June 12-14, 1991  -  CONFOEDERATIO EUROPAE, Assises
June 30, 1991  -  An Appeal for Help
July 3, 1991  -  Memo 2:  The Humanitarian Law Basis for Neutralized Zones
October 30, 1991  -  Memo 5:  DUBROVNIK, the 1st European Commenwealth Town
September 3, 1992  -  PROTECTION OF MINORITIES
October 25, 1992  -  L'AIDE HUMANITAIRE SERT-ELLE A DEFENDRE LES PEUPLES?
July 2, 1993  -  Memo 7:  UN Trusteeship Plan for Bosnia-Herzegovina
July 29, 1993  -  DECLARATION AGAINST  GENOCIDE
September 7, 1993  -  International Minority Protection Guarantees in ex-Yugoslavia
September 7, 1993  -  Legal Facts and Considerations
December 1993  -  Draft UN General Assembly Resolutions (ex-Yugoslavia, Way Out)
January 5, 1994  -  GOGEL to: The Hon. Datuk Dominic PUTHUCHEARY, ISIS Malaysia
January 27, 1994  -  GOGEL to: HRH The Sultan of Brunei
February 7, 1994  -  AGENDA FOR ALBANESE ACTIONS
April 5, 1994  -  From Broken Promises to Real Minority Protection in former Yugoslavia
July 14, 1994  -  Mediation Plan
August 26, 1994  -  ACTION PLAN FOR EX-YUGOSLAVIA
March 6, 1995  -  Towards a Europe-Linked Referendum in ex-Yugoslavia
March 22, 1995  -  Beyond Responsibility, Co-Responsibility and Guilt on former Yugoslavia
July 17, 1995  -  Will Great Power Complicity Undo the UN as With the League of Nations?
August 30, 1995  -  Minorities Then, Now and Hence
July 18, 1996  -  Memo 9:  Keeping the Balkan Peace Process on the Rails
May 2, 1999  -  ELEMENTS OF A FRAMEWORK AGREEMENT ON KOSOVO
May 2, 1999  -  Treaty of Saint Germain-en-Laye: signatories, conference observers
May 10, 1999  -  The Saint Germain-en-Laye Treaty - a Pathway for Kosovo?
June 7, 1999 -  Kosovo with or without Metohija?


This map was originally attached to the manuscript which was published under the title "From Broken Promises to real Minority Protection in former Yugoslavia" (UN document E/CN.4/1994/NGO/54). It outlines then-conceivable mutually agreeable UN trusteeship functions in various parts of former Yugoslavia.  It remains to be seen whether these and similar ideas reflect more than mutually missed opportunities, and what, if anything, they can contribute towards a viable resolution of the current conflicts in that area.
(click here for a high-resolution 117 KB version of this map: depending on your equipment, it may take several minutes to print; for individual formatting, download it first from: http://www.solami.com/yugo2.gif)
 
 
 
 

EDITOR'S NOTE   (9 March 1999)

        Item 1:   Skanderbeg - the Albanians' national hero - doesn't seem to have any particular bearing on the current Kosovo conflict.  Yet, he is widely credited with having blocked Turkey's onslaught on Europe for some 25 crucial years.  Namely after the Serbs who, under King Lazar, in 1389 and precisely in Kosovo, though defeated, had succeded at least to slow the Islamic thrust into the heart of Europe.  Thus both the Serbs and the Albanians (many of whom were of Serbian descent) had rendered an invaluable service to Europe as a whole.  All this is recognized and venerated not only by nostalgic Serbs, but by other European Christians with a memory.  As in these and other cases, a better, unbiased knowledge of our common past might bring to light much needed common ground.  And go a long way to inspire the negotiators - currently meeting at Rambouillet - to achieve a dignified, practical and lasting solution to a conflict in Europe's currently most pressing trouble spot.

       Item 2:   Be they Albanians, Macedonians, Serbs, Tzigans or whatever, the inhabitants of Kosovo are not known for their particular depedency on computers.  And yet, on the international scene, they are all in the front row to draw substantial benefit from a problem other societies are increasingly nervous about, i.e. the year 2000 computer bug (Y2K).  This is so, because if they manage to prolong the cease-fire in Kosovo into the next year, they have a chance to work out by themselves well-founded and lasting solutions meeting above all their own and not foreign interests.  For by that time, the chancelleries of all OECD countries can be expected to be overly busy with other - and not least their own - problems.

       Item 3:   Our mandate of June 1991 solicited our "good offices ... towards a peaceful, early and lasting resolution of the crisis" of Yugoslavia which then started to unravel at the seams.  It hadn't occurred to us that the results of our efforts could one day become helpful in the search for a viable solution of the Kosovo conflict.  Until the negotiators at Rambouillet seemed to be dead-locked in their search for common ground.  And it suddenly appeared that what, over the past seven years, we have assembled in our ivory tower just might help to do the trick - i.e. when looked upon with the help of the Internet.

        Not convinced?  Then look for yourself on these pages and elsewhere and start clicking whenever it itches you!  And if you need further details or explanations, or if you can contribute from your own stock of data, experiences and insights, or care to make critical comments or suggestions, please feel free to contact us (CORUM, box 2580, 1211 Geneva 2), preferably by e-mail (swissbit@solami.com.com).
.....
......

        Man-made, man-maintained and dangerously growing simmering conflict and humanitarian disaster zones in former Yugoslavia increasingly - and at immeasurable costs in various forms - threaten the interests of peace, stability and respect for human rights in all of Europe.  In these circumstances, a radically new approach is called for in order to effectively influence the course of events there.  That is, if genuine peace is to be given a chance, and those called upon to bring it about will not only remember but heed the lesson from Chamberlin's costly for self-deluding and indeed very short-lived "peace for our time".

        Inspired by both modern European developments and all-too-long forgotten, yet decisive historical elements, given a chance the peoples concerned might opt for a joint European option.  For all the peoples who lived on the territory of former Yugoslavia, this could involve, e.g., an early joint, one-voice-only but full membership in the European family of nations, be that the European Union as it currently evolves on its worn-out peculiar tracks, or the European Confederation or Commenwealth for which Presidents Havel and Mitterrand laid the foundations in Prague already in 1991.

        Special arrangements, including eventually redrawn international borders, might thus be worked out particularly for some past, present and future hot spots of that part of Europe.  In every such case, a new minority is created.  Each minority - whether reframed, displaced or newly resettled - carries with it the seeds of future conflicts, as many still unresolved minority cases resulting from the First World War show, e.g. the Baltics, Greece, Iraq, Palestine, Romania, Turkey, ex-Yugoslavia, etc.  One of the cardinal lessons to be drawn from these and other still festering conflicts is that each uprooted or otherwise destabilized minority must not only be given adequate paper guarantees in the form of international minority protection rights. Also indispensable are effective means, notably adequate representation, to promptly notify and seek redress against rights abuses with the help of those guaranteeing these international rights.

        In any case, for many decades, the constituant peoples of former Yugoslavia have enjoyed one of the most elaborate, generally respected and thus beneficially working national minority rights legislation.  Fiddling with that delicate structure did not really benefit anybody when, in the power vacuum left to the successors of the in many ways irreplacable President Tito, the minorities question surfaced again.  Not least from the point of view of regional stability in the longer run, it could be important now to devise a generally stabilizing solution to the Balkan minorities question.  Currently, it is the Kosovo situation which, in this sense, offers an opportunity to look beyond the immediate problems.  And here once more, we find an opportunity to look beneath the national minorities legislation of former Yugoslavia, where we discover a body of amazingly fashionable minority rights which, although of an international nature, most everybody seems either to want to ignore or simply to have forgotten.  We are talking, of course, about the Treaty of St-Germain-en-Laye of 1919 which gave birth to the Kingdom of Serbs, Croats and Slovenes, i.e. former Yugoslavia, and the corresponding minority protection instruments of the League of Nations.

        In his memorable Sorbonne address of October 1992 by Sadruddin Aga Khan, the former UN High Commissioner for Refugees, had this to say on this matter:

"Some writers suggest that minority protection obligations put in place at the time of the League could perhaps be a means of reinforcing UN resolutions and that certain relevant treaties and obligations under the League should be considered as remaining valid.  They contend that the UN, as the legal successor of the League, can accede to League instruments through simple General Assembly resolutions. The argument is advanced that League obligations could be applied with respect to Iraq and the former Yugoslavia.  It would be helpful if international law experts were to examine the validity of this proposal.  If it were valid, this might strengthen the UN's position.  Indeed, some observers have argued that UN Security Council resolutions are not an adequate basis for intervention on the scale carried out in, for example, Iraq."

box 2580  1211 Geneva 2
fax: (4122)7335979
     J.A.KELLER, Secretary

July 3,1991

  H.E. Stipe MESIC, President S.F.R.Y.                               3811-636775
  General Veljko Kadijevic, Defense Minister                          3811-636775
  General Blagoje Adzic                                                       3811-636775
  H.E. Ante Markovic, President,
    Federal Executive Council                                                3811-636775
  Dr.Miran Mejak, President,
    Chamber of Republics and Provinces                                 3811-131775, 3861-343696
  President, Federal Parliament                                             3811-145627
  H.E. Lojze Peterle, Slovene Prime Minister                          3861-219401
  Slovene Parliament                                                             3861-219940
  H.E. Dr. Draegutin Celenovic, Croatian Prime Minister           3841-432041
  Croation Parliament                                                            3841-278483
 

It appears to have escaped the attention of the parties to the conflict that article 15 of the Fourth Geneva Convention (2) offers a secure political way out of the present situation.  For it provides not only the legal basis for the prompt establishment of neutralized zones for the protection of civilians (3), if need be even on an unilateral basis (4) and eventually covering the territories of the Slovenian and the Croatian Republics.  But it would also bring the full weight of these key conventions on the law of war to bear on all those on the military command or execution level who would violate any such duly created neutralized zones.  For they would thus automatically subject themselves to persecution anywhere in the world for crimes against humanity.

Notes

(1)    See our Memorandum of yesterday and our letter of July 1, 1991 ...
(2)"Any Party to the conflict may, either direct or through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction:   (a) wounded and sick combatants or non-combatants;   (b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character.  When the Parties concerned have agreed upon the geographical position, administration, food supply and supervision of the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict.  The agreement shall fix the beginning and the duration of the neutralization of the zone."
For related material see notably:  "Hospital Localities and Safety Zones", ICRC, Geneva 1952, p.42ss;  SANDOZ, Ives, "Localités et Zones sous Protection Spéciale", in:  "Quatre études de  droit international humanitaire", Institut Henry Dunant, Geneva 1985, p.41ss.
(3)    Art.15 requires all parties to a given conflict to cease forthwith all military operations against and within such neutralized zone.
(4)    Though art.15 provides for an agreement among the "Parties concerned" both the national and the local authorities are seen to be in a position to validly declare certain areas, eventually extending over the entire territories of conflict, to be neutralized zones in the sense of art. 15 of the Fourth Geneva Convention - provided they unreservedly accept the conditions associated with this status.  This view is supported by the recognized practice of open towns which are also declared unilaterally, which serve similar aims and which, in practice, had similar effects.

box 2580  1211 Geneva 2
fax: (4122)7335979
     J.A.KELLER, Secretary

October 30, 1991

  H.E. Stipe Mesic, President S.F.R.Y.                                                3811-636775
  Generals Veljko Kadijevic (Defense Minister), Blagoje Adzic                3811-658573
  H.E. Ante Markovic, President, Federal Executive Council                   3811-637185
  Dr.Miran Mejak, President, Chamber of Republics and Provinces         3861-343696
  H.E. Franjo Tudjman, President of Croatia                                          3841-444532
  H.E. Slobodan Milosevic, President of Serbia                                     3811-684679
  H.E. Milan Kucan, President of Slovenia                                            3861-213357
  Members, Executive Committee of:  Bosnia and Herzegovina (3871-653592),
  Croatia (3841-278483), Macedonia (3891-220859), Montenegro (3881-52246),
  Serbia (3811-682850, -646456), Slovenia (3861-219401, -219940, -213357)

We appreciate the manifest restraint of the armed forces and their leaders notably with regard to DUBROVNIK and invite all parties to the conflict to consider the following idea and, in the event, to seek on their own channels the necessary approval from European capitals for this plan to be executed:
    1.   The  Free Citizens of Dubrovnik, through their elected representatives, declare their town to be the First Town of the European Commonwealth (consisting of all countries associated with the  Council of Europe).  As such they enjoy the right to non-discriminatory national treatment with regard to travel, commerce, exercise of profession and settlement, i.e. those rights traditionally accorded to citizens of one European country in another, on a reciprocal basis.
    2.   Each citizen of any Republic/Province of Yugoslavia, upon application, is entitled to become a Free Citizen of Dubrovnik - and thus a Citizen of the European Commonwealth - if through his/her action (or inaction) he/she has contributed to the preservation of Dubrovnik as what it is: an invaluable and irreplaceable part of the European cultural heritage.
    3.   Until the countries associated with the  Council of Europe have agreed to recognize Dubrovnik in the above sense, all parties to the conflict treat Dubrovnik and similarly endangered civilian centers as Open Towns, as Neutralized Zones (article 15 of the 4th Geneva Convention of 1949). Accordingly, the armed forces in these zones, assured of safe passage, shall be evacuated forthwith in step with the withdrawal of the opposing armed forces inside and outside these protected zones.

Note

    (1)   See our letter and Memoranda of July 1, 2, 3, 7[, 9] and October 6, 1991, responding to an appeal of June 30 from the President of the Chamber of Republics and Provinces of the S.F.R.Y., Dr.Miran Mejak, soliciting

"the good offices of your Group of European Lawmakers towards a peaceful, early and lasting resolution of the crisis which has arisen among the European Republics and Provinces which, after the Second World War, have constituted the Socialist Federal Republic of Yugoslavia.  We trust all men of good will to contribute in the search for such a solution which shall reflect the applicable principles of the United Nations, the Council of Europe and other European and national institutions and traditions.  And we trust everybody concerned to join us in exercising maximum restraint and to refrain from all actions which might jeopardize the realization of this objective.  To these effects, we invite you to explore related possibilities, including international mediation, and to develop such contacts which are indicated by your research, including coordinating contacts with national and international authorities."

