"Whoever uses force without right ... puts himself into a State of War with those against whom he so uses it, and in that state all former ties are canceled ... and everyone has a right to defend himself and to resist the Aggressor." (John Locke)
Purpose and Summary
It is a commonplace to accept that the United States is helpless to allow defensive weapons to be supplied to Bosnia and Herzegovina (BiH) to aid it resist aggression, ethnic cleansing and genocide, much as we would like to, because of a United Nations Security Council arms embargo which supposedly prohibits such assistance. If such an embargo were in place, lifting it would require the unanimous consent of the five permanent members. Of the five, Russia, Great Britain and France oppose the lifting. Any one of them could veto such an action and the putative embargo would remain.
Recognizing this to be the common belief, the present Memorandum
(1) EXAMINES WHETHER IT IS TRUE THAT SUCH AN EMBARGO AGAINST BIH WAS IN FACT ENACTED;
(2) CONCLUDES THAT NONE WAS; and
(3) FURTHER CONCLUDES THAT US ACCEPTANCE AND ENFORCEMENT OF A BAN ON BOSNIA AND HERZEGOVINA'S ACQUIRING WEAPONS OF SELF DEFENSE REFLECTS AN EMBARGO OF ITS OWN ON A VICTIM OF AGGRESSION, ETHNIC CLEANSING AND GENOCIDE, AND NOT ONE IMPOSED BY THE UN, AND ONE WHICH CAN BE LIFTED BY THE US AT WILL.
a. Article 51: The Inherent Right of Self-Defense
The answer to whether a UN "arms embargo" has ever been imposed against Bosnia and Herzegovina (BiH) first requires recourse to Article 51 of the United Nations Charter:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security."
The Security Council by Resolution 787 of 11/16/92 pointedly noted that BiH enjoyed "the rights provided for [Member States] in the Charter of the United Nations". The Art. 51 "inherent right" of self-defense is one of those rights. An embargo against BiH would have the obvious effect of disarming it against well armed foes waging a war of aggression against it. It would prevent BiH, a UN member state, from exercising the inherent right of self-defense and protecting its people from ethnic cleansing and genocide guaranteed to it by Art. 51. Any government enforcing such an embargo against BiH either has that effect in mind as its goal as well, or is obtusely blind to its implications. The "until" clause in Art. 51 does not apply to limit the BiH inherent right. It supposes that when the Security Council "has taken the measures necessary to maintain international peace and security" - when the fire department has arrived and undertaken effective steps to extinguish the flames - the member nation under UN protection can relax and let the UN do its work. But it does not deny the right of self-defense to a member state which is not receiving UN protection. Bosnia and Herzegovina is not. BiH remains under continual assault and over 200,000 lives, and still counting, have been lost due to the aggression against it, UN or no.
To construe Article 51's "until" clause to mean that BiH no longer has an inherent right of self defense because the Security Council has acted without discernible effect and impotent "peace keepers" are there is to fly in the face of reason. The Security Council has yet to find, let alone to take, the "measures necessary to maintain peace and security". Whatever it has done has been utter failure in that regard and so can hardly be called "necessary". BiH has retained its inherent right to defend itself.
Should ambiguities exist in Security Council embargo resolutions, they cannot lightly be construed to wipe out Charter protections but should be interpreted to safeguard them. Any UN member over-eager for some unknown reason to read out of the Charter the inherent right of self-defense, as the finding of an arms embargo against a victim of aggression as in this case would require, may surely one day rue the precedent.
Absent a stampede to cast Art 51 to the winds to the point of reading into Security Council resolutions that which is not there, no arms embargo has ever been imposed on BiH by the UN.
Consequently, any "Arms embargo" against BiH is de facto, not de jure, is without force of law and may be disregarded at will. If there is a will!
b. The UN Imposed no Arms Embargo against Bosnia
In interpreting Security Council resolutions imposing embargoes, we must read them strictly so as not lightly to tread upon the Art. 51 "inherent right of self-defense". Regardless how read, however, strictly or loosely, no resolution of the Security Council, even distantly, pretended to impose an embargo on BiH or impair its right to obtain the means to defend its borders or people.
