EQUIPO NIZKOR |
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12Apr99
Statement on the Conflict of Kosovo and Nato's Intervention.
Description of facts
FIRST
Given the deterioration of the situation in the region of Kosovo, territory of the Federal Republic of Yugoslavia, the Secretary General of NATO, Dr. Javier Solana, has informed through a press release, dated March 27, 1999 [(1999)044], the initiation of a broader range of Air Operations aimed at "bringing a halt to violence in Kosovo and to prevent further humanitarian catastrophy." He also stated that he had taken this decision with the support of all Allied governments.
As we understand it, to resort to the use of force exceeds the mandate of the Secretary-General, who has, in fact, established a new NATO doctrine that has not been approved by any national parliament and that has been accomplished without modifying the Statute of the Alliance.
In fact, Mr. Javier Solana's doctrine is quite similar to what international humanitarian law considers to be an act of aggression against a sovereign country and, in those terms, it is equal to a war declaration although without appealing to the corresponding democratic and diplomatic channels, and with the aggravating fact of not taking into account any judicial system.
The application of a military doctrine of such a nature on the part of a military organization enjoying the size and military power that NATO does, puts all European citizens under a covert exception state, which is not only unacceptable from a democratic point of view, but also violates the UN Charter, the United Nations Universal Declaration on Human Rights, the European Convention on Human Rights, the Statute of the Alliance itself, and, even more seriously, the United Nations system that has been created at the end of World War II.
The North Atlantic Treaty, in its Articles 1, 2 and 3 establishes clearly that the purposes of the NATO are merely defensive and subsidiary to the UN system and international humanitarian law. Neither the Secretary-General's functions, nor those of the governmental representatives before the NATO -who do not even enjoy diplomatic status of Embassy (v.g. NATO Hanbook, Brussels, 1995. p.137)- entitle them to decide on their own will to undertake an offensive assault, no matter the type of arguments brandished to justify these actions.
The Federal Republic of Yugoslavia does not represent a major danger, from a military point of view, to the countries integrated in the NATO and, of course, this situation is in no way comparable to the critical moments of the cold war in which there was a real danger of global military confrontation by using nuclear tactics.
It is sufficient to take a look at the following statements :
- 1) U.S. Senate Resolution 239, dated June 11, 1948, known as the Vandenberg Resolution.
- 2) Agreement between the Parties to the North Atlantic Treaty regarding the Status of Their Forces - SOFA. London, June 19, 1951.
- 3) Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff.
- 4) Protocol on the Status of International Military Headquarters set up Pursuant to the North Atlantic Treaty. Paris, August 28, 1952.
- 5) Protocol to the Treaty on the Accession of the Federal Republic of Germany. October 23, 1954.
- 6) Agreement among the States Parties to the North Atlantic Treaty and the other States participating in the Partnership for Peace regarding the status of their forces and its Additional Protocol. Paris, June 19, 1995.
SECOND
The gravity of this new military doctrine --headed by the Mr. Javier Solana, who occupies a position that has no democratic validation whatsoever and that does not represent any country or political party--, has as one of its direct consequences the massive displacement of population, which has taken place in the framework of what used to be an internal armed conflict whose internationalization has been provoked by the Alliance's intervention; however, the Alliance has not been able to anticipate this situation although there are organs devoted to these tasks, such as the Division of Infraestructure, Logistics and Civil Emergency Planning and the Civil Emergency Planning Directorate.
It is unacceptable that no assistance to the displaced civil population --the most affected by the internationalization of the conflict-- had been anticipated, and that no efforts had been made in order to provide the governments of Macedonia and Albania with humanitarian infrastructure, given that their deficient conditions in the fields of sanitary infrastructure and humanitarian logistics are well known to any impartial observer.
This lack of anticipation shows the improvisation, bad faith or negligence of the General Secretariat of NATO, whose responsibilities will have to be established by an International Court.
It is also unacceptable that the iniciative for humanitarian assistance had been taken first by non governmental organizations, which are not appropriatly prepared to handle that type of situation, while all the State Parties to the North Atlantic Treaty have organizations specialized in this type of catastrophe. The death of persons due to starvation, cold weather or lack of medical assistance in a continent that possesses the human and material means to deal with a humanitarian catastrophe of this dimension can only be qualified as criminal negligence.
The General Secretariat of NATO has not resorted to any of the mechanisms that international law places at its disposal, such asthe UN Security Council, the ad-hoc Tribunal for the Former Yugoslavia, The Hague International Court of Justice, the European Human Rights Court, the national courts of any of the country members and, of course, the national parliaments of each of them. No official opinion, a priori, has been requested from any of these instances, although the General Secretariat of NATO had sufficient time to proceed according to the law in force.
