Council of the USA

MEMORANDUM
Advocates: Sophia Chavele-Dastamani, Leonidas Ntoulos

Yugoslavia v. United States of

America
Legality of Use of Force

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Table of Contents

Introduction ...................................................................................................................... 3
Statement of Jurisdiction .................................................................................................... 3
Statement of Facts ............................................................................................................. 4
Statement of Law .............................................................................................................. 5
Prayer for Relief ................................................................................................................. 7
Closing Statement.... 7

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Introduction
The United States of America has been one of the founding and historically the most active
Member-States of the North Atlantic Treaty Organization (NATO/ Organisation du Trait de
l'Atlantique Nord; OTAN) since the signing of the North Atlantic Treaty on 4 April 1949 in
Washington, D.C.

As the Kosovo War developed, the instability in the region grew, local Albanian masses were
killed by the Milosevic leadership, and the Contact Group was established to contribute to
the peaceful solution of the matter. With President Milosevic failing to implement any
promises made under the Groups decisions, and flagrantly ignoring UN warnings,
negotiations reached a dead-end. In an effort to halt the barbaric actions under the
Milosevic leadership, one of the most cruel regimes of the century, and prevent a
humanitarian catastrophe, NATO launched the Operation Allied Force, a 78-day
humanitarian intervention military campaign. NATO also deployed the ACE Mobile Force as
the Albanian force (AFOR), to deliver immediate humanitarian aid to refugees from Kosovo.
The aims of the campaign were to end all military action, terminate violence and repressive
activities by the Milosevic government, station a UN peacekeeping presence in Kosovo,
provide unconditional and safe return of all refugees and displaced persons and
establishment a political framework agreement for Kosovo based on Rambouillet Accords.

Statement of Jurisdiction
On April 29 1999, the Federal Republic of Yugoslavia submitted an application against the
United States of America for alleged violation of the obligation not to use force, to the
International Court of Justice. The government of the Federal Republic of Yugoslavia
accused the U.S.A. of intervening in the affairs of their State by providing funding to the
Kosovo Liberation Party, using prohibited weapons and bombing Yugoslav territory
"together with other Member States of NATO". The FR of Yugoslavia alleged that the U.S.
had violated the following:
Geneva Convention of 1949 and of the Additional Protocol No.1 of 1977
Article 1 of the 1948 Convention on free navigation on the Danube
International Covenant on Civil and Political Rights
International Covenant on Economic, Social and Cultural Rights of 1966
Convention on the Prevention and Punishment of the Crime of Genocide
Article 53, para 1 of the Charter of the United Nations.1

The FR of Yugoslavia demanded of the Court to order the United States of America to "cease
immediately its acts of use of force" and to "refrain from any act of threat or use of force"
against the FRY. 2

1 ICJ Registry, Application: Legality of Use of Force, http://www.icj-

cij.org/docket/files/114/7173.pdf
2 ICJ Registry, CASE CONCERNING LEGALITY OF USE OF FORCE (YUGOSLAVIA v. UNITED

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Statement of Facts
1974 - Yugoslavia declares Kosovo as an autonomous territory inside Serbia

1989 - Slobodan Miloevi, president of the Serbian republic, abrogates Kosovos

constitutional autonomy.

1989 - Ibrahim Rugova, leader of the ethnic Albanians in the Serbian province of Kosovo,
initiates a policy of nonviolent protest against the abrogation.

April 1992 Serbia and Montenegro form the Federal Republic of Yugoslavia, with Slobodan
Milosevic as its leader. This new government, is not recognized by the United States nor the
UN as the successor state to the former Yugoslavia.

22 September 1992 The UN General Assembly adopts resolution 47/1 which states that
the FR of Yugoslavia can no longer participate in the work of the GA, its subsidiary organs,
nor conference and meeting convened by it, thus removing Yugoslavias right to participate
in the UN.

1996 - The Kosovo Liberation Army (KLA) emerges.

1998 KLA sporadic attacks on Serbian police and politicians escalate, taking the form of a
substantial armed uprising.

9 June 1998 - US President Bill Clinton declares a "national emergency" (state of emergency)
due to the "unusual and extraordinary threat to the national security and foreign policy of
the United States" imposed by Yugoslavia and Serbia over the Kosovo War.

