NATO and international law

Question: The Rambouillet Accords, appendix B in particular . . . called for the occupation of all of Yugoslavia. . . . Unrestricted passage throughout [its] air space, territorial waters, rail, airports, roads, bridges, ports without payment, the electromagnetic spectrum and so on. Was not the Rambouillet accord, which [Slobodan] Milosevic refused to sign, in fact, a desire to occupy all of Yugoslavia and not just simply Kosovo?

Jamie Shea: No, absolutely not. . . . We were looking . . . to be able to deploy an international security force, and that means, of course, being able to deploy the assets for that security force. . . . At the moment, all of our predeployed elements in the former Yugoslav Republic of Macedonia have come in by the Greek port of Thessaloniki. And for that, obviously, one has to have an agreement with the Yugoslav government to be able to have access to those roads, those rail systems, the air space for the business of setting up an international security presence, and therefore NATO personnel who may have had at the time . . . to transit temporarily through Yugoslavia will have had to enjoy those kinds of immunities. . . .

Question: That's simply not the language, sir. It's "free and unrestricted passage," the ability to detain people, for example, . . . and total use of electromagnetic spectrum, sir.

Jamie Shea: I was not a negotiator at Rambouillet . . . but my understanding, sir, is that it refers to, as you say, passage, exactly transit. And that's the point I've made.

(4) NATO's objectives in Kosovo are a violation of Clause IV of the Declaration of Principles Guiding Relations Between Participating States of the Helsinki Accords Final Act of 1975 which guarantees the territorial frontiers of the states of Europe. According to this agreement: "The participating states will respect the territorial integrity of each of the participating states. Accordingly, they will refrain from any action...against the territorial integrity, political independence, or the unity of any participating state..."

The former Yugoslavia was a party to this agreement, not the new states such as Croatia and Bosnia which subsequently invoked the Helsinki territorial principles to preserve their boundaries that were carved out from the old state. Ironically, while attempts by Serbs of Croatia and Bosnia to remain part of Yugoslavia were denied, and their declarations of independence rejected in order to maintain the territorial integrity of Croatia and Bosnia which had never existed under modern international law, the right of the Kosovo Albanians to secede was recognized. What this so-called Rambouillet peace plan offered was (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 recognition 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. Donald Horowitz, a leading specialist on nationalism and ethnic conflict, noted that the secessions of Slovenia, Croatia, Macedonia, Montenegro, Bosnia, and Serbia followed the violent patterns of state dissolution elsewhere. He pointed out that states with no history of independence such as Bosnia were swiftly recognized without considering the consequences. "Led by Germany, European and American recognition of the former Yugoslav republics was accomplished in disregard of international law doctrine forbidding recognition of secessionist units whose establishment is being resisted forcibly by a central government.

The illegality of Unilateral Declarations of Independence was established by the British when Rhodesia's Ian Smith unilaterally declared independence when the British still ruled that state (now Zimbabwe). No doubt, the policies regarding UDI have been inconsistent. The secession of the Turkish Republic of Northern Cyprus in 1981, a defacto functioning state, has not been recognized although the secession of Bangladesh in 1971 under similar circumstances was recognized. The UDI of Biafra from Nigeria in 1967, Punjab from India in the mid 1980s, Abhkazia from Georgia in 1994, Chechnya from Russia in 1995, have not been recognized. Clearly, Palestinians have a right to declare themselves an independent state because it is not even a part of Israel but illegally occupied territories since the Arab-Israeli war of 1967. Yet Israel has warned that it will not recognize the threatened UDI by Yasir Arafat in May 1999.

In the case of Bosnia-Herzegovina, it was recognized although it did not fulfil any conditions of a defacto functioning state. The 1933 Montevideo Conventions on the Recognition of New States, declared that a state only comes into existence and should be recognized if it fulfils the following conditions: (a). Clearly recognized boundaries. Serbia and Croatia were contesting the boundaries of Bosnia. The Croatian areas wanted to join up with Croatia and already has, the Serbian areas wanted to join up with Serbia but was prevented by the West. (b) It must have a stable and well-defined population. Bosnia did not since refugees were on the move everywhere and what constituted the population of Bosnia was not clear because of Serbian and Croatian demands. (c) It must have a government in control. The Muslim government of Sarajevo was not in control anywhere, and even now Sarajevo is not in control of the Croatian and Serbian areas. Bosnia was a stillborn state and remains so.

(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. This Convention was adopted in the light of experience during two world wars when there was an unwanted destruction of cultural and historical property in Europe. It was first mooted during the First World War by President Woodrow Wilson and British Prime Minister Asquith. Keith Eirinberg noted that "Some 80 years later, the destruction of cultural property, this time on the territory of the former Yugoslavia [by the former Yugoslavs themselves], again shocks the world." But the United States could do little to protest these actions by Serbs and Croats because it had failed to ratify the 1954 Geneva Convention. Perhaps with good reason since it has engaged in such actions from the air itself in Iraq and now Yugoslavia.

In an article alleging that NATO was waging vandalism and not war, and that the crimes against humanity by Serbian forces were being countered by crimes against civilisation by NATO, Simon Jenkins of The Times, London (May 7) writes:

"While the human casualties have been well-publicised, this is not true of the damage to Yugoslavia's historic buildings. People may be more important than buildings, but that does not justify the needless destruction of cultural heritage. Shortly after the shift in targeting policy, on the night of April 18, a Nato missile penetrated the atrium of the Banovina Palace in the city centre of Novi Sad. It exploded with an almighty roar and destroyed perhaps the finest work of Art Deco architecture in the Balkans.... The flurry of million-dollar missiles which last week poured into the defence headquarters in Belgrade destroyed the best work of Yugoslavia's most distinguished post-war architect, Nikola Dobrovic. The most worrying damage so far has been to some 40 listed Yugoslav churches and monasteries. The medieval church of Gracanica, six miles from Pristina, is the treasure of the Balkans, under consideration as a UNESCO World Heritage Site. The interior walls are entirely covered in 14th and 15th-century frescoes in remarkable condition. I find it inconceivable that their location is not known to Nato's targeting group. The celebrated 1830s Topcider Church in Belgrade has been repeatedly damaged, most recently by a bomb last Thursday. Belgrade's 16th-century Rakovica Monastery has taken a direct hit through its roof and on Tuesday an unexploded missile lodged in its residential wing. The 4th-century Byzantine basilica in the town of Nis has been damaged. The churches of the Virgin and St Nicholas in Kursumlija, dating from the 12th century, have also been hit, as has St Procopius's 9th-century church in Prokuplje. These buildings date from the earliest years of Christianity in eastern Europe. Extensive destruction is also reported and confirmed to historic churches in Krusevac, Pancevo and Vranje. The centre of the Kosovan capital of Pristina is bombed almost every night. As for the splendid Art Deco factory in Nis, that was flattened for impertinently making "military" cigarettes. It is simply untrue that Nato is avoiding civilian targets. "