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Lead
Counsel for Plaintiff, Serbian Orthodox Church v. William Jefferson Clinton,
US Dist. Ct., N.D. Illinois, Eastern Div. (1999) (Code Case99A)
UNITED
STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
SERBIAN
ORTHODOX CHURCH, in the United States of America acting for and on behalf
of itself and the entire Serbian Orthodox Church, a world-wide religious
community Plaintiff.
-vs-
WILLIAM
JEFFERSON CLINTON, President and Commander-in-Chief of the Armed Forces
of the United States of America Defendant.
COMPLAINT
FOR INJUNCTION AND/OR EXPEDITED DECLARATORY JUDGMENT
Plaintiff,
Serbian Orthodox Church, in the United States of America acting for and
on behalf of itself and the entire Serbian Orthodox Church, a world-wide
religious community, for complaint against Defendant, William Jefferson
Clinton, alleges and states as follows:
I.
Nature of the Action
1.
This action is brought to enjoin Defendant Clinton, from further ordering
United States of America Armed Forces personnel to conduct military air
operations, missile strikes, and bombardment over the Federal Republic
of Yugoslavia. These military operations imperil the churches, sacred
places, and sacred objects of the Plaintiff, Serbian Orthodox Church.
2.
This action is additionally brought for expedited declaratory judgment
against the Defendant Clinton, adjudicating that the current military
air operations, missile strikes, and bombardment by the United States
of America Armed Forces against the territory of the Federal Republic
of Yugoslavia, which commenced on March 23, 1999, and continues at the
time of the filing of the present action, are in violation of treaties
which constitute the supreme law of the land, as well as the First Amendment
to the Constitution of the United States of America.
II.
Jurisdiction
3.
This action arises under the following treaties and Constitutional provision
of the United States of America:
1.
The United Nations Charter of 1945, a treaty of the United States of America;
2.
The Kellogg-Briand Peace Pact of 1928, a treaty of the United States of
America;
3.
The Hague Convention IV of 1907, a treaty of the United States of America;
and
4.
The First Amendment to the Constitution of the United States of America.
1.
This Court has jurisdiction of this action under 28 U.S.C. Sect. 1331.
III.
Parties
2.
The Serbian Orthodox Church is a world-wide religious community of Christians
who profess the Holy Orthodox faith. (See signatures of the Bishops of
the Serbian Orthodox Church of North and South America attached hereto
as Exhibit A.) The Serbian Orthodox Church is a hierarchical Church and,
in the United States of America, the highest hierarchical body is the
Episcopal Council headquartered in Lake County, Illinois. The Serbian
Orthodox Church has faithful adherents living in large numbers both in
the United States of America, a majority of which are citizens of the
United States of America, and in the Federal Republic of Yugoslavia.The
Serbian Orthodox Church owns substantial property both in the United States
of America and in the Federal Republic of Yugoslavia, including that region
known as Kosovo. The majority of the Plaintiff’s sacred objects, icons,
and relics are located in over 800 churches and shrines in the very small
geographic area known as Kosovo.
3.
The Defendant is the Commander-in-Chief of the Armed Force of the United
States of America.
IV.
General Factual Background
4.
As a result of ongoing internal civil strife within the Federal Republic
of Yugoslavia, the United Nations Security Council, on March 31, 1998,
adopted Resolution 1160. The United States of America voted in favor of
that Resolution in which the United Nations Security Council affirmed
the commitment of all Member States of the United Nations to the sovereign
and territorial integrity of the Federal Republic of Yugoslavia and called
upon the Federal Republic of Yugoslavia and the leadership of the Kosovo
Albanian community within the Federal Republic of Yugoslavia to enter
into meaningful dialogue for a peaceful political settlement of the internal
civil strife.
5.
