THE ILLEGALITY OF NATO'S WAR AGAINST YUGOSLAVIA CONFIRMATION BY A GERMAN COURT

Dateline 19th January 2007

INTRODUCTION Now that Tony Blair has been taken to trial at The Hague (at least by way of a television play!) we can consider the possibility of his prosecution in the REAL world for the unambiguously illegal war against Yugoslavia. In November 2000 I wrote this paper on the illegality of NATO's war against Yugoslavia and the extraordinary confirmation of my original case by the courts in Germany. This stance by a German court is all the more remarkable since it was undoubtedly the German Intelligence Services which planned the break up of Yugoslavia throughout the 1980s and supplied weapons to the anti Serb factions. There is a real prospect - thanks to European legislation agreed to by Tony Blair - that he could be extradited to a European country without the usual prime facie evidence required by an English court to stand trial. The evidence against him is substantial and is set out below:

There are many grounds for believing that NATO's (and the European Union's) war against Yugoslavia was illegal but no political opinions of that illegality can compare with the devastating blow recently delivered by a German Court. The judgment opens NATO leaders to extradition and possible trial in countries which take a different view of what constitutes a "war crime". Among many reasons put forward for the illegality of the Kosovo war are:

1. It was contrary to Chapter VII of the United Nations own charter since no specific UN authority was granted (NATO knew that the Russians and Chinese would veto any move to obtain such authority);
2. It was contrary to NATO's own charter which asserts that the alliance is purely defensive;
3. It was contrary to international law (and the Nuremberg trials definition of "aggressive war") in that the country attacked had not itself attacked any other country, but was merely defending its own territory - against the KLA in precisely the same way in which the United Kingdom has fought (with far more deaths) against the IRA in Northern Ireland.
4. It was in contravention of international law in that so-called "humanitarian assistance" cannot be used as an excuse for attacking a sovereign country (this was specifically established to counter Hitler's view that he had the right to invade Czechoslovakia).
5. The targeting of the Belgrade Television station and the deliberate killing of
journalists was the most blatant example of NATO's illegality and about which
the BBC (as an apparently now legitimate target in future conflicts) is strangely
unmoved.
6. Among those nations which acted illegally even from the point of view of their
own constitutions were Germany, Italy and the United Kingdom (where no prior
parliamentary approval was sought or given). Indeed even a House of Commons
Committee has subsequently admitted the illegality of the war.
7. The attempt to force on Yugoslavia the terms of the "Rambouillet Agreement"
(which, in demanding effective free movement by NATO forces throughout Yugoslavia, could never have been accepted by any sovereign nation) by
threatening war was a blatant contravention of the 1980 Vienna Convention on
the Law of Treaties which forbids any coercion of a state to sign an agreement.

It was illegal and unconstitutional (because it was without the expressed will of the Yugoslav Parliament) to extradite Slobodan Milosevic to the UN War Crimes Tribunal in the Hague. Milosevic's presence at this "special court" (another practice of fascism condemned at Nuremberg) contrasts remarkably with the failure of Blair, Clinton and the other accused to turn up for trial at the (real) International Court in the same city to answer charges under international law relating to the war against Yugoslavia.

But perhaps the most remarkable event since the end of the Yugoslav war is a German Court's description of the NATO attack as "an illegal war". This stance by a German court is all the more remarkable since it was undoubtedly the German Intelligence Services which planned the break up of Yugoslavia throughout the 1980s and supplied arms and support to Croat Nationalists, Bosnian Muslims and Albanians in "Kosovo and Metohje" as this historic Serb region is called. As in much else which has happened in Europe in the 1980s and 1990s this German policy towards the Balkans is an exact reprise of the policies of "German Europe" during the 1930s and 1940s (see my book Europe's Full Circle). Just as Germany, before the first and the second world wars, intentionally sowed discontent among Croat and Albanian nationalists and religious bigots in order to weaken Serbia and Yugoslavia so today the only explanation of the present crisis is the resurgence of German Europe with its new plans for total integration of the free nations of Europe into a powerful and dangerous superstate.

