'Discuss the legal problems related to the UN membership of Yugoslavia from its dissolution to the admission of Montenegro in 2006
THE LEGAL PROBLEMS RELATED TO THE UN MEMBERSHIP OF YUGOSLAVIA FROM ITS DISSOLUTION TO THE ADMISSION OF MONTENEGRO IN 2006
I. Introduction
Changing times and developments in society elicit necessary circumstances for nations. One such situation is the need for dissolution and granting of independence on states covered by countries. Such occurrences may take place as demanded by political, economic, and even social elements that essentially turned out to supersede the major interests of the states involved and the nation as a whole. This occurrence has recently been a trend for several countries that held huge territories. Behemoths like the former Soviet Union have succumbed to the call of dissolution and emancipation of its former allies. After being one of the biggest countries in Central Asia, the territories that it once held are currently subdivided into several small countries. This situation is the same in the case of Yugoslavia. The recent dissolution of the federal republic has spawned a considerable amount of issues that has influenced the international community in general. This study intends to look at these issues surrounding the dissolution and other legal matters in which the former Yugoslavia encountered through a progression of events that led to its current condition. In the same time the study will also be focusing on the issues relating to the country’s membership in the United Nations, particularly how the country needs to face charges of war crimes resulting from the internal conflict that took place in the 1990s. Arguments and claims of academics are to be consulted in this juncture, especially focusing on the Yugoslav conflict in the 1990s. In the same vein, the discussion below will be presenting how other countries reacted on the conflict and consequent dissolution of the former Yugoslavia. Reaction from the European Union and the UN will similarly be considered. Towards the end of this study, an analysis of the recent membership of Montenegro, a state of the former Yugoslavia, will be conducted in relation to the legal issues and implications to the international scene. The discussions made in this study will be based on scholarly works on the international relations with specific mention of the Yugoslavian experience.
II. The Socialist Federal Republic of Yugoslavia (SFRY)
Before the dissolution of the former Yugoslavia, it was initially composed six states. These states include Slovenia, Croatia, Serbia, Bosnia-Hercegovina, Montenegro and Macedonia.[1] The federation is basically headed by a Presidential Council composed of the individual chief executives of each republic. In order to ensure equal representation in the council, the chairmanship is delegate to different heads of state. This is done through a system of rotation wherein every single one of the head of the six states held the seat of power.
Having several republics composing the entire nation, the existence of several cultures were similarly in place. Specifically, ethnic Sloves, Croats, Serbs, Hungarians, Albanians, Macedonians, and Muslims occupy the borders covered by the Socialist Federal Republic of Yugoslavia. Changes in the existing order came to be in the early parts of the 1990s when the Croatian and Slovenian Parliaments sought to emancipate themselves from the federation.[2] In separate occasions, the said parliaments ratified a declaration claiming that the legislations of the country supersede its federal counterpart. This is even supported by an overwhelming result of a referendum on the part of the Slovenian Republic. Over eighty percent of the entire population of Slovenia voted in favour of their independence from the federation.[3]
In the succeeding year, the rest of the federation attempted to strike a compromise between the Croatian and Slovenian leaders. Fight over implementing a loose federation and a tight one bas basically the main theme in the negotiations. Nevertheless, the uncompromising stand of the leadership of the Serbian state led to the letdown of the negotiations.[4] The claim of the Croatian and Slovenian leaders to have a less stringent federation was even trounced by the support of external players such as the United States, European Community, and other international organizations in Europe. This lack of international recognition and support made Croatia’s and Slovenia’s pursuit of independence rather taxing. To boot, the image of the Yugoslavian nation has been seen as unstable with the tension in the federation suggests impending trouble and conflict.
This impending conflict is slightly lit by succeeding events in the leadership of the federation. Specifically, the vote for the presidency of the federation went against tradition of leadership rotation. This took place when the Croat representative to the council was not elected regardless of the fact that it should be their turn to take the presidency as inscribed in the constitutional arrangements of the federation.[5] Threats of secession from the federation fluttered from the Croatian camps threatening the other republics if their candidate were not elected. Nevertheless, seeing the Croatian claims as an empty threat, the other influential republics block voted such that another candidate.
