C EXPLANATORY MEMORANDUM by Mr Akçali,
Rapporteur
1 Introduction
1. Europe is
facing one of its most serious crises since the Second World War.
Jurists, in fact, have even less reason to rejoice. For when guns
start to shoot, law has ceased to play its role, in fact it has
failed to do so. Yet, even in wartime and in war-like situations,
(international) law imposes strict rules which should be applied
by the parties in the conflict. Generally speaking, in every civilised
community the use of force is only permitted within certain legal
limits. For those who feel that (international) law is to be respected
whenever possible the present situation is very worrying.
2. The General Assembly of the United Nations, in the course
of 1998, adopted a number of resolutions
Note. Although they condemned to a
large extent the acts perpetrated in Kosovo, they did not contain
any means of pressure to bring to bear upon the Federal Republic
of Yugoslavia in case of non-respect of these resolutions. As a
result, no firm action by the United Nations was decided upon.
3. On the other hand, "ethnic cleansing" and repression in
Kosovo became more and more alarming and the situation of the Albanians
gradually deteriorated. As Rapporteur of the Committee on Legal
Affairs and Human Rights I had already on previous occasions been
able to warn the Committee of the explosive situation and it now
appears that the picture I drew on those occasions was not over-pessimistic.
4. Given the situation in the United Nations, this world organisation
could not play the role it had played in other conflicts. It must
be said here that, strictly speaking, the crisis in Kosovo could
be considered as an internal conflict for which the United Nations
is not competent, but the international ramifications of this conflict are
such that the opposite theory, which says that the conflict has
become of an international nature, is also justified.
5. However, when it appeared that the United Nations was paralysed,
a contact group of nations, including Russia and the United States,
tried to get the parties around the conference table. They partly
succeeded and the parties met at Rambouillet Castle near Paris in
France. Yet the "interim agreement for peace and self-government
in Kosovo" can hardly be considered an "agreement" as the representatives
of the Federal Republic of Yugoslavia and of the Republic of Serbia
refused to sign it. In the end, the interim agreement was only signed,
on 18 March 1999, by the representatives of the Kosovo Albanians.
In its Resolution 1182 (1999), adopted by the Standing Committee
on 30 March 1999, the Assembly "regrets that, due to the intransigent policy
of the leadership of the FRY and the inability of the United Nations
Security Council to reach a unanimous decision, military action
had to be taken by NATO to prevent a human tragedy in Kosovo". In
the same resolution, the Assembly "calls on the Contact Group to
intensify its diplomatic efforts to bring the Yugoslav authorities
to sign and implement the Rambouillet Interim Agreement, and to
put an end to the sufferings inevitably resulting from the NATO
military action". As soon as the Yugoslav authorities are prepared
to do so the air strikes will cease. We all hope that this will
happen soon. The interim agreement is briefly summarised in Chapter
B below.
2 Proposed interim agreement for peace and self-government
in Kosovo (Rambouillet Interim Agreement)Note
6. This document contains the international peace
plan, for giving wide-ranging autonomy, though not full independence,
to Kosovo. The representatives of the Albanians signed, but the
delegation of the Yugoslav Republic refused to do so as the substantive
changes which it had proposed had been accepted neither by the ethnic
Albanians nor by the members of the International Contact Group.
7. The preamble and the first articles of the treaty grant
to the population of Kosovo the enjoyment, without discrimination,
of all fundamental rights and freedoms. It also provides for the
right to democratic self-government, while respecting the sovereignty
and territorial integrity of the Federal Republic of Yugoslavia.
It provides for a number of confidence-building measures and international
cooperation through the different international institutions. Subsequently,
the treaty is divided into seven different chapters, the first of
which constitutes a constitution for Kosovo.
8. This constitution provides for the creation of an Assembly
with 80 members directly elected and 40 other members elected by
the members of qualifying national communities. The Assembly would
elect the President and a Prime Minister for Kosovo.
9. For the judiciary, the constitution gives certain guarantees
that all national communities are represented in it. There would
be communal courts, district courts, a constitutional court and
a supreme court. Each of the national communities would have the
right to elect institutions to administer its own affairs. They
would have power to protect their national, cultural and religious
identities and have responsibilities over education and health.
