A Memorial for Bosnia

Osgoode Hall Law School of York University Osgoode Digital Commons Articles & Book Chapters Faculty Scholarship 1994 A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council Arms Embargo on Bosnia and Herzegovina Craig M. Scott Osgoode Hall Law School of York University Francis Chang Peter Copeland Jasminka Kalajdzic Source Publication: Michigan Journal of International Law. Volume 16 (1994), p. 1-140. Follow this and additional works at: https://digitalcommons.osgoode.yorku.ca/scholarly_works Part of the International Law Commons This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License. Repository Citation Scott, Craig M.; Chang, Francis; Copeland, Peter; and Kalajdzic, Jasminka, "A Memorial for Bosnia: Framework of Legal Arguments Concerning the Lawfulness of the Maintenance of the United Nations Security Council Arms Embargo on Bosnia and Herzegovina" (1994). Articles & Book Chapters. 2248. https://digitalcommons.osgoode.yorku.ca/scholarly_works/2248 This Article is brought to you for free and open access by the Faculty Scholarship at Osgoode Digital Commons. It has been accepted for inclusion in Articles & Book Chapters by an authorized administrator of Osgoode Digital Commons. A MEMORIAL FOR BOSNIA: FRAMEWORK OF LEGAL ARGUMENTS CONCERNING THE LAWFULNESS OF THE MAINTENANCE OF THE UNITED NATIONS SECURITY COUNCIL'S ARMS EMBARGO ON BOSNIA AND HERZEGOVINA Craig Scott* Abid Qureshi Paul Michell Jasminka Kalajdzic Peter Copeland Francis Chang" INTRODUCTION: LEGAL QUESTIONS AT STAKE AND PREMISES ON WHICH A Memorialfor Bosnia Is BASED ...................... 6 A. Overview of the Legal Questions at Stake ................. 6 B. Situating A Memorial for Bosnia in the Context of the Ongoing Case in the International Court of * Associate Professor of Law, University of Toronto. Dalhousie University, LL.B. (1988); University of London/London School of Economics, LL.M. (1987); University of Oxford, B.A. (1986); McGill University, B.A. (1984). ** Abid Qureshi, University of Toronto, LL.B. (1994); University of British Columbia, B.A. (1991). Paul Michell, University of Toronto, LL.B. (1994); McGill University, B.A. (1990). Jasminka Kalajdzic, University of Ottawa, B.A. (1992). Peter Copeland, University of Toronto, B.Sc. (1992). Francis Chang, University of Toronto, LL.B. (1994); New York University, M.B.A. (1991); McGill University, B.Comm. (1988). This Memorial was written while all six authors were associated with the Faculty of Law, University of Toronto, the first as Associate Professor of Law and the last five as students. The authors would like to thank the Government of Bosnia and Herzegovina for the opportunity to study and present these arguments regarding the arms embargo. More specifi- cally, the authors are grateful to Ambassador Muhamed Sacirbey and Mr. Phon van den Biesen, Agent and Deputy-Agent, respectively, for Bosnia in the case before the International Court of Justice, for permitting us to publish a revised version of the Framework of Legal Arguments presented to Bosnia in early summer 1994. While the research on the topic was initiated at Bosnia's request, the arguments, their accuracy, and their priority inter se are the authors' own and do not necessarily represent the views of the current legal team or of the Government of Bosnia. Thanks are also due to Dr. Marc Weller of the University of Cam- bridge (a current member of the legal team for Bosnia). Finally, the authors thank Messrs. Rend Provost (Bolton Fellow, McGill University Faculty of Law and Doctoral Candidate, University of Oxford) and Mark Gendron (Doctoral Candidate at the University of Toronto) for their perceptive comments in response to presentations by coauthors Copeland and Qureshi at the Annual Conference of the Canadian Council on International Law in October 1994 as part of a panel discussion on the arms embargo. Prof. Scott and Jasminka Kalajdzic also extend their appreciation to Prof. Francis Boyle for inviting their contributions during the two Provisional Measures stages of the case. Prof. Boyle was Counsel for Bosnia at these stages. Prof. Scott would like to acknowledge the financial assistance of the Social Sciences and Humanities Research Council of Canada. Michigan Journal of InternationalLaw [Vol. 16:1 Justice Brought by Bosnia Against Serbia Under the Genocide Convention ................................. 8 1. The Case Brought by Bosnia Against Serbia and the Alleged Facts with Respect to Serbia's Responsibility for Conduct in Breach of the Genocide Convention ........................ ........ 8 2. The Attempt to Raise the Arms Embargo Issue in the C urrent C ase .................................. 9 3. ICJ Cases Contemplated by Bosnia in Late 1993 .... 