TIBOR VÁRADY
Central European University, Emory University (Emeritus)*
One of the dreams of the opposition to Milošević’s rule was the establishment of the rule of law. Milošević did wind up facing justice, but the way this happened raises questions about whether it indeed contributed to the rule of law. First, Milošević’s transfer to the Tribunal relied on a dubious constitutional provision that itself undermined respect for the legal process. Second, the controversy over the Supreme Defense Council minutes, which were never considered in the Bosnian Genocide case before the ICJ, is premised on a speculative belief in those documents’ transformative potential for the case and, implicitly, for the country; in fact, the reasons the documents were withheld are likely much more conventional. Such speculation demonstrates both the momentous nature of the question at issue in these two cases, and the degree to which the termination of the Milošević trial left behind it an ambiguous and unresolved legacy. Finally, in the specific circumstances of the Yugoslav conflicts, pursuing legal disputes against states, as in the ICJ Genocide cases, was neither logical nor purposeful. The idea that state-centered legal processes can adequately represent conflicts fought along ethnic lines asks too much of the law, and conceals too much about those conflicts. Certainly, in the ICJ cases spawned by the Yugoslav conflict, juxtaposing newly emerged, multiethnic states as parties to legal disputes was not sustainable. The actual countries that underwent these wrenching conflicts were, and are, complex; treating them as unitary legal subjects simply masks their internal ambiguities and the choices those imply for law and politics.
During the years of Milošević’s rule, one of the dreams of the opposition was the establishment of the rule of law. At that time there was no better metaphor for this than seeing Milošević stand trial; we thought that if Milošević faced justice, this would mark a triumph of the rule of law. Nor was it only a metaphor: In times of transition, it is extremely important to establish a firm foothold in the rule of law.
Milošević did wind up facing justice, of course, but the way this happened opens the question if this was, indeed, a confirmation of the rule of law. Shany’s chapter points out some of the intricacies of the situation: Many Serbs viewed the transfer of Milošević (instead of holding proceedings in Serbia) as a “national humiliation.”1 It is also true, however, that many others wanted to send Milošević to The Hague, and wanted this to be a symbol of a clear turn toward the rule of law. It was not easy to reconcile the two.
Indeed, Professor Grubač, who became the first federal Minister of Justice in the post-Milošević era, has written about the quandaries he faced concerning the transfer.2 The international obligation of the FRY to cooperate with the ICTY was clear, but it was less clear if it was possible to proceed—as the ICTY insisted—without implementing legislation.3 Furthermore, the Constitution of the FRY, enacted in 1992, prohibited extradition of citizens,4 and the Yugoslav Code of Criminal Procedure made this prohibition even more explicit.5
What Minister Grubač wanted was a federal legislative act that would have superseded or bypassed the Code of Criminal Procedure, by drawing a distinction between extradition to a foreign country and transfer to an international tribunal—a view that has indeed prevailed in many circumstances involving the ad hoc tribunals.6 The draft was prepared as a matter of priority, but it soon became clear that the Montenegrin representatives in the Parliament would block it. The possible solutions were to persuade the Montenegrins, or to wait for elections in Montenegro. Both options would have taken considerable time, and international pressure for transfer was mounting. International negotiators were, of course, not opposed to the rule of law, but it seems that they underestimated the momentum and complexity of the situation—and also, they were also driven by the ambition to put a negotiating success on their personal records.
In this situation, the draft legislative act prepared by Grubač was practically copied and submitted to the federal government in the form of a government decree. This ensured a dramatically streamlined process: There was no political group (or political power) within the federal government that could have blocked adoption of the decree, although it was, of course, questionable whether a government decree could supersede the legislatively enacted Code of Criminal Procedure. The Decree was, indeed, adopted by the government,7 but was challenged before the Constitutional Court.8 Before rendering a final decision, the Constitutional Court issued an interim measure prohibiting the application of the Decree with regard to the transfer of Milošević. In the meantime—as is pointed out in Shany’s chapter—the pressure for transfer mounted, and it became clear that sorely needed international aid would depend on transferring Milošević.