The only remotely relevant Security Council resolution imposing an Arms embargo is Res. 713 (9/25/91). It imposed an Arms embargo against "Yugoslavia" and no other state. Its purpose was establishment of "peace and stability in Yugoslavia." By Res. 713, the Security Council ordered an embargo as follows:
"6. Decides, under chapter 7 of the Charter of the United Nations that all states shall, for the purposes of establishing peace and stability in Yugoslavia, immediately implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Security Council decides otherwise following consultation between the secretary-general and the Government of Yugoslavia."
(Note: Lest there be doubt in view of the events of the past few years, "Yugoslavia" claims continued existence as a state. The seat of the Government of Yugoslavia is Belgrade. This is also the capital of one of its two Federated Republics, Serbia. Though its formal continued status as a UN member is in doubt, Yugoslavia's ambassador to the UN is Dragomir Djokic.)
The embargo resolution spells out that it shall continue against Yugoslavia "until the Security Council decides otherwise following consultation between the secretary-general and the Government of Yugoslavia."
As apparent from the appended chronology, when the embargo was imposed by Res. 713 on 25 September, 1991, the independent state of Bosnia and Herzegovina had not yet been born. It was but one of six federated Yugoslav republics without internationally recognized status as a sovereign nation. It was "in" Yugoslavia, within the terms of Res. 713. It was not to come into existence as a sovereign nation until it declared its independence 6 March, 1992.
The impulse for Res. 713 was the turmoil in Yugoslavia, seen as a threat to world peace, which followed upon Croatia's declaration of independence. It was enacted in its midst. Yugoslavia had invaded a self-declared but not yet internationally recognized independent Croatian state. Both on its face and from its evident intent, Res. 713 banned arms to Yugoslavia, which did exist and was seen by the UN to be embroiled in aggressive hostilities within its own borders.
BiH which did not yet exist as an independent state was neither the subject nor object of the embargo. As a then part of Yugoslavia, BiH was next door to the war in Croatia resulting from Yugoslavia's incursion, but not a participant. The obvious purpose of Res. 713 was to suppress violence against Croatia within Yugoslavia which it was causing. Arms shipments only to it were banned.
It may hyper-technically be argued that Croatia lacked international recognition as a sovereign nation in late August, 1991, when attacked and was thus covered by the embargo against Yugoslavia of which it was still a part. The short answer is that it could not then have been covered as Croatia. Croatia did not exist as an independent internationally recognized entity, any more than does a State in our own union, when the embargo was imposed.
"Establishing peace and stability in Yugoslavia" was the stated purpose of Res. 713. Croatia was "in Yugoslavia" at the time. To the extent that it was embargoed, this was only incidental to its technically being a then rebellious part of Yugoslavia which was. Croatia soon became independent of Yugoslavia. It was no longer a part of Yugoslavia, or "in" it. It was recognized by the EC and admitted to membership in the United Nations. The Security Council failed to levy an embargo against it. As a sovereign state, foreign to Yugoslavia, Croatia was no longer subject to the embargo against that country. The embargo remained against Yugoslavia, but Croatia was out from under.
The same principle applies to Bosnia and Herzegovina. BiH had even longer to go than Croatia before it shed its ties to Yugoslavia. When the embargo resolution 713 of 9/25/91 was enacted, BiH too lacked sovereign nation status. As a constituent Yugoslav Federal Republic at the time, it "belonged" to Yugoslavia. It was only upon that basis that it was subject to the embargo against Yugoslavia.
Six months later, on March 6th, 1992, BiH declared its independence from Yugoslavia. On April 4th, the northern Bosnian city of Bijeljina came under a major assault in force by the Yugoslav army. "Peace and stability in Yugoslavia", the establishment of which was the stated purpose of Res. 713, was no longer the question. But it was in BiH. "Peace and stability" in the Republic of Bosnia and Herzegovina, never a purpose of Res. 713, had now become the urgent need. Nevertheless, no embargo resolution, except for the later Res. 757 sanctions against Yugoslavia, was enacted with that goal in mind.
Bijeljina proved no local affair. On April 6th, BiH was recognized as an independent state by the EC. Within hours, the full power of Yugoslav might came down upon it. With disdain for BiH sovereignty, the army of Yugoslavia, no longer BiH's "mother" country but a foreign state, immediately launched a major attack against the BiH capital, Sarajevo. BiH's independent statehood was promptly recognized by the US the next day. On May 15th, in Res. 752, the Security Council called for withdrawal of the Yugoslav army or its submission to BiH command. A week later, on May 22nd, 1992, the UN accepted BiH as a full member state.