National unity of Yugoslavia hangs in the balance such that in 1991 countries like the United States suspended the whole lot of the economic support that the country is providing the Yugoslavs.[6] In an attempt to gain confidence from the international community, the Yugoslav Prime Minister declared martial law such that any more attempts of the other republics to emancipate themselves or secede from the federation would be pre-emptively squashed. Despite the military strength of the federation and the overpowering political backing from external players, Slovenia and Croatia declared their independence from the federation the very next day after the declaration of martial law. This proved to be the last straw for the federation. A couple of days later, they attacked Slovenia, prompting the newly independent republic to declare a state of war and a petition for international assistance. This was the start of the demise of the former SFRY.
III. International Implications of the Dissolution of the SFRY
The consequent conflict between the secessionist parties and the federation in Yugoslavia was rather telegraphic to say the least. As stated in the earlier part of the paper, the tension and attitudes of those involved spelled out the actual outcome of the Yugoslavian situation. Even before the actual armed conflict took place, the behemoths of the western world like the United States and the European Community (EC) have taken the necessary steps in keeping peace in the said region. To illustrate, the EC initially urged the federation to settle their differences in a peaceful manner.[7] To provide weight on this plea to the federation, the EC also indicated that acceptance of the secessionists from their part will be rather cold and even distance themselves to the said countries. The EC even advanced a loan agreement to both Croatia and Slovenia amounting to over 807 million loan agreement to serve as an incentive for the said countries to stay with the federation. This was given a day before the two republics twenty-four hours before they have declared their independence. This shows that Croatia and Slovenia have already decided to sever ties to the federation despite of the threats of cold treatment from the European Community.
The United States on the other hand clearly stated that no rewards will be given to countries trying to secede from the federation.[8] This was held in the correspondence of then former President George D.W. Bush to then Prime Minister Ante Markovic of the Yugoslavian Federation. This is further backed up by the claim of then Secretary of State James Baker indicating that the United States will, by no means, honour and recognize “any unilateral declarations of independence” from both Croatia and Slovenia.[9] All of these are done to deter any more actions from the two secessionist republics. Nevertheless, both attempts were held futile based on the turn of events.
With the arguments above, it appears that the international reaction to the ensuing conflict in Yugoslavia is partly to blame in the situation. The constant demands for national unity appeared to be pointless given that two of the republics evidently wanted to separate themselves from the federation.[10] As seen above, the inactivity of the said countries has made the situation increase in proportion and even came to the point where the surrounding circumstances were on shaky ground, with any flawed move may trigger an armed conflict. This is what exactly took place in the case of Yugoslavia.
On the part of the United Nations, sanctions on the country were given several months subsequent to the start of the armed conflict. The problem is that these sanctions proved to be useless since the conflict lasted for a considerable length of time. To make things worse, the conflict was made stronger the longer it continued. Humanitarian assistance was also provided by the UN through the United Nations Protection Force (UNPROFOR).[11] Nevertheless the mandate of the said body was limited to a certain extent, excluding the power to use military efforts in the conflict in Yugoslavia. Other events that led to more violence in the region are the intervention of NATO. Military actions such as the bombing of the Bosnian Serbs as well as maritime embargoes were carried out. In the NATO bombings, the action was said to have been a reprisal for the violation of cease-fire ordered to both camps.
Intervention, thus, may have been the key in this matter, specifically the timing of the intervention from other countries. As seen in the case of Yugoslavia, there was, by no means, any possibility of compromise between the parties. Had the intervention from the international arena like the EC or the US been during the early parts of the conflict, then all the ensuing violence from the republics in Yugoslavia and the military interventions from other countries may have been averted. A peaceful dissolution may have taken place, similar to what took place between the Swedish and Norwegian setting in 1905.
IV. The Vance Missions
In the emergence of conflict in the region, international organizations and other nations have taken the necessary steps in reinstating peace in the land. This situation specifically took place in the several days after the declaration of independence of Croatia and Slovenia. In an attempt to help the failed endeavours of the European Community in quelling the hostilities in the region, the United Nations started to come into the picture. Through the United Nations Security Council (UNSC), an embargo on arms was implemented against the former Yugoslavia. This was one of the few attempts to mitigate the existing conflict, which, personally speaking, placed both Slovenia and Croatia at a disadvantage. Through Resolution 713 (1991) of the UNSC, the arms embargo just made Yugoslavia become more capable of crushing the rebellion in the countries that declared independence from the federation.[12] With an established army, the Yugoslavian campaign would have easily trounced the meagre Croat militia, especially with limited firearms and ammunition available.
