ANALYSIS: Making Way for the Law

Draft legislation in Serbia on cooperation with The Hague leaves room for political interference, but the law nevertheless marks a major legal breakthrough

ANALYSIS: Making Way for the Law

Draft legislation in Serbia on cooperation with The Hague leaves room for political interference, but the law nevertheless marks a major legal breakthrough

Authorities in Belgrade have taken two important steps towards preparing the Serbian public to confront the question of responsibility for war crimes.

The latest statement by the Serbian Ministry of the Interior about the freezer lorry containing bodies of Albanians killed in Kosovo for the first time publicly raises the question of Slobodan Milosevic's responsibility for crimes against humanity. Serbian Interior Minister Dusan Mihajlovic said at a press conference last week that Milosevic is responsible for withholding evidence relating to potential war crimes.

At the same time, Yugoslav and Serbian justice ministers, Momcilo Grubac and Vladan Batic, respectively, have announced the federal government's intention to adopt a law on cooperation with the International Criminal Tribunal for the former Yugoslavia.

According to statements in the weekly Banja Luka-based magazine Reporter, which also published what it said was a draft of the law, legislation is being prepared for presentation to the Yugoslav parliament. (It was originally scheduled to be presented at the end of May, but complications have arisen with Podgorica over whether federal or republican parliaments should be authorised to decide on extradition of their citizens to The Hague.)

The law ought to be redundant. As attorney Krstan Simic, a Banja Luka lawyer representing former Republika Srpska president Biljana Plavsic commented, the legislation "should give a political alibi to some institutions in carrying out tasks that they actually have a duty to carry out."

Under existing international law, the obligation of the Federal Republic of Yugoslavia, FRY, to cooperate with the tribunal is indisputable. And according to the draft published in Reporter, provisions of the new law still leave room for political interference, including blocking transfers of suspects to The Hague.

Yet the draft legislation appears to be necessary for the government to extricate itself from the trap in which it has been caught - namely, opposing cooperation while needing western aid. As such, potentially obstructive provisions referring to national security and sovereignty appear to be largely window-dressing to reduce the political backlash.

Under paragraph 4 of UN Resolution 827 - the 1993 founding law on the tribunal - the Security Council requires all states fully to cooperate with the international court, and to comply with requests for assistance. This includes complying with warrants issued by the Court Chamber for the arrest and transfer or extradition of those indicted.

Yet for many years, the Serbian public has been exposed to a propaganda campaign - launched by the previous regime but continued by the new authorities - depicting the tribunal as a tool of the international conspiracy against Serbs.

This campaign propagates the lie that the tribunal was founded to prove the collective guilt of the Serbs. It claims that not a single Croatian, Muslim or Albanian leader has been indicted by The Hague. Its language systematically indoctrinates Serbs and manipulates the emotions of those who fled, referring to "mujahedin who hold the severed heads of Serb youth in their hands", "hundreds of Serbian churches whose bells in Kosovo have not tolled this morning", and so on.

Having successfully created public antipathy towards The Hague, the Belgrade authorities faced a dilemma: how to tackle the enormous economic and social problems evidently requiring outside help.

Their solution appears to have been to try to toss the political hot potato of cooperation with the tribunal onto the terrain of dull and impersonal legal procedure. The apparent aim would be to avoid political debates seeking to pass value judgements on whether the wars Serbia "took no part in" have indeed taken place, what crimes may or may not have been committed, and in whose name. As outlined in the draft legislation, the question of cooperation is reduced to a formalistic matter of processing requests, appeals, court orders and the like.

This approach, of course, will not lead to a full-blown awareness within the country of the necessity of establishing responsibility for crimes against humanity or the inevitability of cooperating with the tribunal. But it may, I hope, solve the immediate problem with The Hague and could open the door to the extradition of those accused of war crimes. Despite continuing resistance, it could start the process whereby compliance with the requests of the tribunal may begin to become legal and automatic, rather than political and controversial.

According to the draft law published in Reporter, the FRY's obligation to cooperate with the tribunal is established by UN Resolution 827 and the founding statute of the court, and should be carried out by the Federal Ministry of Justice.

According to Article 3 of the draft law, requests for cooperation will be complied with if they satisfy two criteria. They must be based on the provisions of the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal for the former Yugoslavia. They must also not contradict the FRY constitution.

This second stipulation opens the question of the extent of cooperation and leaves decisions subject to renewed political arbitration, since supporters of the "legalistic" approach to relations with The Hague continue to insist that those accused of crimes against humanity cannot be extradited if they are Yugoslav citizens. They note that the federal constitution stipulates that no FRY citizen can be extradited to a foreign country. Those favouring extradition (or transfer) argue that this clause is disputable, since the tribunal is a UN-established body and not a foreign country

Furthermore, Article 9 of the draft law authorises the Federal Ministry of Justice to assess whether any act of cooperation could threaten the state's sovereignty and national security. This article does not clarify what steps the federal government might take, besides informing The Hague of any assessment. But evidently this provision, too, opens the possibility for unnecessary delay, useless debates, and continuing politicisation of the question of cooperation.

Yet such stipulations are more likely political cover than continuing obstructionism. They help vindicate the repeated statements that cooperation with the tribunal in fact would be a violation of the constitution and attempt to placate the conscience of the patriotic opposition to The Hague.

The fact is that the formal legal procedures on compliance leave no room for manoeuvre, whatever the complicating provisions. The draft legislation itself explicitly states that conditions for extradition are fulfilled when the identity of the individual as someone against whom procedures are under way is confirmed, and when it is confirmed that the allegations in an indictment are criminal acts under the jurisdiction of The Hague court.

More fundamentally, UN Resolution 827 makes clear that, while states may adopt legislation on cooperation with the court, they have no authority through this legislation to tailor the provisions of the tribunal statute. This includes Article 29, which requires states to comply with all requests from the trial chamber, such as identifying persons, collecting witness statements, finding evidence and documents, detaining and arresting the accused, and transferring and extraditing.

Indeed, through Resolution 827 and the tribunal statute, the Security Council established the priority of The Hague in cases where there is simultaneous jurisdiction of the national courts and international court. At any phase in the proceedings, the tribunal may request a national court to turn a case over to it, and may conduct a re-trial avoiding any manipulation by the national court. This supervision over national courts confirms that the question of state sovereignty is subordinate to that of the jurisdiction of the Hague tribunal.

Thus if the aim of the legislation is in fact to continue manipulating the issue and avoiding obligations towards the court, it is pointless. Yet in light of the prevailing opposition to the court in Serbia - due both to the legacy of the Milosevic regime, as well as the prejudices of the current authorities - it is evident that cooperation would be even more difficult to achieve without the new legislation. Alibi or not, Belgrade has taken an important step to allow politics to make way for the law.

Biljana Kovacevic-Vuco is president of the Belgrade-based Yugoslav Lawyers' Committee for Human Rights.

Balkans, Serbia, Kosovo
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