Should Milosovec Be Tried at the Hague?
Should Milosovec Be Tried at the Hague?
Using as pretext the recent arrest of Yugoslavia's ex-president Slobodan Milosevic, the author of the following article proposes to offer a brief analysis of the current Yugoslav intellectual climate.
It is most expedient, for our purposes, to begin by identifying the phenomenon hereafter referred to as "the Belgrade consensus" - a set of positions unanimously advocated by non-governmental organizations and liberal intellectuals in Belgrade on the question of Milosevic's legal fate, and concerning the somewhat more complicated problem of what intellectual engagement in today's Yugoslavia entails.
The Belgrade consensus is informed by three arguments: the argument about the validity of the Hague Tribunal, the argument about the political expediency of cooperating with that institution, and the argument about collective guilt. In this treatment we will try to bring into question the legitimacy of all three of these arguments which currently exercise public opinion in Yugoslavia - indeed, as strange as it may sound to your readers, are almost universally accepted in Belgrade's progressive circles. The intellectuals and activists who oppose this consensus have conveniently been labeled 'ultraleftists' and thereby successfully eliminated from the public debate.
Is the Hague Tribunal really legal and legitimate, as Belgrade's liberals contend?
The supporters of Milosevic's extradition most often begin with the assertion that the Hague Tribunal is an administrative body created by the UN Security Council; they seek the legal basis for the assumed duty to cooperate in UN declarations which require member states to accept and carry out its decisions. Furthermore, they see no legal obstacle in the constitution of the Federal Republic of Yugoslavia, since, according to article 17, the option of extraditing a Yugoslav citizen is excluded only in cases involving another state.
And yet, an entirely different picture emerges from our own analysis.
It is indeed true that UN member states have an obligation to carry out decisions of the Security Council, but only in cases in which such decisions are legally valid, i.e. when arrived at in accordance with the specific powers conferred upon it by the UN Charter.
We believe it is well known that The Security Council has been entrusted with the "primary responsibility for the maintenance of international peace and security" which implies its right to investigate any dispute capable of endangering the fundamental values of the so-called international community, as well as the right to recommend appropriate procedures with a view to resolving a particular dispute (Chapter VI of the Charter.)
In case these recommendations prove ineffective and, as a result, there is a breach of peace, the Security Council has the right to apply coercive measures, including those of a military nature (Chapter VII of the Charter.)
Evidently, there is no provision for the Security Council's authority to establish any type of international institution, especially not one of a judicial nature.
For this reason, Article 29 of the Charter which the Security Council invoked in establishing the Hague Tribunal does not constitute a legally valid basis, as it merely authorizes it to "establish such subsidiary organs as it deems necessary for the performance of its functions."
However, as subsidiary organs can only be considered bodies of an expert or operative nature, such as, for example, commissions, subcommissions, committees or bodies of a similar scope.
In this respect, as representative bodies would qualify the many expert commissions attached to other UN organs (the International Law Commission which prepares the blueprints for international conventions) or committees like the well known Legal Committee. As an international court can in no case be a 'subsidiary body' but only an independent institution, so too can this tribunal have no legal foundation, especially not in the above cited Article of the Charter. Consequently, the tribunal is illegalunder international law, and all its decisions so far can accordingly be considered not legally binding
Jurists are well acquainted with the tenet that the independence of the judiciary is the primary basis for its legal competence.
Otherwise, courts are subject to the political dictates of another authority (usually the executive), which is an element of dictatorship.
Moreover, one of the intrinsic characteristics of the contemporary systems of capitalist democracy is precisely the strict division of power into three branches - legislative, executive and judicial: a division which, above all, assumes their mutual independence in the exercise of authority.
In the case of the Hague Tribunal, however, the principle of the independence of the judiciary has been entirely invalidated, although it is a legal and political principle which ought to be fundamental.
In addition, all previous practice in establishing international courts further refutes the claims of those who accept the authority of the Hague Tribunal: in all cases so far on record, the formal and factual shaping of any kind of international tribunal has rested exclusively on the will and interest of states, thereby securing its requisite legitimacy.
Thus, the UN Charter provided the basis for the establishment of the International Court of Justice with authority to resolve disputes between states; all the members of the Charter are ipso facto members of this court's statute.
The International Tribunal for the Law of the Sea was established in 1982 by the UN Convention on the Law of the Sea as a tribunal with a specific jurisdiction.
The European Court on Human Rights was established by the Convention for the Protection of Human Rights and Fundamental Freedoms, which was adopted by the members of the Council of Europe as long ago as 1950.
The Allied agreement of 1945 established the so-called Nuremberg trials for the purpose of prosecuting suspected Nazi leaders; their statute was adopted by the many states with an interest in these trials. The 1948 Convention on the Prevention and Punishment of the Crime of Genocide provided for the establishment of a special criminal court for this type of crime; the fact that it has not been established to this day is a direct consequence of the absence of will on the part of a number of states.
The same reason prevented the establishment of a criminal court for the prosecution of crimes committed by American citizens in Vietnam, which resulted in the formation of Russel Tribunal as a kind of "court of conscience."