Because of the continued ongoing civil strife, the United Nations Security
Council, on September 23, 1998, adopted Resolution 1199. The United States
of America voted in favor of that Resolution in which the United Nations
Security Council reaffirmed the sovereign and territorial integrity of
the Federal Republic of Yugoslavia and once again called upon the Federal
Republic of Yugoslavia and the leadership of the Kosovo Albanian community
within the Federal Republic of Yugoslavia to enter into meaningful dialogue
for a peaceful political settlement of the ongoing civil strife.
6.
As a further result of ongoing internal civil strife within the Federal
Republic of Yugoslavia, the United Nations Security Council, on October
24, 1998, adopted Resolution 1203. The United States of America voted
in favor of that Resolution in which the United Nations Security Council
once again reaffirmed the sovereign and territorial integrity of the Federal
Republic of Yugoslavia and called upon the leadership of the Kosovo Albanian
community within the Federal Republic of Yugoslavia to condemn and cease
all of its terrorist activities.
7.
None of the aforementioned Security Council Resolutions, nor any other
Security Council Resolution, authorized the use of military force by any
Member State, alone or in concert with other states, against the territory
of the Federal Republic of Yugoslavia or against either the Serbian or
Albanian communities within the Federal Republic of Yugoslavia.
8.
In furtherance of Security Council Resolutions 1160, 1199, and 1203, the
United States of America participated in a negotiating conference in Rambouillet,
France, during February and March, 1999, between representatives of the
Federal Republic of Yugoslavia and representatives of the Albanian community
with the Federal Republic of Yugoslavia. When the representatives of the
two sides appeared unable to reach a mutually satisfactory agreement,
the Defendant, acting through his representatives, threatened military
action against the Federal Republic of Yugoslavia if it did not sign an
agreement principally prepared by representatives of the United States
of America, which would have forced the Federal Republic of Yugoslavia
to permit the stationing of ground troops of states, including the United
States of America, within Kosovo to enforce a plan of autonomy for the
Albanian community in Kosovo.
9.
Despite the threat of military action outlined in paragraph 11, supra,
the Federal Republic of Yugoslavia refused to sign a peace agreement,
and hence no Kosovo peace agreement ever came into existence.
10.
To date there has been no joint resolution of Congress authorizing or
approving the Defendant’s deployment of United States of America armed
forces in military operations against the Federal Republic of Yugoslavia.
11.
Commencing with military air operations and missile strikes on March 23,
1999, the United States of America Armed Forces have been engaged in missile
and aerial bombardments resulting in severe material damage, loss of life
and displacement of persons from their homes and communities, both Serbian
and Albanian, within the Federal Republic of Yugoslavia. These bombardments
have hit and partially destroyed churches, sacred property, and sacred
objects belonging to the Plaintiff constituting an integral and irreplaceable
part of the Plaintiff’s religion and religious mission.
12.
Prior to, during, and after the Rambouillet negotiating conference the
Plaintiff, Serbian Orthodox Church, tried to assist in the peaceful resolution
of the internal strife in the Kosovo region, but the Plaintiff was rebuffed
by both the United States of America and the Federal Republic of Yugoslavia.
Following the military bombardment over the Federal Republic of Yugoslavia
which began on March 23, 1999, and continuing to the present day, the
Plaintiff has continuously tried to assist in the peaceful resolution
of said internal strife and continues to be rebuffed. At all times the
Plaintiff remains ready, willing and able to assist in any way to resolve
the internal strife in the Kosovo region.
V.
Illegality of the Defendant’s Actions
A.
Under the Charter of the United Nations
13.
The United States of America is party to the Charter of the United Nations,
a treaty. 59 Stat. 1031. A treaty is part of the supreme law of the land.
U.S. Const. Art. VI.
14.Under
Article 2(4) of the U.N. Charter, all member states shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state. This provision is mandatory
and self-executing because it does not require any state to undertake
any action or enact any legislation, but rather simply prohibits the commission
of certain defined acts.
15.
