Greek law professors and law students comment on the crisis in Yugoslavia...
Voices from the Region: Greece
- Greek law scholars comment on the Yugoslav crisis [June 3]
- Anti-bombing resolution [May 20]
- Thessaloniki Law Faculty forms committee on the Yugoslav crisis [May 13]
Since the commencement of the bombardment of Yugoslavia, a number of lawyers in Greece, including some of the most distinguished law professors and administrators and a member of the Kosovo Verification Mission, have been expressing their views in articles in the press and various periodicals. The following summaries, presented alphabetically, have been prepared by professor P.J.Kozyris of the Thessaloniki Law Faculty, with the assistance of the students named in parenteses.
1. “The Right of Intervention”, by professor N. Alivizatos of the Athens Law School (Vima, May 9, 1999, pp. b-1, b-3).
- National sovereignty is not sacrosanct. Its limitation in favor of human rights constitutes an advancement of our civilization. The international community should be able to intervene to prevent a genocide. The key question, however, is who shall have the authority to decide.
- The clear answer since 1945 is: the Security Council of the UN. But its decision-making processes have been hampered by the veto of the permanent members. We need a revamping of the rules and institutions to make them effective but also insure that any intervention in the internal affairs of nations is not decided unilaterally in pursuit of selfish goals under the pretense of protecting human rights.
- Until that is done, we ought to err on the side of legality rather than good intentions. Only a united Europe can provide some balance to the power of the United States to revamp the international structures and set up a viable organization e.g. on the model of the Council of Europe. Until that is done, the UN system provides the only guarantee that the noble goal of protecting human rights is not subverted and compromised by the arbitrary authority and supreme arrogance of the only superpower.
2. “Ethnic Cleansing and International Society”, by Paul Eleutheriades, Ph.D. London School of Economics (Vima, b-3, May 9, 1999).
The Serbs, in pursuit of an extreme nationalism, three times engaged in “ethnic cleansing” (Croatia, Bosnia, Kosovo) and the international community cannot remain a simple observer. The fact that the other sides also committed atrocities does not provide an excuse to do nothing. NATO´s intervention is justified in principle, although one may disagree with the particulars, for example the attack on Yugoslav television or the criminal negligence of pilots attacking civilians.
3. “A “New” International Law”, by professor Aris Kazakos of the University of Thessaloniki Faculty of Law, Chairman-elect of the Faculty (Eleutherotypia, May 2, 1999, pp.86-87).
There is no question that the UN requirements for the use of force have not been met in the Yugoslav intervention case. It has been proposed, however, that a new international law of humanitarian intervention is taking shape and that we should encourage its development (see an interview with professor E.Denninger in “Der Spiegel” of March 29). Assuming that we agree, certain important reservations remain, and they will be summarized in the following ten questions:
- if the USA were to engage in ethnic cleansing, how would the international community have reacted and who would taken the necessary restraining measures?
- may the nation that takes action, especially a superpower, be at once the rule-maker and the judge and the enforcer?
- when the disapproval of a leader of a nation is tantamount to the rejection of the will of that nation?
- are not the new rules too vague, especially as they are enforced selectively, leaving out e.g. Cyprus?
- the force used against Yugoslavia, is it based on the rule of law or is it just brute force?
- are we supposed not to criticize NATO because generally it is in our national interest to remain silent?
- is international law being transformed into the law of the jungle?
- should the globalization of international relations end up in total freedom for each nation to act without restraint?
- are we returning to the age of holy alliances?
- may the citizens who refuse to accept all these fatalistically, continue to protest and challenge?
4. “The Difficult Implementation of an Important Principle”, by professor George Koumantos of the Athens Law School (Kathimerini, May 9, 1999, p.12).
- I have supported in the past the principle of intervention to prevent massive, manifest violation of human rights. This is a new principle. Traditionally, international law called for respect of the territorial integrity and for non-interference in the internal affairs of nations. In Europe, this traditional regime has been modified in favor of human rights under the system of the Council of Europe.
- The implementation of this new principle of intervention, however, has been quite problematical. First, it must be applied across the board equally and not only in pursuit of power politics and interests. While it is not feasible that all human rights violations around the globe be pursued simultaneously, intervening in Yugoslavia while letting the Kurds to their fate cancels the moral force of the principle. Second, and most important, who determines whether there has been a serious enough violation and what is to be done? The UN Security Council is the appropriate organ although handicapped by the great-power veto. Europe remained in the sidelines. Alternative approaches are needed but NATO in Yugoslavia is the least desirable.