For good reason, an embargo against the invading Yugoslavia remained in place. No embargo then or ever had been imposed upon BiH as an independent state. To deem both the victim BiH and the aggressor Yugoslavia blanketed with the same embargo designed when enacted to apply only against Yugoslavia and not against a then non-existent independent BiH on the ground that BiH had not yet achieved its independence from Yugoslavia when it went into effect leads to an absurdity: It is to condemn BiH, pitifully armed from the start, to the chopping block under the well-honed Yugoslav ax for as long as Yugoslavia continues to wield it and embargo remains in force against it. Yugoslavia, it seems, can well afford it. BiH cannot.
By linking the putative embargo against BiH to the actual Res. 713 embargo levied against Yugoslavia, promoters of that concept create an impossibly ludicrous state of affairs. Under it, BiH is left short of weapons for self-defense against its Yugoslav tormenter until such time as its tormenter, undeflected by the embargo, in its own good time talks the Secretary General and the Security Council into lifting it against it. Until then, no respite while Yugoslavia, undeterred by the embargo, has BiH nailed to the mat! Which is to say the embargo on BiH will not be raised until Yugoslavia wills it. Which is to say not before BiH is dead or surrenders.
To join the putative embargo against BiH to the real one imposed against Yugoslavia is to insure that as long as it needs arms to defend itself, BiH will not get them. So long as it thirsts, so long will it be denied a cup. To such a pass leads the logic for covering BiH under the Res. 713 embargo against Yugoslavia.
Presumably, when the aggression has run its course and BiH is conquered and its people exterminated, the embargo against Yugoslavia may be lifted. As a side effect, the ancillary embargo against BiH will automatically be dissolved as well. Its rotted corpses will be allowed to acquire weapons for self-defense as guaranteed by Art. 51.
Of course, such a construction of the embargo resolution is both farcical and abhorrent. The Security Council should not be presumed to have had that goal in mind or to have entertained such complicity with aggression when it enacted Res. 713. From the unmistakeable thrust of subsequent UN resolutions, it is clear that Yugoslavia, not BiH, was the UN embargo target.
The next resolution after 713 imposed by the UN applicable to the embargo was Security Council Res. 724 adopted 12/15/91 (S/RES/724(1991)). As relevant, it reaffirmed 713. In Res. 724, para. 5(a), the Security Council "requests all States to report to the secretary-general within twenty (20) days on the measures they have instituted for meeting the obligations laid out in paragraph 6 of Resolution 713 (1991) to implement a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia." No states were added to Yugoslavia to be embargoed under 713 by 724. There were still three months to go before BiH became an independent state. Res. 724 neither could nor did add BiH to Yugoslavia as an embargoed country. Security Council Res. 727 of January 8th, 1992 explicitly reaffirmed both Res. 713 and 724. Though Res. 727 superficially may appear to approach embargoing BiH, it does not actually do so. It must be examined. In Section 6, Res. 727
"Reaffirms the embargo applied in paragraph 6 of Resolution 713 and in paragraph 5 of Resolution 724 and decides that the embargo applies in accordance with paragraph 33 of the Secretary-General's report (S/23363)" The Secretary-General's report, S/23363, of 5 January 1992 clearly relates to the crisis in Yugoslavia precipitated by the Yugoslav attack on a Croatia in the throes of birth. The hostilities between Croatia and Yugoslavia preceded the attack on BiH, which was not yet involved. Para. 33 of the report states: "to all interlocutors, during his recent fifth mission to Yugoslavia Mr. [Cyrus] Vance [described in the report as "Personal Envoy of the Secretary-General"] pointed out that the Arms embargo imposed by the Council in Resolution 713 (1991) and reinforced by Resolution 724 (1991), continues in force and will retain its application unless the Security Council determines otherwise. Indeed, Mr. Vance added that the Arms embargo would continue to apply to all areas that have been part of Yugoslavia, any decisions on the question of the recognition of the independence of certain republics notwithstanding".
