.derechos.org/nizkor/presslkosovo2.html )

The refusal to collaborate with justice by any public officials, whether civilian, military or political individuals, constitutes a serious crime and basically affects the civil rights of all European citizens.

7) We would also like to emphasize that all these crimes are imprescriptible, cannot be pardoned by any kind of amnesty, and are acknowledged by the so called international criminal jurisdiction.

8) We therefore request all judges and prosecutors in the European Union's judicial powers to use their legal resources and their own national laws to start up all investigations needed in order to "screen" these responsibilities and demand an end for the illegal military operations currently carried out by NATO.

European Union, May 11, 1999.

Electronic Edition by the Equipo Nizkor. Madrid, 22jul99.