Economic and Social Council

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination and Protection of Minorities
Forty-fourth session
Agenda item 18
...
...

2.     The 1950 study's much-quoted general conclusion seems to be at the heart of a widely shared, important misunderstanding. It concerns the continued validity of the minority protection clauses contained notably in those international agreements and declarations made between the First and the Second World Wars in favour of peoples not affected by the peace treaties which ended the latter. They can be seen to be of direct relevance to the victims of the infamous ethnic cleansing and relocation campaigns which have been conducted under the direction of the Presidents of the former Yugoslavia and of Iraq, respectively. We are referring to the inhabitants of Bosnia and Herzegovina and about Iraq's so-called "un-Iraqi" Assyrians, Kurds, Turkomans and Shiites.

3.     Received wisdom holds that the wide-ranging formal protection enjoyed by these peoples under the League of Nations minority protection system has not survived the dissolution of the League in 1946. Yet, the 1950 study of the United Nations [Secretariat] ... suggests otherwise in its lesser-known but no less relevant case-by-case section. Concerning Yugoslavia, the protection regime laid down by the Treaty of Versailles of 1919 is thus said to be gone only "as regards the minorities which assisted Yugoslavia's enemies" (p. 65). Accordingly, the League of Nations' individual-oriented protection and redress system may be activated in the actual case of Bosnia and Herzegovina, should its authorities or other imaginative diplomats or concerned citizens be interested. And in the equally current case of Iraq, the authors of the United Nations study on page 51, expressed the view that the dissolution of the League of Nations did not annul but merely "suspended" Iraq's all-important and even constitutive Iraqi Declaration of 30 May 1932 with its wide-ranging minority protection and other "obligations of international concern".

4.     In fact, this so-called suspension of solemnly undertaken obligations in favour of minorities has been less a matter of international law than it has been an ill-founded, opportunistic practice. For the United Nations General Assembly, on 12 February 1946, unanimously adopted the resolutions proposed by its League of Nations Committee.  Its resolution 24 (I), section I, paragraph 1 specifies that:

     "The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations or which specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed."

5.     Iraq, of course, was never relieved of its 1932 obligations; Iraq's territorial integrity, independence and sovereignty are thus subject to review by the United Nations General Assembly. Accordingly, the Sub-Commission may find it useful to look more closely at the substance of these readily and individually invokable obligations. Concretely, it may want to consider ways and means for the peoples concerned to obtain prompt and effective application of these conveniently forgotten yet valid national and international guarantees. The suggestion of human rights monitors, made by the Special Rapporteur on Iraq (E/CN.4/1992/31; S/24386), might be developed further for registering both related human rights violations and the individuals who took part in same - for later prosecution. The beneficiaries of former League of Nations guarantees might be helped by special representatives communicating directly with the Security Council for it to take prompt and adequate corrective measures.

6.     The text of the 1932 Declaration of the Kingdomn of Iraq follows [see also: www.solami.com/a3a.htm#DECLARATION ¦ .../UNGA.htm ¦ .../salve.htm]:
...
GE.92-13969/0899K (E)
 

Editor's Note

Paragraph 5 of the above UN document - available in English, French and Spanish - is followed by an annex, consisting of a verbatim reproduction of Iraq's 1932 Declaration (except for its unrelated articles 3, 7, 8, 11 an 12, whereas the related League of Nations text - as reproduced on this site at:  www.solami.com/a3a.htm - contains all articles).
...........

2.     The Governments of the United States and of the allied countries (the Allies) declare their willingness to support the establishment of a UN Trust Territory in Bosnia-Herzegovina and in such other places of former Yugoslavia where that might be indicated.
   The Allied Governments are prepared to support lifting the United Nations and other sanctions and embargo measures in favor of those former republics of Yugoslavia which effectively, fully and verifiably cooperate in the implementation of all related UN Security Council resolutions and international minority protection guarantees, as provided for in the 1919 Treaty between the Kingdom of the Serbs, Croates and Slovenes and the United States, the British Empire, France, Italy and Japan.
   Furthermore, if need be, the Allied Governments, individually or jointly, are determined to enforce all related rights and obligations, and to prevent further violations of international obligations with all necessary means, including Allied volontary forces as well as air and cruise missile strikes against hostile ground forces and their infrastructures.

3.     The UN Trust Territory of Bosnia-Herzegovina is to provide a reliable and secure political, economic and administrative framework for and towards the responsible exercise of its inhabitants' inalienable right to self-determination.
   Its structures are to facilitate the prompt implementation in all of Bosnia-Herzegovina of all related UN Security Council resolutions, the London Agreement of 1992, the 9 constitutional principles, the interim agreement of March 25 1993, and other applicable agreements.
   To these effects, all military units in all of Bosnia-Herzegovina are to be pulled back into their designated areas.  Those remaining in the UN Trust Territory shall be placed under the command of UN-appointed superior officers subjected to the overall UN Command.  They shall assist the UN peace-keeping forces, the non-governmental organizations and the humanitarian relief agencies in their tasks to effectively protect and provide for the population in their designated areas.  And they shall be responsible for disarming and disbanding all irregular forces and, generally, for cleaning up their own acts, including clearing mine fields, repairing damaged infrastructures, etc.

Economic and Social Council

COMMISSION ON HUMAN RIGHTS
Sub-Commission on Prevention of Discrimination
and Protectionof Minorities
Forty-fifth session
Agenda item 17

    The Secretary-General has received the following written statement which is distributed in accordance with Economic and Social Council resolution 1296 (XLIV).

 
    "Our program should not be simply to stop the bleeding, so to speak, but also to reach out and say, 'here is a place that leads you into a land of some greater opportunity.'  To recount:  these are the pieces that I would put together:  humanitarian assistance, personal accountability, the willingness to use force, and the establishment of something constructive that offers opportunity.  And I think if we can do that, those powerful words, 'Never forget, never again' can ring loud and can ring clear - in Bosnia and throughout the world."  George P.SHULTZ, former U.S. Secretary of State (Vital Speeches of the Day, New York, 1/1/1993)

2.   Manifestly, Europe's sadly lacking will, and the United Nation's ordinary mechanisms for containing and eventually resolving the real threats to international peace and security have so far failed in the case of former Yugoslavia.  The powers that be have thus begun to look at alternative or complementary ways and means to address these vital matters.  And, as the former UN High Commissioner for Refugees Sadruddin Aga Khan suggested in his visionary Sorbonne address 2/, those in charge may with benefit draw inspiration also from past minority protection instruments.

3.   Russia's call last year for more imaginative use of the UN instruments points in the right direction (it proposed to utilize the UN Trusteeship System for interim measures designed to effectively meet the growing actual and foreseeable needs and challenges in the field of minority protection particularly in parts of the former Soviet Union).  Also, the Minnesota Advocates for Human Rights recently proposed use of the UN Trusteeship System in order to forestall a repeat of the Bosnian tragedy in other parts of the former Yugoslavia.  These and other initiatives have brought back to memory the League of Nations' comprehensive minority protection regime with its international guarantees which, notably in the cases of the Yugoslavia, Iraq and the Baltic States, are seen to have survived the League's dissolution in 1946 3/ (E/CN.4/367; E/CN.4/Sub.2/1992/NGO/27; E/CN.4/Sub.2/1993/34, para. 112; E/CN.4/Sub.2/1993/NGO/27). As such, they may now be reactivated promptly by way of the mechanism adopted by the UN General Assembly with its resolution 24 (I) of 12 February 1946.

4.   Apartheid and ghettos are both intolerable and sure-failure answers to minority problems anywhere.  And particularly in a modern, organically grown multi-ethnic society like Bosnia and Herzegovina, a territorial split-up reflecting militarily imposed ethnic border lines - even a "provisional" one brought about by "international mediation" - might bring to the communities involved neither the intended lasting security nor the hoped-for riches - quite the contrary.  For the needs of a modern economy, increasingly and imperatively, are free movement of persons, goods, capital and services.  As other countries have already painfully experienced, any constraints on these fundamental freedoms on account of ethnic, linguistic or religious apartheid policies could not fail to translate immediately into further economic stagnation and decline, with corresponding adverse implications for the region's stability and security.

5.    The responsible leaders of the family of nations and of countries such as Bosnia and Herzegovina may thus want to look for vehicles which provide the peoples concerned with sufficient breathing space and allow them to be brought back from the dark ages to the realities and opportunities of the twentieth century.  The Charter of the United Nations is seen to offer such a practical vehicle in that its Trusteeship System (article 75ss), in the hands of imaginative politicians, may be turned into a corresponding time machine

6.     By volontarily and temporarily placing the illegally occupied, contested and/or destabilized parts of the internationally recognized territory of the Republic of Bosnia and Herzegovina under the United Nations Trusteeship System, its legitimate Government, with the decisive support of far-sighted and principled world leaders, could indeed offer all parties to the conflict a neutral and non-prejudicial - and thus generally acceptable - reconciliation vehicle.  Within that frame, they could work out genuine and lasting solutions to their particular minority problems without undue outside interference and pressures.  All options provided for by the Charter would thus be safeguarded, and the peoples concerned could develop once again a habit of peaceful, civilized and mutually beneficial conduct.

7.    Applied as a political neutralizer, i.e. a United Nations "foam carpet" covering an entire conflict area, and thus as a sort of healinhg cover and novel conflict resolution formula, the United Nations Trusteeship System could at the same time prove its worth as an alternative to "negitiations" under duress.  In line with the many United Nations Security Council resolutions on former Yugoslavia, it could provide for upholding the fundamental principles at stake there.  Some of these principles have alse been brought into focus by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities which, in its resolution 1993/42 on Bosnia and Herzegovina, appealed

"to the international community:
"(a) To reject any permanent partition which results from aggression, intervention and massive violation of human rights, in particular the abhorrent practice of 'ethnic cleansing' that has developed into 'religious cleansing';
"(b) To deny the validity of any agreement obtained under extreme duress from the Government of the Republic of Bosnia and Herzegovina for purposes other than cessation of hostilities paving the way for a more lasting peaceful settlement based on the principles of the Charter of the United Nations, including respect for human rights and fundamental freedoms without discrimination on the grounds, inter alia, of race, ethnicity or religion; and
"(Urged) that, to overcome the present partition of Bosnia and Herzegovina brought about by aggression and ethnic cleansing, a process of peace-building should be initiated through the United Nations and appropriate intergovernmental organizations to reintegrate, over a period of time, the national society of Bosnia and Herzegovina as a whole."

*    A separate document entitled "Legal Facts and Considerations" containing extracts of documents supporting the view that there is a body of dormant but still valid international rights and obligations concerning protection of minorities in the former Yugoslavia, is available for consultation in the files of the secretariat.

1/  Mario Bettati, "Un droit d'ingérence?", Revue Générale de Droit
International Publique, 3, 1991, p.639;  Mario Bettati, Bernard Kouchner
et al. "Le devoir d'ingérence", Denoel, Paris 1987.
2/ "L'aide humanitaire sert-elle à défendre les peuples?", delivered in Paris on October 25, 1992, (Bellerive Foundation Geneva).
3/ Danilo Türk, "Le droit des minorités en Europe", p.452, in: Henri Giordan (ed.), "Les minorités en Europe", Editions Kimé, Paris 1992.
4/   Consisting of some 60 European parliamentarians, this Group has been involved in the analysis and development of ideas and documents concerning the Gulf conflict which might contribute to a lasting solution notably of some perennial minority protection problems there. Its research branch, CORUM, has prepared this paper in cooperation notably with B.Cherlonneix, P.Martin, E.Querio, F.Ruiz, M.Soleiman, C.Vieira dos Santos, R.Wadlow and P.Wainwright.  It is based on "Towards Regaining Stability and Dignity with the UN Trusteeship System - Documnents on ex-Yugslavia: the International Minority Protection Guarantees and Mechanisms to bring them to Fruition", August 1993, Corum, box 2580, 1211 Geneva 2.  The editor, J.A.Keller, is alone responsible for eventual errors and ommissions.  He wishes to express his gratitude for the unfailing assistance and numerous services provided by the United Nations Office in Geneva, by the director of the UN Geneva Library and by the League of Nations archivist and their staff.
5/   In his letter of June 1991 the President of this upper legislative body of Yugoslavia, Dr.Miran Mejak, thus solicited

"the good offices of your Group of European Lawmakers towards a peaceful, early and lasting resolution of the crisis which has arisen among the European Republics and Provinces which, after the Second World War, have constituted the Socialist Federal Republic of Yugoslavia.  We trust all men of good will to contribute in the search for such a solution which shall reflect the applicable principles of the United Nations, the Council of Europe and other European and national institutions and traditions.  And we trust everybody concerned to join us in exercising maximum restraint and to refrain from all actions which might jeopardize the realization of this objective.  To these effects, we invite you to explore related possibilities, including international mediation, and to develop such contacts which are indicated by your research, including coordinating contacts with national and international authorities."

1.     Seeking to balance the increasingly destabilising trans-border solidarity of the Orthodox Christian communities (e.g. of what is now Bulgaria, Romania, Russia, Serbia etc.), the Roman Catholic-dominated Republic of Ragusa (on the Adriatic Sea; now: Dubrovnic) was among the first to recognize the United States of America, thus expressing also its appreciation and lending its support to the American Declaration of Independence of July 4, 1776.  But this was only one of several early links of U.S. interests in the Balkan and the Mediterranean where, in the 1820ies, U.S. - like Russian - warships begun to vigorously defend national shipping interests.