The U.N. Charter provides for only two exceptions to Article 2(4). First,
Article 51 provides that nothing in the Charter Ashall impair the inherent
right of individual or collective self-defense if an armed attack occurs
against a member of the United Nations. Defendant Clinton has never claimed
that the internal strife in the Federal Republic of Yugoslavia constitutes
an armed attack against the United States of America. Furthermore, he
has never claimed that his deployment of Armed Forces against the territory
of the Federal Republic of Yugoslavia is in the self-defense of the United
States of America.
16.
The second exception in the U.N. Charter to Article 2(4) is military action
expressly authorized by the Security Council under Articles 39-50 and
Article 94. For example, the Persian Gulf War (AOperation Desert Storm)
was explicitly authorized by the Security Council under Articles 39-42.
However, as detailed in paragraphs 7-10 of this Complaint, the Security
Council has neither authorized nor approved the use of military force
against the Federal Republic of Yugoslavia.
17.
Defendant Clinton’s orders to deploy American service personnel in the
current military campaign against the Federal Republic of Yugoslavia are
in violation of Article 2(4) of the U.N. Charter which is part of the
supreme law of the land.
B.
Under the Kellogg-Briand Peace Pact
18.
The General Treaty for the Renunciation of War as an Instrument of National
Policy of 1928, also known as the Kellogg-Briand Peace Pact, provides
in Article I that the Parties to the treaty solemnly declare in the names
of their respective peoples that they condemn recourse to war for the
solution of international controversies, and renounce it as an instrument
of national policy in their relations with one another. The United States
of America is party to this treaty. 46 Stat. 234. The Kellogg-Briand Peace
Pact was held to be violated by the Nazi defendants at the Nuremberg trials.
Defendant Clinton’s actions in deploying American armed forces to engage
in military action in the Federal Republic of Yugoslavia are in violation
of Article I of the Kellogg-Briand Peace Pact which is part of the supreme
law of the land.
C.
Under the Hague Convention of 1907
19.
The Hague Convention (No. IV) Respecting the Laws and Customs of War on
Land, With Annex of Regulations, of 1907, is a treaty to which the United
States of America is party. 36 Stat. 2277. Article 27 of the Regulations
provides that [i]n sieges and bombardments all necessary steps must be
taken to spare, as far as possible, buildings dedicated to religion. The
Plaintiff’s churches in the Federal Republic of Yugoslavia are distinctively
visible from the air as religious buildings. Yet, Defendant Clinton’s
actions in ordering United States of America service personnel to engage
in missile strikes and above-the-clouds launching of bombs do not evidence
an intent to comply with the restriction of Article 27. Indeed, errant
missiles and non-pinpoint bombing have already struck churches belonging
to the Plaintiff. The situation can only be aggravated when increased
sorties and carpet-bombing tactics now ordered over Kosovo will most likely
result in extensive damage to or destruction of Plaintiff’s churches and
monasteries which number in excess of 800 scattered throughout the relatively
small region of Kosovo. Defendant Clinton’s orders in this regard amount
at least to willful negligence, and perhaps to deliberate disregard, of
Article 27 of the Hague Convention, which is part of the supreme law of
the land.
D.
Under the First Amendment to the Constitution of the United States of
America.
20.
The First Amendment has long been interpreted as securing religions against
government interference. The Plaintiff’s sacred relics and icons, most
of which are located in Serbian Orthodox churches in Kosovo and more generally
in the Federal Republic of Yugoslavia, constitute an integral part of
the Serbian Orthodox faith. (See a description of some of these relics
and icons attached hereto as Exhibit B.) The religion itself will be irreversibly
diminished by the destruction of any of these ancient relics and icons.
