Organization for Security and Cooperation in Europe
Organization for Security and Cooperation in Europe
Organization for Security and Cooperation in Europe
The first Conference on Security and Cooperation in Europe (CSCE) ended with the Helsinki Final Act, signed on August 1, 1975, by the leaders of the thirtyfive participating states. Those states included Canada, the United States, the Western European democracies, and the Soviet Union and its Eastern European satellites, as well as a few neutral and nonaligned countries. For Moscow, the main objective of the Final Act was to confirm the postwar status quo, and to achieve political recognition of the territorial conquest of the Red Army and the ideological supremacy of communism. For the members of the Atlantic Alliance, the objective was to ease the political situation in Europe, especially between the two German states, and to underline the principles of the UN Charter.
Evolution from CSCE to OSCE
Long and difficult negotiations from 1973 to 1975 focused on three set of issues, the three "baskets" of the Final Act. The first basket addressed security issues in Europe, the second sought to establish economic, scientific, and technological cooperation, and the last attempted to create a cooperative approach to humanitarian and related issues. The three baskets of issues were diplomatically linked, and compromises were required before general agreement was reached between the countries of the western and eastern blocs. In itself, the Final Act is not a legally binding treaty; rather it is a set of political commitments, adopted by consensus and in a spirit of peaceful coexistence. These political commitments involve a high level of dedication to the universal principles of the UN Charter, including sovereign equality of states and the inviolability of national borders, as well as "respect for human rights and fundamental freedoms."
The rule of consensus and the linkage between the three baskets of the CSCE imposed certain limits to progress in the field of human rights during the first ten years, from 1975 until 1986. The turning point was reached through the leadership of Russian Premier Mikhail Gorbachev, who experimented with domestic reform (perestroika) and a new diplomatic openness (glasnost). The Conference in Vienna, from 1986 to 1989 made the best of this opportunity by adopting a substantial document on human rights issues, the Vienna Document of 1989. This marked the start of a new and far-reaching agenda that focused on the human dimension of international relations.
The 1990 Summit of Heads of State and Government was organized in Paris to give visible recognition of the new reality in international relations inaugurated by the end of the cold war, freedom for Eastern democracies, and the political triumph of Western values. The CSCE incorporated democratic principles in the Charter of Paris for a New Europe, which was signed on November 21, 1990. The Paris Charter was lauded as the starting-point of "a new era of democracy, peace and unity in Europe." The participatiing states pledged "to build, consolidate, and strengthen democracy as the only system of government of our nations." The Paris Charter created the Office for Free Elections in Warsaw. This was the first standing institution of the CSCE, now called the Office for Democratic Institutions and Human Rights. It also created a number of decisionmaking bodies. The Charter called for a summit to be held every other year, with annual meetings of the CSCE Council, consisting of foreign affairs ministers, and regular meetings of senior diplomats as well as "implementation meetings of the human dimension committments" each year in Warsaw. The Warsaw meetings reviewed the record of the CSCE member states' commitments in the field of human rights, democracy, and the rule of law.
The scope of CSCE broadened rapidly after the break up of the Soviet Union and of Yugoslavia. In 2004 there were fifty-five participating states, drawn from a geographical area that stretches from Vancouver eastward to Vladivostok. Its political nature has also changed, with greater emphasis being given to the commitment to democracy, human rights, and rule of law, and mechanisms have been developed for the prevention and settlement of disputes. Its legal status has remained unchanged, but there has been a degree of creeping institutionalization. At the Budapest Summit of 1994, the CSCE underwent a symbolic name change, becoming the Organization for Security and Cooperation in Europe (OSCE, effective January 1, 1995). That summit also saw an organizational innovation, creating the position of Chairman in Office (CIO). The holder of this office is selected from among the foreign ministers of the participating states, serves a one-year term, presides over official meetings, and exercizes personal diplomacy on behalf of the OSCE.
