THE HAGUE TRIBUNAL AND THE FUTURE OF SERBIA

Vladimir Krsljanin,

Foreign Relations Assistant to President Milosevic

Sloboda/Freedom Association, Belgrade

(writen: May 2003 / updated and translated from Serbian: October 2003)

George Soros, one of the main sponsors of The Hague Tribunal and of the currently ruling clique in Serbia, received with the full honours paid to him by this clique, demanded recently on the Serbian soil the “independence for Kosovo”. An international conference on Bosnia & Herzegovina is being prepared, supposedly to abolish Republika Srpska. What would be the “legal basis” of such acts?  “Organized expulsion of the Albanians” from Kosovo & Metohija, as well as “genocide that founded” Republika Srpska.  Who creates this "legal basis"? The Hague Tribunal.

- If you knew what you don’t know, would it be in favour or to the detriment of the Accused?

- Certainly, it would be to his detriment.

Approximately thus ran the dialogue between the Prosecutor and a certain de la Brosse who had accepted, although he doesn’t speak a word of Serbian, to appear before the Tribunal as an expert witness, i.e. an expert on the media in Serbia and in the Slobodan Milosevic trial, no less.  If an institution of that class is allowed to judge our modern history without being resisted in an organized manner, we are to lose our state, billions of dollars and any respect from others, as well as the right to consider ourselves a civilized nation. 

Just on its inglorious tenth anniversary, the Tribunal took another Serbian life – that of General Momir Talic. Earlier on, The Hague detention had accelerated the end of Slavko Dokmanovic, Dr Milan Kovacevic, General Djordje Djukic.  Simo Drljaca and Dragan Gagovic were killed while being arrested, and Vlajko Stojiljkovic committed suicide in protest.

The reminder of the inglorious balance of the «first ten years» of the Tribunal is the following: 45 indictments have been brought in against the Serbs, 12 against the Croats, 5 against the Muslims, one against the Albanians, and none against the Americans and their NATO allies. Among those sentenced were 13 Serbs, four Croats and three Muslims. Three Croats and two Muslims were acquitted. These statistics alone speak of bias and the political character of the Tribunal.

1. THE HAGUE TRIBUNAL IS ILLEGAL

Experts from 87 countries, including Professor Smilja Avramov, participated at a meeting organized by the UN on the eve of the adoption of the Statute, or rather before the formal establishing of the Tribunal. None of these experts have pronounced themselves in favour of this new creation. Nevertheless, the Security Council Resolution No. 827 was adopted unanimously on 25 May 1993. The motion to adopt this Resolution was tabled by France. Russia was also among the authors of the Draft Resolution. The “original idea” to establish an international criminal court based upon the Chapter VII of the UN Charter, rather than upon a treaty, is believed to belong to the former UN Secretary-General, Boutros Boutros-Ghali. Even the establishing of the Nuremberg and Tokyo Tribunals had been based upon treaties.  In this case, the law was overridden by a political argument – that such a procedure would take too much time.  Article 24 of the UN Charter assigns the Security Council “primary responsibility for the maintenance of international peace and security”, while Articles 41 and 42 (of Chapter VII) enable it to impose sanctions against countries.  However, the only crime outside the Tribunal’s jurisdiction is the very crime against peace, and the Tribunal itself doesn’t try states at all, but only individuals. The establishing of the Tribunal draws upon the Article 29, which stipulates the right of the Security Council to establish “subsidiary organs as it deems necessary for the performance of its functions”. However, since the Security Council has no judicial function (within the UN system only the International Court of Justice does), it cannot be delegated to a subsidiary organ, either.  

            The Tribunal conducts trials involving acts of grave breaches of the Geneva Conventions. Most of them relate to international conflicts.  However, temporal jurisdiction of the Tribunal was assumed on 1 January 1991, namely seven months prior to the unilateral secession or rather the declaration of independence of Slovenia and Croatia (and two and a half years prior to the establishing of the Tribunal itself). Thus the retroactive application of the principles of criminal law is being introduced, a deviation from the generally accepted. This is because the Tribunal in practice either treats all conflicts as international without proving it, or imposes the application of international norms on conflicts other than international as well. However, this can relate only to the application of these norms by national courts. (N.A. Zverev: Prestupleniya i nakazaniya, Nezavisimaya gazeta, 26 maya 2003g).   