Finally, at the international conference held in Rome under the auspices of the UN, the statute for a permanent International Criminal Court was adopted by the will of 120 states (the US of course, voted against it); its taking effect was conditional upon ratification by 60 signatory states.
The above cited examples offer clear insight into the procedure for securing legitimacy for international courts. In the case of the Hague Tribunal this procedure was patently disregarded, whereby this institution was stripped of its legitimacy and this tribunal turned into a scandalous precedent in international practice of this sort.
Such a precedent indicates the likelihood of future disrespect for international standards in this area, particularly the use of such quasi-tribunals to effect the political interests of capitalist elites.
As for the above cited constitutional article on extradition, in our opinion, the estimate of it as legal grounds for the extradition of a citizen of a sovereign state are more than suspect.
As an instrument of international legal aid for criminal cases, extradition applies to citizens of a foreign state; both the procedure itself as well as the conditions under which it is carried out are subject to strict regulation by internal legislatures.
As a rule, however, domestic citizens are not liable to such measures, and a statement to such effect is usually articulated on a constitutional level.
International practice has so far shown that the question of extradition is most often regulated by bilateral or multilateral contracts or else it is executed under the principle of reciprocity.
For our purposes, the European Convention on Extradition concluded by the member states of the Council of Europe in 1957 and amended in 1975 to extend to [those who commit] war crimes and crimes against humanity may serve as an illustrative example.
A particularly interesting detail of the convention is the contractual provision by which states reserve the right to refuse the extradition of their own citizens, even those accused of severe breaches of the laws and customs governing war (article 6. paragraph 1a.)
Here again the standard negative stance on the extradition of a state's own nationals has been expressed.
For this reason we do not see why the FRY should be considered outside the established framework of such practice.
Keeping in mind these facts, which dispute the legality and legitimacy of the Hague Tribunal and indicate the common understanding regarding the option of extraditing one's own citizens, we are free to conclude that there is not a single legal basis for the FRY's duty to meet such demands from the Hague.
To be sure, this is not a position to be construed as an attempt to exempt Slobodan Milosevic, or any other Yugoslav citizen, from criminal responsibility , if it has been established.
In fact, domestic internal criminal regulations require the authorized judicial organs to react in every specific case in accordance with their official line of duty.
Therefore, claims that domestic judicial organs are not competent to carry out such procedures remain unacceptable.
The FRY is duty-bound, as a signatory to the General Framework Agreement for Peace in Bosnia and Hercegovina (article 9) to " cooperate in the investigation and prosecution of those who have committed war crimes and other breaches of international humanitarian law," but, as can be seen, even this article does not provide for the hand-over of Yugoslav citizens.
The argument for the legality and legitimacy of the Hague tribunal - an argument which constitutes the first part of the Belgrade concensus - has thus been stripped of all factual support.
However, is cooperation with the Hague tribunal as useful and politically advantageous as proponents of the Belgrade concensus insist?
Hardly. The handover of Slobodan Milosevic to the Hague would make the Serbs the only people in memory whose president has been extradited and sentenced.
From this situation would follow a host of harmful implications.
First and foremost, it would legitimize the bombing of the FRY by countries of NATO .
The few hundred Serbian and Albanian civilian casualties would be forgotten.
Payments of war reparations for a completely devastated infrastructure would be avoided.
The new military humanism , by now a fully ensconced ideology, would be given its definitive stamp of approval.
The burden of collective responsibility for the wars in the Balkans would be borne exclusively by the Serbs.
Milosevic, a politician who under no circumstances ought to enjoy our sympathy, would be idolized in Yugoslavia as a sort of socialist or nationalist martyr, depending on the interpretation.
Finally, is the extradition of Milosevic our moral duty by which, alone, we can atone for the collective sins of our nation? In order to fully understand and and evaluate this position - on which, as a matter of fact, the entire Belgrade concensus rests- it is neccessary to uncover the origin of this unusual argument which enjoys so much sympathy among Yugoslavia's liberal intelligentsia.
It seems to us that the answer should be sought in the phenomenon of "balkanistic discourse" - the only discourse which, from the point of view of power, has the authority to speak about the Balkans.
If we were to approach the problem of "balkanistic discourse" from Levinas' perspective of "otherness," much popular these days in liberal intellectual circles in Yugoslavia, adopting the primacy of the ethical over the ontological, we could apply the relationship I - Other to Europe and the Balkans: in forgetting that it can build its own identity only through a relationship with the Other , Europe is closing itself off into an essentialist framework and rendering the Balkans an impersonal object of knowledge, thereby annulling their Otherness.
In this sense, knowledge appears exclusively as an extension of power, since the establishment of a Balkan identity stands in the service of immediate political interests.
In our view balkanistic discourse is thus a colonialist discourse which deprives the Other of the right to self-determination.
The historical thesis we present here is not all that original; it assumes a centuries-old, deep European involvement in the political, ethical and confessional state of the Balkans.
The famous myth of ethnic conflicts - "the Balkan powder keg" - is not an effect of inherent, genetic traits, but of a planned revision of the Balkans' ethnic-confessional image and structure, and the constant practice of transferring populations by Rome, Byzantium, the Ottoman empire and the Hapsburgs.