2.     In 1919, the United States of America, the British Empire, France, Italy and Japan, as the Principal Allied and Associated Powers, concluded with the Serb-Croat-Slovene State the Treaty of St-Germain-en-Laye of 10 September 1919 (in force since July 16, 1920), which stipulates, notably,

  "Whereas since the commencement of the year 1913 extensive territories have been added to the Kingdom of Serbia, and
  Whereas the Serb, Croat and Slovene peoples of the former Austro Hungarian Monarchy have of their own free will determined to unite with Serbia in a permanent union for the purpose of forming a single sovereign independent State under the title of the Kingdom of the Serbs, Croats and Slovenes, and
  Whereas the Prince Regent of Serbia and the Serbian Government have agreed to this union, and in consequence the Kingdom of the Serbs, Croats and Slovenes has been constituted and has assumed sovereignty over the territories inhabited by these peoples, and ...
  Whereas it is desired to free Serbia from certain obligations which she undertook by the Treaty of Berlin of 1878 to certain Powers and to substitute for them obligations to the League of Nations, and
  Whereas the Serb-Croat-Slovene State of its own free will desires to give to the populations of all territories included within the State, of whatever race, language or religion they may be, full guarantees that they shall continue to be governed in accordance with the principles of liberty and justice;
  For this purpose the High Contracting Parties ... have agreed as follows:

    The Principal Allied and Associated Powers, taking into consideration the obligations contracted under the present Treaty by the Serb-Croat-Slovene State, declare that the Serb-Croat-Slovene State is definitely discharged from the obligations undertaken in Article 35 of the Treaty of Berlin of July 13, 1878.

Article 1.     The Serb-Croat-Slovene State undertakes that the stipulations contained in Articles 2 to 8 of this Chapter shall be recognised as fundamental laws, and that no law, regulation or official action shall conflict or interfere with these stipulations, nor shall any law, regulation or official action prevail over them. Article 2.     The Serb-Croat-Slovene State undertakes to assure full and complete protection of life and liberty to all inhabitants of the Kingdom without distinction of birth, nationality, language, race or religion.
    All inhabitants of the Kingdom of the Serbs, Croats and Slovenes shall be entitled to the free exercise, whether public or private, of any creed, religion or belief, whose practices are not inconsistent with public order or public morals.
    ...
All Serb-Croat-Slovene nationals shall be equal before the law and shall enjoy the same civil and political rights without distinction as to race, language or religion.
    Difference of religion, creed or confession shall not prejudice any Serb-Croat-Slovene national in matters relating to the enjoyment of civil or political rights, as for instance admission to public employments, functions and honours, or the exercise of professions and industries..
    No restriction shall be imposed on the free use by any Serb Croat-Slovene national of any language in private intercourse, in commerce, in religion, in the press or in publications of any kind, or at public meetings.
    Notwithstanding any establishment by the Serb-Croat-Slovene Government of an official language, adequate facilities shall be given to Serb-Croat-Slovene nationals of other speech than that of the official language for the use of their own language, either orally or in writing, before the courts. Article 8.     Serb-Croat-Slovene nationals who belong to racial, religious or linguistic minorities shall enjoy the same treatment and security in law and in fact as the other Serb-Croat-Slovene nationals.  In particular they shall have an equal right to establish, manage and control at their own expense charitable, religious and social institutions, schools and other educational establishments, with the right to use their own language and to exercise their religion freely therein.
    ... Article 11.     The Serb-Croat-Slovene State agrees that the stipulations in the foregoing Articles, so far as they affect persons belonging to racial, religious or linguistic minorities, constitute obligations of international concern and shall be placed under the guarantee of the League of Nations.  They shall not be modified without the consent of the Council of the League of Nations.  The United States, the British Empire, France, Italy and Japan hereby agree not to withhold their assent from any modification in these Articles which is in due form assented to by a majority of the Council of the League of Nations.
    The Serb-Croat-Slovene State agrees that any Member of the Council of the League of Nations shall have the right to bring to the attention of the Council any infraction, or any danger of infraction, of any of these obligations, and that the Council may thereupon take such action and give such directions as it may deem proper and effective in the circumstances.
    The Serb-Croat-Slovene State further agrees that any difference of opinion as to questions of law or fact arising out of these Articles between the Serb-Croat-Slovene State and any one of the Principal Allied and Associated Powers or any other Power, a Member of the Council of the League of Nations, shall be held to be a dispute of an international character under Article 14 of the Covenant of the League of Nations.  The Serb-Croat-Slovene State hereby consents that any such dispute shall, if the other party thereto demands, be referred to the Permant Court of International Justice.  The decision of the Permanent Court shall be final and shall have the same force and effect as an award under Article 13 of the Covenant."(emphasis added)

    "The Serb-Croat-Slovene State recognizes and confirms in relation to Hungary its obligations to accept the embodiment in a Treaty with the Principal Allied and Associated Powers such provisions as may be deemed necessary by these Powers to protect the interests of inhabitants of that State who differ from the majority of the population in race, language or religion, as well as to protect freedom of transit and equitable treatment of the commerce of other nations."  (emphasis added)

    "The Soviet Government has received a telegram signed by a great many members of the League of Nations, namely South Africa, Albania, Australia, Austria, Gt.Britain, Bulgaria, Canada, Chile, China, Spain, Estonia, Abyssinia, France, Greece, Haiti, Hungary, India, Iraq, Italy, Latvia, Lithuania, Mexico, New Zealand, Persia, Poland, Roumania, Czechoslovakia, Turkey, Uruguay and Yugoslavia, in which, pointing out both that the mission of the League of Nations is the organisation of peace, and that this necessitates the general cooperation therein of all nations, they invite the U.S.S.R. to join the League of Nations and add its cooperation.  Simultaneously the Soviet Government has been officially informed by the Governments of Denmark, Finland, Norway and Sweden, of their favourable attitude to the entry of the U.S.S.R. into the League.  ...
     The Soviet Government is especially glad to be coming into the League at a moment when the question of the amendment of the Covenant in order to bring it into harmony with the Briand-Kellogg Pact, and to banish completely international warfare, is being considered by it. ..."

    "a. to further international peace and security;
     b. to promote the political, economic, social, and educational advancement of the inhabitants of the trust territories, and their progressive development towards self-government or independence as may be appropriate to the particular circumstances of each territory and its peoples and the freely expressed wishes of the peoples concerned, and as may be provided by the terms of each trusteeship agreement;
     c. to encourage respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion, and to encourage recognition of the interdependence of the peoples of the world; ..."

    "2. It will be a matter for subsequent agreement as to which territories in the foregoing categories will be brought under the trusteeship system and upon what terms."

   "Article 36  5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice and which are still in force shall be deemed, as between the parties to the present Statute, to be acceptances of the compulsory jurisdiction of the International Court of Justice for the period which they still have to run and in accordance with their term.
    Article 37 Whenever a treaty or convention in force provides for reference of a matter to a tribunal to have been instituted by the League of Nations, or to the Permanent Court of International Justice, the matter shall, as between the parties to the present Statute, be referred to the International Court of Justice."

8.   On February 12, 1946, the UN General Assembly adopted Resolution 24 (I) concerning the transfer of functions and powers of the League of Nations to United Nations organs:

    "Under various treaties and international conventions, agreements and other instruments, the League of Nations and its organs exercise, or may be requested to exercise, numerous functions or powers for the continuance of which, after the dissolution of the League, it is, or may be, desirable that the United Nations should provide. ...   Therefore:
     1.     The General Assembly reserves the right to decide, after due examination, not to assume any particular function or power, and to determine which organ of the United Nations orwhich specialized agency brought into relationship with the United Nations should exercise each particular function or power assumed.
     2.     The General Assembly records that those Members of the United Nations which are parties to the instruments referred to above assent by this resolution to the steps contemplated below and express their resolve to use their good offices to secure the co-operation of the other parties to the instruments so far as this may be necessary.
     3.     The General Assembly declares that the United Nations is willing, in principle, and subject to the provisions of this resolution and of the Charter of the United Nations, to assume the exercise of certain functions and powers previously entrusted to the League of Nations, and adopts the following decisions, as set forth in A, B and C below.

     The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character."  (emphasis added)

11. Bosnia-Herzegovina, on December 31, Croatia on May 11, and Slovenia on March 26, 1992, ratified, without reservations, the 4th Geneva Convention of 1949 and the Additional Protocols.

12.   On May 22, 1992, Bosnia-Herzegovina, Croatia and Slovenia became Members of the UN.  As such, the first two may seek effective protection for their constituent multi-ethnic communities by initiating steps to establish interim UN Trust Territories over illegally occupied, contested or destabilized parts of their internationally recognized territory.  Based on the above international minority protection guarantees, the UN Charter and, notably, UN Resolution 24 (I) of 1946, other concerned UN Members may also take corresponding initiatives in favor of the endangered populations of Kosovo, Sandjak and Vojvodina.
........

box 2580  -  1211 Geneva 2
fax: 4122-7335979

January 5, 1994

The Hon. Datuk Dominic PUTHUCHEARY
International Conference of Parliamentarians on Bosnia-Herzegovina
Institute of Strategic and International Studies ISIS
Kuala Lumpur,  Malaysia
fax: 603-2913210

It was good to see you again in Geneva and I hasten to accept your kind invitation to the January 22/23 follow-up conference at the Putra World Trade Center in Kuala Lumpur.

In order to effectively overcome or work around some growing problems at the UN and elsewhere, consideration of some novel approaches is called for, including Good Offices by parliamentarians and suitable neutral countries.  As we discussed before, a new frame for peace negociations appears to be indispensable.  The 1919 Treaty of Saint Germain-en-Laye avails itself as a prime candidate for providing the formal basis to that end - primarily due to the interesting set of its signatories and their legal successors: Kingdom of Serbs, Croates and Slovenes and the British Empire (thus not only the UK but also Canada and Australia), France, Italy, Japan and the United States.  In this connection, too, the Swiss government might play a useful role (e.g. as discrete initiator, go-between and provider of conference facilities).

With this in mind, I recommend you to extend an invitation to The Hon. Ernst Mühlemann, President of the Foreign Relations Commission of the Swiss Parliament (Conseil national), who has just come back from a visit to Bosnia, is a very capable, engaged defender of the principles we are fighting for, and a senior MP with excellent connections in- and outside of Switzerland and even on the religious front (his coordinates are, tel: 4172-632604, -642277, fax: -632610).

As to our own group - and with a view to get serious on the lobbying and infrastructure fronts - I would consider it very useful if you could arrange for an invitation to be also extended to one or more of my trusted colleagues with whom I am working.

I very much look forward to see you in Kuala Lumpur - on the Bosnian and on other matters.  Taking this opportunity to send my best wishes for the New Year, I remain, sincerely yours,

enclosure: GA Anti-Genocide resolution (draft 1)
cc: E.Mühlemann, Ermatingen, Stefan Schwarz MdB, Bonn
....

The General Assembly,

PP1  Gravely concerned about the continuing siege of Sarajevo, Mostar and other cities and "safe areas" of the Republic of Bosnia and Herzegovina which flies in the face of countless promises, formal commitments, international obligations and United Nations efforts and which, therefore, endanger not only the safety and well-being of the populations concerned, but cast a shadow over the credibility of the United Nations as a reliable and effective instrument of peace and security,

PP2  Noting that the International Court of Justice, with its Order of 8 April 1993 concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 September 1948 in the case of Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), inter alia, directed the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to "take all measures within its power to prevent commission of the crime of genocide ... whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnic, racial or religious group",

PP3  Further noting that the International Court of Justice, in its subsequent Order of 13 September 1993, inter alia, observed that while "all parties to the [1948 Genocide] Convention have thus undertaken 'to prevent and punish' the crime of genocide", the Court was "not satisfied that all that might have been done has been done to prevent commission of the crime of genocide in the territory of Bosnia and Herzegovina" since the Court handed down its Order of 8 April 1993, and that, according to the Separate Opinion of its Judge ad hoc Elihu Lauterpacht, Security Council resolution 713 (1991) concerning an arms embargo against "Yugoslavia", being contrary to jus cogens, cannot be "valid and binding in its operation against Bosnia-Herzegovina" lest it "make Members of the United Nations accessories to genocide",

PP4  Determined to see to it that the United Nations is not, by default or otherwise, becoming an accessory to genocide and other crimes against humanity, and that its Members shall in no way be hindered "to prevent and punish" acts of genocide in particular,

PP5  Mindful of the political, institutional and other consequences notably of the failure of the League of Nations, in 1936 on the occasion of the aggresson committed against its co-founder Ethiopia, to live up to its own Convenant and principles by promptly, unmistakably and effectively stand up against genocidal practices, barbarisms and other crass violations of international humanitarian law,

PP6  Thus stressing that the prompt and complete implementation of the Orders of the International Court of Justice of 8 April and 13 September 1993, as well as of the fundamental principles adopted by the International Conference on Former Yugoslavia and of the related General Assembly and Security Council resolutions, including those concerning the United Nations Protected Areas in the territory of the Republic of Croatia, is of the utmost importance not only for the security, integrity and stability of the Republic of Bosnia and Herzegovina and its neighbors, but for the future of the United Nations system as a whole,

PP7  Deeply alarmed by the continuing systematic abuses committed or condoned by the authorities of the Federal Republic of Yugoslavia (Serbia and Montenegro) notably in Kosovo, Sanzak and Vojvodina against Catholics and Muslims as well as against Albanians, Bosnians, Croats, Hungarians and members of other religious and ethnic groups which are covered by international minority protection guarantees written into the still valid Treaty of St-Germain-en-Laye of 10 September 1919, which was signed by the Kingdom of Serbs, Croats and Slovenes and by the British Empire, France, Italy, Japan and the United States (E/CN.4/367),