- The NATO intervention has been unfortunate and inappropriate. The bombing of civilians, the displacement of populations, the human tragedy generated which exceeds that intended to be prevented, originating in a misreading of the psychological situation, have led to results contrary to those expected and desirable.
5. “International Law in the Service of the Bombs”, by professor Nicholas Paraskevopoulos of the University of Thessaloniki Faculty of Law and Chairman of the Faculty (Eleutherotypia, April 14, 1999, p.6).
- The massive NATO air attacks, striking at civilians and public works, are not justifiable even in reprisal for human rights violations by the Serbs and they approach the level of genocide. In particular, international law and the UN processes must be respected as to every instance of use of force. The UN Security Council resolutions protesting certain acts by Yugoslavia did not endorse nor did they implicitly authorize the use of force so much later. The International Court for Crimes in Yugoslavia may prosecute any violators of human rights.
- A novel right to humanitarian intervention requires very careful conditions and procedures and the United States may not be entrusted to enforce it at will as it chooses, given especially its failure to take action in Columbia and Turkey (Kurds), and its benevolent neutrality in the cases of the uprooting of the Greek Cypriots by the Turks and of the massacre of the Serbs by the Croats in Kraina.
- International law should not be left at the mercy and goodwill of the superpowers.
6. “International Law” and the Duty of Jurists in the Yugoslav Crisis”, by professor Peter Stangos of the University of Thessaloniki Law Faculty (ANTI, May 21, 1999, pp. 24-27).
- The massive, savage bombing of Yugoslavia violates human rights in the name of human rights and is accompanied by an equally massive propaganda campaign to convince the European public that it is a just war.
- Some experts, including in particular Judge A.Cassese, argue that the attack is legal under the new humanitarian law because it meets the five necessary requirements: systematic, massive and serious violation of human rights have taken place; pleas for cessation of the violations by the UN Security Council remained without effect; the diplomatic efforts for resolution failed; the decision to employ force was taken by a substantial number of nations and the majority of the remaining UN members have not expressed opposition; and the use of force is the last available resort for the protection of the human rights. The author disagrees that the UN regime on the use of force has been modified.
- More specifically, he focuses on the Rambouillet process and notes that this is the first time in the post-war period that a superpower threatened to use force on the basis of an ultimatum requiring the partial relinquishment of the sovereignty of the threatened nation. Even if Yugoslavia had yielded to the blackmail, it could have challenged the validity of its consent under the Vienna Convention on the Law of Treaties.
- The Western powers ought to be the first to urge respect for and observe international law and those experts versed in the law have a duty to inform the public of any violations that are taking place and of the danger to the peace that they pose. The protection of the Albanian community in Kosovo could have been best pursued e.g. through the European Convention on the Protection of Minorities, in effect since February 1, 1998.
7. “The Inhuman Face of an Advanced Civilization : The Role of the West in the Balkans”, by professor Michael Stathopoulos of the Athens Law School, former Rector of the University of Athens (Kathimerini, May 9, 1999, p.28).
The author makes four basic points :
- The NATO attack blatantly violates and ridicules international law, by-passing the UN process, and returns us to the law of the jungle and the justice of the strong.
- While there has been some serious “ethnic cleansing” in Kosovo by Milosevic, this does not justify the wholesale atrocity of the bombardment on the Serb civilians, which also has greatly aggravated the massive exodus of the Kosovars. Furthermore, NATO´s motives are dubious when it selectively punishes only those violations of human rights that serve its other interests.
- The West pretends not to understand that the conflict is directly related to the attempt of the Kosovars to secede from Yugoslavia, following the dismemberment of that nation piece-by-piece, encouraged by the West and promoted at Rambouillet. It is this dismemberment that has led to these bloody conflicts.
- The daily, gradual, cold, calculated, cynical destruction of Serbia is a crime not easily to be forgotten (K. Alexiou & A. Kaliagras).
8. “A Difficult Time for Human Rights”, by Dr. Konstantine Tsitselikis, who was present in Kosovo between December 12, 1998 and March 26, 1999 as a member of the Kosovo Verification Mission for Human Rights of the OSCE (Bibliotheke, May 7, 1999).
