Carla is Knocking on the Door

One of the “clean” solutions would be for the former president of the Federal Republic of Yugoslavia to be extradited to The Hague, together with his closest associates who were also indicted in the international criminal tribunal for war crimes committed in former Yugoslavia.

The former regime claimed that the Yugoslav constitution expressly forbids the extradition of our citizens. Along with that, they kept repeating that the UN Security Council wasn’t even authorized to create an ad hoc tribunal, that the tribunal for Yugoslavia is a political tool for interfering in the war conflict to the advantage of “some” sides and similar – although Milosevic must have been aware of it all when he signed that FRY is obliged to cooperate with The Hague court in Dayton. The Dayton Agreement doesn’t mention anywhere that extradition is an obligatory form of cooperation – but, as is understandable, it doesn’t exclude that possibility.

There were lawyers who, even in Milosevic’s time, spoke about The Hague differently, and a few days ago the renowned constitutional lawyer Pavle Nikolic stated that no constitutional obstacles existed for extradition, since it isn’t extradition to another country, but to an international court founded by the United Nations – which essentially changes things.

WAR CRIMES: Together with his closest associates Milan Milutinovic, Vlajko Stojiljkovic, Dragoljub Ojdanic and Nikola Sainovic, the former Yugoslav president was indicted in The Hague tribunal in May 1999, at the height of the bombardment of Yugoslavia.

He is charged with war crimes against the civilian population in Kosovo, i.e. murder of almost 400 Kosovo Albanians (of which over 70 older people, more than 30 women and more than 20 children) in Racak, Bela Crkva, Velika and Mala Krus, Djakovica and Crkolez in January, March and April of 1999.

The chief prosecutor of the Tribunal Carla del Ponte announced in the autumn of that year that she would charge Milosevic for genocide as well, i.e. broaden the indictment to crimes committed in Croatia and Bosnia and Herzegovina as well as in Kosovo during 1998. That, however, wasn’t done – at least not publicly – and the results of the thorough work of The Hague’s investigators haven’t even confirmed allegations from the already existing indictment.

“Our priority, understandably, had to be to  investigate those locations which were cited as scenes of crime in the indictment against president Milosevic and other leaders”, explained Carla del Ponte in autumn of 1999, summing up the results of the first round of investigations of the alleged mass graves in Kosovo. Still, the results weren’t exactly what was expected: the indictment, for example, quoted that 130 men were robbed and then killed in the Drenica village of Izbica on March 28, 1999 by the Serbian and Yugoslav forces. Instead of corpses, only freshly dug up earth was found. Many of our local lawyers and analysts, including those who are least inclined towards Milosevic, think that The Hague indictment is very thin and that a good lawyer could defend it.

Some believe that an extradition of Milosevic to The Hague would be good for political stability in the country, that it simply isn’t healthy that he continues to be here. 

NEWTON’S LAWS: The problem lies in the fact that in The Hague tribunal Milosevic would only answer for war crimes – since the tribunal was exclusively founded for that purpose – and not for other criminal acts which the citizens of Serbia believe he had committed. “The only laws which Milosevic didn’t violate are Newton’s”, stated Boza Prelevic, the former judge, at one time, before he became a co-minister of police in the intermediary government of Serbia. If Milosevic was tried in our court, he could answer for war crimes – since international conventions which forbid war crimes and crimes against humanity exist in our laws as well – along with the heterogeneous abuse of power, from political to financial.

