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From: Derechos Human Rights <hr@xxxxxxxxxxxx>
To: Human Rights News Mailing List <hr-news@xxxxxxxxxxxx>
Date: Tuesday, 13 April 1999 11:08
Subject: [hr-news] Yug - 1/2 Stament on the conflict of Kosovo and Nato's
intervention
Nizkor International Human Rights Team
Derechos Human Rights
Serpaj Europe
Information 1/2
12Apr99
STATEMENT ON THE CONFLICT OF KOSOVO AND NATO'S INTERVENTION (PART I)
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 as: the
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.".
[Continuation in Part II]
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Full text in spanish to:
http://www.derechos.org/nizkor/press/kosovo1.html
FIN DEL MENSAJE END OF MESAGGE EINDE BERICHT FIM DA MENSAGEM FINE
DEL MESSAGGIO ENDE NACHRICHT FIN DEL MENSAJE END OF MESAGGE EINDE
BERICHT FIM DA MENSAGEM FINE DEL MESSAGGIO ENDE NACHRICHT
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