The Đinđić government relied on a rather idiosyncratic provision of the 1990 Serbian Constitution, which stated that if acts of federal authorities jeopardize the interests of Serbia, Serbian authorities are entitled to take protective measures.9 On this ground, the interim measure issued by the Constitutional Court was disregarded, and Milošević was transferred by the Serbian authorities. Reliance on the Serbian Constitution—known, ironically, as the “Milošević Constitution”—was questionable at best. Article 135 actually speaks of acts of federal authorities undertaken in disregard of the rights and duties of those authorities under the Federal Constitution—reserving to Serbian authorities the right to decide if acts of federal authorities were in accordance with the Federal Constitution.10 Even accepting the questionable logic of Article 135, it was really difficult to argue that under the circumstances, the Constitutional Court’s provisional measure was issued in disregard of that Court’s own rights and duties under the Federal Constitution.
The situation was a difficult one, and it is not easy to tell whether waiting would have been the better approach. It was certainly in line with justice—and also the international obligations of the FRY, of which Serbia was a part—that Milošević be delivered to The Hague. Still, the way this was achieved—relying on a dubious constitutional article, which itself represented an approach to law and politics that had undermined respect for the legal process*—means that this was not clearly a triumph of the rule of law: If the transfer was supposed to achieve not only justice but renewed respect for the rule of law, its legacy for Serbia is ambiguous.†
Concerning the nondelivery (or restricted delivery) of the minutes of the VSO to the ICJ, Shany’s chapter offers a hypothesis about the character of these documents and the impact they could have had on genocide cases before the ICJ—Croatia v. Serbia and Bosnia v. Serbia.11 His hypothesis is certainly plausible—it is indeed conceivable that these “state secrets” contained information that could have jeopardized the position of Serbia before the ICJ—but there are other plausible explanations as well.‡
Not many people had a clear understanding of the proceedings before the ICJ, and not many people knew exactly what would jeopardize the interests of Serbia in the case. What would have been really dangerous for Serbia were not just documents about Serbian crimes—even less crimes of Bosnian Serbs—but only documents that could have specifically linked Serbia with genocide. The holders of these documents had a much more general picture; they also wanted to avoid any possible personal liability, in Serbia, for failing to insist on measures of protection.
In a similar vein, commentators who speculate that these documents would have provided evidence of Serbia’s role in the Bosnian war have often left out of sight that this would not necessarily have made them relevant before the ICJ. Bosnia’s complaint was raised under the Genocide Convention, and the jurisdiction of the ICJ extended only to genocide; hence, only documents evidencing complicity in genocide could have had relevance. Other documents could have brought serious embarrassment, but could not have changed the ICJ’s decision. Without knowing the content of these documents, one cannot rule out that they contain some evidence that is relevant, even with regard to genocide; yet it is also a plausible assumption that although these documents contain evidence of misconduct and crimes, they cannot sustain or support the allegation that Milošević or Serbia was responsible for genocide.
Nor should commentators assume the documents are particularly incriminating simply because they were withheld. There are many reasons a state might withhold such materials. Quite a few countries have denied submission of documents to the ICTY, or have placed restrictive conditions on the use of documents submitted, relying on considerations of national security.12 In Serbia’s case the holders of the documents (just as holders of some documents in other countries) may have intended to save their country from adverse publicity. (We might wonder if this was a sensible strategy: The questions raised and the guesses made about the content of the documents may have produced even worse publicity.) Compared with other countries, Serbia had an added argument to refuse (or rather to insist that parts of the documents remain secret), and this was to protect its interests in the ICJ cases. This is one plausible way of interpreting Svilanović’s comment to Del Ponte about the relationship between the genocide charges against Milošević and the ICJ case.*
These various interpretations are all plausible, and most external observers are not well-positioned to decide among them. That they nonetheless do speculate—and in many cases assume that the missing documents constitute an elusive proof—demonstrates both the momentous nature of the question at issue in these two cases, and the degree to which the termination of the Milošević trial left behind it an ambiguous and unresolved legacy.