Neither the Secretary-General's report, S23363, nor Security Council Res. 727 which "decided" to adopt it, changed or expanded either Res. 713 or 724 which embargoed shipments of arms to Yugoslavia.
No Security Council resolution altered the Res. 713 provision that the embargo was to continue "until the Security Council decides otherwise following consultation between the Secretary-General and the Government of Yugoslavia".
Neither paragraph 33 of the Secretary General's report nor any Security Council resolution embargoed arms shipments to a state other than Yugoslavia. All Paragraph 33 did was say that the embargo "would continue [emphasis added] to apply to all areas that have been part of Yugoslavia". "Continue" means continue. It is not consistent with change. It is an affirmation that Res. 713 always applied to bar arms to all the areas which were "in Yugoslavia" or "a part of Yugoslavia", which then but not later, included Croatia and BiH. Later, they were not "in Yugoslavia". As 713 applied only to Yugoslavia, so provided by its text, this "continued" to be the case. The "areas" which "have" continued to be "in Yugoslavia" and "part of Yugoslavia" are Serbia and Montenegro. As to those areas, and them only, the embargo remains in effect. That is the significance of Paragraph 33.
The historical context for paragraph 33 and Res. 727 was that the leading nations opposed a break-up of Yugoslavia at the time. They deemed it still to remain a single state, inclusive of its constituent republics. They devised a tool to help keep it that way: Embargoing arms to all of its "areas" would keep weapons out of the hands of the rebellious federal republics seeking international recognition of independence and weaken separatist forces. The Yugoslav army, already well armed, could then easily suppress enfeebled Croatian and Slovenian efforts to dismember it and a unified Yugoslavia would be preserved.
But the embargo failed its purpose. Yugoslavia as then constituted did break up. As shown here, those republics later obtained recognition of independence and "areas" of their own which were no longer covered by the embargo, by Res. 727 or paragraph 33.
The reference in paragraph 33 to "any decisions on the question of recognition of the independence of certain republics notwithstanding" does not in itself expand the coverage of the 713 embargo to areas outside Yugoslavia. Were coverage expansion its intent, the Security Council would so have stated in Res. 727. It would have amended 713 so to provide. It did not. Those "decisions on the question of the recognition of the independence" concerned Croatia and Slovenia only. They, not Bosnia, were the "certain republics" intended by Res. 727. They alone awaited decisions on recognition. BiH had not yet declared independence. No "question of recognition" of BiH pended. But Croatia's and Slovenia's earlier declarations of independence, still without international acceptance, made them republics concerning which there did pend "question of recognition of independence". If there were nothing else, this could arguably have brought them, unlike BiH, under Res. 727 at that time - not later though after their independence has been achieved.
No small part of the Embargo Res. 713 is the clause defining its duration. It taxes all credulity to believe that careful drafters of Security Council resolutions would by implication only have extended the coverage of the embargo to BiH and left in place an absurd requirement that it would end only after "consultation between the Secretary General and the Government of Yugoslavia," a state composed exclusively of Serbia and Montenegro, with its capital in Belgrade, not Sarajevo. But this is what would have to be believed if it was the purpose of the UN to include BiH in the weapons ban. Had broadening of the coverage of the embargo to countries other than Yugoslavia ever been intended, the Security Council would have amended 713 to add the requirement of consultations between the Secretary-General and the governments of those countries as a necessary prelude to the ending of the embargo by the Council. In the present context, that would be the Government of BiH in Sarajevo. It never did.
In Res. 727, not only did the Security Council fail to alter the embargo Res. 713. It explicitly made clear that it was not doing so. It expressly "Reaffirms the embargo applied in paragraph 6 of Res. 713 and in paragraph 5 of Res. 724", which were applicable only to Yugoslavia, and decided that it applies in accordance with paragraph 33 of the Secretary-General's report. As shown, para. 33 expressly recognized that Res. 713 "continues in force and will retain its application unless the Security Council determines otherwise" - which it never has. Its retained "application", of course, was and remained to Yugoslavia, and its component areas, now Serbia and Montenegro. To point up the incongruity of interpreting its resolutions as penalizing BiH with an embargo, the Security Council has adjudged it to be a victim of Yugoslavia's aggression and imposed severe sanctions against Yugoslavia (Serbia and Montenegro) on that account.
