RESOLUTION NO. 808 OF THE SECURITY COUNCIL AND THE IMPLEMENTATION OF HUMAN RIGHTS BY THE UNITED NATIONS (CASE STUDY OF YUGOSFARIANS)

RESOLUTION NO. 808 OF THE SECURITY COUNCIL

AND IMPLEMENTATION OF HUMAN RIGHTS BY THE UN

(Yugoslavia Case Study)

 

By: Irma Hanafi

 

Daniel Webster believes that justice is the noblest human interest on earth. After all, justice is what people seek endlessly, people fight for tenaciously, people wait for it with full confidence, and people will oppose it if justice is not given or if justice does not exist.[1]       

The failure of the League of Nations to prevent World War II did not dispel the often-stated belief that only by some form of organization of states could a system of collective security be achieved that could protect the international community from the scourge of war. The Allied powers, in 1941, named it “The United Nations” and in 1943 the Moscow Declaration recognized “the necessity of establishing a public international organization capable of immediate action, based on the principle of the sovereign equality of all peace-loving states, large and small, for the maintenance of international peace and security.”

A definite plan for an organization was finalized in several stages, at Tehran in 1943, at Dumbarton Oaks in 1944, at Yalta in 1945 and finally at the San Francisco Conference in 1945 where 50 governments, on the basis of the Dumbarton Oaks proposals prepared by the four sponsoring countries, jointly drafted the Charter of the United Nations.[2]

The 1945 UN Charter begins with a reaffirmation of faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The Charter states that the purposes of the UN include “to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples…and to achieve international cooperation…in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, language, or religion…And in two key articles all members “pledge to act jointly and individually in co-operation with the organization.”[3]

Human rights are a fundamental human right. Today, human rights have become a written legal concept. In England, there is the Magna Carta of 1215 and the Bill of Rights of 1689; in the United States, there is the Virginia Bill of Rights of 1776 and the Declaration of Independence of 1776; and in Africa, there is the African Charter on Human and People's Rights. Furthermore, the United Nations established the Universal Declaration of Human Rights in 1948.

 The United Nations Declaration recognizes that humans are individuals who hold the status of subjects of international law alongside states. Generally, based on the numerous declarations and covenants concerning human rights issued by the United Nations, these are known as the three generations of human rights.[4]

Human rights are discussed in international organizations such as the United Nations, in national parliaments, in the press, to emphasize their importance or to criticize governments that do not pay attention to them. [5] UNESCO, together with other international organizations, universal and regional, pays much attention to the concepts of human rights.[6]

Pursuant to its mandate to maintain peace, the United Nations Security Council established the first international criminal court through Resolution No. 808, February 1993, which stated that “an international tribunal should be established to try those responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991.”[7]

The formation of the international criminal court after the end of the Cold War resulted in one of the following: International Criminal Tribunal for former Yugoslavia ( ICTY) .

The establishment of the ICTY was the result of an evaluation by the international community through the UN Security Council of the gross human rights violations that occurred in the former Yugoslavia, but the establishment of this international court did not receive support from the new Yugoslavia consisting of Serbia and Montenegro.Based on the explanation above, the author in this writing will discuss the issuance of Security Council Resolution 808 as part of the implementation of human rights by the UN.

The UN and Human Rights

There are several UN organs and institutions whose responsibilities fall into the general field of human rights, among others: The General Assembly, which is the plenary organ of the UN and has broad authority according to the Charter to consider human rights issues; the Economic and Social Council (ECOSOC), in the field of human rights, this body is tasked with making recommendations in order to promote respect for and observance of human rights and fundamental freedoms to be submitted to the General Assembly; the Commission on Human Rights with its Sub-Commission on Prevention of Discrimination and Protection of Minorities.[8]

The UN Charter contains several provisions regarding human rights. Its preamble sets out the determination of the people of the UN to reaffirm faith in human rights, in the dignity and worth of the human person, in the equal rights of men and women, and in equality between large and small countries. Article 1 (3) of the UN Charter states that one of the purposes of the UN is to promote and encourage respect for human rights and fundamental freedoms for all people without distinction of race, gender, language or religion.