October 1998 Milosevic agrees to a truce, calling for the removal of Serbian forces from
Kosovo, after repeated warning of NATO air strikes. President Milosevic fails to implement
the agreement and fighting continues in the region.

23 September 1998 - The UN Security Council adopts Resolution 1199, expressing 'grave
concern' at reports that over 230,000 people had been displaced from their homes by 'the
excessive and indiscriminate use of force by Serbian security forces and the Yugoslav Army,
demanding that all parties in Kosovo cease hostilities and maintain a ceasefire. It also warns
that further actions will be taken if these measures arent followed.

1998 - KLA regroups and rearms during the cease-fire, and Yugoslav and Serbian forces
respond with a ruthless counteroffensive and engaged in a program of ethnic cleansing.

24 September 1998 - The North Atlantic Council (NAC) of NATO issued an "activation
warning" (ACTWARN) taking NATO to an increased level of military preparedness for both a
limited air option and a phased air campaign in Kosovo

STATES OF AMERICA) (PROVISIONAL MEASURES), http://www.icj-

cij.org/docket/files/114/14129.pdf

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15 January 1999 - The Raak massacre (as recognized by the UNSC) occurs, when "45
Kosovan Albanian farmers were rounded up, led up a hill and massacred".

February 1999 - Diplomatic negotiations begin in Rambouillet, France

23 February 1999 The Contact Group and the FR of Yugoslavia reach an agreement on
substantial autonomy for Kosovo and accept a ceasefire.

March 1999 Rambouillet negotiations break down when Milosevic fails to cooperate and
follow previously set agreements.

22 March 1999 - American diplomat Richard Holbrooke visits Milosevic in Belgrade in a final
attempt reach a peaceful solution. Milosevic refuses to cooperate.

24 March, 19:00 UTC - NATO starts its military campaign in Yugoslavia, codenamed
'Operation Allied Force, in an attempt to force Serbia to cease hostilities and the
humanitarian crisis unfolding.

27 March 1999 200-300 men were killed in the village of Meja by Serbian Troops, which
systematically cleared and burnt villages, then seperated men ages 18 to 65 from their
families and shoot them.

Statement of Law
Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the
General Assembly of the United Nations on 9 December 1948:
Article IX
Disputes between the Contracting Parties relating to the interpretation, application or
fulfilment of the present Convention, including those relating to the responsibility of a State
for genocide or for any of the other acts enumerated in article III, shall be submitted to the
International Court of Justice at the request of any of the parties to the dispute.

Both FR of Yugoslavia have ratified the Convention on the Prevention and Punishment of
the Crime of Genocide, however, when the United States ratified the Convention on 25
November 1988, it was with a reservation. With reference to Article IX, before any dispute
to which the United States is a party may be submitted to jurisdiction of the Court, "the
specific consent of the United States is required in each case". In this case, the Council of
the United States indicates that we will not be giving specific consent to do so.

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Article 23, para 1: No prisoner of war may at any time be sent to, or detained in areas
where he may be exposed to the fire of the combat zone, nor may his presence be used to
render certain points or areas immune from military operations.
Prisoners of war shall have shelters against air bombardment and other hazards of war, to
the same extent as the local civilian population. With the exception of those engaged in the
protection of their quarters against the aforesaid hazards, they may enter such shelters as

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soon as possible after the giving of the alarm. Any other protective measure taken in favour
of the population shall also apply to them.

This article makes the use of human shields illegal. International human rights law does not
prohibit the use of human shields as such, but this practice would constitute, among other
things, a violation of the non-derivable right not to be arbitrarily deprived of the right to life
(see commentary to Rule 89).

Protocol I Additional to the Geneva Conventions:

Article 48 Basic rule: In order to ensure respect for and protection of the civilian
population and civilian objects, the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations only against military objectives.

UN Charter: Chapter VII

Article 49: The Members of the United Nations shall join in affording mutual assistance in
carrying out the measures decided upon by the Security Council.

