Ladies Not Permitted in Kosovo

Last week, Gabriella Kirk-McDonald, President of the Hague Tribunal, called Yugoslavia “a renegade state” and “an international delinquent” because it refused to let investigators of that Tribunal — headed by chief prosecutor Louis Arbour — to assess statements regarding war crimes committed during this year’s conflict.  Momir Bulatovic, President of the Government of FRY, announced that the “esteemed ladies” are permitted to attend a conference on the Tribunal, which was held on October 7 and 8 in Belgrade, but not to also bring to the region investigators who would “serve up judgments which are known ahead of time.”

JURISDICTION: In a statement for the press given on November 4, Canadian citizen Louis Arbour pointed to the fact that five years ago the Tribunal was established through a UN Security Council Resolution — with authorizations to pursue individuals responsible for war crimes committed between 1991 in the territory of the former Yugoslavia — including Kosovo, and that in every one of its resolutions issued this year, the Security Council demanded of FRY that it must cooperate with the Hague Tribunal.  “The Tribunal has jurisdiction over a broad range of infractions which could have possibly occurred in Kosovo.  This includes crimes against humanity, such as murders, tortures, rapes and persecutions.  It also includes infractions or customs of war such as attacks on civilian populations, murders, tortures, cruel behavior, the taking of hostages, injuries to human dignity, unjust destruction of cities and villages and looting,” enumerated Arbour and, because her visa is confined to Belgrade, she refused to attend the conference on the Hague Tribunal organized by the Fund for Humanitarian Law.  Gabriella Kirk-McDonald, who had already prepared a presentation for this meeting, also went along with Arbour.
In the meantime, the President of the Hague Tribunal, with US support, demanded of the Security Council that it “confirm the jurisdictions” of the Tribunal and that it force Yugoslavia into “the status of countries which respect the law.”

However, it is not only the regime in Belgrade, but many lawyers also who question the legality of the Tribunal itself.

JUSTICE FOR OUTCASTS: Ph.D. Zoran Stojanovic, Professor at the Law Faculty in Belgrade, called into question the legal basis and authorizations of the Security Council, at the mentioned conference on war crime tribunals, in forming ad hoc tribunals for Yugoslavia and Rwanda.  Pointing out that the Tribunal was formed from Chapter VII of UN General Principles which deals with threats to international peace, he states that the forming of the tribunal “represents an urgent measure in establishing and maintaining international peace, thus — what is at issue is the realization of a political goal par excellence,” while at the same time it is not known whether the two tribunals, from their founding to the present, actually helped at all in establishing and maintaining peace.  Even if they did, “political goals cannot be the basis and the framework for the founding and operating of a criminal court.”

Quite the contrary, in the presentation prepared for the conference, Gabrielle Kirk-McDonald assesses that thus far the Tribunal has been “fantastically successful”, and that it will continue to develop “jurisprudence in the area of international humanitarian law and to point to other ways in which we are an integral part of the peace process in the former Yugoslavia.”

Stojanovic goes on to claim that the activities of the Tribunal for the former Yugoslavia represents “interference into a military conflict in favor of certain sides in that conflict” and that “ad hoc tribunals are intended to impose special justice to the outcasts of the international community, while permanent members of the Security Council can do whatever they like, without any obligations.”  For her part, Kirk-McDonald agrees that the founding of tribunals just for Yugoslavia and Rwanda, and for no one else “represents the result of diplomatic (or let us say political) negotiations.  However, not forming ad hoc tribunals for all conflicts which would require that, does not diminish the legitimacy of the courts which have been founded.”

HANDING OVER: As far as the basic disagreement between the Hague and Belgrade is concerned — the refusal by FRY to hand over individuals accused of war crimes — Ph.D. Budimir Kosutic, also Professor at the Law Faculty in Belgrade, noted that less than one tenth of the nations in the world (a total of 20) have adopted regulations on cooperation with the Tribunal, even though that, according to the Security Council Resolution, was their clear duty on their founding of the Tribunal.  As an example, Kosutic cited American courts “known for their allegiance to the American Constitution, and not to the political attitudes of different administrations.”  Namely, they refused to hand over the accused citizen of Rwanda to the Tribunal for that county, considering that there is no basis for this in the American Constitution.  At the same time, the French government continued to support the attitude of its generals who refused to testify before the Hague Tribunal.

Other states made a more or less clear distinction between the possibilities for handing over their citizens and the citizens of other states, and here Kosutic mentions “the unprecedented example of Germany.”  Namely, in adopting a law on cooperation with the Hague Tribunal, that state clearly stated that it does not permit the handing over of German citizens to the Hague, for that would constitute the braking of their Fundamental Law.  This could not be criticized, states Ksoutic, if Germany had not taken an critical attitude toward other states which refuse to hand over their citizens.

The attitude of Germany, the USA or any other world power would not be so important if the Hague Tribunal were a completely independent institution.  However, it isn’t — which is clear from the words of Gabrielle Kirk-McDonald that the Tribunal has no way of carrying out its own decrees and decisions, nor can it force states to respect them, but can only fall back on the fact that the Security Council will react if states refuse to cooperate.  Evidently, the Security Council will evidently react in accordance with the political interests of its most important members — and that interest, also evidently, lies more in using the Hague as an instrument in making threats, than in calling to account criminals, especially the most important one.  Altogether, it appears that justice figures very distantly in the background in all this.