The OSCE is not based on a binding treaty, but on political committments. It requires good faith and the good will of participating states, and as such is hindered from action by its continued reliance on the rule of consensus. Once, in 1992 during the crisis in Yugoslavia, the organization invoked a principle of "consensus minus one" in order to suspend the participation of a member state, the Federal Republic of Yugoslavia, on the eve of the Helsinski Summit. The Russian Federation did not attend the biennial summit meetings held after the Istanbul Summit of 1999, due to its disagreement with the Western democracies over the Chechnya crisis, and its foreign minister strongly disputed the conclusions of the Ministerial Councils in Vienna (2000) and Maastricht (2003), which were issued as statements of the CIO. To achieve consensus, the OSCE's official statements are, of necessity, watered down and legally non-binding. However, the OSCE's assertion of the link between security and humanrights issues, embodied in the concepts of cooperative security, can be an asset to the organization, as is its flexible legal framework, which allows it to adapt and react quickly to new challenges in the international community.
The CSCE arose to promote the goal of peaceful coexistence among the states of Europe, and this orientation explains the absence of any reference to humanitarian law or criminal law in the early years. At the most, the Helsinki Declaration makes a general reference to international law, as follows:
The participating State will fulfill in good faith their obligations under international law, both those obligations arising from the generally recognised principles and rules of international law and those obligations arising from treaties or other agreements, in conformity with international law, to which they are parties.
Any specific reference to international humanitarian law was precluded, however. Principle I of the Declaration stressed, "refraining from the threat or use of force." On the other hand, Principle VII invokes "the respect for human rights and fundamental freedoms," and specifically mentions national minorities in this regard:
The Participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.
The CSCE's concern with humanitarian concerns was very narrowly defined, with no mention of humanitarian law as such. In deference to the matters of the Soviet Union and its allies, the word humanitarian was used euphemistically, which wanted to avoid employing the vocabulary of "human rights."
The Concluding Document of the Vienna Conference of 1989 put a new emphasis on humanitarian issues, dealing explicitly with commitments "concerning respect for all human rights and fundamental freedoms, human contacts, and other issues of a related humanitarian character." At the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (June 1990) a set of national minority rights was developed for the first time, and greater attention was paid to the rise of racism and aggressive nationalism:
The participating States clearly and unequivocally condemn totalitarianism, racial and ethnic hatred, anti-Semitism, xenophobia and discrimination against anyone as well as persecution on religious and ideological grounds. In this context they also recognize the particular problems of Roma [gypsies].
The states declared their firm, individual intention to combat these phenomena by a number of measures, including the passage of laws designed "to provide protection against any act that constitutes incitement to violence against persons or groups based on national, racial, ethnic or religious discrimination, hostility or hatred, including anti-Semitism." They further committed themselves to promote understanding and tolerance in the fields of education, culture, and information.
The Paris Charter summed up this political will: "We express our determination to combat all forms of racial and ethnic hatred, anti-Semitism, xenophobia and discrimination against anyone as well as persecution on religious and ideological grounds." The communist old-guard putsch of August 1991 against Mikhail Gorbachev, which led to the end of the Soviet Union, had a sobering effect on the October 1991 Moscow Meeting of the Conference on the Human Dimension of the CSCE. In the closing document of that session, the member states "deplored acts of discrimination, hostility, and violence against persons or groups on national, ethnic, or religious grounds."
The sense of emergency within the CSCE was even more evident at the Helsinki Summit of 1992, which addressed the Yugoslavia crisis. On July 10, 1992, the organization released its Summit Declaration, which stated, in part:
This is a time of promise but also a time of instability and insecurity. Economic decline, social tension, aggressive nationalism, intolerance, xenophobia and ethnic conflicts threaten stability in the CSCE area. Gross violations of the CSCE commitments in the field of human rights and fundamental freedoms, including those related to national minorities, pose a special threat to the peaceful development of society, in particular in new democracies.
The allegation of gross violations deliberately invoked the strong vocabulary of international law. There was no direct accusation against specific perpetrators, but the reference to "aggressive nationalism" was a clear indication of the CSCE's intent.
The Helsinki Summit was the first time that the CSCE made explicit reference to international humanitarian law. The decisions reached at that meeting called for the establishment of a High Commissioner on National Minorities; enhanced the role of the Office for Democratic Institutions and Human Rights (ODIHR), which was in charge of the annual implementation meetings; and reaffirmed the whole range of humanitarian commitments undertaken by member states. A special caveat was added with regard to national minorities, directing the participating states to "refrain from resettling and condemn all attempts, by the threat or use of force, to resettle persons with the aim of changing the ethnic composition of areas within their territories."