The method used by the General Secretariat of NATO consisted in the presentation of the consequences omitting their causes. This is precisely one of the plot's resources. If crimes were exhibited at the same time as the sufferings of men and women, as in this case, the scenic effect would be easily destroyed and it would be difficult for a free citizen to approve this conduct. It is necessary to emphasize that these types of ‘performances' can not be permitted in a free state, in a state subject to the rule of law, unless the real intention was the establishment of a covert state of exception.
The international community and the UN system have already created the tools that allow to bring before justice all those responsible of serious crimes against humanity, including genocide; in addition, the lack of political will to use the military force as a police power in order to contribute to the fulfillment of the mandate of the International Tribunal for the Former Yugoslavia is well known to all of us; although no legal complaint has been filed against Mr. Slobodan Milosevic and the State of Yugoslavia for committing the acts they are publicly accused of, the Alliance has, instead, taken the decision of bombing indiscriminated military objectives.
The International Tribunal for the Former Yogoslavia has both jurisdiction and competence to be seized with these matters; the fact that the State Parties to the Alliance have not taken its existence into account is unacceptable; in not doing so they have undermined its own legitimacy, purpose and jurisdiction and they have provoked serious international political instability to a degree never experienced during the grave cold war crisis at a time when the UN international system was not left aside.
Hence, it is necessary to re-establish the confidence in the international legal system for it is the foundation of international democratic development.
Illegality of NATO's intervention from the point of view of the UN system
a) The UN Charter
Article 2 of the Charter establishes :
"3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. 4. All Members shall refrain in their international relations 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."
Article 51 of the Charter states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."
Although NATO in itself is compatible with the UN system, the UN Charter clearly states in its Article 52 that all States Parties to regional arrangements shall make "...every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council."
According to Article 53, "The Security Council shall, where appropiate, utilize such regional arrangements or agencies for enforcement action under its authority", but rigorously establishes that "... no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council, with the exception of measures against any enemy state..."
b) The North Atlantic Treaty
The North Atlantic Treaty (Washington D.C. - 4 April 1949) is introduced by the following statement"The Parties to this Treaty reaffirm their faith in the purposes and principles of the Charter of the United Nations and their desire to live in peace with all peoples and all governments...".
Article 1 provides that "The Parties undertake, as set forth in the Charter of the United Nations, to settle any international dispute in which they may be involved by peaceful means in such a manner that international peace and security and justice are not endangered, and to refrain in their international relations from the threat or use of force in any manner inconsistent with the purposes of the United Nations."
Article 2 establishes that the Parties will contribute toward the further development of peaceful and friendly international relations by strengthening their free institutions by promoting conditions of stability and well-being
Article 3 refers to the development of the Parties' defensive capacity. In fact, it is precisely the Alliance's defensive nature that impregnates its constitution treaty. In addition, Article 7 states "This Treaty does not affect, and shall not be interpreted as affecting in any way the rights and obligations under the Charter of the Parties which are members of the United Nations, or the primary responsibility of the Security Council for the maintenance of international peace and security.".
c) International Tribunal for the Former YugoslaviaJurisdiction and competence.
It is necessary to strengthen the international legal system, so that resorting to the use of force may not become the way to solve States' internal conflicts, as it has happened in this case; this is why the consolidation of the universal criminal jurisdiction of domestic courts is also needed, as we have witnessed in the Pinochet case, as well as the consolidation of the "ad-hoc" tribunals, which directly concerns the present case. In this sense, human rights organizations have made an effort at an international level for the establishment of the International Criminal Court, whose Statute includes the crime of aggression.
The General Secretariat of NATO's attitude, which denies the existence of international law, may be considered as an act of aggression in terms of International Law. There is no doubt that the jurisdiction of this ad-hoc tribunal has never been used to denounce the genocide that, according to the official communique of the General Secretariat of NATO, motivates the beginning of the military assaults against indiscriminated military objectives. The force of law has been replaced by the force of weapons in what can be considered as the declaration of a veiled state of exception in Europe.
The Statute of the International Tribunal for the Former Yugoslavia was adopted on May 25, 1993. This Tribunal, as specified in Security Council Resolution 827, has been created for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the Former Yugoslavia since 1991. This Tribunal has competence on the following offensesgrave breaches of the Geneva Conventions of 1949 (Article 2); violations of the laws or customs of war (Article 3); genocide (Article 4) and crimes against humanity (Article 5).