The ability of the faithful of the Serbian Orthodox Church to engage in
the free exercise of their religion will be impaired if an integral and
holy part of that Church is itself destroyed by any action of an official
of the United States of America acting under color of law. Defendant Clinton
is acting under color of law in ordering missile strikes and aerial bombardment
of Kosovo and more generally of the Federal Republic of Yugoslavia. In
doing so, he is acting in wanton and reckless disregard of the Constitutional
right of the Serbian Orthodox Church, and through them the Plaintiff itself,
from engaging in the full and free exercise of their religion as guaranteed
by the First Amendment to the Constitution of the United States of America.
VI.
Injuries to the Plaintiff
21.
The Serbian Orthodox Church possesses a substantial number of Churches,
Monasteries, and Holy Relics throughout Serbia and Montenegro, including
those in the Kosovo region where over 800 churches and monasteries exist.
These Churches, Monasteries and Sacred Relics, particularly those in Kosovo,
are ancient, revered and central to the life of the Holy Orthodox Church.
They are known throughout the world. They have been and continue to be
the objects of pilgrimages of people from all over the world of many faiths,
including the Serbian Orthodox Church, to venerate these sacred objects
and holy places and to pray for physical and spiritual healing.
22.
These Churches, Monasteries and Sacred Relics are in imminent danger of
destruction from the massive bombing which is currently taking place.
23.
In fact, the twelfth-century monastery of Gracanica in Kosovo region has
already suffered substantial damage from bombardments resulting from Defendant
Clinton’s deployment of American air power.
24.
Damage to such Churches and Monasteries, and the irreplaceable ancient
and sacred relics and icons contained therein, would constitute an irreparable
loss to the Plaintiff. Many of these sacred relics and objects are priceless.
No monetary reward or other remedy available at law could conceivably
compensate for the loss of an integral part of one’s religion.
WHEREFORE,
the Plaintiff requests that this Honorable Court order relief as follows:
A.
An injunction against Defendant William Jefferson Clinton to cease and
desist from further deployment of American service personnel in the current
military campaign of aerial bombardment and missile strikes against the
Federal Republic of Yugoslavia; and
B.
Additionally or alternatively, an expedited declaratory judgment against
Defendant William Jefferson Clinton, adjudicating him to be acting contrary
to the First Amendment to the Constitution of the United States of America,
and/or treaties which are part of the supreme law of the land, insofar
as he continues to order the deployment of American service personnel
to carry out a campaign of aerial bombardment and missile strikes against
the Federal Republic of Yugoslavia.
Although
the Plaintiff is asking first and foremost for an injunction, the Plaintiff
is willing to accept an expedited declaratory judgment in lieu of an injunction
on the ground of its confidence that Defendant William Jefferson Clinton
will act immediately and consistently with a decision of this Court irrespective
of whether the decision is in the form of an injunction or a declaratory
judgment.
Respectfully
submitted,
By:
Anthony D’Amato
Attorney
for the Plaintiff
Anthony
D’Amato
Northwestern
University School of Law
357
East Chicago Avenue
Chicago,
Illinois 60611
(312)
503-8474
By:
Robert
J. Pavich
Attorney
for the Plaintiff
Robert
J. Pavich Monico Pavich & Spevack
29
South LaSalle Street
Suite
720
Chicago,
Illinois 60603
(312)
782-8500
By:
Nick
Katich
Attorney
for the Plaintiff
Nick
Katich
3759
Kingsway Drive
Crown
Point, Indiana 46307
(219)
663-7140
EXHIBIT
A
We
the undersigned, being all of the Bishops of the Serbian Orthodox Church
of North and South America, approve and ratify the filing of this complaint
on behalf of the worldwide Serbian Orthodox Church.
Signature
is forthcoming
+
Christopher, Metropolitan of the Midwest American Diocese and President
of the Joint Episcopal Council
Signature
is forthcoming
+
Longin, Bishop of Dalmatia and Administrator of the American-Canadian
Diocese (New Gracanica Metropolitanate)
Signature
is forthcoming
+
Mitrofan, Bishop of the Eastern American Diocese
Signature
is forthcoming
+
Jovan, Bishop of the Western American Diocese
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