Remarks by Dr. M. Javad Zarif, Deputy Foreign Minister for International Affairs

Tehran, 28 August 1994

In the name of God, the Compassionate, the Merciful

The unjustifiably weak reaction of the international community, in the past 29 months, vis-a-vis Serbian aggression and genocide against the newly born Republic of Bosnia-Herzegovina and its innocent and in most cases defenseless inhabitants has once and for all removed all misperceptions about a supposedly new role for the United Nations Security Council. Simultaneously, as a result of this experience new legal and political questions have been raised and some old ones have reemerged.

In the first case, following Iraqi aggression against Kuwait which brought about an unprecedented wave of activity and immediate and swift reaction of the Security Council to each and every move of Iraq -- which continues to date, over two years after the liberation of Kuwait -- a misperception and indeed a dream was born in some naive political quarters that with the end of the cold war and the dismantling of the bi-polar system, the United Nations Security Council would have a more active role in dealing with international developments and regional crises. It was thought that through rapid response to cases of threat against international and regional peace and security, the expansion, prolongation and persistence of these crisis would be precluded. This misleading naivete was proven erroneous, regrettably at the expense of the murder, plunder and genocide of the Moslem people of Bosnia by the Serbs.

In the past two and half years not only the Security Council failed to take any action in the face of a blatant external aggression against a new member of the United Nations and the genocide of its people, which could be remotely comparable to its behavior in the Kuwait crisis, but it even failed to implement and enforce its own limited superficial and inadequate decisions concerning this crisis.

Various speakers yesterday addressed the inaccuracy of different claims which are put forward to justify the policy of appeasement of the international community and particularly of a number of permanent member of Security Council as well as countries of Western Europe. Here I wish to briefly address the contention that the war in Bosnia is a civil war. This contention is advanced by the supporters of Serbian aggressors particularly by the British government as an excuse to prevent serious international action. Claiming that they are dealing with different parties to a purported civil war, they tend to deal with people such as Rudvan Karadjic and other Bosnian Serb leader, whose war crime cases are under investigation, on equal footing with the legitimate government of Bosnia-Herzegovina which was democratically brought to power.

However in a realistic and objective legal analysis, the crisis in Bosnia represents a clear case of international aggression. Based on paragraph a of article 3 of United Nations General Assembly resolution 3314 of 14 December 1974, generally known as definition of aggression resolution, "the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack " constitutes an evidence of an act of aggression. The presence of Yugoslav National Army (JNA) inside Bosnian territory in the beginning of the crisis and its substantial and in fact principal role in forcible occupation of territory and commission of war crimes is an uncontested historical fact. Even after the decision of 4 May 1992 of the government of Serbia and Montenegro -- that is over 2 months after the independence of Bosnia -- to withdraw its forces from Bosnian territory, more than 75 percent of JNA soldiers along with their light and heavy equipment remained in Bosnia claiming to be Bosnian Serbs. This was documented by international observers, even Serbs did not contested it, and the Security Council resolution 752 clearly made reference to this issue.

Furthermore, according to paragraph g of the same Article of the definition of aggression resolution, "the sending by or on behalf of a state of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed forces against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein " constitutes another evidence for determination of occurrence of an act of aggression. Again that the fact that Serb paramilitary units regularly cross Serbian borders into Bosnia and participate in the illegal occupation of territory and murder and raping of Bosnian civilians is very well documented to the point that international news media called some of them weak-end warriors.

Therefore, based on available international documents, the commission of an inter-state act of aggression against the republic of Bosnia-Herzegovina is evident. And according to most legal scholar this aggression continues both in the field as well as in legal consequence. The ethnocentric tendencies, which as we heard from Professor Gallaghar yesterday, is injected by the Serbian leadership in order to create popular fervor, is simply a tool to attain the inherently expansionist objective of "Greater Serbia"; an objective which can only be attained through occupation of the territory of others and uprooting of its inhabitants, that is aggression and ethnic cleansing.