 Based on Chapter XI of the Charter entitled International Economic and Social Cooperation, Article 55 of the UN Charter stipulates that with the aim of creating conditions of stability and prosperity necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the UN promotes:

a.       Higher standards of living, sufficient jobs for all, and the conditions for economic progress, social progress and development.

b.      Solving international problems in the fields of economics, social affairs, health and related issues; as well as international cooperation in the fields of culture and education; and

c.       Universal respect for human rights and their realization and fundamental freedoms for all, without distinction as to race, sex, language or religion.

Article 56 states that all members pledge to take joint and individual action…for the achievement of the objectives outlined in Article 55.[9]

Pursuant to its mandate to maintain peace, the Security Council established the first international criminal courts through Resolutions No. 808 and 827. The Nuremberg Tribunal was a tribunal established by only the four victorious nations of World War II, while the Hague Tribunal was a subsidiary organ of the UN Security Council that required the cooperation of all nations.[10]

International Criminal Tribunal for former Yugoslavia (ICTY) was established by a UN Security Council Resolution in 1993 to investigate, prosecute and try individuals responsible for serious violations of international humanitarian law during armed conflicts since 1991.

The ICTY is based in The Hague. The ICTY remains necessary today because the restoration of peace and security within Yugoslavia requires justice for the victims and survivors of the crimes committed. The ICTY's material jurisdiction covers crimes against humanity only if committed during an armed conflict, namely crimes committed in Yugoslavia since 1991. The ICTY also regulates the responsibility of commanders, both active and passive (crimes by omission) and has primacy against national courts. Trials in absentia are not possible under the principle of individual criminal responsibility, making criminal prosecutions against states, organizations, and associations impossible. The development of various cases within the ICTY is currently ongoing in The Hague.[11]

Legal Facts The case of Yugoslavia

            During President Tito's leadership, the Socialist Federative Republic of Yugoslavia (SRFR) enjoyed considerable international popularity, as Tito was considered the unifier of the Yugoslav nation. In May 1980, President Tito died, leaving no strong successor to lead Yugoslavia.           

On June 25 1991, Slovenia and Croatia declared their independence and sovereignty, followed by the Republic of Bosnia in March 1992. This separation was supported by European Community countries and finally received recognition from the international community, even though the Yugoslav government insisted on preventing the separation of sovereignty, so an armed conflict broke out which started in Croatia and Slovenia.

With the recognition of the independence of the republics of Slovenia, Croatia and Bosnia Herzegovina by other countries, the Republic of Serbia and the Republic of Montenegro formed the Federative Republic of Yugoslavia on April 27, 1992, but did not receive international recognition.

The complex problems in Yugoslavia, particularly in Bosnia and Herzegovina, have made international efforts to resolve the Bosnia-Herzegovina crisis extremely difficult. The failure of these negotiations has further exacerbated the situation and led to further clashes between the warring parties, resulting in numerous casualties.

To prevent further casualties in Yugoslavia, the UN dispatched a peacekeeping mission to the former Yugoslavia. However, numerous external factors, along with the uncompromising stance of the warring parties in defending their interests, prevented the UN force's presence from successfully ending the conflict in the former Yugoslavia.  [12]               

The Yugoslav civil war began in 1991 when Serbian forces bombed Vukovar and Dubrovnik. By May 1992, when the UN Security Council imposed economic sanctions on Serbia, atrocities had reached levels not seen in Europe since World War II. The arms embargo, which applied to all sides, had little effect, benefiting the better-prepared Serbian forces. [13]

Yugoslavia was sanctioned by the Security Council for not heeding eight resolutions that had been issued by the Security Council from 25 September 1991 to 25 May 1992, especially with the worsening situation in Bosnia-Herzegovina and other places in Yugoslavia that threatened international peace and security, attacks on members of the UN Peacekeeping Force (UNPROFOR) including members of the International Red Cross (ICRC), violations of the ceasefire, expulsion of non-Serbian citizens.