Further efforts were pursued by the UN by appointing Cyrus Vance, the then US Secretary of State, to serve as the organisation’s personal representative to Yugoslavia. Initially, the actions made by Vance were composed of several “missions” sought to suppress the violence in the region. Specifically, the Vance mission was originally composed of talks between the representatives of the parties involved in the conflict. This manifests the UN’s initial predilection to diplomatic means of resolving the conflict in Yugoslavia. Along with the agreed upon unconditional ceasefire, the parties in the conflict similarly considered the likelihood of the deployment of peacekeeping operations in the region. In 1992, signs of improvement in the region based on the effects of the Vance missions were apparent with the signing of the unconditional ceasefire and the actual installation of over fifty military personnel tasked to liaise for the continuance of the ceasefire and other contents of the agreement. Regardless, of some of the protests posed by the existing political groups in Yugoslavia regarding the presence of the peacekeeping troops, the UN Security Council held its ground and established the United Nations Protection Force (UNPROFOR) in 1992.[13] This body is tasked to establish the conditions needed to ultimately keep the conflict in Yugoslavia to rest.
Nevertheless, critics stated that the initiative that Vance have advanced through his missions were rather doomed even before they have even started. In an article of Doder the situation in the Croatian case was basically held at a stalemate even before the Vance missions ever started.[14] This was triggered by the recognition of the European Community of the independence of Croatia. According to Doder this proved to have spurred more problems because the rights of the people in the said republic has yet to be protected by sufficient guarantees, this is especially the case of the minority groups of Serbs in the country.[15]
Another problem that spawned from the Yugoslavian conflict, particularly between Croatia and Serbia, was the issue of Bosnia. The said area is an expanse of land that stands between Serbia and Croatia which with the secession of the latter from the federation advanced claims on some parts of Bosnia as its territory. Serbia on the other hand, faces off with the Croat offensive with its own claims on parts of Bosnia.[16] To avoid any more conflict based on claims on Bosnia, both the United States and the European Community recognized Bosnia-Herzegovina as a newly instituted nation. This took place in 1992; several moths after the United Nations established their UNPROFOR headquarters in the capital of Bosnia: Sarajevo. According to Doder these actions were intended to subdue the plan to divide the country before Serbian and Croatian leaders came up with an agreement implementing such an initiative.[17] With the turn of events, it appears that the need for a long-standing presence of military forces is required given that there is a level of uncertainty for the future of the former Yugoslavia.[18] This came as a price for keeping the Bosnian Muslim identity and refusing to provide incentive for the aggression of the parties involved.[19]
An offshoot of the Vance missions is the Vance-Owen plan, a proposition made with the help of the representative of the European Community, David Owen. This plan is used as a means to continue the UN supervision of Bosnia through the division of the said country into ten semi-autonomous regions.[20] This division proposed by the plan intends to consider the intricacies of the Yugoslavian case where ethnicity, religion and political elements mesh together into a single multifaceted predicament. The political settlement of the plan is characterised by Doder as one with short-term strength yet seemingly frail in the long-run.[21] Though it has also been seen as a means to give breathing room for further adjustments in the political situation in the region, the implementation of the plan is similarly a tool to considerably maintain peace, regardless of how unstable it is. And with the Serbian leadership succumbing to the demands of both the United Nations and US, the implementation of the Vance-Owen plan made its first attempts for the enduring peace in the region, hopefully ending the cycle of reprisal on both parties.
V. Birth of the Federal Republic of Yugoslavia
The conflict in the former Socialist Federal Republic of Yugoslavia prompted the break away of countries like Slovenia, Croatia, Bosnia, Herzegovina, and Macedonia in the federation. The federation is left with two of the most influential republics in its prime: Serbia and Montenegro. With the recognition of the international community of the secessionist countries like Croatia and Bosnia, the former Yugoslavia does not exit anymore.[22] This is the reason that the international community accepted and recognized the Federal Republic of Yugoslavia as a new country but not an actual successor of the former SFRY. This means that the two are completely different entities, two different states.
The non-recognition of the country from the international community may have spawned indirectly from the conflicts taking place in the territories of the former Yugoslavia. Particularly, they have assisted in the arms supply on the conflict in Croatia and the Serbian states of Bosnia despite the international moratorium on arms in the said region. A contested issue which has recently raised out of the Kosovo wars was the alleged war crimes that FRY has committed during the combative years in the later part of the 1990s and early 2000. Specifically, the country was charged with alleged ethnic cleansing of Serbs and other ethnic groups in the land.[23]
The said allegations prompted the National Atlantic Treaty Organisation (NATO) to conduct air strikes in the said region.[24] This was done as sanctions for the supposed actions done by the said nation and for other reasons such that of breaking the agreement of unconditional ceasefire with the other neighbouring countries from the former Yugoslavia.