- Two unilateral acts, the abrogation of the Kosovo Constitution by the Yugoslav government in 1989 and the declaration of independence by the Albanian Kosovars led to two diametrically-opposed characterizations of the conflict: secession supported by terrorism and occupation by an enemy force. The operation of the five Regional Centers of the Mission was extremely difficult. The battles between the Yugoslav army and the UCK were intensifying, catching many civilians in-between. In 1998, we had about 300 disappeared persons.
- Before the commencement of the NATO bombing, the UCK controlled a substantial segment of Kosovo and generally had the support of the Albanian Kosovars. However, it also engaged in forced recruitment, abducted and even executed Kosovars who were supposed collaborators of the Serbs and engaged in sneak attacks which made clear-cut military operations difficult. In addition, the UCK engaged in “ethnic cleansing” against the Serbs in the areas within its control. On the other side, the Yugoslav army, purporting to repress this terrorism, engaged itself in many arbitrary and violent acts against the Albanian Kosovars. The Regional Centers helped keep the police within bounds in terms of the treatment of the accused and the conduct of trials. The Serbs, however, were suspicious and hostile to the Mission, perceiving it as under American control and connected with the threats of bombardment. The partial and biased attitudes against the Serbs of some American and Canadian members of the Mission, particularly W.Walker, the American head of the Mission, who was displaying the American flag on his car, did not help.
- Three weeks before the NATO intervention, the Yugoslav army and paramilitary organizations started major displacement operations, forcing the inhabitants to evacuate their villages and then burning them. About 20,000 Albanian Kosovars had to move the first week. The UCK also forced the people out of some Serb villages, although at a much smaller scale. Eventually, 650,000 Kosovars left Kosovo for the neighboring countries. The displacement was the major reason although also the UCK put pressure on both Kosovars and Serbs to leave and the bombardment produced new waves of refugees.
- The NATO intervention not only failed to produce the desired results in terms of protecting human rights and democracy, but dealt a crude blow to the system of collective security under the UN and also led to more catastrophes than it was supposed to prevent, committing war crimes and using lethal force on civilian targets. A viable solution for Kosovo is now more remote than ever. The Bosnian example is hardly reassuring: an artificial unstable protectorate under American influence with the pretense of international legitimation (A. Vlemma & A. Vezirtzi).
[Thursday, May 20] I discovered that the Senate of our University (our most important policy making body) had voted up an anti-bombing resolution and I am attaching it herewith in translation.
University of ThessalonikiARISTOTELIAN UNIVERSITY OF THESSALONIKI, GREECE
March 26, 1999
The Senate of the Aristotelian University of Thessaloniki follows with great concern the unacceptable bombardment of New Yugoslavia on the pretext of protecting the interests of minorities. Human victims and material damage are not the only consequences of the continuing intervention in our neighboring country. In addition, this aggression, on the initiative of the U.S.A. and with the support of countries of the European Union, disturbs the international order, endangers the peace in an area in the Balkans and risks a more widespread conflagration while it grossly offends human dignity, freedom and democracy.
Particularly in this sensitive region of the Balkans, the crossroads of peoples and civilizations, we cannot accept a violent policy of ethnic or religious cleansing, which has been proven dangerous and ineffective in Bosnia. The people in the Balkans must live together in peace.
The Senate of the A.U.TH. condemns the above acts, protests the conduct of the NATO forces hurting the civil population of the neighboring country, and declares its support for the people there. It demands the immediate cessation of hostilities and the resolution of the disputes on the basis of the rule of law, the protection of human rights and the respect for existing borders, which inform the existence of the United Nations and should also guide the progress toward a closer European Union.
[Thursday, May 13] The NATO bombing campaign against Yugoslavia, in the context of the human rights aspects of the ethnic conflict in Kosovo, has prompted the Law Faculty of the Aristoteleian University of Thessaloniki, a major academic institution in the Balkan region, to set up a committee among its members to coordinate reaction to the legal aspects of the dispute. This first major and catastrophic war after W.W.II on the European continent, so close to Greece, is of major concern to the people of Greece, considering also that the Greek soil, especially the ports of Thessaloniki, are being used extensively by NATO in its support operations.
According to law professor P.Kozyris, formerly also of the Ohio State University College of Law, who chairs the committee, the concern extends to both the human rights aspects and the destabilizing effect of the such a major intervention in this sensitive area, and a key item is whether all the diplomatic and political means had been exhausted before resorting to the use of force.