The leadership of the Federal Republic of Yugoslavia argued that the main cause of the Yugoslav crisis was the destructive activities of the major powers that succeeded in weakening their country by destroying it from within and organizing domestic secessionist forces, with the aim of realizing their global interests. Yugoslavia argued that the only way to resolve the crisis in the former Yugoslavia was through negotiations while still respecting the interests and legitimacy of the three ethnic groups in Bosnia.

The approach of external force and the use of ultimatums was difficult for Yugoslavia to accept. Harsh and perceived unfair sanctions against Yugoslavia were intended to force it to conform to generally accepted European policies.

On September 25, 1991, the Security Council imposed economic sanctions on Yugoslavia, including: prohibiting the import of raw materials and the production of other goods from Yugoslavia and any activity interpreted as increasing its exports and the sale and supply by sea or air of these materials; stopping aid funds including the country's economic and financial resources; reducing the diplomatic and consular staff of Yugoslav missions abroad; prohibiting the participation of Yugoslav athletes, both in groups and individually, in international sporting events.[14]

The United States then proposed the establishment of a war crimes tribunal. The UN Security Council began by appointing a Commission of Experts chaired by Professor Cheriff Bassiouni to investigate violations of international humanitarian law. On January 26, 1993, an interim report was issued, describing ethnic strife, mass killings, torture, rape, looting, and the destruction of cultural, religious, and personal property.

As a result of the report of the Commission of Experts appointed by the UN Security Council, on February 22, 1993, the UN passed Security Council Resolution 808, which identified the situation as a threat to peace and national security, and decided to establish an international tribunal that would help bring peace by stopping war crimes and punishing their perpetrators. Then in May, the UN passed Resolution 827, which adopted the report of the UN Secretary-General to establish the legal basis and procedures for the new institution.

The Commission of Experts' report above serves as a mandate for the court, which begins by describing Resolution 808 as limited in scope and purpose; its decision does not concern the establishment of international criminal jurisdiction in general, nor the establishment of an international criminal court. The report accepts the general method of establishing a prosecuting body and a court through states parties, either through the General Assembly or a special conference that would draw up a treaty that could be signed and ratified.In 1993 the UN formed International Criminal Tribunal for former Yugoslavia (ICTY) to try war criminals and has tried 79 people.

Legal Basis of Security Council Resolution 808

The UN Charter lists the maintenance of international peace and security as the primary purpose of the organization and outlines two principal means toward achieving this goal: collective measures to prevent or eliminate threats to the peace and to suppress acts of aggression and other breaches of the peace, and the adjustment or settlement of international disputes by peaceful means. The primary responsibility for the maintenance of peace and security rests with the Security Council (Article 1, paragraph 1 of the UN Charter). [15]

The powers granted to the Security Council are contained in Article 24 The UN Charter states that in order to ensure that the UN can carry out its actions smoothly and effectively, the members confer on the Security Council primary responsibility for maintaining international peace and security and agree that the Security Council, in carrying out its obligations under this responsibility, shall act on their behalf.

In connection with the conflict in Yugoslavia, in order to prevent the conflict from escalating and leading to the creation of threats to international peace and security, the Security Council took over peace efforts in the Yugoslav conflict. The emergency situation justified the need for action based on Chapter VII of the UN Charter, namely if the Security Council determines a situation that is deemed to threaten the peace. The court derives its legitimacy from the fact that it is a means of maintaining or restoring international peace and security. standard operating procedure for the sovereignty of the state, its active period as a court limited to the restoration of peace in the former Yugoslavia.

Article 39 of the UN Charter, The Security Council shall determine whether or not there is any threat to the peace, breach of the peace or act of aggression and shall recommend or decide what action shall be taken in accordance with articles 41 and 42, to maintain or restore international peace and security.

Article 41 of the UN Charter, The Security Council shall decide what measures, other than the use of armed force, shall be taken to give effect to its decisions, and may call upon the Members of the United Nations to take such measures, including the total or partial severance of economic relations, including rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations. This article does not at all discuss the international court, but its powers are very broad, including the imposition of criminal responsibility on individuals whose acts of aggression are prevented by the possibility of punishment.

