The Hague Embarrasment

The detention of two officers of the Bosnian Serb Army, general Djordje Djukic and general Aleksa Nenadovic, arrested by the Bosnian authorities on January 30 and extradicted to the Hague tribunal on February 12, incited a public debate on the legitimacy of the act and the work of the tribunal itself.

Official documents to be made public by the tribunal will shed more light on the case and suggest whether the Bosnian and international authorities acted in discord with international law or not. There is no doubt that the Bosnian leadership was authorized to arrest the two officers, provided it had valid evidence incriminating them of war crimes. The authorization to arrest individuals who had violated humanitarian law in times of war was confirmed by the Dayton treaty and stems from the 1949 items I-IV of the Geneva convention on protecting casulaties of war.

Even if they acted in accord with the law, it is highly questionable whether the Bosnian authorities made a wise political move observing the spirit of the Dayton agreement. Much less is it certain that they have strong evidence against two ranking officers who spent most of their time negotiating.

The three sides to the conflict in Bosnia are expected to organize future coexistence; negotiations are therefore necessary, and the main protagonists

of peace talks are precisely ranking military and civilian personnel, whose roles and positions indeed had put them in the position to commit and order

war crimes and thus give the other side a reason to incriminate them.

Negotiations will inevitably become a thing of the past if each side to the conflict starts acting in this manner, which would be in sharp contrast to the Dayton accord. On the other hand, war crimes, acts of genocide and crimes against humanity are never treated as obsolete. The war had come to an end, the culprits were no longer in a position to commit atrocities, so there was no hurry to catch them red-handed and arrest them immmediately.

It seems that all the Bosnian authorities had to was hand in to Djukic and Krsmanovic the incriminating evidence, if there ever was any, the indictments, send a copy to the Hague and inform them that they are on the list of war criminals. Given the determination of the international community to hunt down all suspects and bring them to trial, Djukic and Krsmanovic virtually had nowhere to hide. In other words, it seems the act was motivated by interests which have little in common with a genuine desire to serve justice. If the latter was the case, it would be only logical that the proceedings against Djukic and Krsmanovic should continue in Sarajevo with the Bosnian judicial in charge, in spite of the risk of impeding the implementation of the Dayton agreement. The risk, on the other hand, was something the Bosnian authorities counted on when they decided to arrest Djukic and Krsmanovic.

The deportation of the two to the Hague tribunal is the controversial detail of the entire affair from the legal aspect. It is apparent that the tribunal had not even opened an inquiry into the alleged responsibility of Djukic and Krsmanovic (presumably because there was no incriminating evidence), much less accused them of war crimes. No court, including this one, can demand the detention of an individual by police, prosecuting or judicial methods if there is no reason to suspect that a crime has been committed. The tribunal was therefore obliged to follow the proceedings in Sarajevo, start its own investigation and send representatives to Bosnia to take part in the investigation on the ground, and assess the validity of the presented evidence

before taking the matter into its own hands. In accord with the Statute and its own obligations, the Bosnian authorities would have had no choice but to accept such a course of action.

This way, it remains unclear on what legal grounds the two officers were deported to the Hague, handcuffed and heavily guarded. Things went from bad to worse from the legal point of view once Djukic and Krsmanovic reached the Hague. The tribunal's spokesman said they were being held in custody, as individuals under suspicion. An inquiry has been opened, but it still uncertain whether the two will figure in the Hague as culprits or mere witnesses. The paradox reached its climax when Mr. Chartier said the two would be sent back to Sarajevo's Bosnian authorities if the tribunal establishes that there is no incriminating evidence against them! That would be a little bit too much.

Neither the European nor, for that matter, the anglo-saxon legal system allows keeping witnesses in custody or forcing them to testify, bar heavy crimes punishable by death. If Djukic and Krsmanovic are acquitted due to lack of evidence, the Hague tribunal will find itself in serious trouble.

So would any instituition which dares to arrest innocent people, for people are innocent until proved guilty, cuff them and lock them up like common bandits. Such an error will undoubtedly play into the hands of those accusing the tribunal of anti-Serb feelings, biassed behaviour and being an extended hand of international politics.

There will be question marks over the tribunal's credibility and its reputation of an impartial institution when and if Djukic and Krsmanovic are sent back to Sarajevo. The tribunal's statute was drawn up in accord with articles of the international law, with regard for chapter XVI of the federal penalty law of the former Yugoslavia, adopted by the Bosnian authorities.

There can be no two legal standards in such discord with each other so that Djukic and Krsmanovic are innocent under the tribunal's Statute, but guilty under the Bosnian law. In such absurd circumstances, the only just solution would be to set them free and let them go wherever they want. However, after all that has been done and bearing in mind the present political situation, the likelihood of Djukic and Krsmanovic being found guilty on all counts is almost 100 percent.

From that aspect, vice-president of the Bosnian Serb Republic Nikola Koljevic was probably right in saying that Djukic and Krsmanovic were saved by the Hague tribunal! Anyone in their right mind accused of such atrocious crimes would prefer to stand trial in the Hague rather than Bosnia, regardless of whether the court is Moslem, Croat or Serb.

Another interesting question is whether the two accused officers are entitled to any rights, under the Statute, if they are found not guilty by the Hague tribunal. Even in a country like the former Yugoslavia, an accused indvidual found innocent is entitled to compensation, having been labelled as a criminal, slaughtered by the media and interrorgated by the police.

In the civilized world, law suits demanding compensation for mistrial involve

unthinkably high figures, and courts have no sentimental feelings for their own state when it makes such a serious error. As the Hague tribunal is an international organ, it is unclear frowm who Djukic and Krsmanovic should demand compenstaion. They would most certainly be entitled to one, and that

would only add to the embarrassment of the Hague tribunal.

If the court establishes there is reason to prosecute the two officers, the embarrassment will be diminished to a certain extent. However the sour taste of injustice will remain, because the procedure has been violated on a number of counts. Local dilettantes, when law is the subject, believe that procedures are always a formality bearing no significance to a particular matter That is essentially untrue. A criminal procedure, like any other, is a basic postulate of legitimacy and ensures that judicial and all other authorities do not exceed the boundaries stipulated by law. It also guarantees each and every individual that their rights will be respected.

Violating procedures leads to voluntarism and abuse of law, which is a severe blow to the credibility of any institution that chooses to violate and ignore the rules.