The first issue of immediate importance is whether this NATO bombardment is justified, or even required, under international and domestic law. In particular, the following questions need to be addressed :
- Were the prior international law requirements for the use of force for non-defensive purposes complied with? (U.N. Charter, Security Council, "Uniting for Peace" Resolution, OSCE, declaration of war)
- On the substantive side, what are the international law requirements for the use of outside force to protect citizens of a state against its own government (humanitarian intervention?)?
- Was the intervention within the authority of NATO under its constituent documents and procedures?
- Were the military operations duly authorized under the internal law of the participating states?
- Were all the peaceful means (political and diplomatic) for the resolution of the dispute fully exhausted and did all parties negotiate in good faith and make all reasonable concessions, especially during the Rambouillet process? In particular, given the imbalance in military power and the take-it-or-leave-it nature of the NATO proposals, should more effort have been exerted to come to an agreement before resorting to the use of force?
- Has the Kosovo dispute been properly characterized, given the history of the conflicts in the area, the demographic aspects and mixture of populations, and the initiation of a guerrilla campaign clearly aiming at secession and independence?
- As is rather evident that this is a long-standing conflict between the Albanian and the Serb communities for political power and control within certain territory, should the international community have taken from the beginning a more neutral stance? Should it have tried to seek a fair compromise rather than inflame the conflict, not presenting it as if it were due to the folly and aggression of a person like Milosevic, no matter how illiberal his regime may be? In the same context and long-term, should not a more objective assessment have been made of blame for the scramble for territory after the breakup of Yugoslavia? Have the consequences of the Dayton Accords been properly analyzed, especially as concerns implementation of the return of the refugees and of sharing power? What has happened to the Serb refugees from Croatia and Bosnia?
- Were the military means chosen appropriate and proportionate to the situation under international law? To what extent did they contribute to, rather than solve, the refugee problem? What are the safeguards against excessive "collateral damage"? Does knowledge of a high degree of probability of damage make the damage "intentional" ? To what extent may civilian and general economic targets be destroyed on the basis that they affect the overall ability of the enemy to engage in military operations? What, if any, are the limitations on damaging cultural goods and the environment? Is there a difference between bombing a target from a distance and placing next to it manually a "terrorist" explosive?
- Does the European Convention on Fundamental Freedoms and Human Rights (Strasbourg) apply to actions by member states which affect citizens of other member states within Yugoslavia (cf. Loizidou and Gibraltar cases)?
Another major issue concerns the humanitarian law aspects of the conflict:
- What is the definition of genocide? Does it extend to: "ethnic cleansing", forcible relocation or expulsion, security measures incidental to the suppression of a guerrilla-type armed rebellion, denial of local autonomy or self-governance or "self-determination"? Does it cover military campaigns that are known to have such an effect by reason of their damage to the resources, economy and environment of a group?
- In any event, do any of the above, even if not amounting to genocide, constitute violations of some other humanitarian or human-right norm of international law?
- Also, as concerns acts by a state against its own citizens, who has authority, and under what procedures, to decide whether any violations have been committed and to choose the appropriate responses?
Finally, it is important to chart the main lines of a desirable future form of government for Kosovo:
- Is there an international law right of substantial-minorities-but-local-majorities, which constitute distinct communities, to secede, and if so under what conditions, procedures and safeguards?
- Assuming no such right of secession, what type of "autonomy" is best suited for the Kosovo situation, especially considering the intensity and depth of the conflict? Unified province with adequate representation of minority community or cantonization of the province between two equal communities? Acceptability of (partial) relocation of populations? Type and quantum of division of powers between province and Belgrade, with recourse to federal models?
- What are the lessons of Bosnia, as to territorial divisions and adequate representation in the common organs and forces? Were the provisions of the Dayton Accords respected and by whom and how much?
The University of Thessaloniki Law Faculty, consisting of approximately 100 members, has a long history of interest and involvement in matters related to international law. For example, this forthcoming September it will collaborate, for the 27th year, with the Institute of Public International Law and Relations of Thessaloniki, on a Conference on "The Law of Armed Conflicts". Participants in the Conference include such distinguished publicists as professors F. Hamson (U.K.), R. Vinuesa (Argentina), O. Bring (Sweden), S. Mahmoudi (Sweden), H. Fischer (Germany), D. Momtaz (Iran), A. Pellet (France), J. Paust (USA), L. Condorelli (Italy), H. Caminos (Argentina), and F. Kalshoven (Netherlands) as well as Dr. H. Gasser of the Red Cross.
University of Thessaloniki
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