In addition to the existence of aggression, the commission of war crimes on a large scale is one of the horrific characteristics of this conflict, which was absent, at least with these dimensions, in the Kuwait crisis. Article 8 of the Convention on the Prevention and Punishment of the Crime of Genocide, which entered into force on 12 January 1951 stipulates that "Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide..." Again, as you are aware, the International Court of Justice, in its Order of Provisional Measures, dated 8 April 1993, called on the Government of Serbia and Montenegro to "immediately take all measures within its power to prevent commission of the crime of genocide" by the regular and irregular forces under its control or influence. The Government of the Republic of Bosnia-Herzegovina also requested the United Nations and the Contracting Parties, which include western European states, to take appropriate measures to suppress this international crime.

Having considered these fact, it can be argued that from the political point of view the active involvement of the United Nations Security Council in the Kuwait crisis was a sui generis case which occurred simply because of the prevailing political and strategic interests of the major powers, and that despite all naive aspirations, it does indicate a new era in the United Nations' activity to prevent and control regional conflicts and combat acts of aggression. Though it should be mentioned in passing that the Kuwait crisis would nevertheless be used as a precedent by the same hegemonic powers in order to justify intrusions into sovereign domains of independent states and interventions and interferences when their interests so warrant.

But from international law perspective, the occurrence of aggression, in accordance with Article 51 of the Charter, provides the necessary prescription to resort to individual or collective self-defense. Allow me to examine briefly the meaning of the right of self-defense and the content of Article 51 of the Charter, particularly in light of some self-serving interpretations by a number of Security Council members.

Defending one's territory and population has always been considered a primary responsibility of States. Originally, it was considered an act of sovereignty not amenable to any restrictions. Following the Caroline case between England and the United States, the requirements of proportionality and necessity were established. However, even after the 1928 Pact of Paris prohibiting wars, self-defense was considered a right and indeed an obligation inherent in sovereign states.

Therefore, the Charter of the United Nations did not create the right of self-defense. It simply recognized that right, while in the opinion of most publicists it also defined and limited its use. The wording of Article 51 clearly illustrate the fact that no provision of the Charter can "impair" the right of self-defense. However, two new conditions and limitations have been set by Article 51 for the exercise of this right, namely the requirement of a prior armed attack and the relationship between the exercise of self-defense and the actions of the Security Council.

As we pointed out, the satisfaction of the first requirement, that is the occurrence of prior armed attack cannot be contested in the case of Bosnia. Therefore, the Republic of Bosnia-Herzegovina, as the victim of an armed attack and indeed an all out aggression, has the inherent right to both individual as well as collective self-defense, and this right is inalienable.

But with regard to the second limitation, based on the Charter of the United Nations, the right of self-defense continues "until the Security Council has taken measures necessary to maintain international peace and security." It should be added that at the end of the same Article, the primary responsibility of the Council has been reiterated. Also, in a number of other instances, including determination of the occurrence of aggression, the final decision rests with the Council.

However, most international jurists are of the view that the mere issuance of a statement or a resolution or even initiation of action by the Security Council does not automatically render the right of self-defense invalid or inapplicable. The permission to use force in self-defense is suspended only when the Council resorts to measures, which in the terminology of the Charter are "necessary for the maintenance of international peace and security, " that is, when the need of the victim to unilaterally defend its territorial integrity and independence is met through the system of collective security. In other words, the Charter does not oblige members of the United Nations to sit idly and simply witness their own annihilation and the raping and genocide of their population in cases when the Security Council, because of a multitude of reason, may suffice to take superficial action.

Today, the international community is unanimous in the view that the measures taken by the United Nations Security Council concerning Bosnia-Herzegovina have not only been inadequate for the maintenance of international peace and restoration of Bosnian territorial integrity, but have even worsened the situations and the plight of the victims. Therefore, in accordance with the provisions of the Charter or other General Principles of international law, the mere issuance of resolutions by the Council, regardless of their quantity, cannot legally invalidate the permission of recourse to force, individually or collectively, in self-defense. This right of the Government of Bosnia-Herzegovina has been explicitly recognized in General Assembly resolutions adopted with an overwhelming majority during its 46th, 47th and 48th sessions.

