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Basic principles of the international law violated
January 25, 1999

Dr Miodrag Matic

In its attempts to solve the Yugoslav crisis the international community made numerous precedents in relation to the existing international law. One of the greatest precedents, or possibly the greatest, is establishing of the ad hoc International Tribunal for suing persons responsible for serious breaking of the international law made in the territory of the former Yugoslavia from the year 1991.

For almost one century the international community tries to found a permanent international criminal court in which would be charged individuals - persons who committed internationally prescribed criminal acts. The UN Committee for International Law for already thirty years has been working on the draft of the bylaws of such a court but the consensus has not been reached yet just due to resistance and hesitation of the states which were so strongly engaged in urgent establishing of the ad hoc Tribunal for Yugoslavia. The main reason for that is their unreadiness to subject themselves to the competence of such an international court and to waive their sovereign rights in the field of judiciary, particularly in relation to their own citizens.

Decision of the Security Council to found a special criminal tribunal for Yugoslavia, and later on for Ruanda, although justified by serious violation of the international humanitarian law in the territory of these two countries and the need to eradicate and prevent them, is a serious violation of the United Nation Charter and the existing international law. Utilization of such an institution is also a unique example of menace of sovereignty of some countries.

Main and basic remark given by representatives of some countries as well as by famous world experts for the international law is that the Security Council did not and does not have any authority to establish such court institutions, particularly as its assisting ones! So far, the consideration of science and practice, including also preparations for establishing a permanent international criminal court, show that it could be done only through concluding a corresponding contract. By ratification of that contract, states would accept the obligation to be subjected to the jurisdiction of that court. CESC's draft on establishing a special court for crimes committed in the territory of the former Yugoslavia also anticipated such a way of accepting the obligation, not the decision of the Security Council. Even the draft of the Organization of Islamic Confederation, which was the most bias in the anti-Serbia campaign, anticipated the bylaws of the Tribunal to be adopted in the General Assembly of the United Nations after the Security Council resolution. Advocates of an urgent establishment of the tribunal avoided the General Assembly.

The second serious remark is that, by establishing the tribunal for Yugoslavia and Ruanda, one of the main principles of the international law, that is principle of universality and sovereign equality of states, was violated. With full consideration of the need for suing and punishing of persons who seriously violated the international humanitarian law, it is difficult to understand that such a court is established only for the cases of Yugoslavia and Ruanda and not for other similar violations which exist in great number in all parts of the world.

Third, constitutions of majority of the modern world countries place a ban on extradition of their own citizens. It is the case with Yugoslavia as well. Some countries, main advocates of establishing the International Tribunal and unconditional cooperation with it, refused to make the decision of the Security Council superior to their constitutional regulations, which they have not charged, but criticize Yugoslavia which cites its own constitution.

Forth, main advocates of establishing the ad hoc tribunal from the very beginning emphasized that this court was intended primarily for persons who committed crimes, i.e. Serbs, and thus the Tribunal got the character of anti-Serbia court even before its establishing. Let us remember the statements of Eagleburger, Albright, and Gensher. Previous indictments of the Tribunal, although in the last months there are some steps forward in indicting Croatian criminals, prove the basic orientation of the Tribunal, i.e. suing of Serbs. Presidents of both Serbian entities, Republika Srpska and Republika Srpska Krajina, were among the first who were indicted, while the prosecutor in Hague do not react when the representative of the international community, responsible for conflicts in the territory of the former Yugoslavia, Carl Bilt openly says that the responsibility of the president of Croatia for "Oluja" and "Bljesak" actions is not smaller then the responsibility of Martic for rocketing Zagreb, although obvious facts are at stake here.

Five, The Bylaws of the International Tribunal do not consider the basic principles of the criminal law, such as principles of nulla points, nullum crimensine lege, and principle non bis in idem, principle of two-stage procedure and others. Regulations of the Bylaws and Rules of the Procedure make even numerous western experts surprised as they completely ignore the principles of modern criminal procedure, introducing matchless cases of "anonymous" witnesses, conditions of serving and reduction of sentences related to the country to which the convict would be sent for serving a prison sentence, and so on.