11 C. A Contentious Case Brought Under Article IX of the Genocide Convention Against a State Engaged in Maintaining the Arms Embargo Would Create, According to a Structure Similar to Lockerbie, the Possibility for the ICJ to Address the Legal Status of Resolution 713 and Its Effect on States' Obligations ................ 14 D. The Premises upon Which A Memorial for Bosnia Is Structured .............................................. 17 1. The Presumed Jurisdictional Context .............. 17 2. The Presum ed Facts ................................ 18 E. The Plan and Format of the Memorial .................. 20 1. Plan of Mem orial ................................... 20 2. Symbolic Format of the Memorial .................. 21 1. STATE CONDUCT IN ENFORCEMENT OF SECURITY COUNCIL RESOLUTIONS' OBLIGATIONS TO MAINTAIN AN ARMS EMBARGO PLACES STATE PARTIES TO THE GENOCIDE CONVENTION IN CONFLICT WITH THEIR JUS Cogens OBLIGATION TO PREVENT GENOCIDE ...................................... 22 A. Genocide, Jus Cogens, and the Genocide Convention ............................................. 22 1. The Principle of Jus Cogens Is Established in International Law as the Highest Form of Law ..... 22 2. The Genocide Convention Codifies the Jus Cogens Prohibition Against Genocide, as well as the Corollary Obligations Which Flow from This Prohibition .................................. 26 B. States Have a Duty to Prevent the Genocide Occurring in Bosnia .................................. .36 1. States Have a Positive Obligation to Intervene or Offer Assistance to Prevent the Genocide in B o sn ia .......................................... 37 Fall 1994] A Memorial for Bosnia 2. In the Alternative, States Have a Duty to Refrain from Interfering with Cooperative Efforts to Prevent the Genocide in Bosnia ..................... 39 II. SECURITY COUNCIL RESOLUTIONS THAT MAINTAIN THE ARMS EMBARGO FETTER THE RIGHT OF SELF-DEFENSE IN A MANNER Ul t ra Vires THE SECURITY COUNCIL ....... 41 A. Aggression and the Content of the Right of Self- Defense .............................................. 41 1. Serbia Has Committed an Illegal Use of Force, Which Constitutes Aggression and an "Armed Attack" Against Bosnia .................................... .42 2. Bosnia Has an Inherent Right of Individual and Collective Self-Defense to Respond to Serbian Aggression and Genocide ......................... .48 B. Article 51 Requires that a State's Inherent Right to Self- Defense May Be Suspended Only if the Security Council Undertakes Effective Measures to Maintain International Peace and Security ................................... .56 1. The Right to Self-Defense Is "Inherent" or "N aturel" . ....................................... 56 2. The Inherent Right of Self-Defense Is a Jus Cogens Norm ................................ .57 3. The Security Council Was Under an Obligation to Take Objectively Effective Measures to Ensure that Its Maintenance of the Arms Embargo Against Bosnia Did Not Fetter Bosnia's Inherent Right to Self-Defense under Article 51 of the U.N. Charter that Bosnia Enjoyed from the Moment of Adm ission into the U.N ........................... 59 4. The Test of Effectiveness in Determining Whether "Measures Necessary to Maintain International Peace and Security" Have Been Implemented Is Higher in a Concrete Context in Which a State Is Exercising Its Inherent Right to Self-Defense Against Genocidal Aggression ..................... .68 5. The Legitimacy of the U.N. System of Collective Security Demands an Interpretation of. the Inherent Right of Self-Defense Consistent with the Principles Underlying the System .................. 73 Michigan Journal of InternationalLaw [Vol. 16:1 III. PERMISSIBILITY OF AN ICJ JUDGMENT ON THE STATUS OF SECURITY COUNCIL RESOLUTIONS AND THEIR EFFECTS ON THE LEGAL OBLIGATIONS OF STATES .................... 75 A. The Provisions and Structure of the U.N. Charter and the ICJ Statute Permit, and in Matters of Jus Cogens Require, the ICJ to Pass Judgment on the Lawfulness of Security Council Resolutions ..... 75 1. The ICJ Is Not Precluded from Addressing a Dispute or Situation Which Is Simultaneously Before the Security Council ............... ..... 75 2. The ICJ Has the Authority Under the Charter to Consider the Validity of Security Council Resolutions if This Is Required in Order to Fulfill Its Judicial M andate ................................. 82 3. The Contention that the ICJ Has No Authority Within the "Constitutional" Framework of the U.N. to Pass Any Judgment on the Legal Vires or Effects of Security Council Resolutions Cannot Be Sustained ........................................ 90 B. The ICJ Has Special Authority to Pass Judgment on the Actions of All International

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