A layman, while leafing through the Penal Code, would probably recognize Milosevic’s model of rule in every other article. Among others, the following criminal acts are cited there: instigating an aggressive war; instigating genocide and war crimes; war crimes against the civilian population; instigating nationalistic, racial and religious hatred; disruption of the reputation of a foreign country; disruption of the reputation of an international organization; abuse of position; disruption of the uniform Yugoslav market; creation of a monopoly… 

THE HAGUE’S MONITORS: At least two important questions exist when talking about the possibility of trying Milosevic in a local court. The first being – would The Hague tribunal, i.e. the UN, deem that FRY had fulfilled its international obligations by that? The second is – are our courts capable of carrying out such a serious task? An unconditional answer doesn’t exist for either of these questions. The statute of The Hague’s tribunal allows the indicted to be tried in his country, if the trial is conducted under the strong supervision of the tribunal. Therefore, their people would closely follow the trial, and could either deduce that the proceedings were correct and that justice has been served, or that it wasn’t all right – in which case they would request that the indicted stand trial in The Hague. Namely, the tribunal has primary authorization for war crimes for which the indicted has been charged in the tribunal, and they could try him again for the same crime if they assess that the local court has proclaimed authorization for itself only in order to disable the authorization of the tribunal.

However, the question arises whether our court would process the evidence on war crimes gathered by the Tribunal, or would have its own evidence. Experts assess that it is highly unlikely that an international court would allow itself to service a domestic court – even if it is to do with Milosevic.

STATE OF THE COURT: When talking about the state of our judiciary, the unanimous opinion of lawyers and other citizens is that it is – horrible.

Zoran Ivosevic, a former judge of the Supreme Court ousted in one of the purges of the former regime, recently stated that no “decent judiciary” exists in Serbia in which the issue of legal responsibility of an individual could be addressed. For VREME, he recaps some of the key moments of “contamination” in that field, the former threat of the leader of the radicals Vojislav Seselj that he would impose order in the judiciary – which is what he did, bringing “his” people into the judiciary, proportional to the representation of his party in the federal and republic parliaments. A few years ago the following statement was famous that “truckloads would bring judges to Belgrade” in case they continue to hand in their notices due to their desperately low earnings. One of those judges “from the trucks” threatened a court expert with a gun in one of Belgrade’s courtrooms who wasn’t to his liking. Even after the fall of the former regime the majority of the presidents of the courts have remained in office through which the executive government influenced the judiciary…

According to Ivosevic, the main problem doesn’t lie in the fact that there isn’t a sufficient number of  good lawyers left in the courts. A sufficient number of good professionals still exists who kept quiet in Milosevic’s times due to opportunism, but who would now, when the danger has passed, know how to conduct trials according to the law. Beside that, the easiest thing of all would be to rehire the numerous ousted judges. The real problem lies in lost confidence in the courts.

“IN NAME OF THE PEOPLE”: “An independent court should be a pleonasm, but it isn’t”, says Zoran Ivosevic, reminding that the courts were mostly compromised in delicate, politically important court cases. Milosevic’s trial would be a serious political trial – but the huge problem is who could objectively try him here in “name of the people”. The worst of all possibilities would be if Milosevic’s trial was to be turned into a charade resembling the trial which, prior to the September elections, was held for the western leaders due to the bombardment of FRY, when the judge in the district court in Belgrade – brought in from Cacak for that occasion – opened the proceedings by shouting: “Let William Clinton and others enter!”

Dr. Vojin Dimitrijevic, the director of the Belgrade Center for Human Rights, also doubts that Milosevic would get a fair trial here. "He would either be tried by those he had persecuted or – even worse for the former president – by his former proteges who now feel they have to ingratiate themselves with the new government.” Dimitrijevic believes that the first step in reestablishing order in the judiciary must be to return all the ousted judges back to work.

Milosevic’s eventual trial in a domestic court opens up the question of readiness of the domestic public to face up to war crimes committed in its name. The co-minister of justice in the intermediary government of Serbia estimated at the end of last year that Milosevic should be tried in The Hague tribunal: “We cannot provide a judiciary of such quality which could try Milosevic… His departure to The Hague is also important because people here still aren’t aware of everything that had happened, because awareness still doesn’t sufficiently exist of the amounts of crimes which have been committed by this country and in its name.”

