Mobilization: a legal aspect

The military sources claim that the mobilization was ordered by the Headquarters, since the Federal Presidency, which by Constitution is solely authorized to proclaim partial or general mobilization, "ceased functioning". The decision was "forced out", since the military units in Croatia were cut off.

The decision is anticonstitutional, if it were made at all, says dr Raiko Danilovic, the lawyer from Belgrade. The 1974 Constitution is still valid, but the Headquarters is placed outside authority. The Headquarters can under no condition proclaim the non-functioning of the Presidency and take over its authority. Even without a presidency the Army will by no means be left without command. Since the Yugoslav Parliament and the Federal Government, being the civil organs superior to the Army, are still in existance, why didn't the Army give over its command to them?", wonders the lawyer Nikola Barovic.

Federal Ministry of Defence in mid-March reported that neither the disappearance nor the halt of the Presidency's proceedings mean that the Army was left without its head.

That is, the Parliament, as the supreme body in the country, can assume command of the armed forces or appoint somebody else for the job. At that time, it was also claimed that the Army, according to the Constitution, is obliged to protect the so-called basic values - the terriotorial integrity, the sovereignty and the independence of Yugoslavia. Should these values be endangered, the Army would need no authorized decision to act.

The problem is that the "basic values", according to the Constitution, include the social framework - socialist self- management - whereas the Army was claiming six months ago that it is no longer defending socialism. And here we are faced with the legally unacceptable gradation: they first wanted to defend all the "basic values", after which they opted for the protection of borders only. After the war in Slovenia, during informal talks, it was learned that the Army was "preventing the international conflict" and "providing the conditions for peaceful and democratic negotiations" about the future framework of Yugoslavia. However, "they can't choose what to defend", says Mr. Barovic. "They are either going to defend everything that is constitutionally outlined, or nothing. Having opted for Army's retreat from Slovenia on August 6, the Presidency not only infringed upon the constitutional authority, but has also committed a criminal act of discrimination on ethnic grounds. The Decision states that the Slovenes (a nation) are no longer obliged to do the military service. From here it follows that all further decisions will be made illegal and non-enforceable. After the criminal act was committed, you can't call upon it in making further decisions." The federal defence law proclaims that the mobilization can be undertaken either publicly or behind closed doors. The lawyers say that non-public mobilization cannot be compulsory, since you cannot comply with the rules you don't know about. Therefore, the reservists are not obliged to respond to the call for mobilization, even less in the case of illegal paramilitary formations.

The law also states that the general mobilization is to be carried out in the case of an imminent war threat and other states of emergency or in the case of an outside agression.

The state of war can only be declared by the Federal Government, the imminent war danger is being determined by the Presidency, and only the Presidency has the right to proclaim the state of emergency - none of which has been done so far. The fact that the war has already started doesn't alter its legal aspect and doesn't solve the dilemma of whether the Supreme Command Headquarters, which only in conjunction with the Presidency acts as the supreme command of the armed forces, should have made the decision on mobilization. More accurately, whether they could make such a decision without having proclaimed a coup or a military dictatorship.

General Kadijevic, federal minister of defence, complained that it was difficult to make the reservists obey the Army, when it has no authority stemming from the proclaimed state of war. He did not hesitate to use the term "mobilization", mentioning the volunteers as well, whose status is particularly suspicious in this chaotic predicament.

According to the federal defence law, the armed forces are allowed to take on volunteers "in the state of war, in the case of an imminent war danger or in other states of emergency". The most illegal act of all is the "transfer" of mobilized soldiers into "volunteers". Even if the war, the imminent war danger or at least the state of emergency was proclaimed, "the volunteers are understood to include individuals who are not army recruits, but have of their own free will joined the armed forces".The whole muddle surrounding the mobilization is helped by the defence law of the Republic of Serbia, introduced two months ago. It claims that "the preliminary stages of the defence within the Republic are being organized, planned and implemented for the defence of sovereignty, independence and territorial integrity of Serbia". It also postulates that "the Territorial Defence of Serbia, as the part of unified federal armed forces, is protecting the independence, the territorial integrity and the constitutionally inacted social framework of Yugoslavia and the Republic of Serbia".

"Yugoslavia and Serbia cannot both be independent and sovereign", comments Mr. Barovic. "If we were to defend the independence of Serbia, we would immediately be in war with the Army, which is defending the sovereignty of Yugoslavia.

From the standpoint of the Federal Constitution and the criminal law, the Act dealing with the defence of the republic's independence implies a call for rebellion". Mr. Barovic detects in this law "the receipe for dictatorship", since it not only involves the formulation by which the Territorial Defence is activated "when the interests of the Republic are threatened" but it also gives the president of the Republic overall authority. Among other things, the president "administers the armed forces in the times of war and peace, including the authority in solving organizational and personnel issues in TD". As far as it is known, even president Tito did not interfere with military personnel issues. Further more, this act is contrary to the federal law, which says that the Federal Presidency has the right to appoint and dismiss the TD commander of republics and provinces "according to the president's stand or the decision of the republic's presidency". The same law states that the municipal TD commanders are appointed by the republic's commander and the president of the republic has apsolutely no authority to appoint anyone.

Mr. Barovic also suggests that the Law is in conflict with many international conventions, since it states that even the children under the age of 15 could be trained for defence purposes. He puts an accent on an Act by which "the interests of the Republic of Serbia as a state and its people are threatened" - which can serve as a "legal" excuse for the activities of the republic TD in whatever region Serbs live. It is interesting to note that none of the deserters received criminal charges so far. Whoever does not comply to the compulsory conscription, will be fined and can even be sentenced to one year in prison. The ones who are in hiding will serve the prison sentence ranging from three months to five years. The ones who leave the country can even get a ten year sentence. Those who encourage others to such a criminal activity can also be legally persecuted. Some lawyers are of the opinion that nobody has been brought to court so far because there are too many deserters. Others claim that large numbers wouldn't prevent the military from charging anyone, but they haven't taken such a step since they are aware of its uncertain legal standing.

The military laws referring to the liberties and the rights of the civilians are fashioned in such a way that anybody in power can act arbitrarily. "They have been modelled in such a way for forty years", says the lawyer Slobodan Perovic, adding that the military laws should not be considered independently either, but in the view of the prevailing legal system in the country. "The present state of the legal system is such that the president of the Federal Presidency Mr. Stiepan Mesic is committing a criminal act by calling in the foreign troups." The prevailing principle in the communist Yugoslavia can be described as follows: tell me what you need and I'll find you a legal backing for it. Now, however, not even such a clumsy cover up is adhered to any more.