            The exemption of natural persons from a national jurisdiction is possible only if a state has committed an international crime (something which has not been determined by the International Court of Justice, and which is beyond the competence of The Hague Tribunal to determine), or if a state voluntarily agrees to it, by entering into a treaty. Moreover, The Hague Tribunal has only recently started to shyly accept the right of any state to put its citizens on trial for war crimes or crimes against humanity.        

            When ad hoc tribunals are concerned, the absence of universality or rather of equality as one of the basic legal principles is contrary to the principle of sovereign equality of states as well. At the last Security Council session discussing the work of The Hague Tribunal, held in November last year, which was closed to the public, the representative of Russia pointed out the illogical situation of the simultaneous existence of both the International Criminal Court (whose Statute has not been ratified by Russia either, by the way) and the ad hoc tribunals for Yugoslavia and Rwanda (the lack of the permanent International Criminal Court had been one of the key arguments for their establishing).  In his words, the way out of this situation might be sought in the fact that all the states of the former Yugoslavia have ratified the Statute of the International Criminal Court. Unfortunately, this clear diplomatic signal found no response from the Belgrade authorities.

            In the situation when nobody has yet initiated the procedure for providing an advisory opinion from the International Court of Justice on the legality of the decision to establish the Tribunal, the unofficial judgement was passed by Professor Mohammed Bedjaoui, former President of the International Court of Justice, in his book “The New World Order and the Security Council: Testing the Legality of Its Acts”, by including the Resolution No. 827 and the one that preceded it, No. 808, among those legally most contentious and the first that should be subject to test. 

            As a result, the Resolutions No. 808 and 827 do not create legally binding obligations, particularly in view of the Article 25 of the UN Charter, which explicitly states: “The Members of the UN agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. By its advisory opinion of 21 June 1971, the International Court of Justice also confirmed that the Member States are not obligated to carry out the Security Council decisions that are not in accordance with the Charter.

2. THE HAGUE TRIBUNAL IS A POLITICAL COURT

            The statements from the former Prosecutor Louise Arbour, US Secretary of State Madeleine Albright (“mother of the Tribunal”), NATO spokesman Jamie Shea and others, testify to the direct dependence of the Tribunal on the US Administration and the NATO Alliance. At the time of the kidnapping of President Milosevic, the conspicuous link to the NATO Alliance web site disappeared from the Tribunal’s homepage, and that was the only other link there, in addition to the link to the UN website.  

            The Tribunal that should be independent from all governments shows unacceptable bias also in its financing, to which the Government of Saudi Arabia and George Soros contributed or still contribute, in addition to large sums from the UN budget, as well as in recruiting its personnel from the intelligence services of the countries that waged the war against Yugoslavia.   

            The Indictment against President Milosevic and other highest officials of Serbia and the FRY was initiated in the midst of NATO aggression upon our country. There are many examples of a direct connection between the work of the Tribunal and political circumstances. The first Indictment against Karadzic and Mladic was initiated immediately after the attack on Srebrenica had begun, and the second one after NATO bombardment of the Republika Srpska. The Indictments against Slobodan Milosevic covering Croatia and B&H were initiated only after the Tribunal had taken hold of him. The liability of individuals for the crimes against the international law cannot be separated from the liability of states for these crimes. However, The Hague Tribunal conducts trials of individuals, while the liability of states is not determined. 

            On the other hand, the Tribunal’s Prosecution dismissed the motion to indict NATO leaders for war crimes committed during the aggression upon Yugoslavia, by appointing as the presenter the former legal adviser to the Ministry of Defence of Canada. Naturally, the presenter concluded there was no probable cause to initiate investigation.

            The position of the US Administration on the jurisdiction of international courts over its own citizens can be instructive to us as well, at least to such an extent that one of the methods of our defence against biased Tribunal might be to initiate as many proceedings as possible against the US citizens whose liability for the war crimes in Yugoslavia is undeniable. 

3. THE HAGUE TRIBUNAL MASSIVELY VIOLATES HUMAN RIGHTS

            The International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, as well as the practice of the European Court of Human Rights lay down the standards in the area of the judiciary, from which the rules and practice of The Hague Tribunal undoubtedly and drastically deviate. Unfortunately, and unfortunately not by accident, the situation with human rights in Serbia has been recently taking a similar shape as well.

