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Djukanovic Hague Immunity
A leading expert in international law has told IWPR that Montenegrin prime minister Milo Djukanovic may be able to claim immunity from having to testify in the Milosevic war crimes trial.
Djukanovic has caused a storm in recent weeks by publicly refusing requests from prosecutors to give evidence. On September 13, he signalled a change of stance, saying, "A summons from the tribunal itself is a different matter, and if someone is summoned as a witness he has an obligation to respond."
Although this is at first sight an encouraging move, it does not mean Djukanovic is likely to show up in The Hague any time soon. He has made it clear that requests for a voluntary appearance are not enough, and that there needs to be a legal instrument with which he must comply.
Does The Hague possess the means to make him testify? John Jones, the co-author of International Criminal Practice, thinks that Djukanovic's former position as a state official could make it impossible for prosecutors to compel him to appear before the tribunal.
Djukanovic is likely to be a key prosecution witness in the Milosevic trial. It is believed that prosecutors want to ask him about two key areas, the first of which is the 1991 siege of Dubrovnik, when he was prime minister of Montenegro, then a Yugoslav republic. Second, they want to get the inside story on Milosevic's involvement in the Bosnian war in 1993 and 1994, when Djukanovic was a member of the Yugoslav supreme defence council.
In both cases, Djukanovic's position made him one of a handful of people with an inside view of the Milosevic regime.
But these positions may also be his shield, Jones told IWPR. Whereas - under tribunal rules - private individuals must obey a summons to be a witness, anyone who was a state official during the period in question may refuse.
The key issue is the capacity in which Djukanovic would testify, said Jones.
Prosecutors have not made public what evidence they will be seeking from the Montenegrin prime minister. If they want to ask him about events he witnessed as a private citizen, rather than a state official, judges will issue a subpoena - an order to attend. If he ignores this, he would be in contempt of the tribunal. This could lead to a request that United Nations member countries order their police to arrest him.
But it seems more likely that the judges will instead decide that Djukanovic should give testimony as someone who was a state official at the time of the events in question - and that they cannot simply summon him to appear.
"It seems the office of the prosecutor wants him to testify about what he witnessed in his official capacity as prime minister of Montenegro," said Jones. "After all, he attended those meetings as a public official, not as a private citizen. It follows that he cannot be subpoened."
A key judgement on the issue came in 1997, when prosecutors asked Hague judges to compel Croatian and Bosnian Croat officials to appear, and to produce documents in the trial of Bosnian Croat general Tihomir Blaskic. The judges agreed.
But in a landmark ruling, an appeal court reversed that decision, saying that state officials cannot be compelled by the tribunal to testify about matters relating to their official functions. In other words, they enjoy a form of immunity. This applies not just to presidents and prime ministers, but to any state officials, even policemen or civil servants.
The key test is whether a person who worked for the government is being asked to testify about something that qualifies as state business. For example, a postman who saw a war crime being committed must testify, but if he saw a letter about a war crime as part of his job, he might be able to claim immunity.
"With private individuals like you or me, the tribunal could order us to come and hold us in contempt if we refused," said Jones. "But anyone who knows what they know because at the time they were an organ of the state is in effect protected by the fact that their knowledge belongs not to them privately, but to the state."
In this case, the only option will be for judges to issue a binding order. Despite its name, this order is anything but binding, and it would be addressed not to Djukanovic but to the Montenegrin state. If Montenegro ignores it, the tribunal can do nothing except complain to the UN Security Council and hope it puts pressure on the country.
It is theoretically possible that Montenegro could decide to force its president to testify. "The state, if it wants to help, can deliver a state official - they can force one of their public officials to testify," said Jones. "But only a state may force him to do this - not the Hague tribunal."
It is also possible that Djukanovic changes his mind and agrees to give evidence voluntarily. "The Hague may not be able to compel state officials to testify, but nothing prevents those officials from choosing to give evidence," said Jones.
But if that does not happen, the tribunal has no way of forcing Djukanovic to come to The Hague to talk about what he witnessed as Montenegrin prime minister.
Chris Stephen is IWPR's tribunal project manager.
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