PP8  Recalling its resolution 1/24 of 12 February 1946 concerning the transfer, from the League of Nations to the United Nations of "Functions and Powers under Treaties, International Conventions, Agreements and other Instruments having a political character", including international minority protection guarantees, such as those granted to the populations covered by the 1919 Treaty of St-Germain-en-Laye (E/CN.4/Sub.2/1993/NGO/29),

PP9  Supporting the conclusions contained in the commendable report submitted by the Special Rapporteur on Human Rights in former Yugoslavia (E/CN.4/1994/47), as well as in resolution 1993/17 of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/1993/45) which, inter alia, calls
-    for a strict rejection of "any permanent partition which results from aggression, intervention and massive violation of human rights, in particular the abhorrent practice of 'ethnic cleansing'",
-    for denying "the validity of any agreement obtained under extreme duress from the Government of the Republic of Bosnia and Herzegovina for purposes other than a cessation of hostilities ...", and
 -   for an interim United Nations Protectorate "to overcome the present partition of Bosnia and Herzegovina brought about by aggression and ethnic cleansing", in order "to reintegrate, over a period of time, the national society of Bosnia and Herzegovina as a whole",

PP10 Appreciating the proposals made by various governmental and non-governmental organizations on the availability and complementarity of non-military, yet powerful technical, economic, legal and political ways and means for achieving the indispensable objectives thus set out in the case of former Yugoslavia and other trouble spots of the world (E/CN.4/Sub.2/1993/NGO/29; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1992/NGO/27):

OP1   Requests the International Court of Justice, based on article 96 of the United Nations Charter and under the Court's accelerated procedure as laid out in article 103 of the Rules of the Court, to provide an advisory opinion on
a)   whether the Security Council ever intended to and effectively adapted or otherwise extended its resolution 713 (1991) so as to be validly applicable with regard to the Republic of Bosnia and Herzegovina and its relations with countries others than the Federal Republic of Yugoslavia (Serbia and Montenegro),
b)   whether there exists another Security Council resolution or any other legal authority superceding or in any way limiting any membership right  the Republic of Bosnia and Herzegovina is entitled to under the United Nations Charter, including in particular those related to individual and collective self-defence (article 51), and
c)   whether a Security Council embargo remains valid in international law, under jus cogens or otherwise, if the Security Council is either unable or unwilling to decide to lift it in the presence of evidence that maintaining the embargo concerned favors or contributes notably to genocidal practices or to other crass violations of international humanitarian law;

OP2  Confirms the right of all United Nations Member States, in cooperation with the Government of the Republic of Bosnia and Herzegovina, to use all necessary means to uphold and restore the sovereignty, political independence, territorial integrity, unity and viability of the Republic of  Bosnia and Herzegovina;

OP3  Invites the Federal Republic of Yugoslavia (Serbia and Montenegro) to promptly reconsider its decision not to renew the mandate of the CSCE monitoring missions for Kosovo, Sanzak and Vojvodina also in light of its overriding obligations under the Treaty of St-Germain-en-Laye of 10 September 1919 particularly with regard to the international minority protection guarantees thus disregarded;

OP4  Calls on the Signatory States of the Treaty of St-Germain-en-Laye of 10 September 1919, and on their successors, to convene a conference on the effective application of the international minority protection guarantees involved, with full participation of Special Representatives nominated by the populations concerned, in order to arrive at non-prejudicial and generally agreeable interim solutions paving the way for a just, principled and lasting peace in both the Republic of Bosnia and Herzegovina and in the other parts of former Yugoslavia;

OP5  Requests the Secretary-General to submit, within 90 days, a report, drawing on all available governmental and non-governmental resources, on the opportunities and conditions for developing existing and new institutional and legal instruments - e.g. safe areas, humanitarian corridors, United Nations Protectorates, United Nations Trusteeships, Human Rights Monitors, internatrional minority protection guarantees and Special Representatives for populations covered by such international guarantees - into practical vehicles for containing, defusing and eventually resolving the succession, minority and other problems of former Yugoslavia and of other actual and future trouble spots of the world.

The General Assembly,

PP1  Noting that the International Court of Justice, with its Order of 8 April 1993 concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 September 1948 in the case of Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), inter alia, directed the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to "take all measures within its power to prevent commission of the crime of genocide ... whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnic, racial or religious group",

PP2  Further noting that the International Court of Justice, in its subsequent Order of 13 September 1993,  inter alia, observed that while "all parties to the [1948 Genocide] Convention have thus undertaken 'to prevent and punish' the crime of genocide", the Court was "not satisfied that all that might have been done has been done to prevent commission of the crime of genocide in the territory of Bosnia and Herzegovina" since the Court handed down its Order of 8 April 1993, and that, according to the Separate Opinion of its Judge ad hoc Elihu Lauterpacht, Security Council resolution 713 (1991) concerning an arms embargo against "Yugoslavia", being contrary to jus cogens, cannot be "valid and binding in its operation against Bosnia-Herzegovina" lest it "make Members of the United Nations accessories to genocide",

PP3  Determined to see to it that the United Nations is not, by default or otherwise, becoming an accessory to genocide and other crimes against humanity, and that its Members shall in no way be hindered "to prevent and punish" acts of genocide in particular:

OP1   Requests the International Court of Justice, based on article 96 of the United Nations Charter and under the Court's accelerated procedure as laid out in article 103 of the Rules of the Court, to provide an advisory opinion on
a)   whether the Security Council ever intended to and effectively adapted or otherwise extended its resolution 713 (1991) so as to be validly applicable with regard to the Republic of Bosnia and Herzegovina and its relations with countries others than the Federal Republic of Yugoslavia (Serbia and Montenegro),
b)   whether there exists another Security Council resolution or any other legal authority superceding or in any way limiting any membership right  the Republic of Bosnia and Herzegovina is entitled to under the United Nations Charter, including in particular those related to individual and collective self-defence (article 51), and
c)   whether a Security Council embargo remains valid in international law, under jus cogens or otherwise, if the Security Council is either unable or unwilling to decide to lift it in the presence of evidence that maintaining the embargo concerned favors or contributes notably to genocidal practices or to other crass violations of international humanitarian law;

OP2  Invites the International Court of Justice to receive, take into consideration and incorporate into the proceedings such amicus curiae briefs on matters before the Court which originate either from co-sponsors of related General Assembly resolutions or from such third governmental ot non-governmental parties which have been requested to provide good offices by one or more of the parties to the matter at issue.

The General Assembly,

PP1  Gravely concerned about the continuing siege of Sarajevo, Mostar and other cities and "safe areas" of the Republic of Bosnia-Herzegovina which flies in the face of countless promises, formal commitments, international obligations and United Nations efforts and which, therefore, endanger not only the safety and well-being of the populations concerned, but cast a shadow over the credibility of the United Nations as a reliable and effective instrument of peace and security,

PP2  Mindful of the political, institutional and other consequences notably of the failure of the League of Nations - e.g. in 1936 on the occasion of the aggression committed against its co-founder Ethiopia - to live up to its own Convenant and principles by promptly, unmistakably and effectively stand up against genocidal practices, grave breaches of the Geneva Conventions and other crass violations of international humanitarian law,

PP3  Thus stressing that the prompt and complete implementation of the Orders of the International Court of Justice of 8 April and 13 September 1993, of the fundamental principles adopted by the 1992 London Conference on Former Yugoslavia, and of the related General Assembly and Security Council resolutions - a.o. on the Protected Areas in the territories of the Republics of Bosnia-Herzegovina and Croatia - is of the utmost importance not only for the security, integrity and stability of the Republic of Bosnia-Herzegovina and its neighbors, but for the future of the United Nations System as a whole,

PP4  Deeply alarmed by the abuses committed notably in Kosovo, Sanzak and Vojvodina against Catholics and Muslims, but also, in other parts of former Yugoslavia, against Albanians, Bosnians, Croats, Hungarians and Serbs as well as against members of other religious, ethnic or national groups which are covered by international minority protection guarantees contained in the still valid Treaty of St-Germain-en-Laye of 10 September 1919, which was signed by the Kingdom of Serbs, Croats and Slovenes and by the British Empire, France, Italy, Japan and the United States (E/CN.4/367),

PP5  Recalling its resolution 1/24 of 12 February 1946 concerning the transfer, from the League of Nations to the United Nations of "Functions and Powers under Treaties, International Conventions, Agreements and other Instruments having a political character", including international minority protection guarantees, such as those granted to the populations covered by the 1919 Treaty of St-Germain-en-Laye (E/CN.4/Sub.2/1993/NGO/29),

PP6  Supporting the conclusions contained in the commendable report submitted by the Special Rapporteur on Human Rights in former Yugoslavia (E/CN.4/1994/47), as well as in resolution 1993/17 of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/1993/45) which, inter alia, calls for
-    a strict rejection of "any permanent partition which results from aggression, intervention and massive violation of human rights, in particular the abhorrent practice of 'ethnic cleansing'",
-    denying "the validity of any agreement obtained under extreme duress from the Government of the Republic of Bosnia and Herzegovina for purposes other than a cessation of hostilities ...", and
-    an interim UN Protectorate "to overcome the present partition of Bosnia-Herzegovina brought about by aggression and ethnic cleansing", in order "to reintegrate, over a period of time, the national society of Bosnia-Herzegovina as a whole",

PP7  Appreciating the proposals made by various governmental and non-governmental organizations on the availability and complementarity of non-military, yet powerful technical, economic, legal and political ways and means for achieving the indispensable objectives thus set out in the case of former Yugoslavia and other trouble spots of the world (E/CN.4/Sub.2/1993/NGO/29; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1992/NGO/27):

OP1  Confirms the right of all United Nations Member States, in cooperation with the governments concerned, to use all necessary means to uphold and restore the sovereignty, political independence, territorial integrity, unity and viability of the Republics of Bosnia-Herzegovina, Croatia, Macedonia and Yugoslavia (Serbia and Montenegro), with due consideration for the well-being of their populations and the effective protection of their ethnic, national and religious minorities;

OP2  Invites the governments of the Republics of Bosnia-Herzegovina, Croatia, Macedonia and Yugoslavia (Serbia and Montenegro) to adhere to their overriding obligations under the Treaty of St-Germain-en-Laye of 10 September 1919 particularly with regard to the international minority protection guarantees thus specified, and to provide for the nomination of related Special Representatives, for the admission of monitoring missions and for other suitable safaguarding measures;

OP3  Calls on the Signatory States of the Treaty of St-Germain-en-Laye of 10 September 1919, and on their successors, to convene a conference on the effective application of the international minority protection guarantees involved, with full participation of Special Representatives nominated by the populations concerned, in order to arrive at non-prejudicial and ge-nerally agreeable interim solutions paving the way for a just, principled and lasting peace in all parts of former Yugoslavia;

OP4  Requests the Secretary-General to submit within 90 days an inventory of existing and new humanitarian instruments - e.g. safe areas, humanitarian corridors, United Nations Protectorates, United Nations Trusteeships, Human Rights Monitors, internatrional minority protection guarantees and Special Representatives for populations covered by such international guarantees - and, drawing on all available governmental and non-governmental resources, thus to identify the opportunities and conditions for developing these instruments into practical vehicles for containing, defusing and eventually resolving the succession, minority and other problems of former Yugoslavia and of other actual and future trouble spots of the world.
....

box 2580  -  CH-1211 Geneva 2  -  Switzerland
fax: 4122-7335979

January 27, 1994
                                   HRH The Sultan of Brunei
                                   c/o Brunei Mission to the UN in Geneva
                                             fax: 022-7381013

follow-up to International Conference of Parliamentarians on Bosnia-Herzegovina, Kulala Lumpur

Your Royal Highness,

It gave me great pleasure to find two Brunei Delegates attending this memorable lawmaker conference and I trust the results of our labours will both please and encourage Your Royal Highness to continue supporting the cause of the Bosnian people not only on traditional pathways but also through the efforts deployed by imaginative non-governmental organizations.  Unfortunately, I missed the opportunity to seek to arrange a personal visit, e.g., through your particularly helpful Delegate Judin; in the event, I'll be glad to come back to the area or meet you elsewhere at the earliest date of mutual convenience.

With their unanimously approved Declaration of January 23, 1994, the some 50 lawmakers from over  30 countries have broken new grounds by going beyond mere calls for governmental and UN actions.  Not content with the ever-more-real prospect of eventually being called upon to take up the white flag, they have taken stock of the real and often unpublicized fundamentals of the conflict in ex-Yugoslavia.  They have come to recognize their special responsibilities in the face of persistent official bunglings.  And they have grown aware of promising options for salvatory actions which they may now pursue individually or collectively - e.g. on the occasion of the Paris conference of the Interparliamentary Union in March - with the assistance of visionary sponsors and suitable NGOs, incl. our fully mandated but inadequately funded Good Offices Group.

With the aim of a just, principled and secure peace in all of former Yugoslavia being generally accepted and ethnic apartheit being seen as both contrary to human dignity and unworkable in a modern society, this elusive aim appears to be inattainable  without prior establishment of a natural balance of forces,  i.e. without discriminatory external constraints and with reliable minority protection guarantees in place.  To these effects, the UN arms embargo must go, for its application against Bosnia-Herzegovina, Croatia, Macedonia and Slovenia is now also recognized as being manifestly without legal foundation.  The regular armed forces of the parties to the conflict, being subject to the Geneva Conventions, should be induced to clean up their own acts and to rein in the marauding militias in their zones of influence.

And the increasingly problematic substitute for imaginativeand competent diplomacy should be scrapped, i.e. the anti-people economic sanctions should be lifted.  On this triple basis, a viable interim solution - e.g. in the form of a UN Trusteeship or Protectorate covering the contested areas - may be agreeable to all parties to the conflict, perhaps even before the war will grow beyond control.  And parliamentarians from many countries may significantly contribute to - or even provide for - suitable negotiation frames, e.g. based on the 1919 Treaty of Saint Germain-en-Laye which entails still valid international minority protection guarantees for the peoples now at loggerheads in ex-Yugoslavia.