Although Article 2 (7) The UN Charter prohibits the UN from intervening in matters within a state's jurisdiction, but this principle cannot affect the implementation of measures under Chapter VII of the UN Charter. In this case, the primary purpose of intervention is to stop crimes against humanity and to punish the perpetrators, especially if the victims are ethnic majorities in a particular region. Humanitarian assistance may include assistance in the process of self-determination.

In accordance with the provisions of Article 25 of the UN Charter, all UN member states agree to accept and implement decisions of the Security Council in accordance with the Charter. This mandates that these decisions must not only be obeyed but also implemented, as they are legally binding. This applies not only to all UN member states but also to non-UN member states. This commitment of non-UN member states is reflected in the UN Charter itself.

The obligations given to UN member states according to Article 25 are essentially a direct consequence of the authority given to the Security Council according to Article 24, namely that all member states agree that the Security Council in developing its main responsibilities (primary responsibility) to maintain international peace and security acting on behalf of all member states. Therefore, Resolution No. 808 issued by the Security Council is something that is natural to be implemented in a country experiencing a humanitarian conflict such as Yugoslavia.

According to international criminal law, the international elements of a criminal offense are: crimes that directly threaten international peace and security; crimes that indirectly threaten international peace and security; crimes that shake the feelings of humanity.

The Yugoslav conflict fulfills the elements of an international crime, so that the resolution of the conflict can be resolved according to international law, in this case the international provisions within the UN, especially the authority of the Security Council.

Article 1 of the Statute of the Hague Court authorizes the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. Definition of crimes against humanityThese are acts exceeding the limits of humanity and are of the utmost seriousness and are committed as part of a widespread and systematic attack against civilians for political, ethnic, or religious reasons. These acts may be committed in times of peace or war (Article 7 of the Rome Statute).

War crimes are violations of the laws or rules of war, other than those described in international humanitarian law, including illegal methods of warfare carried out against the enemy or civilians in armed conflicts, whether international or internal (Article 8 of the Rome Statute).

            By examining the definition above and analyzing the conflict that occurred in the region of Yugoslavia which resulted in many civilians dying in vain, it can be said that what happened in the region of the former Yugoslavia was a war crime and a crime against humanity which can be...at threatens international peace and security, it is only right that individuals who have done so should be punished.And the international criminal court established under Security Council Resolution No. 808 can be run based on the objective of achieving international peace and security and respect for human rights, including the right to be free from arbitrary interference with privacy, family, residence and correspondence; freedom from attacks on honor and reputation; and the right to legal protection against attacks.

 

 

REFERENCES

 

1.      The son of Agung Banyu Perwita and Yanyan M. Yani, Introduction to International Relations, RosdaKarya, Bandung, 2008.

 

2.      Antonio Cassese, Human Rights In A Changing World, Translator A. Rahman Zainuddin, Obor Indonesia Foundation, Jakarta 2005.

 

3. DW Bowett, QC, LL.D., Law of International Organizations, (Translation by Bambang Iriana Djajaatmadja), Sinar Grafika, 1991.

 

4. Geoffrey Robertson QC, Crimes Against Humanity The Struggle for Global Justice, editor Suhartono, Human Rights Commission, Jakarta, 2002.

5.      Ian Brownlie, People's Rights in Modern International Law, In Human Rights World Society Issues and Actions, Translated by A. Setiawan Abadi, Obor Indonesia Foundation, Jakarta, 1993.

 

6. James Barros, The UN Then, Now and IceOK, translation by DH Gulo, Bumi Aksara, Jakarta, 1984.
7. Muladi, Human Rights Courts in National and International Contexts
8. Basic Knowledge About the United Nations, United Nations Information Office.

 

9. Rescoe Pound, Legal Assignment, translated by Muhammad Radjah, Bhratara, Jakarta, 1965.

 

10. Sumaryo Suryokusumo, Case Studies of International Organization Law, Alumni, Bandung, 1997.

 

11. Scott Davidson, Human Rights, History, Theory and Practice in International Relations Main Library of Graffiti, Jakarta, 1994.
12. Mr. Mulia Lubis, Human Rights in World Society Issues and Actions, Obor Foundation, Jakarta 1993.

 

Charter of the United Nations

http://id.wikipedia.org/wiki/Disintegrasi_Yugoslavia