Article 51: 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. Measures taken by Members in the exercise of this right of self defense shall
be immediately reported to the Security Council and shall not in any way affect the
authority and responsibility of the Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain or restore international peace
and security.

Chapter VIII; Article 52: 1. Nothing in the present Charter precludes the existence of
regional arrangements or agencies for dealing with such matters relating to the
maintenance of international peace and security as are appropriate for regional action,
provided that such arrangements or agencies and their activities are consistent with the
Purposes and Principles of the United Nations.

UN Resolutions

GA Resolution 47: 1. Considers that the Federal Republic of Yugoslavia (Serbia and
Montenegro) cannot continue automatically the membership of the former
Socialist Federal Republic of Yugoslavia in the United Nations; and therefore
decides that the Federal Republic of Yugoslavia (Serbia and Montenegro) should
apply for membership in the United Nations and that it shall not participate
in the work of the General Assembly;

SC Resolutions 1199, 1160 on the Situation in Kosovo

RES 1199/ Decides, should the concrete measures demanded in this resolution and
resolution 1160 (1998) not be taken, to consider further action and additional measures to
maintain or restore peace and stability in the region;

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RES 1160/ Emphasizes that failure to make constructive progress towards the peaceful
resolution of the situation in Kosovo will lead to the consideration of additional measures;

Arguments
1. The Court does not have jurisdiction over this case.
The International Court of Justice does not have automatic jurisdiction over legal disputes
between states. One of the fundamental principles of the ICJ Stature is that it cannot decide
a dispute between States without the consent of those States to its jurisdiction. The FR of
Yugoslavia submitted this case to the Court under Article IX of the Geneva Convention,
which states that Disputes between the Contracting Parties relating to the interpretation,
application or fulfilment of the present Convention shall be submitted to the International
Court of Justice at the request of any of the parties to the dispute. However, when the
United States of America ratified the Convention on 25 November 1988, it was with a
reservation. The reservation states that before any dispute to which the United States is a
party is submitted to the Court, "the specific consent of the United States is required in each
case". In this case, the Council of the United States indicates that we will not be giving
specific consent to do so.

2. The FR of Yugoslavia is not a member of the United Nations and thus cannot
submit a case to the International Court of Justice.
As the State known as the Socialist Federal Republic of Yugoslavia (SFRY) ceased to exist, the
claim by the Federal Republic of Yugoslavia to continue automatic membership in the
United Nations was not accepted. In the General Assembly Resolution 47 (1992), it was
determined that membership of the SFRY in the United Nations cannot continue. The
General Assembly invited the Federal Republic of Yugoslavia to re-apply for membership in
the United Nations. From 1992 to 2000, the FRY declined to re-apply. Thus, it is clear that
the Federal Republic of Yugoslavia has no right to be submitting cases to the International
Court of Justice, a UN organ, for it is not a member State.

3. This is a case of humanitarian intervention.

Under the Kosovo War, expulsions, killings and rapes took place on a daily basis. More than
10,000 people lost their lives under the atrocities executed by the Yugoslav leadership,
250,000 Kosovar Albanians were forced from their homes and, between 1998-1999 alone,
before NATO began its operations in Kosovo, over 2000 people were killed by the Serb
government. The Yugoslav and Serbian military forces organized mass executions, expelled
over 860,000 Albanians from Kosovo and systematically raped and abused over 100 women.
It is no exaggeration, therefore, that the situation in Yugoslavia was rapidly escalating to
genocide. Children, teachers, mothers and families were expelled from their homes just
because of their background. The Milosevic leadership was evidently growing into one of
the most blood-thirsty and cruel regimes of history. Having exhausted every peaceful
approach, and in order to put pressure on President Milosevic to accept the ceasefire and
put an end to the violence and repression of Kosovar Albanians, NATO launched Operation
Allied Force. We believe this intervention to be critical to the resolution of the conflict, and
the unconditional and safe return of all refugees. In fact, it was specifically designed not
only to put an end to stop repression and humanitarian catastrophe, but to aid those in
need. NATO forces have flown in many thousands of tons of food and equipment into the

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area. By the end of April 1999, over 5000 tons of food and water and 1600 tons of medical
supplies had been transported to the area. Finally, to put it simply, NATO recognized that if
the atrocities committed by Serbian and Yugoslav forces werent stopped, we would soon
be facing genocide. It recognized its responsibility, as a guardian of international peace, to
intervene and restore peace in the region. Operation Allied Force was the only practical
means available to protect the Albanian Kosovars from further violent abuse.