Six, The Rules of the Procedure for proving are passed by the Tribunal itself, without any approval of any United Nation body, thus the arbitrarity and obstinacy are even more increased. So far the Tribunal has several times changed these Rules thus inducing discomfort and surprise with individual persons and publicity in general.

Seven, experts from just developed western countries (particularly the U.S.A. and Germany) do not see that the Bylaws of the Tribunal do not include basic guarantees for the accused and ignores his rights and privileges recognized by the Pact on Civil and Political Rights, stating a series of obvious evidences for that.

Eight, very small number of countries adapted their legal regulations to the Resolution 827of the United Nations and the Bylaws of the International Tribunal. President of the International Tribunal, Mr. Kaseze said in the UN General Assembly in November 1995 that only 15 countries did it till then. What was with the others, with more than 170 countries?

Analyzing the newly adopted legal regulations of these 15 countries, the most zealous in accepting the obligations from the International Tribunal Bylaws, I found out that even two thirds of these countries, by their regulations for application, practically seriously violated a number of principles and regulations of the Bylaws. Then, what should be expected from other countries that have ignorant behavior toward the Security Council Resolution.

Many politicians, who supported the Tribunal establishing, state that this is a continuation of the principle of Ninberg Tribunal, and mention, such as Mrs. Albright, even acts against peace. However, the Bylaws of the Tribunal exclude from its jurisdiction just the responsibility for these acts, which is the basic thing for determining the guilt for all cruelties and crimes during the armed conflicts. Obviously, it was not recommendable to include that act, as some passionate advocates of the Tribunal establishing most probably would be at the prisoner's dock. Identification of the Ninberg Tribunal and the Tribunal for Yugoslavia is anyhow inappropriate. First of all, the Ninberg Tribunal was established by the contract of states, that is the winning countries. Besides, that Tribunal tried acts without any geographical determination i.e. tried main functionaries of the Hitler's Germany, which caused and made war. The concept of the ad hoc Tribunal is quite different; it formally covers all persons who committed the stated acts, regardless to their functions and degree of responsibility. Thus not only legal but also physical obstacle for the activity of the Tribunal is created. In case the Tribunal, has to try all suspected criminals, it should work for decades and bring a very large number of people to trial, which requires a corresponding volume of the Tribunal staff. So far, main jobs of the Tribunal personnel, especially of the prosecutor's office and investigation are held by the officials of the U.S.A. and some other countries which are "hired" by the Tribunal and still are employed by the governments which have sent them. That also shows to which extend we can speak about independence and objectivity of the Tribunal.

How much the authority of the Security Council to establish such juridical institutions is questionable can be clearly seen in the latest book of the president of the International Court of Justice, professor Bejaui, about the legal control of the United Nations, especially the Security Council. Among eight resolutions of the Security Council, which in the opinion of the author should first come under the control as controversial, there are two resolutions on establishing the ad hoc Tribunal for Yugoslavia, which are Resolutions 808 and 827. However, so far there is not any body in the world community that controls legality of the decisions of the Security Council. And the decision on establishing the International Tribunal was passed unanimously regardless to the mentioned important general remarks (not of science only) and criticism of some countries members of the Security Council itself. Even China and Brazil, who had essential remarks on the authority of the Security Council to pass such a decision, voted for the Resolution.

Political opportunism or pressure? Many experts engaged in preparation of the Tribunal Bylaws and cited in the book openly recognize that the political pressure was used. It in the best way describes the situation in the modern international legal system, where force but not law determines final decisions.

Directly prior to passing the decision of the Security Council, the Yugoslav government officially expressed serious fundamental remarks, particularly concerning the authority of the Security Council, violation of principles of universality and sovereign equality of states, anti-Serbia campaign within which the establishment of the Tribunal was advocated, as well as concerning constitutional obstacles related to extradition of the own citizens. Maybe the seriousness of the problem required much stronger intervention from our side, as in respect of the level according to particular foreign factors of the international community so in respect of time and especially in respect of confirmation of expressed readiness to sue and sentence the suspected persons in national courts. In this way a perfect pressure bar, institutionalized by establishing of the International Tribunal, can present a menace for sovereignty of a country up to the degree unseen in our history.

Without any exaggeration, further activity of the International Tribunal and our relation toward the issues related to it are one of the most serious not only legal but primarily political and existential problems of the state of Yugoslavia.