With this in mind, the enclosed Declaration of Kuala Lumpur was drawn up; for reasons of imperative confidentiality, it does not reflect the full extent of the Delegates' determination to pursue all promising avenues for promptly and effectively breaking up the conspiracy which lies behind the legally non-existant but effectively practiced UN arms embargo against Bosnia (see memo "political measures"). Taking this opportunity to reassure You Royal Highness of my highest considerations, I remain, sincerely yours,

                               J.A.Keller, Secretary
GOOD OFFICES GROUP OF EUROPEAN LAWMAKERS

encl:     Declaration of Kuala Lumpur; press clippings

to:      Foreign Ministry, Tirana
from:  GOGEL

7 February 1994

AIMS:  Strengthening Albania's security, economic and diplomatic position and perspectives through imaginative and determined development and application of its own readily available means, notably in the field of diplomacy.
.....

-    UN membership (notably Albanian Mission to the UN in Geneva), UN General Assembly.

-    Right to membership in the Council of Europe and EFTA.

-    Diplomatic relations notably with France, Germany, Italy, Japan, Malaysia, Russia, Spain, Switzerland, U.K. and the United States.

-    Trade-related treaties and arrangements concluded before World War II - albeit mostly forgotten - apparently are non-abrogated, immediately revivable and adaptable, eg. with Italy: 1/20/1924, LNTS 44 1926 360;  Switzerland: 6/10/1929, LNTS 104 1930 146; UK: 6/10/1925, LNTS 43 1926 82; US: 6/23/1922, USTS 5 1925 9.

-    Albanians abroad  may be organized into an effective lobby for Albanian economic and political interests - if they retain not only an emotional but a real stake in Albania's future with simple but concrete and practical effects.  In this sense, strengthening their citizenship rights and other legal and civil links to Albania may involve their right to participate in national referenda and elections, a full representation in national legislative bodies, the right to transfer their citizenship to their husbands, wives and children, and the right to promptly obtain an Albanian passport independent of whether they possess a further nationality and regardless of their status in their host countries (which is potentially of crucial importance in the case of Albanian holders of expired Yugoslav passports).  Moreover, a dense network of capable and dynamic Honorary Consuls may be set up to serve Albanians, visitors and investors from abroad.  Particularly helpful foreigners may be made honorary citizens.  And suitable foreign investors, under certain conditions, may also become entitled to an Albanian passport.

-    Geographic position   Macedonia's interests for a highway link to the Adria provides leverage for safeguarding the interests of Albanians residing in Macedonia. Albania is the natural territorial link between Greece and other members of the European Union.  Particularly Greek economic interests may thus bring about fundamental improvements in Greek-Albanian relations through efforts to realize Panalba, a strategic Pan Adriatic Highway running through Albania. Turkey's interests to eventually link up with Panalba through Bulgaria offer incentives for related external financings. And the essentially EU-financed construction of Panalba could provide a strong macro-economic skeleton for the creation and organic development of related private enterprises throughout Albania (joint-ventures with suitable Italian construction companies are indicated as they may thus also reduce their unemployment and excess capacity problems and bring to bear their considerable political weight in Rome and Brussels in favor of Albania).

The United States - with a historic link to the region: Republic of Ragusa was among the first to recognize U.S. over 200 years ago - can be expected to have long-term interests for a strategic foothold on continental Europe which is independent of Greece and NATO.  Notably through the Albanian voters in the U.S. and by way of U.S. Senators and Congressmen now seeking to help the Clinton Administration with a principled and successful Yugoslavia policy involving no U.S. ground troops, this backdrop makes the United States a natural key ally for whatever diplomatic initiative Albania may undertake within or without the United Nations.

-    Diplomatic privileges  may be crucial tools for effectively and promptly carrying out the diplomatic footwork and networking which is indispensable if the proposed WAYOUT resolution on former Yugoslavia and other such resolutions are to find a majority of yes votes in the UN General Assembly.  All prerogatives of a sovereign state, including its power to join forces with parliamentarians and specialists from other countries, may legitimately be considered for possible application in this exceptionally difficult situation.  Moreover, the particularly exposed Representatives of Albanians abroad, e.g. its elected officials of Kosovo, could greatly benefit in their work from Albania's diplomatic facilities, such as diplomatic passports which, according to international law and current practice, could readily be made available to them.
....

-    National sovereignty   Albania is not only a member of the United Nations but was also a member of the League of Nations.  As such Albania has the treaty-based right "to bring to the attention of the Council [which is yet to be designated by the UN General Assembly by way of a corresponding resolution of its own] any infraction, or any danger of infraction, of any of these [international minority protection guarantees and] obligations, and ... the Council may thereupon take such action and give such directions as it may deem proper and effective in the circumstances." (article 11). For UN General Assembly resolution 24 (I) of 12 February 1946 provides for the transfer from the League of Nations to the United Nations of "Functions and Powers under Treaties, International Conventions, Agreements and other Instruments having a political character", including international minority protection guarantees, such as those granted to the populations covered by the Treaty of St-Germain-en-Laye of 10 September 1919. Signed by the Kingdom of Serbs, Croats and Slovenes as well as by the British Empire, France, Italy, Japan and the United States (LN I.B. Minorities 1927. B.2 59), this still valid treaty (E/CN.4/367) covers also the Albanians residing in Kosovo, Serbia, Montenegro, Macedonia, Bosnia-Herzogovina and Croatia. As shown in the UN documents E/CN.4/Sub.2/1993/NGO/27 and E/CN.4/Sub.2/1992/NGO/27, similar clauses in other League of Nations-related treaties can be invoked, e.g., by Russia concerning its minorities living in the Baltics and in other now-independent parts of the former Soviet Union - hence Russia's interest for this readily accessible, re-animatable and adaptable instrument to address minority, succession and similar problems anywhere.

Albania is thus in an exceptionally favorable and challenging position to take corresponding political and diplomatic initiatives for generally unlocking this unused diplomatic potential for resolving minority and other conflicts,  e.g. by way of fine-tuning and tabling the proposed WAYOUT UN General Assembly resolution on former Yugoslavia.  This new approach is understood to be of interest to and acceptable for all parties to the conflict in former Yugoslavia.  In the event, such a well-prepared corresponding Albanian initiative is thus likely to draw the support of key states, such as France, Germany, Russia and the United States, thus turning it into a key vehicle for effectively containing and eventually resolving this dangerous conflict on the Balkan.

-    Parliamentary support  The some 50 lawmakers from 33 countries who, at the invitation of their Malaysian colleagues and with the support of the Malaysian Government, attended on January 22-23 1994 in Kuala Lumpur the International Conference of Parliamentarians on Bosnia-Herzegovina called in particular for the prompt reconsideration of the "illegal arms embargo on Bosnia-Herzegovina" and "for a new international conference to replace the ongoing mediations and talks" on former Yugoslavia, thus strengthening the similar calls adopted a few days earlier by the European Parliament.  In March in Paris, the Interparliamentary Union will hold its annual conference; it is expected to endorse and further strengthen these and related calls, and may in fact give - and initiate for the respective home fronts - decisive support for the proposed WAYOUT resolution.
.....

The key to success for any eventual Albanian initiative at the United Nations is seen to reside essentially in the substantial strengthening of the Albanian Mission to the UN in Geneva in particular.  This calls for an adequately funded infrastructure to be created and manned without delay by reliable and competent personnel.  To these effects, the Good Offices Group of European Lawmakers is offering to immediately avail its services on a pro bono mandate basis. It would thus seek to raise among its friends and sponsors the necessary some US$ 200'000 for an initial period of 9 months covering rent of an office ... equipment, communications, travel expenses and fees of the collaborators mutually agreed upon.  The latter may include suitable members of the Albanian Diaspora - from Kosovo, the United States, etc. - as well as non-Albanian specialists with the necessary background ... In light of the persistent harrassments of the Albanian populations of Serbia, Montenegro, Macedonia, etc., the following objectives of this Diplomatic Advisory Group are seen to cover vital interests of Albania.  They are fully compatible with the original mandate on the Yugoslav conflict, entrusted in 1991 to the Good Offices Group of European Lawmakers by the Presidency of the Chamber of Republics and Provinces of former Yugoslavia (reproduced in: E/CN.4/Sub.2/1993/NGO/29, fn 5).  The Advisory Group's mandate is thus suggested to be:

-    to consult with Representatives of other Missions and suitable NGOs as well as with suitable scholars and personalities on the proposed WAYOUT General Assembly Resolution on Former Yugoslavia and on similar efforts, with a view to promptly secure the necessary support particularly in the UN General Assembly, and
-    to assist notably the minorities affected by the conflicts in former Yugoslavia in their search for principled, reliable and prompt partial or interim solutions to their legitimate aspirations, drawing inspiration also from past League of Nations (e.g. Memel Territory) and United Nations (e.g. Free Territory of Trieste) experiences and Charter formulas (e.g. Trust Territories), and taking the initiatives it may deem proper and effective in the circumstances.

Economic and Social Council

COMMISSION ON HUMAN RIGHTS
Fiftieth session
Agenda item 18
.....

    Recognition of fundamental principles of the family of nations produced the London Agreement of 1992 - and a record number of Security Council resolutions on the Yugoslav conflict.  The Washington Agreement of 1 March 1994, being open to all warring parties, may lead to a newly refounded Confederation of former Yugoslav republics.  It seems to reflect a growing recognition on all sides that in our time military might requires diplomatic might, if military gains on the ground are not unavoidably to be lost at the green table, but are to any degree to be transformed into internationally honored useful political realities.  But like previous agreements, it may fail to bring a lasting peace if key lessons of the past are ignored, notably:

-     "It was a fundamental mistake to recognize the republics of former Yugoslavia [and one might add the "near abroad" of Russia] without insisting on reliable, internationally verifiable guarantees for their minorities." (U.S. Senator Sam Nunn, ABC Meet the Press, 13/2/1994)

-     If the beneficiaries of such guarantees are to rely on them, they must be able to directly communicate with the institutions - or their successors - in whose name they were issued.

     "[T]he representatives of the Serbs, Croats and Slovenes declare anew and most categorically that our people constitutes but one nation, and that it is one in blood, one by the spoken and written language, by the continuity and unity of the territory in which it lives, and finally in virtue of the common and vital interests of its national existence and the general development of its moral and material life.  The idea of its national unity has never suffered extinction, although all the intellectual forces of its enemy were directed against its unification, its liberty, and its national existence.  Divided between several States, our nation is in Austria-Hungary alone split up into eleven provincial administrations coming under thirteen legislative bodies.  The feeling of national unity, together with the spirit of liberty and independence, have supported it in the never-ending struggles of centuries against the Turks in the East and against the Magyars in the West.
     ... All nations which love liberty and independence have allied themselves together for their common defence, to save civilization and liberty at the cost of every sacrifice, to establish a new international order based upon justice and upon the right of every nation to dispose of itself and so organize its independent life; finally to establish a durable peace consecrated to the progress and development of humanity and to secure the world against a catastrophe ...
     To noble France, who has proclaimed the liberty of nations, and to England, the hearth of liberty, the Great American Republic and the new, free, and democratic Russia have joined themselves in proclaiming as their principle war aim the triumph of liberty and democracy and as basis of the new international order the right of free self-determination for every nation. ...
     The authorized representatives of the Serbs, Croats, and Slovenes, in declaring that it is the desire of our people to free itself from every foreign yoke and to constitute itself a free, national, and independent State ..., are agreed in judging that this State should be founded on the following modern and democratic principles:  ...
  9. The territory of the Kingdom of the Serbs, Croats, and Slovenes will include all the territory inhabited compactly and in territorial continuity by our nation of the three names.  It cannot be mutilated without detriment to the vital interests of the community. ...
     In accordance with the right of self-determination of peoples, no part of this territorial totality may without infringement of justice be detached and incorporated with some other State without the consent of the nation itself.
  10.     In the interests of freedom and of the equal rights of all nations, the Adriatic shall be free and open to each and all.
  11.     All citizens throughout the territory of the Kingdom shall be equal and enjoy the same rights with regard to the State before the Law.  ..."

3.   This structure, essentially, was left in place until after President Tito's death.  With its resolution 24 (I) of 12 February 1946, the UN General Assembly provided for the transfer, from the League of Nations to the United Nations System, of political powers and functions, including minority protection guarantees, rights and obligations.   Proper knowledge of these rights and mechanisms, and their competent handling through timely direct action by duly empowered and recognized representatives of beneficiaries of these guarantees - e.g. Serbs of the Krajna - might have prevented much bloodshed in former Yugoslavia and, in the future, might still spare other multi-ethnic peoples from similar tragedies.  For the related enforcement mechanism might be activated any time by the General Assembly with a simple majority vote.

4.   The Washington Framework Agreement of 1 March 1994 provides for the establishment of a "Federation in the areas of the Republic of Bosnia and Herzegovina with a majority Bosniac and Croat population".   Concluded, essentially, between the Governments of the Republics of Bosnia-Herzegovina and Croatia, it specifies that the "decisions on the constitutional status of the territories of the Republic of Bosnia and Herzegovina with a majority of Serb population shall be made in the course of negotiations toward a peaceful settlement".  It also provides for a "Confederation between the Republic of Croatia and the proposed Federation".  Other republics of former Yugoslavia may join the planned Confederation which "shall not change the international identity or legal personality" of any republic of former Yugoslavia (3).

5.   Significantly, and for the first time, all mention of confusing religious terms are avoided, and instead of further using the term Muslim in an ethnic sense, citizens of Bosnia-Herzegovina are being referred to as Bosniacs in a nationalistic sense.   Furthermore, this agreement upholds the principles previously agreed to in the London Agreement of 1992, principles which have given rise to and are enunciated in numerous Security Council resolutions.  Its annex of "human rights instruments incorporated into the constitutional agreement" lists 19 international conventions, but so far fails to refer to the 1919 Treaty of St-Germain-en-Laye.