4. Operation Allied Movement was an act of collective defense, considering regional

stability was put at risk.
NATOs military campaign was an act of collective self-defense. The NATO leadership,
working closely with the leadership of Member-States, recognized that the instability and
violence in Kosovo was sure to influence European affairs. The humanitarian crisis in Kosovo
was a direct threat to NATOs collective interests, those being protecting all Member-States
and ensuring their safety. With a genocide unfolding, European countries were under
threat of instability, with the vast streams of refugees underway. If the dispute were to
spread, countries like Greece and Turkey were under immediate threat. Allow us to remind
you that anticipatory collective defense is a right anchored in the UN Charter (Article 51).
Every Member-State has the right and the responsibility to protect its nations interests
when they are under threat. Furthermore, a failure by NATO to act immediately would have
caused thousands to die, and would be injustice toward the oppressed people of Kosovo. To
put it simply, NATO Members refused to watch idly yet another campaign of ethnical
cleansing and systematic destruction unfold in the heart of Europe.

5. It was an action justifiable under the Security Council.

Acting under Chapter 7, the section that allows military action to prevent situations that
endanger world security, the Security Council adopted three resolutions--1160, 1199 and
1203--imposing mandatory obligations on Yugoslavia, all of which the country completely
and flagrantly ignored. In those resolutions, the Security Council calls for the resolution of
the Kosovo conflict and notes that if Yugoslavia fails to make constructive progress towards
the peaceful resolution of the situation in Kosovo, further measures will be taken.
Resolutions 1160, 1199, 1203 recognized the situation in the Federal Republic of Yugoslavia
as a crisis, and NATO actions were taken under this framework. Moreover, allow us to
remind you that while the Security Council is the primary organ for maintaining
international peace and security, it is not the only one. Exactly because the Security Council
had failed to come up with a solution over the Kosovo conflict, since permanent members
like Russia failed resolutions to protect their sole interests, NATO had to take immediate
action before the humanitarian disaster spread to nearby countries. The U.S. simply
identified the council disunity on the matter of Kosovo, and recognized a situation that
needed immediate attention.

6. Utilitarian use of the UN & Malicious Prosecution

Moreover, the council of Yugoslavia engaged in malicious prosecution. Yugoslavia has sued
other 7 NATO members. We see no probable cause in those sues and we could only
characterize them as intentional. We can see that Yugoslavia is just suing countries in order
to justify the crimes it has committed. We also find this prosecution malicious, since FRY has
prosecuted 8 NATO members because they intervened in its attempt for genocide and mass
murders of Albanian minorities. The council of USA also characterizes any legal action that

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Yugoslavia has taken utilitarian. Considering that Yugoslavia was completely ignorant of the
United Nations as an organ which could help resolving the situation and never seeked its
help we can understand it would only apply in the ICJ when it had specific things to gain
However, only after the bombings started and Yugoslavia lost control over the regions and
was forced to withdraw its forces, turned to the UN and the ICJ, seeking help and engaging
on a legal dispute accusing many countries of alleged crimes, while it had committed various
crimes against humanity, had broken many treaties and had several times violated the
international law. We can all observe the utilitarian motives of Yugoslavia, using the United
Nations only in time of need but showing complete ignorance when it had control

7. The Implementation of provisional measures would be unacceptable considering

the Applicants actions.

