Why the Bosnian Arms Embargo Is Illegal
By Paul R. Williams, The Wall Street Journal – Europe, June 15, 1995
On Sept. 25, 1991, the United Nations imposed an arms embargo on the former Yugoslavia for the ostensible purpose of promoting peace and security in the Balkans. But for over three-and-a-half years the embargo has failed to achieve its objectives. Instead, it has made possible ethnic cleansing, genocide and the dismantling of a member state of the U.N.
Recognizing the inherent injustice of applying the arms embargo only to the most disadvantaged combatant and the predictable failure of such an embargo to promote the desired peace and security in Bosnia, many states are considering whether it might make more sense to lift the arms embargo and permit the Bosnian government to provide for its own self-defense. The Turkish Parliament is in the process of taking such action, while America’s House of Representatives voted overwhelmingly to do so last week.
Some European states, led by Britain and France, believe that creating a balance of power in the Balkans, by partitioning Bosnia between Croatia and Serbia, is the only path to peace and stability. Lifting the arms embargo would scuttle their plans by providing the 100,000-strong Bosnian army the ability to properly defend the territorial integrity of Bosnia. These states therefore assert that since the arms embargo has been imposed by the Security Council, any moves to unilaterally lift the embargo would be a violation of international law.
In fact, those states seeking to lift the arms embargo do so consistent with international law, while those states continuing to enforce the embargo violate some of the most basic principles of justice and international law.
Although Security Council resolutions are generally considered binding under international law, the Security Council is not above the law. The U.N. Charter provides that those resolutions are only valid so long as they are consistent with “the principles of justice and international law.” Because the arms embargo is not capable of being subject to an independent judicial review, the member states of the U.N. must make their own determination as to its legality. It is my firm belief that the act of denying Bosnia the right to prevent its own destruction and the genocide of its nationals calls for the determination that the embargo is illegal and exceeds the authority of the Security Council.
– The arms embargo violates Bosnia’s inherent right to self-defense. The right to self-defense is one of the most basic rights of any state. In recognition of this, Articles 2 and 51 of the U.N. Charter codify that right and affirm that every state is entitled to use self-defense to protect its territorial integrity and political independence. When the Security Council acts on matters affecting peace and security, it must do so within the confines of both the U.N. Charter and the inherent rights of its member states. Thus Security Council resolutions may coexist with Bosnia’s inherent right to self-defense, but they cannot abridge that right. By imposing an arms embargo on Bosnia and thereby preventing it from defending its territory and population from externally sponsored ethnic cleansing, the Security Council has clearly acted beyond its authority.
– The Security Council has not preempted Bosnia’s right of self-defense. The U.N. Charter provides that a state may exercise its right to self-defense until the Security Council takes action “necessary to maintain international peace and security,” and thus some European states assert that since the Security Council has passed over 55 resolutions, and has deployed peacekeepers in Bosnia, Bosnia no longer has a right to provide for its own self-defense.
– States making this argument fail to understand that the U.N. Charter requires the Security Council to take “effective action” to promote peace and security before it may supersede a state’s inherent right to self-defense. Although the Security Council has spilled much ink on the issue of Bosnia, there is neither peace nor security in Bosnia, but rather ethnic cleansing and threats of starvation. In fact, as the recent hostage-taking situation has demonstrated, the U.N. is unable even to provide for the effective defense of its own peacekeepers, let alone the unarmed civilians of Bosnia.
– The arms embargo violates numerous other Security Council resolutions. Many of the 55 resolutions passed by the Security Council since the imposition of the arms embargo create obligations inconsistent with the continued application of the embargo. For instance, numerous resolutions call for the member states, and others concerned (specifically the Bosnian government) to take all necessary measures, including the use of force, to facilitate the unimpeded delivery of humanitarian aid, and to provide for the protection of a number of safe areas. The continued application of the arms embargo prevents the Bosnian government from providing the necessary protection to its civilian units trying to deliver aid to Bosnian nationals, and prevents the Bosnian government from adequately defending the so-called safe areas — areas the U.N. not only fails to adequately protect, but is even considering abandoning.
– The arms embargo violates the U.N. Convention on Genocide. This convention, adopted after the atrocities of World War II, requires all states to prevent and punish crimes of genocide. Although there is some debate as to whether genocide has occurred in Bosnia (e.g. the British government now asserts that Bosnia was on the brink of genocide just before U.N. troops were sent in), the prosecutors for the Yugoslav War Crimes Tribunal, the legal experts in this matter, have determined that crimes of genocide have been committed in Bosnia and have indicted over 20 war criminals. States enforcing the arms embargo deny the Bosnian government the means to protect its nationals from genocide, and are responsible for complicity in genocide — a punishable crime under the Genocide Convention.
– Although appropriate when first adopted, the arms embargo is no longer legitimate. Given the patent illegality of the arms embargo, the question arises as to how it could have been imposed in the first place. Its original imposition on the former Yugoslavia in September 1991 was consistent with international law since Yugoslavia consented to — indeed requested — the imposition of the arms embargo; Yugoslavia was not subject to an externally sponsored armed attack at the time of the embargo; and Yugoslavia maintained an ample supply of weapons to carry out effective self-defense.
However, after Bosnia’s secession from Yugoslavia in March 1992, and its admission to the U.N. in May 1992, the arms embargo could no longer be legitimately applied to Bosnia for a number of reasons: Bosnia had not consented to the embargo but had strenuously objected to it; Bosnia was subject to direct military aggression sponsored by neighboring states; the intent of the military aggression was to carry out a program of ethnic cleansing; and Bosnia did not possess a sufficient supply of defensive weapons necessary to meet even the minimal requirements for self-defense.
– In the case of Bosnia, the right to self-defense equates with the prerogative to acquire defensive weapons. Although in some circumstances the right of self-defense does not necessarily equate with the right to receive arms, this is not the case with Bosnia. Bosnia is on the brink of extinction with the 32% of the territory it controls subject to a medieval state of siege. Bosnia will likely be extinguished, and the national group known as Bosnians will cease to exist, unless the member states of the U.N. permit Bosnia to properly defend its territory and nationals. As the protection of a state’s territory and its nationals are the core elements of the concept of national self-defense, Bosnia’s right of self-defense equates with the ability to acquire weapons.
– The unilateral lifting of the arms embargo by U.N. member states does not affect the continued application of the other arms embargoes adopted by the United Nations. Some states assert that a finding of the illegality of the Bosnian arms embargo would result in the nullification of the arms embargoes against states such as Iraq and Libya. These assertions fail to consider the legally significant differences between a victim state such as Bosnia, and predator states.
Unlike Iraq and Libya, Bosnia is under direct military attack sponsored by neighboring states; 68% of Bosnia’s territory is occupied by hostile forces seeking its partition and destruction; Bosnia’s population is subject to mass killings, rapes, forcible relocations and crimes of genocide; and Bosnia does not possess a sufficient supply of defensive arms to defend its citizens from these atrocities. These differences are determinative for a legal finding that an arms embargo violates a state’s right to self-defense, and no comparable claims can be made in the case of Iraq or Libya.
Despite the conspicuous illegality of the arms embargo, and its complete failure to deliver peace and security in the Balkans, the Security Council still seems to lack the political will to give the Bosnian government the opportunity to defend itself. Individual member states must therefore take action — either unilaterally or collectively — to lift the arms embargo, while those states continuing to enforce the arms embargo must be condemned for doing so in violation of the principles of justice and international law.
Dr. Williams is executive director of the Public International Law and Policy Group in London and from 1991 to 1993 was an attorney-adviser for the United States Department of State, Office of the Legal Adviser for European Affairs.