Belgrade vs. the Hague

You Will Not Go to Kosovo

Yugoslav authorities have issued visas to a team of investigators from the Tribunal for War Crimes to come to Belgrade, but not to go to the regions of this year's conflicts

AIM Podgorica, 9 November, 1998

(From AIM correspondent from Belgrade)

The Hague Tribunal seems to have had enough of Yugoslavia: president of the International Criminal Tribunal for the former Yugoslavia, Gabrielle Kirk McDonald, on 5 November called FRY "a rogue state and an international delinquent" because it has refused to allow ivestigators to go to Kosovo to investigate allegations on deliberate murders, unjustifiable destruction, attacks against civilians and robberies committed in the course of this year's conflicts in this province.

The Tribunal had intended to send in the beginning of November a team of investigators headed by chief prosecutor of the Tribunal, Louise Arbour, to collect data on alleged crimes committed both by the Serbian security forces (in Gornje Obrinje, for example) and by the illegal Liberation Army of Kosovo which is fighting for independence of the province (in Klecka, for example).

Visas in Dribs and Drabs

After the agreement reached by president of FRY, Slobodan Milosevic, and US envoy, Richard Holbrooke, Yugoslav authorities started issuing visas in dribs and drabs to investigators of the Tribunal, although it was immediately made nown that Holbrooke had not succeeded in making Milosevic promise that Yugoslavia would comply with the results of their investigation.

Canadian Louise Arbour waited for the visa the longest, and when she did get it - it was limited. On the very eve of her announced arrival in FRY, she was issued permission to stay in Belgrade at the international gathering on the Hague Tribunal which was organised on 7 and 8 November by the Belgrade Humanitarian Law Center, but not to go to Kosovo. Ambassador of FRY in the Hague sent a message to Louise Arbour in which it was clearly stated that "the federal Republic of Yugoslavia does not accept any investigation of ICTY in Kosovo and Metohija generally, nor during your stay in FR of Yugoslavia".

Ever since the Hague, in the early phase of the conflict in Kosovo, became interested in developments in this province and made its intention public to deal with it to some detail, Yugoslav authorities are refusing to even take into consideration the possibility to recognise the authority of the Tribunal to do so. Besides the fact that Yugoslavia does not recognise legitimacy of the Hague Tribunal in general, in the specific case of Kosovo, its stand is that there has been no armed conflict over there, but a legitimate operation of curbing terrorism, and when there is no war there can be no war crimes, so the court for war crimes has no business there. It is true that neither the Security Council of the United Nations, nor anyone else has ever defined the conflict in Kosovo (as a war or anything else), but the Security Council unambiguously demanded from FRY to cooperate with the Tribunal concerning Kosovo. The latest Security Council Resolution (1203) on Kosovo demands "prompt and complete investigation, including international supervision and participation, of all atrocities committed against civilians, and full co-operation with the International Tribunal for the former Yugoslavia, including compliance with its orders, requests for information and investigations".

American Threats

That is why American Kirk McDonald immediately stated that she would "once again report this non-compliance to the Security Council", because "this conduct is not only an affront to the International Tribunal as an institution, it is a direct challenge to the authority of the Security Council". The USA reacted immediately to offer support to the president of the Tribunal and the head prosecutor. James Rubin, spokesman of the Department of State, announced that they "intend to open this question in the Security Council, as a clear example of unmet obligations".

It may easily happen that Security Council adopt a new Resolution concerning refusal of Yugoslavia to cooperate with the Tribunal in Kosovo. What will happen then? If sufficient pressure is exerted, or if there will be some new bargain with Holbrooke, Milosevic might let investigators come to Kosovo, but this is still far from the possibility of FRY extraditing to the Hague any of those who could be indicted. Let us be reminded that Yugoslavia to this day - despite hundred times repeated requests - has refused to extradite the notorious three from Vukovar, Sljivancanin, Mrksic and Radisic, claiming that Yugoslav Constitution does not permit anything of the kind. In this case there is not much sense in pointing out that Yugoslav authorities in many other cases have not become known for complying with their own Constitution, because they have so far been absolutely unyielding concerning the question of cooperation with the Hague, and for the moment there is no indication that anything could change in this respect in any foreseeable future.

Criticism of the Tribunal

Yugoslav arguments for refusing cooperation with the Tribunal are numerous. Lawyers close to the regime claim that the Security Council does not at all have the authority to establish ad hoc tribunals such as those for Yugoslavia and Rwanda, that the Tribunal for Yugoslavia is a political instrument for interference in a war conflict in favour of "certain" parties in this conflict, that it has a series of procedural and organizational weaknesses...

It is interesting, however, that other lawyers also have serious complaints concerning the Tribunal. Probably the gravest and most relevant criticism against this institution was uttered by Cedric Thornberri, former assistant Secretary General of the UN and deputy head of UNPROFOR in the period 1992-1994. Back in autumn 1996 in American journal Foreign Policy, he wrote as follows: "For the sake of attaining peace, Croatian president Franjo Tudjman has become one of the most unbelievable allies of president Bill Clinton; thanks to an even more miraculous undertaking of political spirit-rapping, Slobodan Milosevic has experienced a metamorphosis into an icon of peace in the Balkan".

However, many experienced observers believe that these two men bear the primary responsibility for the past five years of bloodshed. Why are they not on the list of 46 Serbs, eight Croats and three Muslims who are indicted at this moment? Should the international community give advantage to bringing to justice those who seem to have committed serious international crimes, or de facto offer amnesty to those whose cooperation is desirable in achieving success in the peace process?...

Integrity of this process does not allow such barter - amnesty; moreover, not only its integrity, but its efficiency will also be jeopardised if the indictees are going to be only persons who have nothing to bargain with. Should that be the case, credibility of the (peace) process which is shaky in the Balkan as it is, will sink down to zero point.

Roksanda Nincic

(AIM)