Nevertheless in a court in Tiergarten in Berlin in May this year the judges found that by contributing to the NATO attack on Yugoslavia the German government and armed forces had in fact engaged in an illegal war. The implications for the leaders of the attack on Sovereign Yugoslav territory (Blair, Clinton, Schroder et al) are of course very serious.

The whole court case - and therefore the extraordinary condemnation of NATO leaders, including the German Chancellor Gerhard Schroder, would never have come about had those who opposed the war attempted to take the German Government to court. But, unfortunately for the German (and British) political classes it was the German state prosecutor who started the whole legal process. The indictment of the Government resulted accidentally from the judgment of the court.

In an indictment of 2nd July 1999 the German State claimed that the accused (a total of 19 defendants) had distributed leaflets calling on others to commit an illegal act, namely desertion from the German armed services (Paragraph 16 Armed forces regulations) and the refusal to obey orders (Paragraph 20 of those regulations). In the edition of the newspaper the "Tageszeitung" of 21st April 1999 an advertisement had appeared in which the call to desert was published. . I have translated the following extracts from the judgment of the Berlin Appeal court and it is as follows:

The accused confirmed that he had signed the call to desert. He had signed in the full knowledge and desire that it would be published widely. He knew that the advertisement would be published in the "Tageszeitung". He had only known of the distribution by mail by the witness H.T. when it was confirmed in the summons. Nevertheless he had without reservation fully endorsed the distribution and had known when signing the call to desertion that it would come to such public exposure. He had not intended to call for illegal acts. On the contrary his intention had been to prevent soldiers committing illegal acts by attacking Yugoslavia. He had been convinced that a soldier could not commit an illegal act by following the call to desert.

The accused should be legally acquitted because that of which he was accused is not illegal. On neither count was there any call to an illegal act ……… An action is illegal (according to the German Legal Code) if it constitutes an offence under criminal law. This was not the case here. If the soldiers had followed the call to desert they would have been punishable neither for desertion nor for refusing to obey an order…because the use of the German armed services to attack the Federal Republic of Yugoslavia was an illegal act.

A soldier is not punishable if he refuses to take part in actions which are illegal under international law or absents himself from the forces in order to avoid participating in such actions…… There is no obligation to obey if the orders which are disobeyed contravene the general provisions of international law.

This is of particular interest to those British and American airforce personnel who set off in their bombers to attack the civilians and journalists in the Belgrade television station. According to this German court judgment they could, indeed should have refused to do what Blair and Clinton ordered them to do. The judgment continues:

This is particularly the case when the orders are issued within the context of an internationally illegal action. It does not depend on whether the issuing of the orders is seen by the issuer as a criminal wrongdoing since an order given which is contrary to international law need not be obeyed even if the order is given for the best of motives.

The Court asserted that the soldiers in question were to have absented themselves from their posts simply with the intention of avoiding participation in the armed attack on Yugoslavia. There was no general encouragement to desert and abandoning one's post purely for the specific purpose of removing oneself from a particular action could only be punishable as desertion if that action was itself lawful said the court. The Court also considered whether the war against Yugoslavia was justified on the grounds of international law. It concluded that:

In so far as it is claimed that the action was justified by the fact that the UN was inactive or incapable of introducing measures under Chapter VII of the UN Charter, there are simply no facts which would justify such a claim. The war was started without waiting for the passing of a resolution by the Security Council.

