From: "Debra Smith and Paul Watson" <algen-AT-netexcel.net.au>
Subject: Fw: [hr-news] Yug - 2/2 Stament on the conflict of Kosovo and Nato's intervention.
Date: Fri, 16 Apr 1999 21:41:15 +1000



-----Original Message-----
From: Margarita Lacabe <marga-AT-derechos.org>
To: Human Rights News Mailing List <hr-news-AT-derechos.net>
Date: Tuesday, 13 April 1999 12:20
Subject: [hr-news] Yug - 2/2 Stament on the conflict of Kosovo and Nato's
intervention.


>Nizkor International Human Rights Team
>Derechos Human Rights
>Serpaj Europe
>Information 2/2
>12Apr99
>
>STATEMENT ON THE CONFLICT OF KOSOVO AND NATO'S INTERVENTION (PART II)
>
>c) International Tribunal for the Former Yugoslavia: Jurisdiction 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 The force of law has been replaced by the force of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 offenses: grave 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 aggression: a)
>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 aggression: a) 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.
>
>European Union, April 4, 1999
>----------------------------------------------------------------
>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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