One of the main issues dealt with in Shany’s chapter is the (uneasy) relationship between individual and collective responsibility. It is quite easy to conclude that individual responsibility provides a clear and irreducible path to justice; we may criticize the precise mechanism and the actual functioning of the ICTY, but it would be difficult to criticize the main underlying idea. Collective responsibility, on the other hand, is necessarily a construction, and not always a sensible one. In the specific circumstances of the Yugoslav conflicts, pursuing disputes against states was neither logical nor purposeful. Shany’s chapter relies on the agent–principal relationship. This is certainly a reasonable approach in general, but does it reflect reality? Did Milošević have a principal? There was a time during the conflict in Croatia when the president of the Yugoslav Presidency was Stipe Mesić. Was Mesić—or the SFRY headed by Mesić—a principal of Milošević?
It is unquestionable that compensation of victims (or their relatives) is more realistic in the context of state responsibility. But this logic is more persuasive, and the situation more clear, when the claimants are individuals. When the claimant is not an individual but a state, that state will get the compensation, and it is difficult to predict how the compensation will be distributed.
A critical problem in the setting of the Yugoslav cases—and of Bosnian Genocide in particular—lies in the fact that the parties facing each other before the ICJ are simply not identical with the parties that faced each other in the actual conflict. Endeavoring to find a response to the devastation it suffered during the war, Bosnia tried various fora. It was quite difficult to articulate actual grievances in the context of disputes among states, yet given its limited options, Bosnia nonetheless pursued this route. For example, in November 1993, Bosnia sent to the UN General Assembly and the Security Council a “Statement of Intention,” in which it declared its “solemn intention” to institute legal proceedings against the UK for violating the Genocide Convention, claiming that the UK’s insistence on maintaining the arms embargo had aided and abetted genocide.13 This path was eventually abandoned, but it suggests the difficulty even in more facially plausible cases such as that brought against Serbia.
Furthermore, the Yugoslav conflicts brought about the dissolution of Yugoslavia, and part of the conflicts—particularly those in Croatia—took place prior to the dissolution. If one treats states as the perpetrators and victims, consequential problems arise: There were, indeed, many Croats who suffered in 1991, but there was as yet no Croatia as a subject of international law—and no FRY yet either. A construction that juxtaposes states emerging from the former Yugoslavia—and insists on state liability—is actually focusing on states that did not exist at the time when some of the crimes took place. (There were some attempts to rely on the in statu nascendi concept,14 but this made the construction even more artificial.) Another problem with regard to state liability before the ICJ arises from the limitations on the court’s jurisdiction. Because in the Yugoslav cases the jurisdiction of the ICJ is limited to genocide, the proceedings—with their focus on state responsibility—simply cannot yield a comprehensive picture of the conflict’s reality.
And, perhaps most important, the actual conflict underlying the Bosnian Genocide case was an ethnic conflict. Had two true nation-states been fighting, they might plausibly have personified and represented the actual combatants before the ICJ, but this was not the case. The dispute that was brought before the ICJ was between two multiethnic states, Bosnia and the FRY, later Serbia. This construction was simply at odds with reality—and hardly conducive to justice. Following the ICTY, the ICJ established that the VRS committed genocide at Srebrenica.15 As a factual matter this is unobjectionable, but it is not clear how this can be meaningfully understood within the actual legal dispute, considering that the VRS is affiliated with the Applicant—that is, the victim!—as the RS is a unit within Bosnia.
The idea that state-centered legal processes can adequately represent conflicts fought along ethnic lines asks too much of the law, and conceals too much about those conflicts. Certainly, in the ICJ cases spawned by the Yugoslav conflict, the construction that juxtaposed newly emerged, multiethnic states as parties to the dispute was not sustainable. The actual countries that underwent these wrenching conflicts were, and are, complex; treating them as unitary legal subjects simply masks their internal ambiguities and the choices those imply for law and politics.