ANALYSIS: Failure on the Second Front

Saturday, 1 September, 2001

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Heikelina Verrijn

While Slobodan Milosevic contested his detention in The Hague at a hearing of the war crimes tribunal, three counsel acting on his behalf were making similar representations before a Dutch national court nearby. Seeking the former Yugoslav president's release, the lawyers, old-style activists with sandals and florid language, met with no more success than the defendant himself.

The hearing, August 23, was a summary proceeding for the purpose of establishing whether a case being brought has sufficient merit to proceed. Under Dutch law, a complainant does not at this point have to prove that a defendant behaved unlawfully, but merely demonstrate that such an interpretation is possible. As defined for the proceedings, "unlawful" may be interpreted more broadly to mean not only a violation of written law but also negligence or other substantial error.

A complainant may seek an injunction as a provisional measure, prior to the case being heard on its merits. Women frequently use summary proceedings to get ex-husbands off their backs. Tenants may try them to force a landlord to fix a leaking roof. But they are also a useful tool for activists, such as environmentalists seeking to pressure government to stop an industry from dumping chemical waste.

As a result, Dutch judges at such hearings are accustomed to politically engaged lawyers presenting the court with wild rhetoric rather than pithy jurisprudence. Sometimes judges even have to dig for themselves to find the legal argument hidden within the political foliage before determining if it has any relevance to the case at hand.

In short, it should have been a far more welcoming venue for the Milosevic legal team than the International Criminal Tribunal for the former Yugoslavia, ICTY. And they needed it. The three Dutch lawyers, Nico Steijnen, Erik Hummels and Eirk Olof, are throw-backs to the 1970s. With long grey hair in ponytails, wearing T-shirts and slippers, their image as well as their words displayed their contempt for "the Western capitalist conspiracy".

Steijnen, according to a Dutch lawyer who has observed him in many cases, is a "serial challenger of judges". On some days, Steijnen challenges the authority of the bench not once but time after time, pleading that judges are not independent and not impartial. Recently he even stormed out of a courtroom, telling the judges that they were incompetent to hear the case.

The three have brought a case against the Dutch prime minister and minister of defence for complicity in "the bestial bombardments by NATO of Belgrade". The case, which has been dismissed by lower level courts, will be heard by the Supreme Court of The Netherlands in December. They brought the summery proceedings for Milosevic on their own initiative - without seeking any money from their client and expecting to lose - because, as Hummels told the press, the case against the former Yugoslav president "is all politics and has nothing to do with the law".

Despite their enthusiasm, the team fell at its first hurdle. The initial requirement of a complainant is to demonstrate that the presiding judge has the capacity and authority to rule on the matter at hand. This means that they have to show that no other procedure or venue is available from which remedy can be sought, and that the case would not be too time-consuming or complicated.

In three hours of argument, Milosevic's lawyers pleaded that the tribunal was an illegal institution - established inappropriately by the Security Council instead of by international treaty. Referring to the UN body as the "so-called tribunal" and a "marionette court", they deemed it "fascist" because of the "undemocratic" way it was established.

Even if the tribunal were a legitimate institution, Milosevic's lawyers argued, it was neither independent nor impartial, and therefore in breach of Article 6 of the European Convention for Human Rights, which guarantees a fair trial. "The tribunal is illegal, so it does not exist. There is nothing there and working together with nothing is unlawful", they told the judge. For these reasons, they insisted, the Dutch courts should take up the case and Milosevic should be released immediately.

District Court Judge Roel Paris rejected all of these arguments. He found that competence for ruling on Milosevic's detention lies elsewhere, mainly with the war crimes tribunal itself. For the most detailed precedent, he singled out the decision on jurisdiction by the tribunal's appeals chamber on October 2, 1995, in the Tadic case. He also noted Article 103 of the UN Charter, governing the obligations of the Dutch state to cooperate with the UN, in this instance transferring jurisdiction for the treatment of the accused to the tribunal. As host state, it merely facilitated the tribunal's activities.

Citing a similar proceeding last year before the European Court of Human Rights brought by another tribunal detainee, former Bosnian Croat commander Mladen ("Tuta") Naletilic, Judge Paris found that Milosevic was "surrender[ed] to an international court which, in view of the content of its Statute and Rules of Procedure, offers all the necessary guarantees including those of impartiality and independence."

The lawyers countered that the tribunal has no proper rules for detention or provisional release, among other flaws. They also insisted that Milosevic's arrest in Belgrade and extradition to The Hague were illegal, both because Serbia allegedly acted in violation of Yugoslav law and because Milosevic was not able to see a judge before being surrendered to another country.

Had the lawyers succeeded in proving that the tribunal was guilty of flagrant breaches of human rights, and that this had involved the assistance of The Netherlands, the judge would have been compelled to take up the case. In the event, however, they made no attempt to show that the Dutch state was in any way involved in Belgrade's decision to transfer Milosevic to the tribunal. Instead, they focused on the existence of a "huge conspiracy between NATO, ICTY, the Djindjic clique and the Dutch state".

But all this argument was to no avail, and the judge remained unconvinced of any unlawful Dutch involvement in the case. He seemed even less moved by the lawyer's claim that former presidents enjoyed immunity from prosecution, asking the lawyers to elaborate on the recent case of the former Chilean president Augusto Pinochet, which they simply ignored.

With his written decision handed down August 31, the day after Milosevic's appearance at the status conference at the tribunal, Judge Paris dismissed the case and returned any further consideration of the issues to the tribunal itself. The trial chamber is likely to provide some response, as the Milosevic's own written presentation to the tribunal echoed the same unruly arguments of the counsel in the Dutch hearing.

Despite the poor and unconvincing quality of the legal pleadings from the Milosevic team, the process of transfers to the UN court must remain open to challenge. If there were indeed serious violations of human rights - such as torture, say, or other physical abuse - the Dutch government surely could not hide behind its commitments under Article 103 of the UN Charter and declare that it was only transporting detainee to the prison, with no responsibility for their treatment.

But according to clear precedent established by the European Court of Human Rights, as long as the rules of detention, provisional release and procedure offer sufficient guarantees of human rights and due process, a government can transfer jurisdiction to an international body and is not obligated to examine each individual case to ensure compliance with European human rights law. Nevertheless, it is likely that Milosevic's lawyers will appeal the summary decision to the Dutch Supreme Court, and eventually to the European Court of Human Rights itself.

If Milosevic's Dutch lawyers let him down on the legal front, their propaganda value was also negligible. After the hearing, reporters were offered printed versions of their 80-page arguments at a cost of 30 guilders (12 US dollars) each - with all proceeds going to a fund "for the benefit of the victims of the NATO bombardments in Yugoslavia". No one bought a copy. One lawyer also spoke to journalists, but only in Dutch, refusing to use English. As a result, the world will never know that all tribunal judges are NATO puppets and that a true and impartial judgement on the deeds of Slobodan Milosevic can never be reached.

Heikelina Verrijn Stuart is a lawyer, journalist and commentator covering the war crimes tribunal in The Hague.