After dealing with refugees and displaced persons, the Helsinki Document stressed the importance of international humanitarian law in a number of further provisions. The participating States:
- (47) Recall that international humanitarian law is based upon the inherent dignity of the human person;
- (48) Will in all circumstances respect and ensure respect for international humanitarian law including the protection of the civilian population;
- (49) Recall that those who violate international humanitarian law are held personally accountable;
- (50) Acknowledge the essential role of the International Committee of the Red Cross in promoting the implementation and development of international humanitarian law, including the Geneva Conventions and their relevant protocols;
- (51) Reaffirm their commitment to extend full support to the International Committee of the Red Cross as well as to the Red Cross and Red Crescent Societies, and to the United Nations organizations, particularly in times of armed conflict, respect their protective emblems, prevent the misuse of these emblems and, as appropriate, exert all efforts to ensure access to the areas concerned;
- (52) Commit themselves to fulfilling their obligation to teach and disseminate information about their obligations under international humanitarian law.
The Moscow Mechanism
The Yugoslavia crisis was the first challenge to the consistency of the CSCE's commitments and to the efficiency of its mechanisms and structures. According to the Moscow Mechanism, participating states could establish fact-finding missions involving a team of CSCE (now OSCE) rapporteurs. This emergency process calls for ten participating states to request such a mission can be formed, if possible with the cooperation of the requested participating state. After convening such a mission, the rules require that an emergency report be prepared and presented in three weeks.
On August 5, 1992, the United Kingdom gained the support of nine other participating states in order to invoke the Moscow Mechanism with respect to Bosnia and Herzegovina and Croatia. The United Kingdom appointed Ambassador Hans Corell (Sweden) to the mission. Bosnia and Croatia appointed Ambassador Helmut Turk (Austria) as rapporteur. A third member of the mission was Gro Hillestad Thune, a member of the European Commission of Human Rights (Norway). The first mandate of the mission was to investigate reports of attacks on unarmed civilians in Bosnia and Herzegovina, especially in Sarajevo and Goradze, and in Croatia. On September 28, 1992, the mandate was redrafted and broadened to visit, if feasible, areas that may be under the threat of ethnic cleansing.
From September 30 to October 5, the OSCE mission focused specifically on Croatia, working with high level contacts in Zagreb and making onsite visits to United Nations Protected Areas (UNPAs), such as Knin and Vukovar. It presented its report on October 7, 1992, (CSCE communication no. 342). The main conclusion was that atrocities against unarmed civilians and ethnic cleansing were indeed committed in the Republic of Croatia. It attributed these crimes to both sides of the conflict, but singled out the Yugoslavian Peoples Army (JNA), Serbian paramilitary groups and the police forces at Knin as having committed the most serious offenses. The report detailed the means employed for the creation of ethnically pure areas, alleging mass murder and forced deportation, as well as confiscation of property, arbitrary firings from employment, torture, random killings, and incarceration in over-crowded detention camps that lacked adequate food, sanitation, and access to medical care. The effect of these policies, according to the mission's report, was to create "a climate of fear [that] eventually force[d] people to leave their towns and villages."
The fact-finding mission stopped short of any legal qualification of specific "atrocities," instead using the vague wording of its mandate. Although it did specifically allege that the perpetrators were following a "systematic policy" (which is a substantial component of the crime of genocide), it did not go so far as to use the term genocide. Instead, it concluded that
it is beyond any doubt that gross violations of human rights and norms of international humanitarian law, including war crimes and crimes against humanity, have been committed in connection with the armed conflict in the former Yugoslavia. It is also common knowledge that every day atrocities continue to be committed. The evidence is overwhelming and undeniable.
The report took note of Yugoslavia's ratification of the Genocide Convention of 1948 and stressed that "serious crimes such as war crimes and crimes against humanity" are punishable based on the continuing applicability of the Criminal Code of the former Yugoslavia, but the rapporteurs saw no real possibility for an effective prosecution of these crimes at the national level, and concluded that it would be necessary to establish an international ad hoc tribunal to prosecute these crimes.
The mission report called for the formation of an expert committee, with experts drawn from interested OSCE member nations, that would be empowered to draft a treaty to establish a tribunal to try the crimes that the mission had discovered. As stressed in the concluding remarks of the report:
the international community shares a common responsibility to bring to justice those who have committed crimes in connection with the armed conflict in the former Yugoslavia. The rules enshrined in the relevant international legal instruments should be enforced in order to punish those responsible and to demonstrate the determination of the international community to take action now and in the future.