These criminal offenses, as defined by the Statute of the Tribunal, are enough to bring to trial the serbs, croats and kosovars responsible for any acts that violate international humanitarian law. Those collaborating in the planning and logistics aimed at committing these offenses are also under the jurisdiction of this Tribunal.
Article 7 of the Statute, taking into account Article 7 of the Nuremberg Charter, establishes the indivicual criminal responsibility of all those who committed such offenses :
"1. 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, shall be individually responsible for the crime. 2. The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not releive such person of criminal responsibility nor mitigate punishment. 3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was committed by a subordinate does nor relieve his superior of criminal responsibility if he knew or had reason to know thet the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof. 4. The fact that an accused person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the International Tribunal determines that justice so requires."
d) Violations of international humanitarian laws and, in particular, of the 1949 Geneva Conventions and their 1977 additional protocols
As mentioned above, given the deterioration of the situation in the region of Kosovo, the Secretary General of NATO, Mr. Javier Solana, has informed through a press release, dated March 27, 1999 [(1999)044], the initiation of a broader range of Air Operations aimed at "bringing a halt to violence in Kosovo and to prevent further humanitarian catastrophy." He also stated that he had taken this decision with the support of all Allied governments. That is to say, the justification at all times used by the Secretary-General of NATO lies in the need of protecting the kosovar civil population.
Since the Alliance intervention has provoked, regardless of its legality or illegality, the internationalization of an armed conflict, its State Parties are compelled to anticipate a humanitarian device to help the civil population who do not participate directly in the hostilities, specially when there was a foreseeable flow of refugees.
Therefore Protocol Additional to the Geneva Conventions of 12 August 1949, related to the Protection of Victims of International Armed Conflicts (Protocol I), adopted on 8 June 1977 by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law applicable in Armed Conflicts (entry into force 7 December 1979), is applicable. All Allied States along with the Federal Republic of Yugoslavia are Parties to the same.
The General Secretariat of NATO and the Parties to the treaty were legally bound by this Protocol and therefore they should have proceed according to the provision contained in Article 5, which obliges the Parties to the conflict "to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powers, including inter alia the designation and acceptance of those Powers, in accordance with the following paragraphs. Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict.". Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect, according to Article 4, the legal status of the territory in question.
It is obvious that at no time the requirements anticipated by humanitarian law anticipates were taken. Furthermore, the fact of having previously planned the military operations, the lack of a real military danger, the disparity of the force relationships between the NATO military forces of those of the Federal Republic of the Former Yugoslavia, should have made it possible at all times to fulfill these agreements and no possible extenuating circumstance may be invoked to justify their non accomplishment.
In this sense, it is to our undertanding that the principle of command responsibility as understood by military and humanitarian criminal jurisdiction could be applicable to the General Secratariat of NATO; the same could be said of the officials compelled to anticipate humanitarian actions according to law; these humanitarian actions under no circumstance can be implemented by non governmental organizations, which not only lack training and structure in this regard, but also are not recognized in to act legally in the framework of this type of conflicts.
It is obvious that an assistance system capable of facing the foreseeable displacement of non beligerent civil population towards conflict free zones should have been established in the border territories, as it has occurred in all armed conflict, no matter their nature, since World War I, and even in not generalized armed conflicts, such as Vietnam, Nicaragua, Guatemala, the Great Lakes , Rwanda, former Zaire, Colombia, etc.
Therefore, it is necessary to determine all political, military and legal responsibilities arising from the nonobservance of these Conventions and from the deaths that this conduct has provoked and will provoke, either by action or by omission.
As indicated in the Draft Code of Crimes Against the Peace and Security of Mankind (International Law Commission Report. 48 Session), the military necessity or convenience can never be used to justify the violation of positive norms. International law is a prohibitive law. Articles 46, 47 and 50 of the 1907 Hague Convention do not establish those exceptions to its application. The rights of the innocent population established by them must be respected at all times even if military necessity or convenience demand otherwise.
e) Aggression within the framework of the international legal system.
According to Resolution 3314/XXIX, adopted by the General Assembly on December 14, 1974, aggression consists of "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.". In this Definition the term "State" includes the concept of a "group of States" where appropriate.
The first convention on the definition of aggression was prepared on April 24, 1933. The Convention declares as acts of aggressiona) declaration of war; b) invasion; c) armed attack d) naval blockade and e) support given to armed bands.