            As listed in their detailed and well-argued “Motion to Appear Before the Trial Chambers as Amicus Curiae”  (tabled as early as September 2001), but naturally completely ignored by the Tribunal, a group of 12 professors from the Faculty of Law in Belgrade, headed by Professor Kosta Cavoski, DSc, the work of the Tribunal shows the following drastic deviations from the aforesaid documents, as well as from its own regulations: 

1. Combination of legislative and judicial functions;

2. Combination of prosecuting function and the function of the judiciary;

3. Violation of the principle of a two-instance court procedure;

4. Violation of the right to liberty under the rules and practices for detention;

5. Retroactive application of the principles of criminal law and the illegality of sanctions;

6. Violation of the right to defence by treating the elements relevant for defence as confidential;

7. Disproportion in working conditions between the Prosecution and the Defence;

8. Violation of the procedural principle by accepting media accounts as common facts;

9. Lack of expertise of the judges to conduct a trial due to their unfamiliarity with the historical, political and civilizational context; 

10. Disregard for the presumption of innocence, or rather the establishment of the presumption of guilt;

11. Violation of human rights during the arrest and extradition, failure to employ habeas corpus;

12. Additional violations of rights in the atypical circumstances of the trial of Slobodan Milosevic (who does not recognize the Tribunal).

            The principle adopted by international judicial practice is the prohibition on extradition of the citizens (even when there is a formal legal basis for it) to a country or a legal system in which the judiciary violates human rights. This is another strong point in protecting the rights of our state and our citizens.

            It is also necessary to activate all the mechanisms for the protection of human rights, both within the UN system (including the personal responsibility of the Secretary-General and the High Commissioner on Human Rights in relation to the Charter), within the International Covenant on Civil and Political Rights and within the European institutions.

            What kind of reputation could such an institution have is well illustrated by the information that while electing, in February 2003, 18 judges for the International Criminal Court (out of 43 candidates), when 85 countries participated in voting, the former President of the Tribunal French Judge Claude Jorda was the last one to be elected, not until the 33^rd round of voting!

4. THE SIGNIFICANCE OF THE DEFENCE OF SLOBODAN MILOSEVIC

            The Hague Tribunal apparatus, amounting to 1,300 employees, is not only unsuccessfully attempting to justify and prolong its existence with the trial of President Milosevic, but is also becoming a controlling factor of the internal political circumstances in Serbia, thanks to its huge intelligence potential (probably the highest concentration of intelligence personnel and experts in the world, dealing exclusively with one country), which has been proven by the events related to the assassination of the Prime Minister Djindjic, illegally imposed state of emergency in the country and the abuses thereof.

            The fact that many of those arrested during the state of emergency were previously making statements to the Prosecution in The Hague, as well as the timing and the manner in which the Tribunal presented to the public the video showing a ceremonial visit of President Milosevic to the Special Operations Unit base in Kula, provide the basis for suspicion of the Prosecution’s involvement in the latest events. This has been further supported by the manner of distributing to the public the insinuations as proved facts, allegedly resulting from the police questioning of detainees, on the involvement of President Milosevic and members of his family in crimes that had caused political damage to nobody but him, by the way.  The Prosecution, whose presentation of evidence leaves a general impression that the Accused is innocent, and the Government that lost the confidence of the citizens, are doing the same job and in an obvious coordination. After the unilateral withdrawal of the counterclaim against B&H and the abandonment of the work on the counterclaim against Croatia before the International Court of Justice, this Government is preparing to formally renounce any legal action against NATO Member States, after the unsuccessful amateurish attempt to compel the court to dismiss the charges against NATO by the futile arguing that we have no right to be a party to a litigation since we were not a UN Member.   

            After the short-lived and limited media effects in Serbia, this whole campaign resulted in preventing contacts of Slobodan Milosevic with the members of his own family, which is a form of psychological pressure on a prisoner, that we recollect only from the times of the Otomans and the Nazis.

            When Slobodan Milosevic is concerned, the magnitude of the violation of human rights is directly proportional to the significance attributed to this trial by the Tribunal. We will list only the most remarkable examples.  The extradition without a valid court decision, in addition to a gross violation of the Constitution, which was adjudicated upon by the Federal Constitutional Court on tree different occasions.  The majority of witnesses have no direct knowledge of the events they testify about. The violation of the presumption of innocence by proving certain criminal acts through the existence of other criminal acts, not determined in court proceedings as committed. Experts basing their “expert analyses and opinions” on the allegations from the Indictment itself, used as a starting point for their analyses. Witnesses and experts employed by the Prosecution. Cross examination limited in time and in subject. Unjust and increasingly frequent barring of the public from the trial. Violation of the right to defence and of the principle of “equality of arms” by the Prosecution that has a huge team and vast material resources, by producing huge quantities of material, impossible even to read in several years’ time and finally practical abolishment of the rifght to defense by granting the defendant only three months (in fact six weeks) to prepare his case while in detention. Conditions in detention and the pace of the trial that amounts to torture of the defendant, who suffers from malignant hypertension and coronary insufficiency, which in addition to the lack of the adequate medical care endangers even the very right to life and health.

