NATO AND INTERNATIONAL LAW
Raju G. C. Thomas
[Raju Thomas is Professor of Political Science at Marquette University. He is the author of 8 books, over 50 journal articles and book chapters, and over 70 OP-ED newspaper articles. His recent books were Democracy, Security and Development in India (1996), and The Nuclear Non-Proliferation Regime (1998). He was educated at Bombay University, the London School of Economics, and the University of California at Los Angeles from where he obtained his Ph.D. He has been a visiting Fellow at Harvard, the Massachusetts Institute of Technology and the International Institute for Strategic Studies, London.]
Does NATO's attack on Serbia violate International Law? Does Humanitarian Law override the territorial integrity of states?
I. NATO and International Law
The US and NATO is violating a number of international laws in attacking Serbia over Kosovo which is part of a sovereign independent state.
(1) It is a violation of Article 2 (4) of the UN Charter that prohibits the use of force against a sovereign state where it has not committed aggression on other states. Serbia did not attack any neighboring states outside its sovereign borders. The Security Council did not sanction the use of force here. Efforts to justify these actions through earlier resolutions or Chapter 7 of the Charter are acts of distortion and convenience.
(2) It is a violation of NATO's own charter which claims it is a defensive organizations and is only committed to force if one of its members is attacked. No member of NATO was attacked.
(3) The so-called Rambouillet "Agreement" (there was no "agreement" by Serbia ) is a violation of Articles 51 and 52 of the 1980 Vienna Convention on the Law of Treaties which forbids coercion and force to compel any state to sign a treaty or agreement. Serbia is being asked to sign this "Agreement" through NATO bombs and missiles, anything but persuasion.
(4) It is a violation of the Helsinki Accords Final Act of 1975 which guarantees the territorial frontiers of the states of Europe. What this so-called peace plan offers is (a) the severance of Kosovo through NATO bombing with immediate effect; or (b) the severance of Kosovo through NATO occupation three years later. The Serbs chose Option A.
(5) If the sequel to the bombing is recogntion of Kosovo as an independent state, this will violate international law that prohibits recognition of provinces that unilaterally declare independence against the wishes of the federal authorities.
(6) If the bombing of Yugoslavia results in the destruction of Serbian religious and historical sites, this will be in violation of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.
(7) The Geneva Conventions Act 1957 (amended 1995) of the United Kingdom specifically states that "civilians shall not be the object of attack" (Schedule 5, Article 52.1) and that "civilians shall enjoy protection unless they take a direct part in hostilities" (Schedule 6, Article 13.3). Targeting the Serbian TV station at night when it was inhabited by civilians only constituted an intentional and premeditated attack on civilians.
(8) Beyond the above, there may be several other international regulations about the environment that is being violated by the attacks on chemical plants, fuel storage, and refineries. They include the Vienna Convention for the Protection of the Ozone Layer (1985, UNEP), the Montreal Protocol on Substances that Deplete the Ozone Layer (1987, UNEP), and the United Nations Framework Convention on Climate Change (1992).
II. Humanitarian Law and the Territorial Integrity of States
United States and Great Britain have argued that the attack on Serbia was justified under the 1948 Genocide Convention and/or other general humanitarian principles. Claims have also been made that Article 2(4) of the UN Charter which upholds the territorial integrity of states against external military attacks, is countered by Articles 1(2) and 55 of the Charter, which speak of self-determination of peoples.
However, these articles, including Articles 73 to 91 which deal with "Non-Self Governing Territories" and the "Trusteeship System," pertain to decolonization and not the right to secede from existing sovereign independent states. Article 1 of International Covenant on Civil and Political Rights passed in 1976 referred to the rights of minorities to self-determination but did not inlcude the right to secede. It implied the right of peoples in all states "to free, fair and open participation in the democratic process of governance freely chosen by each state." A 1990 meeting of the then Conference on Security and Cooperation in Europe in Copenhagen went far in affirming democratic rights and human rights of peoples but did not go as far as to endorse the right to secede.