In May of 1992, by Res. 757, the Security Council reaffirmed "that the borders of Bosnia and Herzegovina are inviolable." This alone is a Security Council acknowledgement that the BiH "areas" are not "areas" of Yugoslavia, subject to inclusion under the Res. 713 embargo as explained by Res.727. (also see Res. 770 8/13/92 and 787 11/16/92 in the appendix chronology) Res. 757 further condemned Yugoslavia for not complying with its prior resolutions. These called upon BiH's neighbors, including Yugoslavia, to take swift action to cease interference with and to respect the territorial integrity of BiH; to disband and disarm the Yugoslav army units in BiH and place them under the authority of BiH or subject to international monitoring. The Security Council listed those and other failures by Yugoslavia to comply with Council demands and to respect BiH's sovereignty.
The other transgressions of Yugoslavia on the Security Council's Res. 757 list included failure to obey the commands that "all forms of interference from outside BiH cease immediately"; that "all irregular forces in BiH be disbanded and disarmed"; that there be "immediate cessation of forcible expulsions and attempts to change the ethnic composition of the population"; that conditions be "established for the effective and unhindered delivery of humanitarian assistance, including safe and secure access to and from Sarajevo".
In short, by Res. 757, the Security Council branded Yugoslavia a violator of international law and an aggressor for its acts against its victim, BiH. But it did more. It mandated broad sanctions against it. It barred supplying "any commodities or products" to Yugoslavia. "Weapons and military equipment" are "commodities" and "products". Though Res. 713 still breathed some fire as to Yugoslavia (see Res. 820, 4/17/93, in appended Chronology) it was essentially replaced and made unnecessary and obsolete by 757. That the old Res. 713 net cast for the predator would nonetheless survive to leave the victim haplessly ensnared in its toils while under savage attack would clearly satisfy Yugoslavia, but this hardly appears to represent UN intent. Of all the Security Council resolutions, Res. 787 is probably the most impressive as to its intent. Coming a year after both Res. 713 and 727, the Security Council took pains to point out that the Republic of Bosnia and Herzegovina retained the Charter rights it was entitled to as a Member State. There was no exclusion of inherent rights of self-defense under Art 51, nor was there any exception due to an embargo.
It is as self-defeating to include an arms embargo sanction against the victim, BiH, as for police to arrest and courts to punish the home owner along with the burglar and the rape victim along with the rapist for the crimes of resisting burglary and rape. To construe the Council's resolutions to do just that despite the fact that on their face they penalize only the wrongdoer is to strain interpretative reasoning to the breaking point.
On April 16th, 1993, in Res. 819, the Security Council demanded that Yugoslavia cease supplying military equipment to Bosnian Serb paramilitary units, condemned the taking of territory by the threat or use of force and the "abhorrent" practice of ethnic cleansing and Serb actions to force evacuations of the civilian population from their homes in BiH as part of the "abhorrent campaign of 'ethnic cleansing'"
The next day, April 17th, 1993, by Res. 820, the Security Council again condemned Yugoslavia for its aggression against BiH and for its ethnic cleansing and implemented the sanctions and embargo already imposed against it. Not surprising was the Council's continued declining to hamstring BiH's ability to resist with a ban against its obtaining arms. Similarly, on December 20th, 1993, the United Nations General Assembly (see appended Chronology under that date), without mincing terms, reaffirmed BiH's sovereignty and right of self defense under Article 51, condemned Yugoslavia's aggression and ethnic cleansing, expressed its determination to prevent acts of genocide and crimes against humanity, and added alarm at Bosnian Croat aggression against BiH.
Taking realistic cognizance of the de facto embargo against BiH which has been applied by the world community under the cover of the old Res. 713, the General Assembly in its 12/20/93 Resolution urged the Security Council "on an urgent basis" formally to exempt it from "from the arms embargo as imposed on the former Yugoslavia under Security Council resolution 713 (1991)". But then, consistent only with a denial of the embargo's de jure applicability to BiH, the General Assembly disregarded any need for Security Council action. It urged Member States to "extend their cooperation to the Republic of Bosnia and Herzegovina in exercise of its inherent right of individual and collective self-defence in accordance with Article 51."