These OIC initiated United Nations General Assembly resolutions, adopted by very large majorities, contain a number of requests from the United Nations Security Council, which have all remained unfulfilled. This raises a number of other questions concerning the legitimacy of the Security Council in this crisis. It also brings to the forefront concerns about the procedures and working methods of the Council as well as its accountability to the United Nations General Assembly, which require much more time to get into.

However, let me simply point out that the Security Council, as an organ of the United Nations, which based on Article 24 of the Charter, is supposed to act "on behalf" of the entire membership of the organization, cannot simply act in total opposition to the wishes of those it represents; actions which are not only inconsistent with the Charter, but also do not "ensure prompt and effective action by the United Nations" , which according to the same Article is the sole reason for conferring such primary responsibility to the Council.

One of the most irresponsible prevailing interpretations in the Security Council is the application of provisions of the arms embargo against former Yugoslavia on the Republic of Bosnia-Herzegovina; an interpretation which is contrary to international law and the repeatedly stated view of the United Nations General Assembly, and an interpretation which has been imposed on the Council through what can only amount to blackmail. Let me simply run through a number of arguments, other than those relating to self-defense, for the inapplicability of this interpretation.

* Resolution 713 and 721, which impose sanctions on Yugoslavia, were both adopted before the Republic of Bosnia-Herzegovina was formed and admitted to the United Nations. These resolutions were adopted when the war in Yugoslavia was in fact a civil war. Now that at least three independent states of Bosnia, Croatia and Serbia and Montenegro are involved, the war has turned to an international war, where states victimized by prior use of force can resort to self-defense. In fact, through admission of Croatia and Bosnia-Herzegovina, the United Nations has recognized this inherent right for them.

* The aim of these resolutions was restoration of peace in former Yugoslavia and suppression of the aggressive behavior of Serbia. However, as the Council has recognized, inter alia, in resolutions 752, 770 and 787, peace and the sovereignty and territorial integrity of Bosnia-Herzegovina have not been restored, and in fact aggressor military forces continue to be stationed in occupied territories. This shows that the application of the arms embargo against Bosnia-Herzegovina has not succeeded to attain the stated objective.

* Considering geographical situation of Bosnia-Herzegovina as well as continuous military support for Serbs by Serbia and Montenegro, the arms embargo has only harmed the groups it originally intended to help. Only the aggressors have benefitted from the embargo.

* The application of the arms embargo against Bosnia-Herzegovina has exacerbated a serious military imbalance in favor of the Serbs. Based on the report of the Special Rapporteur of the Human Rights Commission, Mr. Mazowiecki, the embargo has enabled the Serbs to carry out ethnic cleansing with impunity. Therefore, the application of embargo against Bosnia violates the Convention on the Prevention and Punishment of the Crime of Genocide.

In conclusion, let me sum up by making a few remarks:

* The insistence of a number of Security Council members to continue the illegal application of the arms embargo to Bosnia-Herzegovina has encouraged Serbian intransigence, bringing about rejection of each and every peace plan, even those proposed by their own supporters.

* Considering this Serbian attitude, the only way to ensure a just and durable peace is to end Serbian military superiority and create a military balance. Otherwise, as we have seen in the past two years, the Serbs will accept nothing less than total surrender.

* Therefore, recognition of the inherent right of the Republic of Bosnia-Herzegovina to self-defense and empowering it to carry this right out in addition to having sound legal base, has strong political merit as it is the only way to bring the Serbs to serious negotiation.

* If the Security Council persists in its irresponsible stand, it would be necessary to make a final and decisive move in the coming United Nations General Assembly in order to conclusively exempt Bosnia-Herzegovina from the arms embargo and recognize its right to individual and specially collective self-defense. The precedent of "the Uniting for Peace" procedure, despite many challenges that we have to face, is an appropriate means to achieve this.

* For success of this plan, friends of Bosnia should mobilize all their political, diplomatic, economic and commercial ties in order to persuade the sufficient number of countries to support these measures in the United Nations Security Council and the General Assembly.