bosnia report
No. 8 January - 1995
Time to Lift the Illegitimate Bosnian Arms Embargo
by Paul R Williams

The continued destruction of the independent state of BosniaHerzegovina urgently demands of the international community to comply with their obligations under international law and discontinue enforcement of the illegitimate United Nation's arms embargo against Bosnia-Herzegovina Atlhough the most proper means of lifting the embargo would be through a UN Security Council resolution, states wishing to aid Bosnia in its right to collective self-defence need not wait for the Security Council to take action, since their continued enforcement of the embargo is itself a violation of international law.

The United Nations Security Council is the supreme body of the United Nations, and resolutions adopted by the Security Council are considered binding under international law. Security Council actions are not, however, the highest form of international law and, as recognised by the United Nations Charter, are valid only as long as they are consistent with 'the principles of justice and international law.' Types of international law that constrain Security Council actions include: inherent rights of states independent of positive law; rights of states enunciated in the Charter of the United Nations; multilateral treaties and conventions considered in force, and subsequent Security Council resolutions.

Because there is no possibility of judicial review of decisions taken by the Security Council, member states must make their own determination as to the legality of Security Council actions. The determination by the member states that the Security Council has acted beyond its authority, or in violation of international law, will carry profound consequences and should, therefore, be reserved for only the most serious cases. The action of denying Bosnia the right to act in self-defence to prevent destruction of the stage of Bosnia-Herzegovina and the genocide of Bosnian nationals constitutes such a case.

Articles 2(4) and 51 of the United Nations Charter affirm the primacy of a state's territorial integrity and political indeendence, and the right of every state to rotect its territorial integrity and political independence through individual or collective self-defence. The right to self-defence is generally considered an inherent right of states independent of positive law. Articles 2(4) and 51 do not, therefore, create but rather codify this inherent right. Because the right to self-defence exists independent of positive law, the creation of positive law cannot abrogate or infringe upon that right. Since Security Coucil reolutions are positive law, they may co-exist with Bosnia's right to self-defence,ÌÌÌÌÌÌÌÌÔ but they cannot abridge that right. The arms embargo, by prohibiting Bosnia from defending its territorial integrity - from a combined internal and external military threat - and defending its population from crimes of genocide, abridges Bosnia's inherent right o self-defence and is, therefore, invalid.

Articles 2(4) and 51, as a codification of the inherent right to self-defence, seek to limit that right to the most basic principle that 'the only "just war" would be a war against an aggressor - in self-defence by the victim.'

Although the right to self-defence is nevertheless evoked to justify the use of force in a variety of circumstances, its invocation to defend against territorial aggression and genocide would be the most precise application of the right to self-defence. It is in these specific circumstances, however, that the Security Council has attempted to deny Bosnia the exercise of that right.

Imposition of the arms embargo on the former Yugoslavia did not violate Yugoslavia's right of self-defence since: 1) Yugoslavia consented, in fact requested, the imposition of the arms embargo; 2) Yugoslavia was not subject to an externally sponsored armed attack at the time of the embargo; and 3) Yugoslavia maintained an ample supply of weapons to carry out effective self-defence. Application of the arms embargo to the territory of Bosnia at the time of the embargo's adoption was, therefore, appropriate as Bosnia then remained a constituent part of Yugoslavia.

Following Bosnia's admission to the United Nations as a sovereign and indeendent state, however, continued application of the arms embargo to Bosnia became illegal under international law. As a member of the United Nations, Bosnia is now unquestionably entitled to Article 2(4) territorial integrity and political independence, and an Article 51 right of self-defence of its territory. The illegitimacy of the arms embargo is augmented since: 1) Bosnia has not consented to the embargo, but has strenuously objected to it; 2) Bosnia is under direct military attack sponsored by neighbouring states; 3) the population of Bosnia is subject to crimes of genocide; and 4) Bosnia does not possess a sufficient supply of defensive weapons to meet minimal requirements for self-defence.

Some member states argue that Article 51 permits a state to exercise individual or collective self-defence only until the Security Council takes action to maintain international peace and security and that, therefore, Bosnia is precluded from taking defensive action. However, an ability of a state to exercise its rights of self-defence cannot be abridged if the Security Council fails to take action, or is incapable of taking meaningful action. During the early stages of the Bosnian crisis, it could be argued that the Security Council precluded the right of Bosnia to acquire arms through its actions directed to bring peace to Bosnia. However, after almost two and a half years of Security Councilk activity and over 55 resolutions, there is neither peace nor security in Bosnia.

Faced with the inability to take meaningful action, the Security Council itself acknowledged in Resolution 836 that despite its many previous resolutions and early attempts, continuing military attacks and actions threaten Bosnia's sovereignty and territorial integrity. In additionl the Security ouncil has recognized that the continuing serious violations of international humanitarian law, and the continued obstruction of the delivery of humanitarian assistance by the Serbian forces, have created a grave and intolerable situation.

Considering the Security Council's own recognition of its inability to prevent the destruction of the state of Bosnia and the genocide of Bosnian nationals, Bosnia is now entitled to the prerogative to acquire weapons to undertake its own self-defence, and member states have the prerogative to provide Bosnia with those weapons.

Some member stages also contend that the inherent right of individual or collective self-defence does ÌÌÌÌÌÌÌÌÔ not automatically equate with a right to receive arms. At the time of Bosnia's emergence as a state, it was possible to argue that it was not necessary for Bosnia to import arms to provide for self-defence. However, today the state of Bosnia is on the brink of extinction with 70% of its territory occupied by forces seeking its part6ition and destruction. The remaining 30%, even if freed from a state of siege, would be unlikely to survive as a state.

The protection of a state's territory and its nationals are the core elements of the concept of national self-defence. The state of Bosnia will probably be extinguished and the national group known as Bosnians will cease to exist, unless the Security Council permits Bosnia to properly defend its territory and nationals during the state of military siete. Under these circumstances, Bosnia's ability to exercise Article 51 right of self-defence equates with the ability to acquire those weapons necessary to defend its territory and population.

Paul. Williams is Former Attorney-Adviser, Office of the Legal Adviser for European Affairs, United States Department of State. He is at present Executive Director, Public International Law and Policy Fund, and a Fulbright Research Scholar at the University of Cambridge.


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