6.   In its press release "Platform for a modus vivendi" of 12 February 1994, the Bosnian Serb "REPUBLIC OF SRPSKA" invoked the 1917 Corfu Pact and the "Treaty of St Germain", saying "some territories may remain as disputed areas under special regime for the time being".  Perhaps then, the original Republic of Bosnia-Herzegovina, which in many ways resembled the former Kingdom of Serbs, Croats and Slovenes, might be rebuilt in particular on the foundations laid by the Corfu Pact and the Treaty of St-Germain-en-Laye.  This may be done in as much as the principles thus enunciated are still shared by all Bosniacs (i.e. principally those Bogomils, Croats, Pattarems and Serbs whose family roots are in Bosnia-Herzegovina).

7.   The Washington Agreement may be a first breakthrough in this direction.  Complementary steps might involve a more effective and trustworthy system of minority protection (4).  They might significantly contribute to the achievement of a prompt, just and lasting resolution of the underlying conflict in all of former Yugoslavia, including the minority/majority problems notably of the  Albanians in Kosovo and Macedonia, the Hungarians in Vojodina and the Serbs in Krajna.  The measures thus proposed are:

a)  reactivating the existing minority protection instruments,
b)  adapting them to present and foreseeable circumstances in- and outside of the UN, and
c)  complementing them with Representatives of Beneficiaries of International Guarantees.

a)      prompt recognition, e.g. through a decision by the International Court of Justice, that the Security Council's sanctions and embargo decisions concern only States and not "geographical territories", thus making notably the arms embargo resolution 713 (1991) and the economic sanctions resolution 757 (1992) invalid and inapplicable in relation with the Former Yugoslav Republic of Macedonia, the Republic of Bosnia-Herzegovina, the Republic of Croatia and the Republic of Slovenia;

b)      full respect for and strict enforcement of the Geneva Conventions of 1949 and the Additional Protocols of 1977 through government troops in government-controlled areas and, outside government-controlled areas, through the Bosnian, Croat and Serb military units operating - until their eventual dissolution or reintegration into the respective national armies - under UN control and UN-appointed senior officers in areas assigned to them in accordance with the gradual re-integration plan and corresponding military agreements;

c)      peace negotiations, to be sponsored notably by the signatories - and their successors - of the 1919 Treaty of St-Germain-en-Laye, i.e. Canada, France, Italy, Japan, United Kingdom and the United States, and involving Albania, Austria, Bulgaria, Germany, Greece, Hungary, Romania, Russia and Turkey (on the basis notably of this treaty's minority protection provisions and with due consideration of the Corfu Declaration of 1917, with the interim UN administrations effectively in place, and with the economic sanctions commensurately lifted);

d)  recognition, by the General Assembly, of Representatives of Beneficiaries of International Guarantees which are to participate in all related negotiations and to advise all involved UN bodies, being duly nominated by the communities covered by actual or future international minority protection guarantees or other League or United Nations commitments; and

e)  development of a European travel document, which is to be issued in the name of the Council of Europe by its member governments, and which is to specify the holder's commune(s) of origin or the commune(s) of which he or she is a citizen.

    "No European country is based on exclusivity, be it ethnic, religious, racial or others.  Many of us worked hard to bring to an end racial Apartheid in South Africa, and we would not live up to our visions and responsibilities if we participated in setting up ethnic or religious Apartheid and ghettos in our midst.  We thus cannot and will not accept as permanent a pseudo-solution in the form of a militarily imposed carve-up of Bosnia-Herzegovina which would violate our fundamental values and bear the germs for further conflicts in the Balkan and beyond.
     Instead, we have to do everything in our power, including the imaginative use of the UN Charter for setting up suitable interim solutions, in order to let the inhabitants of the Republic of Bosnia-Herzegovina to work out their own solutions freely, with their own means and without outside interference.  And we should not foreclose the possibility that they may rebuild their exemplary multi- ethnic and multi-religious community and develop their cultural and economic exchanges within and beyond their internationally recognized borders."  (TF1, 7sur7, 13 February 1994)
....

(1)   This is a follow-up paper to the draft outline of a minority protection-based interim conflict resolution formula for all of former Yugoslavia (E/CN.4/Sub.2/1993/NGO/29; S/PV.3336, p.103).  It was prepared in cooperation notably with the Good Offices Group of European Lawmakers and its research branch, CORUM (POB 2580, 1211 Geneva 2), with the participation of J.Keller, S.Keller, P.Martin, P.Pearson, G.Poulin, F.Ruiz, C.Vieira dos Santos, R.Wadlow, P.Wainwright, A.Zilic and A.Zumach, and with the support of A.Poulin, F.Petracco, D.Hariri, F.Merles, R.Prins-van Westdorpe, E.Querio, A.Vallotton and P.Wiegmann.  Its editor, J.A.Keller, is alone responsible for eventual errors and ommissions.  He wishes to express his gratitude for the assistance and numerous services provided by the United Nations Office in Geneva, by the director of the United Nations Geneva Library and by the League of Nations archivist and their staff.
(2)   Peace Handbooks, AUSTRIA-HUNGARY, vol.II, Foreign Office, London 1920, p.35.
(3)   art.I "Outline of a preliminary agreement on the principles and foundations for the establishment of a Confederation between the Republic of Croatia and the [Bosnia-Herzegovina] Federation"
(4)   CHASZAR, Edward, "The International Problem of National Minorities", University of Pennsylvania, Indiana 1991.  Like lawyers, Representatives of Beneficiaries of International Guarantees should be duly nominated by the communities covered by actual or future international guarantees or other League or UN commitments (e.g. for Bougainville's people: E/CN.4/1994/L.93).  As such they should directly represent their constituents and be called upon to effectively advise all involved UN bodies on related questions.  For if such and other guarantees are to be and remain credible tools for resolving minority, succession and other problems in actual/future trouble spots of the world (E/CN.4/Sub.2/1992/NGO/27; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/1994/NGO/48), it appears indispensable to strengthen and complement existing conflict resolution mechanisms and pathways with meaningful and reliable instruments which can really make a dent.
(5)   comprising in fact also parliamentarians from Asia, Middle East and the United States;  for terms of reference and background information see: E/CN.4/Sub.2/1993/NGO/29, footnotes 4, 5.
(6)   GISCARD D'ESTAING, Valéry, "Comment sauver la Bosnie", Le Monde, 4 f‚érier 1994, p.1;  multiple official declarations, made since June 1993, by Representatives of the Government of the Republic of Bosnia-Herzegovina, calling for a UN Trusteeship for significant parts of its territory;  see also: "REPUBLIC OF SRPSKA", "Platform for a modus vivendi" of 12 February 1994, op.cit.
....

1.      "In accordance with the right of self-determination of peoples, no part of this territorial totality may without infringement of justice be detached and incorporated with some other State without the consent of the nation itself.  In the interests of freedom and of the equal rights of all nations, the Adriatic shall be free and open to each and all.  All citizens throughout the territory of the Kingdom shall be equal and enjoy the same rights with regard to the State before the Law."

2.      The constituant peoples of former Yugoslavia, at the invitation of the Principal Allied and Associated Powers signatories of the Treaty of St-Germain-en-Laye of 10 September 1919, and with the assistance of the leadership of the Catholic, the Islamic and the Orthodox faiths, and under the supervision of the Council of Europe, organize a referendum, to be held before 31 December 1997, for the purpose of ratifying the dissolution of former Yugoslavia and of laying the foundations for its eventual reorganization within or outside the framework of a Balkan Union, or other suitable forms of economic, political and cultural cooperation and links.
     The free exercise of each people's inalienable right to self-determination shall be guaranteed jointly and individually by the Principal Allied and Associated Powers signatories of said 1919 Treaty.  Upon signature of this mediation plan by all parties concerned, and regardless of whether any of the peoples concerned eventually will have ratified or failed to ratify the dissolution and eventual reorganization of former Yugoslavia into the political units which have been, or may yet be recognized by the United Nations, the Guarantor Powers untertake to promptly develop such instruments and negotiate with the States concerned such conditions which will give full, timely and individually meaningful bearing notably to convention rights and the international minority protection guarantees provided for in said 1919 treaty.  To these effects, duly elected Special Representatives of the beneficiaries of such international guarantees shall be recognized notably in all related fora of the United Nations, its eventual successor and similar organizations.
     Upon signature of this plan by all parties concerned, and at least until the referendum will have been carried out, all contested territories in former Yugoslavia shall be placed under the effective protection of the United Nations.  Corresponding administration agreements shall be worked out forthwith with the local authorities and peoples.  And all military units presently stationed in these contested territories shall be placed under over-all UN command:  in cooperation with UNPROFOR, this shall be implemented by the correspondingly regrouped and reorganized forces in place, which are to be directed by UN-appointed senior officers and which shall be responsible for disbanding and disarming the militia, de-mining, rebuilding the infrastructure, etc.

3.      Economic sanctions shall be lifted commensurately with the progress achieved in putting the interim UN administration in place.

July 14, 1994 (draft 2)
CORUM - POB 2580, 1211 Geneva 2 - fax: 4122-7400362
....

1. The principles enshrined in the United Nations Charter must be upheld.   Accordingly,  territorial acquisitions,  unilateral treaty abrogations,  and other changes of duly incurred  international obligations shall be honored only if they were carried out within the Rule of Law.  In the event, interim solutions based on the Charter shall be adopted and put into practice in cooperation with responsible representatives of the peoples concerned, with a view to restore civilized relations within multi-ethnicity communities in line notably with fundamental human rights and international obligations.

2. The principles and rules of the Red Cross constitute universally valid human rights norms whose effectiveness and reliability require them to be universally, promptly and unreservedly respected and enforced, notably in cases of humanitarian relief operations.  Particularly the terms of the 4th Geneva Convention and the Additional Protocols must thus be honored by all authorities of all signatories.  No law, regulation or official action shall prevail over them (thus excluding amnesty, pardon or immunity from prosecution).  In the event, members of the regular armed forces, as well as of irregular groups subject to these international humanitarian law conventions, shall be brought to stand trial in any one of the signatory states.

3. International minority protection guarantees must be honored, if this diplomatic instrument is to remain useful for containing, if not settling, present and future minority problems anywhere.  Violations of internationally guaranteed minority rights - even old and forgotten ones - thus must be dealt with seriously, promptly and effectively by way of imaginative use notably of  the redress mechanisms associated with them.  E.g. by putting the matter on the agenda of the competent international authority, by deploying human rights monitors and UN guards, and/or by setting up correspondingly protected Neutralized Zones and/or UN Trust Territories.
......

4. Neutralized Zones in the sense of art.15 of the 4th Geneva Convention are to be declared - in the event even unilaterally - by the competent authorities.  They may be brought into being by way of the good offices of, e.g., the International Committee of the Red Cross with regard to Sarajevo and other threatened civilian centers in former Yugoslavia.  Military forces shall be compelled with political, if need be with adequate military means, to promptly und unreservedly respect the related international Red Cross obligations.

5. An Interim UN Administration may be set up by the competent UN organ either on its own initiative or at the request of a concerned Member State or minority, wherever in the former Yugoslavia it registers persistent violations of human rights, of Geneva Convention obligations and/or of international minority protection guarantees, or where the UN sees threats to international peace and security.  E.g. in illegally occupied, contested or destabilized areas of Bosnia-Herzegovina, Croatia (Krajina), Kosovo, Macedonia, Sandjak and Vojvodina.  To this effect, diplomatic consultations shall be carried out forthwith on the most suitable path to be pursued for the United Nations General Assembly to promptly exercise its prerogatives under the UN Charter, in the event in combination with those specified in its Resolution 24 (I) of 1946, concerning the transfer to the United Nations of the minority protection functions and powers which were attributed to the League of Nations with the Treaty the United States, the British Empire, France, Italy and Japan had concluded in 1919 with the forerunner of former Yugoslavia, i.e. the Kingdom of the Serbs, Croats and Slovenes.  As the guaranteeing international body, the UN is seen to be already empowered to "take such action and give such direction as it may deem proper and effective in the circumstances."

6. A Permanent International War Crimes Center is to be created - e.g. in Geneva - providing for the documentation, analysis and effective prosecution of war crimes and their authors.

7. Duly elected Representatives of ethnic, religious, national and other minorities covered by existing or forthcoming international minority protection guarantees are to be recognized by and invited also to serve as Permanent Advisers notably to the competent UN bodies.

Geneva, 26 August 1994
....

Economic and Social Council

COMMISSION ON HUMAN RIGHTS
Fifty-first session,
Agenda item 12
....

          "In accordance with the right of self-determination of peoples, no part of this territorial totality may without infringement of justice be detached and incorporated with some other State without the consent of the nation itself.
          In the interests of freedom and of the equal rights of all nations, the Adriatic shall be free and open to each and all.
          All citizens throughout the territory of the Kingdom shall be equal and enjoy the same rights with regard to the State before the Law."

3.        On 12 February 1946, the United Nations General Assembly adopted its Resolution 24 (I), providing that

     "The General Assembly will itself examine, or will submit to the appropriate organ of the United Nations, any request from the parties that the United Nations should assume the exercise of functions or powers entrusted to the League of Nations by treaties, international conventions, agreements and other instruments having a political character."