These concerns were taken up during the third meeting of the CSCE Council—a meeting at the level of Foreign Ministers—in Stockholm, in December 1992. The ministers called upon an organ of the CSCE—the Committee of Senior Officials and the High Commissioner on National Minorities—to address the grave violations ongoing in the former Yugoslavia. This call for greater CSCE involvement in countering the ethnic cleansing and other human rights violations provided the opportunity to stress the responsibility of states and of individuals in regard to international humanitarian law, and to affirm the accountability of governments and individuals for the commission of war crimes and crimes against humanity.
Although the team of rapporteurs was encouraged to continue its work, it was unable to visit Bosnia-Herzegovina. On February 9, 1993, it did, however, transmit an additional report on this country, with a new proposal for an International War Crimes Tribunal for the Former Yugoslavia. In the meanwhile, several other international missions were investigating the gross violations of human rights in former Yugoslavia. During an extraordinary session, the Commission on Human Rights designated its own special rapporteur, Tadeusz Mazowiecki. In addition, UN Security Council Resolution 780 (1992) established a commission of experts, chaired by Frits Kalshoven. Cooperation among these teams of experts helped to build a strong legal case, and the triggering of the Moscow Mechanism was thus instrumental in the ultimate adoption of UN Security Council Resolution 827 on April 25, 1993, instituting the International Criminal Tribunal for Former Yugoslavia (ICTY).
Follow-up to the Yugoslavian Crisis
One year later, December 1993, at the fourth meeting of the OSCE Council in Rome, the same alarm was evident. This time, the organization made a much more direct reference to criminal law, adopting the Declaration on Aggressive Nationalism, Racism, Chauvinism Xenophobia, and Anti-Semitism. Noting the strong relationship between these phenomena and violence, the ministers participating in the meeting
focused attention on the need for urgent action to enforce the strict observance of the norms of international humanitarian law, including the prosecution and punishment of those guilty of war crimes and other crimes against humanity. The Ministers agreed that the CSCE must play an important role in these efforts. The clear standards of behaviour reflected in CSCE commitments include active support for all individuals in accordance with international law and for the protection of national minorities.
At the Budapest Summit of 1994, the participating states issued a condemnation of the practice of ethnic cleansing and all acts related thereto. They also affirmed their support of the ICTY. Furthermore, the meeting's Summit Declaration addressed the issue of international humanitarian law standards:
The participating States deeply deplore the series of flagrant violations of international humanitarian law that occurred in the CSCE region in recent years and reaffirm their commitment to respect and ensure respect for general international humanitarian law and in particular for their obligations under the relevant international instruments, including the 1949 Geneva Conventions and their additional protocols, to which they are a party. . . .
They emphasize the potential significance of a declaration on minimum humanitarian standards applicable in all situations and declare their willingness to actively participate in its preparation in the framework of the United Nations. They commit themselves to ensure adequate information and training within their military services with regard to the provisions of international humanitarian law and consider that relevant information should be made available.
During the Lisbon Summit of 1996, the OSCE member states reiterated their condemnation of continuing human-rights violations in the former Yugoslavia. A similar stance was taken in the OSCE's Istanbul Charter for European Security. Russia, embroiled in wars in Chechnya, opposed more specific invocation of international humanitarian law, out of concern that it would itself become vulnerable to prosecution. This, again, demonstrated the inherent limits to action that derive from the OSCE's reliance on consensus and the risk that member states faced of being accused of imposing double standards.
At the annual Implementation Meeting organized in Warsaw by the ODIHR, attendees dealt with the issues of migration, refugees, and displaced persons, as well as problems relating to migrant workers and the treatment of citizens of other participating states. They also discussed the development of international humanitarian law at the very end of the working session. According to the ODIHR agenda, which was prepared in advance for the 2002 Implementation Meeting:
The presence of internal armed conflicts within the OSCE region (as well as a legacy of international armed conflict) highlights the importance of the implementation of humanitarian law by member states, especially as concerns the protection of civilians and the respect for fundamental non-derogable rights. It is to be stressed that provisions such as article 3 common to the Geneva Conventions and article 4 of Additional Protocol II contain minimum requirements of humane treatment that cannot be derogated from.