The future prime minister of Serbia Zoran Djindjic in an interview to B92 last December said that “Slobodan Milosevic has to go to prison because he had ordered electoral theft, many assassinations and led wars”, as well as for transferring billions of dollars into his accounts and to the accounts of his associates abroad.

Vladan Batic, the candidate for justice minister in the future government of Serbia, said a few days ago that according to the Yugoslav Penal Code, Milosevic could be prosecuted, among other things, for criminal acts of accepting capitulation and occupation.

However, other opinions exist that the Yugoslav judiciary is in a bad shape, but not to such an extent that Milosevic couldn’t be tried in a serious manner.

INTERMEDIARY SOLUTIONS: Between extraditing Milosevic to the Hague and trying him in domestic courts, a few intermediary solutions exist.

For example, a possibility is already mentioned that The Hague tribunal could try him in Belgrade, which the statute of that court allows. That would bypass the problem of extradition. However, so far it is unknown whether the Tribunal would agree to that because – among other things – it would probably soon have to face similar demands from Zagreb, and possibly from other places as well.

This version, as mentioned by Dr. Dimitrijevic, would technically be very complicated: the presence of the indicted would have to be guaranteed along with his security, the free presence of the witnesses and their security – as well as the presence and security of the other indicted people amongst whom, as is known, is the current president of Serbia, Milutinovic.

The departing US secretary of state Madeleine Albright, in recent talks with Yugoslav foreign minister Goran Svilanovic in Washington stated that the US “wouldn’t be against if Slobodan Milosevic was to stand trial for war crimes in Belgrade, but under the jurisdiction of The Hague tribunal”, although she repeated that one of the key conditions for continued inclusion of Yugoslavia into international integration is full cooperation of the Yugoslav government with The Hague.

WHO DECIDES: Understandably, Albright isn’t – at least not formally – authorized to determine the modalities of the trial for the former Yugoslav president, and stated that the government in Belgrade and Carla del Ponte should come to an agreement on this. However, the prosecutor, via her spokesman, has already stated that Milosevic and his associates have to be tried in The Hague. It isn’t absolutely certain whether she is the one who will decide on this issue, since domestic experts claim that the decision lies in the hands of the president of The Hague court, Claude Jorda. Anyway, it is clear that this isn’t only a legal but also a political issue, and that The Hague court won’t be the only one consulted on everything.

In any case, a lot more will be said on the issue of Milosevic’s trial. Carla del Ponte’s visit to Belgrade has been announced for January 22, and the US has sent a message earlier that they expect some very concrete steps to be made on the plan of trying war criminals until March 31. The President of FRY Vojislav Kostunica didn’t have a single nice word for The Hague tribunal thus far, on the contrary. However, minister Svilanovic who was personally handpicked by Kostunica for the job said in Washington that FRY will “respect its obligations towards The Hague” since that was “accepted in the Dayton Peace Agreement”. He also added that all those who had committed war crimes must face charges in court, and that he exchanged a “few ideas” with Albright in connection to The Hague’s indictment against Milosevic. He didn’t, however, announce any readiness in FRY to extradite Milosevic to The Hague, but – probably intentionally vaguely – said that the Yugoslav government is open to the idea that those indicted for war crimes “be tried in cooperation with The Hague tribunal on FRY territory”. The circumstances in the country can also be somewhat evaluated by the fact that Svilanovic’s statement on the readiness of trying Milosevic in Belgrade in cooperation with the tribunal was immediately opposed by its nominal chief, federal prime minister Zoran Zizic, who said that it deviates from the official stand of the federal government. Beside Zizic, the Socialist Party of Serbia protested as well. An item could be found in the newspapers that SPS deems that Svilanovic’s stand on fulfilling the obligations towards the tribunal is “contrary to national and state interests of the Serbian people and the governments of Serbia and Yugoslavia”, and that by “accepting a political tribunal to try the defenders of our homeland” is nothing other than “renouncing the state and the people from their right to self-defense”.     

However, the SPS president should have thought about all of this a lot earlier.