            Under all these conditions, even with the fact that he has been deprived of his rights more than any other detainee both in regard to the absence of help from his own state and to the material conditions for the preparation of defence (due to his refusal to recognize the Tribunal, his legal assistants are without fabulous fees provided to all other counsels before the Tribunal), and recently banned from the visits of his other co-workers and associates, Slobodan Milosevic has generously decided to demand only a provisional release to improve the state of his health and adequately prepare the case for the Defendant. 

            The defence of President Milosevic is significant for a number of reasons.   

            In the legal, historical and moral sense, it amounts to the defence of the state and the people from the looming catastrophic consequences of the violation of sovereignty and breach of security of the country, as well as from the double loss as concerns war reparations.  One should be particularly aware here that the Indictments against Slobodan Milosevic include a distorted survey of the entire 10-year history of our country and people. Estimating that period, Slobodan Milosevic said in The Hague courtroom on 26 September 2002: 

            “Waged in this territory were not wars, but only one war, the war against Yugoslavia. This war had been instigated and directed by the greatest powers of the modern world, relying on their internal allies, cadres of nationalism and separatism, with a dominant presence of those forces defeated in the Second World War. This war was waged by all possible means, by media, politically, economically, militarily. This war was at first waged through a decade-long media campaign that abused the monopoly over the global communications, then through a foreign policy intervention, aimed at creating independent states out of the Yugoslav republics, and then through the cruellest multi-year economic campaign and sanctions against the FR of Yugoslavia, that could only be qualified as genocide, and finally – through military aggression.   Namely, in 1995 against Republika Srpska and in the Operation “Storm”, with NATO forces participating in the largest ethnic cleansing ever recorded, and in 1999 – against the Federal Republic of Yugoslavia.”  

            In the political sense, this defence is the factor of preservation of national dignity, after all the troubles that had happened to our peoples and our region. Its content and scope reflect the existence of support and of willingness to help the defence, coming from all the structures of our society.

            As concerns resisting the mechanisms of aggression and pressure that include the Tribunal itself, with the refusal to recognize such a tribunal by the first head of state on trial before an international body and with the major success in defending himself from the indictments that are a fabrication of the joint intelligence services of the US and certain NATO countries, opportunity arose only for President Milosevic of all the people indicted in The Hague to weaken and even to destroy this institution.  

            For all these reasons, the defence of Slobodan Milosevic amounts to a project of national importance.

5. FUTURE WITHOUT THE HAGUE

            Without an organized resistance to The Hague Tribunal, our country and our nation have no future.

            The only organization that vigorously and continually develops such an activity within the country is FREEDOM Association.

            In a situation when not only the activity of the state in that sense is lacking, but also with attempts within Serbia to discredit and even to prevent through threats and blackmail a serious organizing within the non-governmental sector, the Serbian Diaspora has a great opportunity but also a responsibility to ensure both institutionally and materially a required activity and to allow vast potentials existing within the country to be fully activated in defence of the truth and in putting an end to the unjust pressures on our country. 

            This activity could take several directions:

            Organizing of expert teams consisting of domestic and international jurists, who would help activate all the protective mechanisms of the international law. 

            Creating an ambitious “truth foundation”, whose Council would include the greatest names of our science and creativity, and which would invest in projects of national significance related to the affirmation of the truth, in defence at The Hague and against The Hague.

            Supporting the unification into a broad political front of all democratic and creative forces within the country, all patriotic civil initiatives, in order to create a strong alternative to the cloning of The Hague within Serbia, which is carried out by the current regime and to restore democracy, sovereignty and national dignity, so that Serbia could take its deserved place within the European family.

            Life-treathening situation of President Milosevic and of the truth should be defeated by serious mobilizations of creative forces and by mass mobilizations of people. Only this way we can restore our freedom, sovereignty, democracy and self- esteem.