5.      In either case, the peoples and minorities of former Yugoslavia, with their active participation in this referendum, could demonstrate their determination to remain an integral part in particular of the European family of nations and, jointly, to become a full Member of the European Union as soon as possible - under either a joint Yugoslavian or Balkan umbrella.  They would thus vote neither for nor against, but remain open for an eventual peaceful partial or full reorganization of Yugoslavia (4) within or outside the framework of a Balkan Union, or of another suitable frame for economic, political and cultural cooperation and links.  No party should oppose corresponding efforts, and the Principal Allied and Associated Powers should avail their good offices to these effects.  In the event, any dispute involving territory might be bindingly settled by arbitration, with the President of the Swiss Confederation invited to preside over the proceedings.  The International Court of Justice could be called upon by any signatory to provide Advisory Opinions on questions of law or fact. Furthermore:

a)   Those peoples and minorities who would have voted to confirm the breakup of former Yugoslavia would be free to organize their institutions within the newly defined - or eventually renegotiated and redefined - internationally recognized borders, and within the constitutional frameworks they agreed upon, eventually linked to such international minority (5) protection and other guarantees as may be indicated, and with proper direct representation via-à-vis the guaranteeing powers and international governmental organizations.
b)   Those peoples and minorities who would have rejected the dissolution of former Yugoslavia would be free to create their own independent federal or confederated State, with the name of Yugoslavia, whose international borders, in consultation with the Principal Allied and Associated Powers, should be negotiated and worked out among the involved internationally recognized States.
c)   This referendum should be carried out under the protection of the Principal Allied and Associated Powers with the assistance of the leadership of the Catholic, the Islamic and the Orthodox faiths, and under the supervision of the Council of Europe and the European Union.

7.        Upon signature of this or a similar plan by all parties concerned, and at least until the referendum would have been carried out, all contested territories in former Yugoslavia should be placed under the effective protection of a suitable international organization or alliance (6).  Corresponding administrative agreements should be worked out forthwith between the latter and the local authorities and peoples.  And all military units presently stationed in these contested territories should be placed under an agreed over-all command:  in cooperation with UNPROFOR, this shall be implemented by the forces in place which are to be directed by correspondingly appointed senior officers and which shall be responsible for disbanding and disarming the militia, de-mining, rebuilding the infrastructure, etc.
 

NOTES

*     Reflecting the mandate given in June 1991 by the Presidency of the Yugoslav Chamber of Republics and Provinces (reproduced in E/CN.4/Sub.2/1993/NGO/29), this paper was prepared in cooperation with the Good Offices Group of European Lawmakers and its research branch, CORUM (POB 2580, 1211 Geneva 2), with the participation notably of G.Arif, G.Arangio-Ruiz, D.Baghistani, M.Best, S.Keller, D.Kreuter Grant, P.Martin, D.Morrow-Patty, R.J.Parsons, A.Poulin, F.Ruiz, W.Simon, W.Spalding, A.Teitelbaum, C.Vieira dos Santos, P.Wainwright, A.Zilic and A.Zumach.  The editor, J.A.Keller, was alone responsible for eventual errors and omissions.  He wished to express his gratitude for the assistance and numerous services provided by the United Nations Office in Geneva, by the director of the United Nations Geneva Library and by the League of Nations archivist and their staff.

(1)     Peace Handbooks, Austria-Hungary, vol.II, Foreign Office, London 1920, p.35;  reproduced also in: UN document E/CN.4/1994/NGO/54.
(2)     Oarry, CTS 226, 182, also reproduced in: UN Document E/CN.4/Sub.2/1993/NGO/29, annex.
(3)    Andreas Zumach, in "The EU can break the deadlock" (The Geneva Post, 8 February 1995), stated:
          "A solution would be for the European Union to offer membership to Croatia, Bosnia,
     Serbia/Montenegro, Slovenia and Macedonia - under two conditions:
     1)   the return of all land, homes and property which were seized since June 1991 by military force or ethnic cleansing, thus providing for the return of all refugees and displaced persons and the rebuilding of a multi-ethnic society in each of the states.
     2)   the continuation of the war crimes prosecutions through the International Tribunal in The Hague and through national courts.  The offer of membership should be combined with a "Marshall" plan for the reconstruction of the war-torn regions.
          As citizens of EU member countries, the Serbs living in Croatia and Bosnia would no longer be dependent only on the governments in Zagreb and Sarajevo to ensure their minority rights and settle grievances.  They could turn to the EU institutions in Brussels and Strasbourg.  The same would apply to the Albanians in the Kosovo or to the ethnic groups in Macedonia.
          If the territory of the former Yugoslavia became part of the EU, the borders between Serbia and Bosnia or Serbia and Croatia would become as irrelevant as the borders between Belgium, Holland and Germany are today.  ...  Despite all of Belgrade's anti-EU propaganda since 1991, many Serbs and international observers  are convinced that in a referendum for EU membership 80 per cent of the population would vote yes.
          At the moment, the only one among the 15 heads of EU governments who - if at all - would have the political standing to initiate a correction of the EU's policy would be German chancellor Kohl. Such an initiative by the Bonn government could also finally overcome the suspicions about Germany's motives for recognition of Croatia and Slovenia felt in London, Paris and other EU capitals since 1991. These suspicions played a major role in shaping the British and the French policies toward the conflict in Yugoslavia, which in return are being perceived in Bonn as pro-Serb.  Because of these perceptions, the EU until today has (despite all declarations to the contrary) no common and coherent policy toward the conflicts in Ex-Yugoslavia.
          To grant membership to the former Yugoslav republics will undoubtedly cost the current EU members and their taxpayers a lot of money in the short term.  But to use this fact as a reason to refuse membership would be very shortsighted.
          A continuation of the current EU policy for another year and beyond will, in the long term, prove much costlier - financially and politically.  It might in the end even contribute to the disintegration of the EU."
(4)Flora Lewis, "The Yugoslav Solution Is Yugoslavia", International Herald Tribune, 10 February 1995, and in: Foreign Policy Magazine, March 1995.
(5)John Packer, "On the Definition of Minorities", in: "The Protection of Ethnic and Linguistic Minorities in Europe" (ed. J.Packer, K.Myntti) Abo Akademi University (Finland), 1993, p.23-65
(6)based on the corresponding rights, obligations and authorities provided for notably in the 1919 Treaty, the United Nations Charter, UN General Assembly resolution 24 (1) of 12 February 1946, etc.

Economic and Social Council

COMMISSION ON HUMAN RIGHTS
fifty-first session
Agenda item 25
....

2.     If the responsibility for these crimes was not limited to their physical perpetrators, did it extend to the "Schreibtischtätern" here and there, as was already admitted in the Nuremberg trials?  Did it include those in power who, through their actions and inactions, unwittingly or not, seemed to have violated the fundamental Corfu Pact among the constituent peoples of former Yugoslavia (see annex; E/CN.4/1994/NGO/54)?  For had they not opened up the Pandora's box, weakened the forces of reason, and strengthened the hands of those who had discovered lies, deceit and atrocities to be shortcuts to their objectives, entailing no real risks for those eventually invited to the table?  Were they all free of at least moral co-responsibility for what happened and failed to happen in former Yugoslavia?  Also: what about the States and their leaders and officials who, through their actions or omissions had materially contributed to the course of events and thus may have committed internationally wrongful acts engaging the State's responsibility?  The still-to-be-investigated case of the allegedly legal UN arms embargo against Bosnia-Herzegovina shed some preliminary light on related questions which seemed to be worth pursuing beyond these introductory observations.

3.     The International Court of Justice, in its Order of 13 September 1993, inter alia, observed that while "all parties to the [1948 Genocide] Convention have thus undertaken 'to prevent and punish' the crime of genocide", the Court was "not satisfied that all that might have been done has been done to prevent commission of the crime of genocide in the territory of Bosnia and Herzegovina" since the Court gave its Order of 8 April 1993.

4.     In his Separate Opinion, Judge ad hoc Elihu Lauterpacht raised the issue of co-responsability for the commission of the crime of genocide.  He did so by pointing out the foreseeable and under no pretext excusable genocidal consequences of an illegally, artificially and externally imposed weapons imbalance which in effect denied an internationally recognized State the most fundamental of its rights, namely that of self-defense.

5.     The British Foreign Office, in response to a letter to the Prime Minister on the matter, observed on 13 August 1993: "Security Council Resolution 713 applied to the territory of what was then the State of Yugoslavia.  In the view of the United Kingdom the Resolution continues to apply to the same geographical territory."  This novel approach to international law ignored that the UN deals only with States and not with geographical territories (3).

6.     Echoing a corresponding amicus curiae (4) to the Court, Judge Lauterpacht indicated that Security Council resolution 713 (1991) concerned an arms embargo against "Yugoslavia", that the Republic of Bosnia-Herzegovina was admitted to UN membership on 22 May 1992 without any reservation, that SCR 713 was never and, in as much as it would have been against jus cogens, could never in law have been extended to any of the new UN members who had formed part of former Yugoslavia, that in law, therefore, it could not be "valid and binding in its operation against Bosnia-Herzegovina", and that those who operated its factual application, maintenance and enforcement had done no service to regional stability, humanity or the Rule of Law and, in fact and in law, might even have made "Members of the United Nations accessories to genocide".

7.     Did responsibility for an act involve only those ordering and committing it, as an Ambassador seemed to imply in the quote attributed to her by Anthony Lewis ("Yes to War Crimes Trials of the Beastly Commanders", International Herald Tribune, 28 June 1994)?  Or did it extend to "Those outsiders who connived it with the perpetrators of these crimes, the 'accomplices'," as Salah Ezz quoted the former British Prime Minister Margaret Thatcher ("Abetting Bosnian Genocide", IHT, 5 July 1994)?  What if the latter's contribution was perhaps less of a manifestly intentional or active, and more of an apparently "only" unwitting or passive nature, e.g. through omission?

8.     Largely inspired by the picture of Pontius Pilatus washing his hands in the case  the priests brought against Jesus Christ, i.e. innocenting himself through fence-sitting and deliberate non-exercice of his powers, Western thinking, as expressed in the common man's related attitudes tended indeed towards the general equation: inaction equals non-responsibility.  In contrast, Eastern concepts basically seemed to make no difference between action and inaction with regard to the responsibilities for the consequences entailed (5).  The French penal code's article on "non-assistance to persons in danger" appeared to be the exception which confirmed the rule.

9.     The obligations under the Genocide Convention to which the Hague Court referred were not, of course, limited to the Government of the Federal Republic of Yugoslavia.  The same held true for the Court's above-quoted critical comment.  Indeed, after the Second World War, with "never again" on everybody's mind, it was natural that each signatory unreservedly committed his State "to prevent and punish" the crime of genocide.

10.      A signatory State, in apparent law, could thus fail to take effective preventive action only as long as it did not formally recognize the danger or existence of genocide.  Several permanent members of the Security Council, had indeed failed to do exactly that.  This seemed to explain why the U.S. Ambassador had felt obliged to counter criticism by publicly seeking to limit the responsibility for what happened in Bosnia-Herzegovina to "the people who ordered and committed the crimes."  And why the former Prime Minister felt compelled to show the flag of a higher-than-State morality and, by lending her voice to the ordinary citizen's growing outrage, to occupy the moral high ground.

11.      Article 3 of the International Law Commission's Draft Articles on State Responsibility (6), stipulated:
    "There is an internationally wrongful act of a State when:
    (a)   Conduct consisting of an action or omission is attributable to the State under international law; and
    (b)   That conduct constitutes a breach of an international obligation of the State."

12.      And while the Draft Statute for an International Criminal Court dealt with individual alleged crimes, it was of interest to note its Article 39 which stipulated that "An accused shall not be held guilty: (a) in the case of a prosecution with respect to ... [e.g. genocide], unless the act or omission in question constituted a crime under international law".  Also, e.g., the Swiss penal code explicitly provided for non-prosecution of crimes commited in the line of professional or official duties.

13.      Passivity, inaction and omission to fulfil an international obligation were indeed "regular" political instruments, i.e. they formed part of the prevailing "political culture".  Article 3 of the above-quoted Draft Articles on State Responsibility was to eventually provide for clear co-responsibility of a State and its officials for an internationally wrongful act of that State in case of either action or omission being the material cause or contributor to a given damage.  Yet, as ratification of these draft articles was not imminent, there was no apparent danger for those in power anywhere to be actually dragged into court for abetting genocide in Croatia and Bosnia-Herzegovina for their passivity, i.e. because of inaction or omission.

14.      Their case would be different (in theory) if it could be shown, e.g., that some officials, be it on their own or at the behest of superior powers, were scheming, misleading, rule-bending, etc. in order to prevent the Security Council or the General Assembly from being properly informed, counseled and thus enabled to take appropriate action on whether or not the arms embargo on "Yugoslavia" was legally applicable to Bosnia-Herzegovina.  It was understood that several such cases existed (7).  Yet, not least because the Bosnian Ambassador to the UN in New York apparently had a conflict of interest for reasons of his double nationality, it would be difficult to deny that the thus colluding victim too became co-responsible for what happened - or failed to happen.

15.      That and related cases thus risked never to be brought into the halls of justice, with only some visible wrong-doers eventually serving as scapegoats.  Moreover, the audience here and there found itself rather abused, confused and without any real moral or political leadership.  It was in desperate need for a ray of hope and constructive elements.  And much more than partial justice, distracting show trials and pseudo vengence for past and actual human aberrations and failings were needed - if it was to find the path towards a more enlightened, stable and worthwhile future.

16.      The above considerations, of course, were not intended to belittle the individual responsibility and guilt for the crimes that took place particularly in Croatia and Bosnia-Herzegovina.  By putting into perspective those cases which might occupy the International Criminal Court, a voice is raised against the tendency to quickly forget all those cases which escape human justice.  And lessons were sought to be learned from the actions, inactions and omissions of those "Schreibtischtätern" and leaders who failed to live up to their responsibilities - and thus may have done more individual and collective harm than all those eventually brought to justice combined.

17.      Also, it was to remind all concerned, that they had a future to build and a past to repair and that they could not succede in either unless they faced the facts rationally, tolerantly and open-mindedly.  That each participant of the conflict had to live with and, in one way or another, had to stand for all of his actions and inactions, whether he "served" on the humanitarian or the conceptual, virtual or real killing, raping or torturing front, in the dirty tricks department and/or in the corridors of power at the UN or elsewhere.  And that irrespective of whether any one of those foreign and local "leaders" and "peacemakers" was ever to find himself in the docks for his hidden agenda and manifest co-responsibility for the desasters at hand, true salvation could only come from within, from working out solutions among all involved peoples themselves, and from looking and working ahead - together with his fellow-men.
....