VI. International Implications of the Conflicts in FRY
The consequent actions of the independent countries of the former Yugoslavia have triggered several implications in its international relationship with other countries. This part of the paper is going to discuss these implications as well as the specifics actions which placed the Federal Republic of Yugoslavia. The first will tackle the implications of the war crimes that were charged to the country. Subsequent discussions on the context of the retaliation of NATO on the actions of FRY will also be taken into consideration. The legality and legitimacy of the war crimes against FRY will be discussed. Moreover, an analysis of the creation of the International Criminal Tribunal for Former Yugoslavia (ICTY) will also add up to the entire consideration of the international implications of the events in the former Yugoslavia.
A. Creation of the International Criminal Tribunal for the Former Yugoslavia
The International Criminal Tribunal for the Former Yugoslavia (ICTY) was created as an ad hoc court by virtue of the resolution of the United Nations Security Council No. 827 in 1993. Thus, the creation of such a body by Security Council presents the assumption that there were indeed several acts breaching the agreements signed in 1949 Geneva Convention. The function of the said quasi-judicial body is to try individuals. However, this does not mean that governments or organisations will be exempt from any punishment based on the findings of the body.[25] Nevertheless, those charged with the issues of war crimes and crimes against humanity are pointed towards individual persons essentially. It is merely an extended mandate of the body to connect the state and its government on the actual commission of the crime.
It is the sole body that has been active in addressing the said crimes committed in the former Yugoslavia, particularly on the atrocities that has been carried out through the course of the wars waged in the said region. This was considerably favourable in the international sense considering the fact that the authorities in Yugoslavia refused to take legal action on the individuals of the said war crimes. At the same time, the ICTY was successful in gathering the needed information that would establish a case against the accused individuals. [26]In the same manner, the actual acquisition of the evidence similarly proves that there were indeed actions and occurrences that took place in Yugoslavia that were tantamount to the breach of international humanitarian laws. In the same light, developments in the context of international law were among the foremost advances in the establishment of the ICTY. International legal concepts that were initially used in the Nuremberg Trials were once more used and provided further interpretations by the body.
Regardless of the benefits presented here, there are still certain issues that hound the function of the ICTY. These issues are to be discussed in the later parts of this paper. Nevertheless, the following part will be taking a close look on the alleged war crimes of the FRY.
B. War Crimes Charged by the ICTY
One of the most notable cases of the ICTY was against Dusko Tadic. He was charged of murder for the deaths of several prisoners during the conflict in Yugoslavia.[27] This actually took place during his reign as a warden of prison camps where abuses were reportedly taking place. The authority given to the ICTY was acquired from Article 2 of the ICTY’s statutes as presented in the resolution of the Security Council. It authorises the tribunal to prosecute individuals who were charged of breaching agreements held in the Geneva Convention.
The article of Tyner reviewed the decision on the Tadic Case as a means to verify the actual involvement of the state in the atrocities held in Yugoslavia.[28] Specifically, the discussions in his arguments manifest the issues of overall control of states as a means to measure the actual culpability of the state in breach of the Geneva Convention. In line with the decision of the ICTY on the Tadic case, it also served as an international standard to which state responsibility is based on in international proceedings. This case has now been used in line with the international legal thought based on its rather liberal perspective on the matter.[29]
The discussion further proposed a connection with the international case of Nicaragua v. United States of America which similarly created a standard for state responsibility of breaches in international laws. However, issues were raised as to whether the ICTY was able to actually carry out what it is initially intended to do. Tyner indicated that the ICTY went so far in its mandate that if failed to actually make accurate findings on the case of Tadic.[30] He claimed that in the said case, there was confusion on whether the case is an internal conflict or based on an international one, particularly the conflict in Yugoslavia. Essentially, it is in this analysis that the concept of “overall control” was viewed in the jurisprudence held by the ICTY. And in a sense, the case created an impetus for review on state responsibility of certain atrocities classified as breaches on international law.