Led by the old Roman strategic motto divide et impera , which, incidentally, itself arose during the Roman campaigns in Dalmatia, the great powers have always sought to prevent the territorial consolidation of the Balkans.
"Balkanistic discourse" came into existence to obscure this sort of political practice.
From "Balkanology" to assorted "experts on the Balkans," the manufacture of knowledge has produced its own reality.
The erstwhile discipline of Austro-Hungarian balkanology provides an excellent example of the ties between academic institutions and centers of power, as well as of how an "Austro-Hungarian Balkans" came into being and acquired a referent in reality.
Today, a renewed connection between "knowledge" and "power" is evident in the correspondence between, on the one hand, the scientific and media-produced image of the Balkans, and the currently prevailing foreign policy attitudes on the other.
The uniform assessment of the Slavic character as primitive and the Balkans as a "repository of evil" allows us to discern an intention to indict as a reliable instrument of control/conquest.
In this way, Balkanistic discourse is characteristic of a method of projection, in that one's own sins are projected onto the Other.
The effective manufacture of knowledge engenders feelings of fear and guilt, and as a consequence encourages uncritical acceptance of imposed, alien values, or heterophylia. ---
One aspect of the construct of a new, fictional "Balkans" is particularly important: the "semantic imprisonment" we are confronted with as a result of linguistic violence, beginning, above all, with the verb "to balkanize," for which most of the world's dictionaries give "to divide" as the primary meaning.
Linguistic terrorism is only one part of the larger process of stigmatization whose aim is the establishment of social control and the imposition of silence upon the Balkan peoples so as to allow others to speak in their name.
Thus everyone can speak about the Balkans but the Balkanites; their right to speak has been taken away by a balkanistic discourse which has imposed upon them the idea of a geographically conditioned collective guilt.
But can such a concept as collective guilt apply to an entire people - in this case, the Serbs?
In writing about the German people's guilt for the crimes committed during the second world war, the German philosopher Karl Jaspers asserts that a people cannot be guilty - be it in a political or moral or criminal or metaphysical sense.
The citizens of a state can be held politically responsible for allowing - through voting, passivity or conformism - the creation of a regime in their state which will go on to perpetrate in their name crimes against its own citizens or those of another state.
Responsibility, however, is not the same as moral guilt.
Jaspers rightly points out that moral guilt applies only to cases in which people are entirely insensitive to the suffering of other people and have unconditionally identified with their army and their state to the extent that they are unwilling to know about the misdeeds being committed by their state's army.
The very concept of a people's collective guilt is founded on two mistaken assumptions.
The first is the idea that "a people," as an entity, is equivalent to all those individuals who belong to it.
Such a categorical, typological designation of human beings has, throughout the course of history - i.e. even when there were no nations and ethnicities , although there always have been divisions into groups - brought enormous misfortune upon human beings by turning them against each other.
The other mistaken assumption treats all members of a given ethno-national group as identical from the outset, as having always shared the same values, the same objects of love or hatred.
Finally, it is worth noting that numerous and serious negative consequences come with the use of the term "collective guilt." I will point out only one.
When an ethno-national group is declared morally guilty, its members inevitably perceive this sort of label as a threat, regardless of whether they believe, as they usually do not, that they have a reason to feel guilty.
The experience of threat to the group causes the group, in defense, to strengthen internal ties and to close itself off from the outside; the group becomes exclusive and homogenized.
This paves the way for an ever greater number of antagonized groups as well as increased antagonism between groups.
In the final outcome those who are marked for collective guilt suffer as much as those who proclaimed them guilty.
The only benefit to be derived is by those who care to have the peoples who inhabit a given region, in this case the Balkans, continue to watch each other over the barrels of their guns, even after hostilities have ceased.
And that is just one, by no means unimportant, reason for which collective guilt ought not be used as either a concept or an argument.
Let us emphasize in our conclusion the need to establish a critical meta-science which would examine the scientific and institutional " manufacturing of the Balkans."
This project must become the responsibility of every genuinely engaged intellectual because what is at issue here is the falsification of knowledge - a falsification subservient to the interests of power.
The formulation of a new idiom, which we could call "balkan discourse" (as opposed to "balkanistic discourse") is the conditio sine qua non of the struggle for the recognition of our own identity, even our own name (the name Balkans has today, surely not for the first time nor by accident, been supplanted by the formal, geographic designation "Southeastern Europe").
The principle of "the Balkans to the Balkan peoples" calls for an immanent consolidation, the realization of the need for Balkan unity, a new internationalist unification which is in the spiritual interest of Europe itself.
Once seen through the prism of our interpretation, all three of the arguments which make up the Belgrade consensus have to be rejected.
Neoliberal ideology, the manufacture of acceptance and guilt, the whole complex of ideas that the liberal mandarins and so-called non-governmental organizations are trying to market need to be opposed by scientific arguments, and intellectual and activist engagement.
In this respect, grass-roots initiatives like the "Initiative for Economic Democracy" offer reasons for a cautious optimism.