*   This paper was prepared in cooperation with by the Good Offices Group of European Lawmakers and its research branch, CORUM (POB 2580, 1211 Geneva 2), with the partition notably of:  G.Arangio-Ruiz, G.Arif, D.Baghistani, M.Best, S.Keller, D.Kreuter Grant, P.Martin, D.Morrow-Patty, R.J.Parsons, A.Poulin, F.Ruiz, W.Spalding, A.Teitelbaum, C.Vieira dos Santos, P.Wainwright, A.Zilic and A.Zumach.  The editor, J.A.Keller, was alone responsible for eventual errors and omissions.  He wished to express his gratitude for the assistance and numerous services provided by the United Nations Office in Geneva, by the director of the United Nations Geneva Library and by the League of Nations archivist and their staff.
**   This document is issued as received from the organization concerned.

(1)   The International Court of Justice, by its Order of 8 April 1993 concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 September 1948 in the case of Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro), responded to the complaint about "genocidal practices", inter alia, by directing the Government of the Federal Republic of Yugoslavia (Serbia and Montenegro) to "take all measures within its power to prevent commission of the crime of genocide ... whether directed against the Muslim population of Bosnia and Herzegovina or against any other national, ethnic, racial or religious group".
(2)   To these effects, the "Action Plan for ex-Yugoslavia", proposed to the parties to the conflict on 9 March 1993, may still be helpful, as may the recently developed "Referendum Plan" (see also: E/CN.4/Sub.2/1993/NGO/29, E/CN.4/1994/NGO/54).
(3)   If this were not the case, this ill-considered legal theory, if applied by analogy, would result, e.g., in the Eastern part of united Germany not to be covered by the NATO umbrella.
(4)   submitted by the Good Offices Group of European Lawmakers in line with its mandate of June 1991 (reproduced in: E/CN.4/Sub.2/1993/NGO/29) to contribute to a peaceful and lasting conflict resolution in all of former Yugoslavia.
(5)   The market mechanism, e.g., offered an illustration of this difference: although decisions to sell or not to sell, like decisions to buy or not to buy, affected the wealth of any decider anywhere fully and on an equal level.  However, in comparison with their Eastern homologues, Western market players seemed to have more difficulty to recognize and adapt themselves to this fundamental market rule, and to give equal weight to one's market-related actions and inactions.
(6)   Report of the International Law Commission (1973), A/9010/Rev.1, UN 1974, p.17.
(7)   As a result, the General Assembly resolution on Bosnia of December 1993 lacks all teeth; even the already integrated request to the International Court of Justice to provide an Advisory Opinion on the validity and applicability of the arms embargo to Bosnia-Herzegovina was thrown out at the last moment.

GE.95-12404
....

2.     The speaker pointed to the evolution of the term minorities since the 1st World War. Then, in the wake of the break-up of the Ottoman Empire in particular, borders were redrawn radically over much of Europe and the Near East, and many constituant parts of national, religious and linguistic entities thus found themselves forcibly confronted with new frameworks, legal systems and neighbors.

3.     In order to accomodate, appease and secure these newly created and isolated and thus - if not physically, then socially and politically - uprooted and destabilized groups and minorities, the complement of the Versailles Treaty of 1919, ie. the League of Nations, provided for corresponding international minority protection obligations which were placed under the surveillance and guarantee of the international community. Indeed, much of the League of Nations’ work concerned minorities. And though that attempt to organize the business of the family of nations and to harness the forces of its members towards peaceful ends failed, this failure, by most accounts, occurred not because but despite of the League’s relatively succesful minority protection mechanism and work. At any rate, the speaker was of the opinion that there were still lessons to be learned from that experience, and he expressed the hope that after 47 years of the Sub-Commission’s existence, this newly created Working Group will finally be able to effectively address the issues related to minorities à fond and in a constructive and mutually beneficial way.

4.     The Sub-Commission’s Special Rapporteur, Francesco Capotorti, had amply demonstrated in his excellent report on minorities of 1977 (UN Sales Nr. E.91.XIV.2) that after the 2nd World War, for "at least 20 years, ... the question of international protection of minorities was no longer topical. The system of protection built up under the League of Nations had collapsed with the demise of that organization, and the Universal Declaration of Human Rights adopted in 1948 by the General Assembly of the United Nations did not mention the question of the treatment of persons belonging to ethnic, religious or linguistic minorities. Moreover, the emphasis placed in the international legal order on the imperative need to ensure respect for basic human rights seemed to imply that it was no longer necessary to protect in any special way the interests of minority groups or, more specifically, of individuals belonging to such groups." (p.ii).

5.     Indeed, as was pointed out in the UN Secretariat’s "Study on the Legal Validity of the Undertakings Concerning Minorities" of 1950 (E/CN.4/367), the United Nations Charter focused on and "recognized a new concept which did not appear in the Covenant of the League of Nations, the concept of human rights and non-discrimination. The protection of human rights is a substantial element in the protection of minorities. The obligations regarding the protection of minorities provided that minority groups should enjoy personal and civil liberties, in fact what has been termed human rights, and that they should not be subjected to discriminatory measures as compared with other elements of the population." "Consequently, might it not be said that the United Nations Charter, by adopting the concept of human rights, which to a large extent coincides with the idea of the protection of minorities, intended to substitute the former concept for the latter and thus implicitly abrogated the special obligations regarding the protection of minorities?" The authors of said authoritative study answered themselves by saying: "The question might be answered in the negative ..." (p.19).

6.     Nevertheless, in the opinion of the speaker, a dilution of the term minority had indeed occured, and the special rights and protective measures which were granted to specific groups had suffered accordingly. With the re-emergence of wide-spread identity problems in the form of ethnic, religious and linguistic tensions as telltale signs of inadequately organized or goverened, unstable and potentially explosive societies, effective and trust-worthy minority protection tools involving international guarantees are more than ever called for. The trend towards ever more diluted and ever less enforced rights must be reversed and not favored, as would be the case if minority status were extended to refugees, asylum seekers, frontaliers, migrant workers, etc. To these effects, the speaker recommended to the Working Group to see to it that corresponding opportunities not be missed.

7.     In his second intervention, the speaker reflected on the references made by Professor Cherenenko to the minority protection régime of the League of Nations, on the opportunity indicated by others for the Working Group to develop its work with a foreward-looking yet historical perspective, and on the issue pointed out by Professor Ali Khan concerning the continued validity of minority protection obligations incurred by States in light of the 1992 Minority Rights Declaration and of possible actions and inactions taken by the Working Group.

8.     The speaker was of the opinion that said Declaration, which was brought into focus by the mandate given to the Working Group, should not be construed as a limiting factor for the Working Group's attention, neither timewise, nor as regards minority protection obligations entered into by States outside the framework of the United Nations. The President had previously expressed a similar view and declared himself open to look at the experiences gained with the League of Nations minority protection system; he expressed particularly interest for information to be provided to the Working Group on three points:

a)     Which, if any, of the minority protection obligations incurred in relation with the League of Nations are still valid in international law?

b)     What is at present the status of the related review, surveillance and enforcement powers and functions which were attributed to the League of Nations and its Permanent Court of International Justice in relation to the United Nations system?

c)     What are possible pathways for what related actions towards what objective?

9.     Indeed, article 8 of the 1992 Declaration stipulates unmistakably:
     "Nothing in the present Declaration shall prevent the fulfilment of international obligations of States in relation to persons belonging to minorities. In particular, States shall fulfil in good faith the obligations and commitments they have assumed under international treaties and agreements to which they are parties."

10.     Furthermore, the International Court of Justice, in its Advisory Opinion on the South African mandate of June 1950, expressed the opinion:

     "These obligations represent the very essence of the sacred trust of civilization. Their raison d'être and original object remain. Since their fulfilment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ [i.e. the Council of the League of Nations] ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon." (I.C.J. Reports 1950, p.133)

12.     In this light, the speaker drew attention to the cases of the minority protection regimes of the Baltic States, former Yugoslavia and Iraq, all of which were concluded in relation with the League of Nations and seemed not only to have remained in force but, as detailed in the written statements submitted to the Sub-Commission, may provide effective answers to current and future minority problems (E/CN.4/Sub.2/1992/NGO/27; E/CN.4/Sub.2/1993/NGO/27; E/CN.4/Sub.2/1993/NGO/29; E/CN.4/1994/NGO/48; E/CN.4/1994/NGO/54; E/CN.4/1995/NGO/47; E/CN.4/1995/NGO/51; E/CN.4/1995/NGO/52). He pointed out that the widely quoted conclusion of the UN Secretariat's 1950 study (E/CN.4/367) was a general statement and concerned only the League of Nations' minority protection regime as a whole, but was not meant to and did not provide a generally valid assessment of the eventual continued validity, in international law, of each and every minority protection obligation entered into by States in relation with the League of Nations. In fact, the substantive part of this study concluded in almost all cases that the circumstances were not radically changed, thus leaving the obligations intact. In the case of Iraq, the study concludes:

  "1.     As regards ordinary causes of extinction of obligations, since Iraq was bound by a Declaration made before the Council of the League of Nations, the dissolution of the latter suspended the obligation, which would return into force only if the United Nations decided to take the place of the League of Nations.
   2.     As regards change of circumstances, there seems to be no special circumstance affecting the position of Iraq."

14.     Accordingly, the speaker underlined that in the above-mentioned cases at least, the UN Secretariat's authoritative 1950 study came to positive and thus highly interesting conclusions which, of course, required to be reviewed anew particularly in light of developments which occurred since then (e.g. the successor state problems are particularly acute and challenging in the cases of the Baltic States and the former Yugoslavia). He expressed the view that the Working Group, too could benefit in many ways if it invested its scarce resources also into efforts to avoid reinventing the wheel by seeking inspiration from these extremely valuable, for life-size minority protection experiences and, in the event, to seek to transfer, adapt and complement the League of Nations mechanisms and methods to present circumstances in and outside of the United Nations system.

15.     Concretely, this may involve the re-enrootment, re-enactment and development of international minority protection guarantees. And it may require the creation of a new type of human rights minitors who, upon nomination by the beneficiaries of these guarantees, would be put into office by the guaranteeing body or powers with the mandate to see to it that the guarantees in question are being observed on every level and that the beneficiaries of these guarantees have a direct means of communication with the guarantor(s) through his good offices. As such, these and other ideas might be developed into effective tools of diplomacy for getting the leaders of abused minorities to be able to consent to political solutions which otherwise might not be accessible with peaceful means.
...

box 2580  1211 Geneva 2
fax: (4122)7335979
     J.A.KELLER, Secretary
     t: (4179)6047707

July 18, 1996 (corr.1)

H.E. Boutros Boutros-Ghali, UN Secretary-General                            1212-9632155
H.E. Carl Bildt, High Representative                                                  322-7377408
H.E. Flavio Cotti, President OESC                                                    4131-3241289
H.E. Slobodan Milosevic, President of Serbia                                     3811-1684679
H.E. Alija Izetbegovic, President of Bosnia-Herzegovina                      38771-472491/472188
H.E. Franjo Tudjman, President of Croatia                                         3851-444532
H.E. Bill Clinton, U.S. President; Richard C.Holbrooke                       1202-4562461/6470967
H.E. Boris Yeltsin, President of Russia; Vitali I. Churkin                     7095-2449248/2442203
H.E. Jacques Chirac, President of France; François Delattre              331-42928299/42660476
H.E. Helmut Kohl, Federal Chancellor of Germany; Gerd Ahrens         49228-562357
The Right Hon. John Major, Prime Minister, United Kingdom               44171-9301419/9382191
H.E. Suleyman Demirel, President of Turkey                                     90312-4685026

      All that may call for credible, yet mostly delegated, i.e. national war crimes trials.  In light of the realities and imperative expectations in- and outside of former Yugoslavia, this, of course, would come close to squaring a circle.  The key to that problem may be found by drawing inspiration from the following mathematical puzzle (attributed to an unknown author of the 19th century):  Connect the nine points of this square with four straight lines without lifting the pencil. The problem is solvable only outside of the square which only apparently confines the solution.

      Translation: Subscribing to the values of European civilization, the Serbs no less than the Bosnians and the Croats are understood to be willing to try those alleged to have committed war crimes. The Statute of the International War Crimes Tribunal in The Hague explicitly provides for national trials.  In as much as the Serbian population may not yet have confidance in Bosnian and Croat courts rendering justice over those who allegedly commited war crimes against Serbs - and vice versa -, a disinterested third country's national court may be acceptable to all.  The Swiss laws (RS 351.1; RS 351.20) are understood to provide for related judicial functions.  In line with Switzerland's traditions, the Swiss Government is understood to be willing to consider corresponding requests by Belgrade, Sarajewo and Zagreb for related good offices.

Notes

(1)  This paper was prepared in line with our mandate of June 1991, issued by the Presidency of Yugoslavia's Chamber of Republics and Provinces, to carry out research and contribute our results "towards a peaceful, early and lasting resolution of the crisis which has arisen among the European Republics and Provinces which, after the Second World War, have constituted the Socialist Federal Republic of Yugoslavia" (reproduced in: UN document E/CN.4/Sub.2/1993/NGO/29, note 5).
(2)  see proposals developed with the International Committee for European Security and Cooperation: "From Broken Promises to Real Minority Protection in Former Yugoslavia", E/CN.4/1994/NGO/54; "Towards a Europe-Linked Referendum in Former Yugoslavia", E/CN.4/1995/NGO/47, and "Beyond Responsibility, Co-Responsibility and Guilt on Former Yugoslavia", E/CN.4/1995/NGO/51). Pax Christi International and the International Fellowship of Reconciliation contributed to the publication of UN document "International Minority Protection Guarantees: Former Yugoslavia", E/CN.4/Sub.2/1993/NGO/29.
....