In addition, the ODIHR mentioned establishment of the International Criminal Court and the issue of the co-operation with the International Criminal Tribunals for the former Yugoslavia and for Rwanda as topics that might be addressed during the meeting.
In fact, the OSCE mechanisms are mainly oriented toward prevention. For instance, the mandate for the High Commissioner on National Minorities, established by the Helsinki Summit in 1992, was described as follows:
The High Commissioner will provide "early warning" and, as appropriate, "early action" at the earliest possible stage in regard to tensions involving national minority issues which have not yet developed beyond an early warning stage, but, in the judgement of the High Commissioner, have the potential to develop into a conflict within the CSCE area, affecting peace, stability, or relations between participating States, requiring the attention of and action by the Council.
According to this mandate, the high commissioner is specifically charged with taking before a political crisis or civil strife can mature into full-scale conflict, with promoting dialogue, and with gaining the confidence and cooperation of the parties to the crisis or strife. The successes of the first high commissioner, former Dutch Foreign Minister Max van der Stoel, can be measured by the fact that his goodwill and quiet diplomacy helped to avoid the breakout of further conflict among the newly independent states of Eastern Europe. However, the High Commissioner is expressly prohibited from becoming involved in ongoing, open crisis situations, such as occurred in the former Yugoslavia or in Caucasia. Van der Stoël's successor, Rolf Ekeus, has shown a marked reluctance to take any actions that could antagonize participating states, preferring to rely on personal diplomacy to achieve his goals.
Participating states generally do not use the full range of OSCE mechanisms and institutions to deal with challenge about national minorities. They only invoked the Moscow mechanism in 2002, ten years after it was first developed, after the attempted assassination of President Niyazov of Turkmenistan. The rapporteur assigned to the case was given the specific mandate to deal with the massive repression that followed the attempt. The resulting report stressed the risk of forced resettlement of national minorities, and made a transparent reference to the 1948 Genocide Convention, but as an emergency mechanism, the rapporteur could not assure any practical follow-up of the situation. Nonetheless, the work produced by the OSCE has galvanized the Commission on Human Rights and the UN General Assembly to finally adopt resolutions on the human rights situation in Turkmenistan in 2003, and to order a follow-up study of the situation in 2004.
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Decaux, Emmanuel, and Linos-Alexandre Sicilianos, eds. (1993). La CSCE : Dimension humaine et règlement des différends. Paris: Montchrestien.
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Organization for Security and Cooperation in Europe (2000). OSCE Handbook, 4th edition. Prague: Author.
Organization for Security and Cooperation in Europe (2001). OSCE Human Dimension Commitments: A Reference Book. Prague: Author.
OSCE On-line. Available from http://www.osce.org.
The Conference on Security and Cooperation in Europe
Publication of the Final Act catalyzed an upsurge of activity for human rights and in opposition to totalitarianism across the Soviet Union and Eastern Europe in the mid‐late 1970s. CSCE review meetings in Belgrade (1977–78), Madrid (1980–83), and Vienna (1986–89) focused on implementation and extension of the Final Act, especially in the areas of human rights and military confidence‐building measures. By 1989, the political principles established by the Final Act were widely credited with contributing to the collapse of Communist rule in Eastern Europe.
After the Cold War, the CSCE established a permanent Secretariat in Prague, a Conflict Prevention Center in Vienna, an Office for Democratic Institutions and Human Rights in Warsaw, and an Office on National Minorities in the Hague. With the breakup of the Soviet Union, Czechoslovakia, and Yugoslavia, and the accession of Albania, membership in the CSCE increased from thirty‐five to fifty‐three states. In 1994, it was renamed the Organization for Security and Cooperation in Europe (OSCE). Since then, the OSCE has supervised democratic elections, promoted respect for human rights in new laws and constitutions, and negotiated and monitored cease‐fires throughout Eastern Europe and the former Soviet Union.
[See also Helsinki Watch.]
John J. Maresca , To Helsinki: The Conference on Security and Cooperation in Europe, 1972–1975, 1987.
Daniel C. Thomas , The Power of International Norms: Human Rights, the Helsinki Accords and the Demise of Communism, forthcoming 2000.
Daniel C. Thomas