The Court also rightly asserted that it could not be argued that the vetoing of a resolution justifying war by a permanent member of the UN (according to Article 27, Paragraph 3 of the UN Charter) could permit the other member States to bypass the Security Council and take the measures themselves. The Court also rejected a justification of the war on the grounds of emergency humanitarian relief, asserting that:

In any case there is the question as to whether humanitarian intervention in its original sense (military intervention by a State in order to rescue its own citizens abroad) would accord with international law. The war against Yugoslavia was not carried out to protect the citizens of the States which declared that war. It is also irrelevant to call on the occasionally quoted Article 51 of the UN Charter. The war was not pursued in order to support the Albanian population of Kosovo in its self-defence against human rights violations by the Yugoslavian State. Such a goal would have demanded the use of ground troops in the conflict but in fact the war was waged by means of air power against a part of Serb sovereign territory and its aim was to weaken the Federal Republic of Yugoslavia and thus force it to change its policy in Kosovo.

Indeed of course it was designed to wrest control and therefore at least de facto sovereignty over Kosovo from the state of Yugoslavia. This was made abundantly clear by the demands of the so-called Rambouillet Agreement, which amounted to effective surrender of Kosovo by Yugoslavia and was the kind of Agreement to which no nation state could possibly agree. We must remember that before the ethnic cleansing of Serbs by the KLA aided by NATO and before the ethnic cleansing through population growth by Albanians (whose of families of 12 or 14 members are normal) and before the internal movement of Serbs by Tito (who was a Croat) and before the ethnic cleansing by Italian and German fascists during the war, the Serbs were never less than 50% of the population of Kosovo. The German court judgment continues:

An unauthorized intervention of this kind (ie NATO's attack on Yugoslavia) is, according to international law, illegal, even if it arises out of humanitarian motives. It contradicts the intention of the UN Charter according to which it is no longer permissible to conduct military solutions to international conflicts outside the institutional systems of collective security. The UN has in any case withdrawn the right of States to conduct military attacks on other states and transferred the right of decision to the UN.

The judgment concludes:

The use of German armed forces against the Republic of Yugoslavia was objectively illegal since it was contrary to international law…. The air war against the Federal Republic of Yugoslavia contravened the absolute prohibition of the use of military force by Article 2 Number 4 of the UN Charter. The prohibition applies to every form of military act which is used against the territorial integrity of another sovereign State.

There is no doubt that Kosovo was (and still is) an integral part of the sovereign State of Yugoslavia and that it was the German supported and German supplied Kosovo Liberation Army which had waged war against the Government of Yugoslavia and which, with the help of NATO bombing and troops stationed in Kosovo after the war ethnically cleansed hundreds of thousands of Serbs from their own country. There is also little doubt about the massive prima facie evidence against the political leaders of the nations which participated in the NATO attack.

The so-called consensus of the "International Community" was of course no consensus at all with three of the world's major countries Russia, China and India categorically condemning the NATO attack. Similarly the ludicrous court established by NATO to put war criminals from the former Yugoslavia on trial (and incidentally the proposed International Criminal Court) has no credibility at all so long as the well-established cases against NATO leaders are so contemptuously dismissed. International courts which we can never imagine putting our own leaders on trial are just not credible international courts. But perhaps like so many "rights" handed down to us (rather than the freedoms under the law which has always characterized the constitution and democratic rights of the British people), such "rights" are circumscribed and controlled by political authority which grants them, not by objective law.

But we do have a system of international law which has arisen out of cases brought before various courts. The Pinochet case demonstrated how even Heads of State who have contravened international law can be extradited from any state at the request of independent judges. Extradition Treaties signed by the British Government mean that only illness provides a possible way out of the inexorable legal process. Within Europe this process is even easier since the passage of the 1989 Extradition Act. Like Pinochet it might be advisable before venturing abroad for Messrs Blair, Clinton, Schroder and Chirac to develop illnesses which could prevent their prosecution. Otherwise they may be invited to appear before the courts of any country which might take a different view of what constitutes a "war crime".

Rodney Atkinson, November 2000

Rodney Atkinson is the author of over 80 policy papers and articles and 6 books on political economy and the European Union. His latest book Fascist Europe Rising is available for £13 (£18 overseas), post included, from:
Compuprint Publishing, St Omers House, St Omers Road, Gateshead, NE11 9EL