In 1945 the Nuremberg International Tribunal declared as "crimes against peace", in Article 6, p. 2, the planning, preparation, initiation and waging of a war of aggression. This definition was added by the International Law Commission to the Nuremberg principles on July 29, 1950, and was incorporated to the Draft Code of Crimes Against the Peace and Security of Mankind through its Article 16 (International Law Commission. 48 Session). Also, the debates on the Draft Code corresponding to 1950, came also to the conclusion that any act of aggression, including the use of armed forces by the authorities of a State against another State, may constitute a crime against the peace and security of mankind if this act is not motivated by collective self defense or if this act is not exercised following a decision or a recommendation issued by a competent UN body.
On December 18, 1967, the UN General Assembly adopted Resolution 2330/XXII and created an Special Committee on the Question of Defining Aggression. After seven years of work, this Committee's draft was finally approuved by the General Assembly through its Resolution 3314/XXIX, of December 14, 1974.
In addition to the already mentioned definition of aggression, as set out in its Article 1, its preamble reaffirms the fact that "the territory of a State shall not be violated by being the object, even temporarily, of military occupation or of other measures taken by another State in contravention of the Charter...", contravention that has taken place in this case in the light of the above arguments.
Article 3 states :
"Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggressiona) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporarily, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; c) The blockade of the ports or coasts of a State by the armed forces of another State; d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditiond provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; g) The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or ita substantial involvement therein."
Article 5 provides that "1. No consideration of whatever nature, wether political, economic, military or otherwise, may serve as a justification for aggression. 2. A war of aggression is a crime against international peace. Aggression gives rise to international responsibility. 3. No territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful."
*
* *Taking the above arguments into account, we declare the following :
1) That it is necessary to put an end to the military attacks against the Federal Republic of Yugoslavia.
2) That it is the UN Security Council who, according to the Charter, must determine the kind of violations committed by the Federal Republic of Yugoslavia.
3) That the Security Councel must carry out a legally binding consultation before the International Court of Justice in order to determine the legality of NATO's military action, and, in any case, to clarify the correspondent individual responsibilities.
4) That the State Parties to the Alliance file a complaint, through their governments, in order to bring to trial those responsible for the perpetration of illicit and illegal acts infringing international humanitarian law and human rights, either on the part of the Yugoslavian authorities or on the part of any other country involved in these types of crimes.
An investigation on the instigators of these acts must be carried out, giving special relevance to the determination of the criminal organizations that may have provided armament illegally and that may be related to drug trafficking in the region.
5) All States Parties to the North Atlantic Treaty must provide the International Tribunal for the Former Yugoslavia with enough financial, logistical and human resources, especially those States that have not contributed to the same yet. These obligations must be controlled by the European Parliament and executed by the European Commission, with binding effects over the Community budgets.
6) It is necessary that the governments order the armed forces deployed in the area of the Former Yugoslavia to conduct the development of international police operations aimed at guaranteeing the bringing before the Tribunal of all those who have been indicted.
7) All State Parties to the North Atlantic Treaty must provide the International Committee of the Red Cross with enough financial and logistical means in order to guarantee the assistance to the displaced and refugees that have fled to neighbouring countries in compliance with the Geneva Conventions and their Additional Protocols.
8) Necessary financial resources must be provided in order to endow the recipient countries with assistance, sanitary and communications structures, including the endowment of human resources training, assumed by the NATO military budgets and the regular budget of States belonging to the Alliance. The said investments will be accounted as donations in the affected States' national accounting and they will be controlled by the European Parliament.
9) The criteria of international human rights law should be used regarding those members of the Atlantic Alliance that systematically violate human rights, as it is the case of Turkey; hence, necessary legal proceedings should be activated before an ordinary national court because of the systematical human rights violations, which, in the case of Turkey have been denounced by the European institutons themselves, such as the European Parliament; at the same time, necessary legal measures should be taken so that its membership to the European institutions is suspended as long as these acts continue to take place.
From this point of view, the European Parliament should carefully monitor the EU Foreign Policy towards those countries of the Mediterranean basin that systematically violate human rights, such as Morocco, Algeria, Libya, Israel and Turkey. This is a very important for peace and stability in the region.
10) The States Parties to the NATO must proceed to the ratification of the ICC Statute and must activate all necessary diplomatic channels aimed at its ratification by other States, thus contributing to guaranteeing international humanitarian and human rights law.
Signed by Peace and Justice Service Europe (Serpaj Europa) - Equipo Nizkor - Asociación por Derechos Humanos de Andalucía (APDH-A) - Departamento de Derechos Humanos de OSPAAAL - Asociación pro Derechos Humanos de España (APDHE) - Secretaría de Derechos Humanos de IU Federal - Red Nacional de Organismos Civiles de Derechos Humanos "Todos los derechos para todos" (México)
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