In any case, the internal Yugoslav republics of Slovenia, Croatia and Bosnia declared their independence before any human rights violations or violence had occurred and were recognized. Those unilateral declarations of independence produced the subsequent violence. Before the NATO attack, the deaths of 2000 on all sides and the internal displacement of 300,000 people in Kosovo did not constitute genocide. In Kosovo, a province no different from Krajina of Croatia from where all Serbs were driven out, NATO bombing led to the human catastrophe not just for Albanians but for Serbs, Hungarians and Sandjak Muslims.
Much has been made about "Serbian genocide" in Bosnia which has become the pretext for the current NATO attack. Like the Kosovo "genocide," this was more propaganda than fact. The Stockholm International Peace Research Institute determined that between 35,000 and 50,000 people died in Bosnia on all sides. In comparison, an average of 20,000 people are victims of homicide in the US every year. The investigators for the Hague Tribunal have interviewed only 223 women claiming to be raped, and have collected 575 affidavits from women claiming to be raped. Compare this with an average of 100,000 women who file rape complaints with the police every year, and an estimated 400,000 unreported rapes annually. NATO's unqualified and unrestrained bombing campaign that includes the infrasturcture is more likely to kill millions of Yugosalv citizens in the long run, through lack of proper medical facilities, polluted water supply, atmospheric poisoning, ozone depletion, and climatic change. NATO is committing ecocide and therefore also genocide in the long run.
If NATO had the right to intervene in Kosovo, does it now have the right to intervene in Palestine, Kashmir, Tibet and "Kurdistan where human rights violations are also taking place? Can any state now bypass the UN Security Council and attack another state by invoking humanitarian considerations?
(1) NATO cannot unilaterally invoke the 1948 Genocide Convention , the 1948 Universial Declaration of Human Rights, and other humanitarian laws, and proceed to attack independent states. Only the Security Council can do so which was deliberately bypassed by NATO because it knew that Russia and China would veto such an attack.
(2) There was no humanitarian intervention by the US and the West when the Nigerian authorities crushed the Biafra separatist movement between 1967 and 1970 causing the deaths of one million Ibos, when Pakistani forces killed one million and drove out 10 million Bengalis during the East Pakistani secessionist struggle in 1971, when the Pol Pot regime killed one million Cambodians, to name just a few cases.
In the latter two cases, the US condemned India and Vietnam for their military interventions and threatened military action against them. However, both India and Vietnam intervened after the human catastrophes had taken place. NATO's rush to bomb caused the human catastrophe in Kosovo, as did Western interventions earlier in Croatia and Bosnia by promoting and rushing to recognize Croatia and Bosnia as independent states against the wishes of the Serbian populations.
(3) Ethnic cleansing is not genocide. If it were, the Allied powers were guilty of genocide for the expulsion of some 12 million Germans from Poland, Czechoslavkia and elsewhere at the end of the Second World War, and surely European Jews committed genocide when it drove out nearly a million Palestinians to carve out the state of Israel in 1948.
(4) There is now an ethnically pure Greater Croatia. There are almost 900,000 Serbian refugees ethnically cleansed from Croatia and the federation, 300,000 in Republika Srpska and 600,000 in Serbia. This is more than any other ethnic group. Croatia conducted the largest single ethnic cleansing of the war with American military support.
Russia, China and India, representing half the human race, got it right about the Kosovo crisis. NATO, the only alliance left after the Cold War, committed aggression on Serbia. This is all about saving NATO's face at a very heavy price for the Serbs. If NATO is above international law, then so is every other state and organization. It has set a terrible precedent. A Times of India editorial of April 29th, 1999, concluded rightly that "just as the US cannot afford to lose, the rest of the world cannot afford to let it win. If NATO's aggression against Yugoslavia is allowed to prevail, the alliance will eventually turn its destructive attention to other 'out of area' operations."
Raju G. C. Thomas
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