C. Legality of NATO’s Actions towards FRY
An offshoot on the actions of FRY was the attack of NATO on the region. This was earlier mentioned that air raids were carried out by the organisation to the said region.[31] Nevertheless, the actions of NATO were not merely limited to military operations. Economic sanctions coming from the member states of NATO were also established. Ban of export and re-export of goods to the said region has been prohibited to all the members of NATO.
With regards to the air attacks on FRY, NATO has presented several justifications on their actions. One justification is that the organisation held rightful interest in the events surrounding Kosovo. This also implies that the stability in the said region is of their utmost concern. In the context of regional stability, the organisation further implied that it is one of the cores of their charter thus making such importance on their actions. The said justifications were held in both Article 2 and Article 4 of the organisation’s charter.[32] On a more pressing note, the attacks of the said organisation to FRY was held in concurrence with the existing UN resolutions regarding the situation in FRY. Specifically, UN Resolutions 1160 and 1199 were held to be in agreement with the NATO actions.
Included in the charges against NATO was held in the report of Schwabach where the depleted uranium projectiles and cluster bombs were used in the attacks.[33] This means that chemical weapons were actually employed by the NATO forces. Other charges were related to the damage to the environment as a result of the use of such chemical weapons against the FRY. Nevertheless, Schwabach indicated in his report that the actions held by NATO was not as gruesome when compared to the atrocities held by the Yugoslav conflict in itself.[34] However, this line of argument does not justify the legality of the actions held by NATO.
The problem with these actions of NATO is that it was held against the actual UN charter which implies on the use of force against any state. (Article 2.4) However, as stated in the UN charter, the use of force could only be applicable if there is an intention for the maintenance of international peace and if the said country is imposing a right to self-defence.[35] Both of the said reasons are far from the justifications held by NATO. In addition, the UN Security Council wasn’t even consulted in the said action.
The issue with regards to the actions of NATO similarly held that the organisation is absolved from any of the UN sanctions or laws because they are not under the UN. However, the UN categorised the said organisation as a regional arrangement implicated under Article 52 of the UN charter.
VII. Legal Issues and Uncertain Membership in the United Nations
A. Changing Role of the UN Security Council
In the events of the conflict in FRY, the function of the UN Security Council was tested to a great extent. It has manifested an authority full of flaw. In an article of O’Connell, this has been emphasized to a certain extent.[36] Reform is needed to adapt to the changing conditions in the international setting. Issues on the use of force, veto power and even bypass initiatives have been forwarded to meet the changing environment. Nevertheless, only the last proposal was vehemently rejected by the organisation. The irony of this matter is that the Security Council has been bypassed by the United States on two occasions: the attacks in Iraq and in FRY.
B. Changes in the Laws of War
Initially, the laws of war cover mainly the rules of engagement and other variable elements as subjected by culture. Contemporary laws of warfare now concerns issues on humanity and human rights.[37] In an article of Cox he noted that conflicts in the contemporary sense has evolved into occurrences equivalent to actions of national liberation.[38] Nevertheless, despite any other definition or purpose, the use of force should incessantly be under the rule of law. These actions should remain under the context of international laws.
C. Need for Actual UN Membership for Jurisdiction
Another inherent issue in the FRY case is their actual membership in the UN. Given that the former SFRY was considered dead and that the FRY was far from being recognised internationally as the successor of the said country, then there is still question on whether the rules of UN was actually applicable to FRY. This is particularly evident in the dissenting opinion held by dissenting opinion of Judge Vereshchetin. Essentially, the opinion indicated that the assumption that Yugoslavia (FRY) was still actually a member of the UN is essential in finding the jurisdiction of the court.[39] This could also establish that the war crimes held by the FRY was actually held in breach of conventions held in the UN charter.
VIII. Conclusion
The consequent legal actions against the former SFRY and the existing FRY have considerably helped international law develop. With the consideration of international principles, the events surrounding the Yugoslavian conflict presents both positive and adverse implications. However, there are still issues left to be clarified regarding the case of the former Yugoslavia. This study has presented how the Yugoslav wars presented change in the international scene. It reflected changes in international law. It triggered change in the role of the UN Security Council. More importantly, it provided a greater understanding of state responsibility in the legal concerns that implicates both internal and international conflicts. The study have similarly presented that international organisations like the United Nations serve a greater purpose than just being mere association of countries. Nevertheless, despite having power of far greater extent, these international organisations have to similarly be subjected to the rule of law. As manifested in the actions of NATO against Yugoslavia, international charters have to be upheld such that enduring accord will ensue.
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