Nullus commodurn capere de sua injuria propria - No one can be allowed to take advantage
of his own wrong.
It would be absolutely inappropriate in this case, for the Court to impose measures against
the Council of the USA, considering the vast unlawful actions of Yugoslavia. The Federal
Republic of Yugoslavia, having completed a well-executed strategy of ethnical cleansing and
atrocities of all forms, such as sexual assault, the use of human shields and thousands of
forced expulsions is now seeking help for consequences they have brought on themselves.
Yugoslavia is coming to this Court, with blood on their hands, under years of flagrantly
ignoring all warnings of the UN Organs and attempting the genocide of Kosovar Albanians.
Thus, we do not believe that the court should allow Yugoslavia to benefit from their own
crimes and impose provisional measures. If the Court were to impose such measures
without taking into account the cruel practices of the Applicant, it would be a clear injustice
towards the minorities of Kosovo. Were such a decision to be taken, that would mean that
the Court would have to prosecute every case of humanitarian intervention and every
attempt of peacekeeping and international security protection.

Prayer for Relief

The council of USA stands here and believes that based on our memorandum, our
arguments, evidence and witnesses, the Court should refute the unfounded, invalid and
unjustified accusations of FR of Yugoslavia. The Council of Yugoslavia, solely based on
speculations, has failed to persuade us or provide us with sufficient and reliable evidence
while supporting the unsupportable. Our intervention successfully resolved the
humanitarian crisis and, more importantly, managed to prevent the genocide against the
Albanian minority. It is clear, therefore, that NATOs intervention was one motivated by
humanitarian interests, and in complete accordance with international law. Thus, the
Council of USA wishes that the Court:
1. rejects the accusations against the USA, since our intervention was more than
justified and necessary, doesnt impose any provisional measures against the
American government and absolves the government of the United States from
the unacceptable and unreliable accusations of the FR of Yugoslavia;
2. does not allow:
a. Yugoslavia to benefit from its own crimes and find justice for the
murders they committed,

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 b. let their crimes and attempts of genocide go unprosecuted;
3. allows NATO peacekeeping forces to remain in the area and continue their
peacekeeping and humanitarian relief mission, where the troops will exist:
a. to promote the establishment of democratic government and the
establishment of peace in the region,
b. to help the return of refugees and provide humanitarian aid.

Closing Statement
We, as a nation, believe not only in the protection of our citizens but in providing solidarity
and solace to struggling nations and oppressed populations, members of NATO or not. Our
nation was created to provide shelter to those oppressed and prosecuted for their religious
beliefs and racial backgrounds, so we strongly undertake our role, as members of the
international community, to provide humanitarian aid and help in all its forms. In the case of
Kosovo, we had exhausted every diplomatic approach, through the Rambouillet
negotiations, the Contact Group and UN discussions. It was clear that, if Kosovo was left to
the mercy of Serbian repression, there would not be merely a risk, but the probability of re-
igniting unrest in Albania, of a destabilised Macedonia, a genocide of the Albanian
Minorities, and of further tension between Greece and Turkey. Strategic interests for the
whole of Europe were at stake, and with a genocide unfolding, our operation was clearly a
humanitarian intervention and an act of collective defense of NATO members, a
fundamental right all UN Member-States are entitled to.3 The United States of America
should be cleared of accusations, seeing as our campaign was justifiable under the UNSC
Resolutions 1199 and 1160. Furthermore, the Federal Republic of Yugoslavia is not a
member of the United Nations under GA resolution 49 and has no right to be bringing such
allegations to the International Court of Justice. Lastly, the Court should not allow for the FR
of Yugoslavia to benefit from their crimes and impose measures on the countries that
worked in resolving the conflict.
The horrifying accounts of mass killing in Kosovo, the pictures of thousands of Kosovo
Albanians fleeing Serb oppression, the makes it clear that this is a fight for justice over
genocide. This is a fight for those oppressed, massacred, abused by the cruelty of the
Yugoslav leadership. This is a fight against the atrocities of unlawful and ruthless regime.
Honorable Judges, there's only one person responsible for the war crimes in Yugoslavia. The
only person that has for years caused cultural oppression, thousands of deaths and failure
to protect the people of his nation has a name - and his name is Slobodan Milosevic, not
NATO.

3Mayor, John. UK Parliament Meeting, 31 May 1995,

http://hansard.millbanksystems.com/commons/1995/may/31/bosnia

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