10. A police force of no more than 3,000 law-enforcement officers
would be set up with exclusive law enforcement authority, which
would be the only police presence in Kosovo with the exception of
the border police. In fact, it would be up to the Yugoslav Republic
to guard the international frontiers of Kosovo, but these frontier
guards would not be allowed to exceed 1,500 persons. It would be
up to OSCE to supervise the implementation of the security regulations.
11. OSCE should also oversee the elections which would have
to take place within nine months of the agreement coming into force.
12. All authorities in Kosovo would have the obligation to ensure
internationally recognised human rights and fundamental freedoms.
In fact, the rights and freedoms set forth in the European Convention
on Human Rights would apply directly in Kosovo. Other internationally
recognised human rights instruments would also apply provided they
were enacted into law by the Kosovo Assembly. These rights and freedoms
would have priority over all other law. An ombudsman nominated by
the European Court of Human Rights would monitor the rights of national
communities.
13. For the implementation of the treaty, the parties would
invite NATO to constitute and lead a military force to help ensure
compliance, subsequent to a resolution to be adopted by the United
Nations endorsing this force which would be known as KFOR. The KFOR
would have complete and unimpeded freedom of movement by ground,
air and water into and throughout Kosovo.
14. The treaty would also foresee rapid demilitarisation. Thus
all Yugoslav army and Ministry of the Interior police (MUP) units
in Kosovo would have five days to deploy to approved areas. Within
90 days, 50% of army personnel and equipment would have to be withdrawn
to other locations in Serbia and within 180 days all soldiers would
have to leave Kosovo. MUP numbers would be gradually reduced and
the force would have to be completely withdrawn within a year.
15. On the other hand, the Kosovo Liberation Army would have
to store all prohibited weapons in registered storage sites within
30 days of the treaty entering into effect. Finally, at the end
of the interim period of three years an international conference
would be convened to determine a mechanism for a final settlement
for Kosovo which would take into account, among other things, the
will of the people and the opinions of the relevant authorities.
3 Conclusions
16. One has to take into consideration that, since
the beginning of events in 1991, three million people have been
displaced in the territory of the former Yugoslavia and that some
200,000 people have been killed. Most of those killed have been
assassinated in a most brutal way by Serbian police and Serbian
militia. The horror of the 5,000 men massacred in Srebrenica a few
kilometres from UN peacekeeping troops – obliged to keep idle –
is still fresh in our minds. What the Serbs did in Bosnia and Herzegovina
they have started to do in Kosovo. Their acts are known and may
still be more gruesome than one knows at present because all information
coming from Kosovo is strictly censured by the Serbian authorities.
But projects for "ethnic cleansing" of the region have been leaked
and there are reports of women raped, men being driven away in lorries
never to be heard of again, villages burnt and hundreds of thousands
of people forced to flee, etc. The "ethnic cleansing" by the Serbs,
which had been the scourge of Bosnia and Herzegovina, had already
started in Kosovo and only a military intervention could stop a
further human tragedy.
17. Under these circumstances, the military action undertaken
by NATO is the only one appropriate. In the meantime, we should
do everything we can to ensure that international law is being respected
as far as possible, whether it concerns the rules of war or the
Geneva Convention of 1949 for the protection of the civilian population
or any of the other international legal instruments which might
be considered applicable. In respect of the military intervention
one must observe, however, that its effectiveness is reduced by
the fact that it is to be directed to military objectives only and
that civilian lives should be respected. The aim of saving one people, ie
the Albanians of Kosovo, may not lead to the destruction of another
people. The war is against a criminal and authoritarian regime,
but the Serbian people should not be sacrificed.
18. Finally, this report should end with the remark – which
would normally be unnecessary – that human rights and fundamental
freedoms are universal and must be respected under all circumstances.
It is the mission of the Council of Europe to ensure that this is
not forgotten – even in time of war.
Reporting committee: Political
Affairs Committee
Committee for opinion: Committee
on Legal Affairs and Human Rights
Reference to committee: Doc
7553, 7734, 7986, Res 1146 (1998), Ref 2082, 2154, 2158, 2251, 2303,
2355 and 2370 (requests for urgent procedures), Rec 1400
Opinion approved by
the committee on 27 April 1999
Secretaries to the committee: Mr
Plate, Ms Coin and Ms Kleinsorge
