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Human Rights Watch Open Letter to Yugoslav President Vojislav Kostunica
March 2, 2001
President Vojislav Kostunica
Bulevar Mihaila Pupina 2
11070 Novi Beograd
Human Rights Watch is a privately funded international non-governmental organization dedicated to documenting human rights abuse throughout the world. In the past ten years, we have committed substantial time and effort to investigating violations of human rights and humanitarian law in the former Yugoslavia. We have documented violations of humanitarian law by all sides to the armed conflicts in Croatia, Bosnia, Kosovo, and the NATO war against FR Yugoslavia. We have also conducted substantial research on human rights abuses by the government of Slobodan Milosevic against ethnic Albanians in Kosovo and his political opponents in the rest of Yugoslavia. Our current research focuses on continued ethnic violence and the impediments to the return of displaced persons throughout the region.
Legal accountability for human rights and humanitarian law violations is a principal theme of our work throughout the world. Time and again we have concluded that accountability is critically important to efforts to rebuild societies that are governed by the rule of law and that respect human rights. We have supported, and in some instances actively assisted, efforts by national governments to establish the responsibility of perpetrators of gross human rights abuses. We have also supported the work of the ad hoc international criminal tribunals for the former Yugoslavia and for Rwanda, which were founded because domestic courts were unable or unwilling to provide justice. We are currently monitoring efforts to establish hybrid national-international tribunals for Cambodia and Sierra Leone. Finally, Human Rights Watch has been extensively involved in the effort to establish a permanent International Criminal Court.
For these reasons, Human Rights Watch is following with particular attention the new Yugoslav government's position concerning the issue of accountability of persons indicted before the International Criminal Tribunal for the Former Yugoslavia (ICTY). We are concerned with the approach that some in the government have taken to the issue. Various statements by government officials suggest a continued unwillingness by the government to cooperate with the ICTY. Such attitudes threaten the cause of international justice and the quest of victims and their families throughout the former Yugoslavia for accountability for the crimes committed against them. What is more, these attitudes are likely to affect the developments in the FR Yugoslavia and the region in a negative way.
Arguments raised by those Serbian and Yugoslav officials who oppose meaningful cooperation with the ICTY are untenable. The obligation of FR Yugoslavia to cooperate with the ICTY, including the surrender of those indicted for war crimes, is clear as a matter of international law and the promotion of international justice. It is regrettable that some in the new government in Belgrade overlook these facts and continue to use the very same anti-ICTY arguments championed by the previous government.
One such argument is that the Yugoslav constitution "prohibits extradition" to the ICTY. Mr. President, you advanced this argument in a recent statement published in the daily newspaper "Glas Javnosti" (January 13, 2001). This interpretation of the Yugoslav constitution is manifestly wrong. The pertinent provision (article 17 (3)) of the Yugoslav constitution states: "A Yugoslav citizen may not be deprived of his citizenship, deported from the state, or extradited to another state." The constitution says nothing about transfer to an international tribunal. An international tribunal is not a "state," nor should it be treated as one for purposes of interpreting the Yugoslav constitution. Another "state," to which the Yugoslav constitution prohibits extradition, represents a competing authority with equal sovereign power to that enjoyed by FR Yugoslavia. The international tribunal, by contrast, represents the superseding authority of the United Nations, to which states, including the FR Yugoslavia, have transferred a part of their sovereignty and competencies.
The very use of the word "extradition," in the discussion on the cooperation with the Tribunal, is misleading. The ICTY Statute does not require extradition, but rather the surrender of indictees. The difference between the two is enshrined in article 102 of the statute of the permanent International Criminal Court, which FR Yugoslavia signed on December 19, 2000. Surrender is defined as "the delivering up of a person by a State to the Court," whereas extradition is "the delivering up of a person by one State to another as provided by treaty, convention or national legislation."
Another misleading argument, reinforced by your January statement, identifies the Dayton Agreement as the sole source of the legal obligation to cooperate with the ICTY. The fact, mentioned in your statement, that the Dayton Agreement has not been ratified by the Yugoslav parliament, then serves to suggest that FR Yugoslavia has no legal obligation to cooperate. However, the primary and sufficient source of the obligation is UN Security Council resolution 827 on the establishment of the ICTY (1993), followed by a host of other Security Council resolutions calling upon the FR Yugoslavia and other states to cooperate with the Tribunal. These resolutions bind FR Yugoslavia by virtue of Article 25 of the UN Charter, which stipulates that "the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter."
Therefore, there is no doubt that the Yugoslav authorities have a preeminent legal obligation to cooperate fully with the ICTY.
Mr. President, you have also introduced a set of political arguments to corroborate your rejection of cooperation. These arguments, upon closer inspection turn out to be equally unfounded.
You have alleged that the Office of the Prosecutor is ethnically biased, because most of the indictees have been of Serbian ethnicity. Of 66 current indictees-including those serving ICTY sentences-50 are ethnic Serbs. The numbers alone do not, however, support an accusation of bias. Serbs were the only group involved in all major armed conflicts in the territory of the former Yugoslavia-in Croatia, Bosnia and Herzegovina, and Kosovo. That in itself increases the likelihood of a high number of indictees. More importantly, the authorities in Belgrade and in Republika Srpska did not cooperate with the Office of the Prosecutor throughout most of the post-war period, and the lack of access to Serb victims prevented the Prosecutor from building cases against the perpetrators belonging to other ethnic groups. In Kosovo, crimes against Serbs erupted after June 1999, when the state of armed conflict ceased to exist. Because the Tribunal has jurisdiction only over crimes committed in armed conflict (excepting genocide), it has been prevented from investigating these more recent crimes committed by the Kosovo Albanians. Nonetheless, in November 2000, the ICTY prosecutor proposed that the Security Council expand the Tribunal's jurisdiction to cover the post-war abuses in Kosovo, clearly belying allegations that she harbors an anti-Serb bias.
In addition, a rational discussion of the indictments cannot ignore the abundance of objective and authoritative accounts of the wars in the former Yugoslavia, including that by leading non-governmental and inter-governmental organizations, which indicate that Serb formations committed numerous crimes in violation of international humanitarian law. A high number of crimes committed by members of one ethnic group does not entail responsibility of the group as such. It does account for a larger number of indictments for the members of that group. Indeed, these indictments, aimed at identifying the individual perpetrators responsible for violations, are necessary to avoid the implication of group responsibility. Many in Serbia, unfortunately, continue to resist this conclusion and still believe that the inequality in the number of indictments stems from an "anti-Serb bias" in the ICTY and in the international community as a whole. The belief is reinforced by the irresponsible rhetoric of some members of the government. The speed with which the international community has embraced post-Milosevic Serbia should finally put an end to this line of reasoning.
Another issue that members of your government have raised in opposition to the ICTY has been its occasional use of witness protection measures that compete with the rights of the accused. While ensuring a fair trial is a paramount concern, criticisms of the Tribunal on this score have been largely misleading and ill-informed. In fact, like courts in most countries and in accordance with international standards, in considering whether to grant various forms of witness protection, the Tribunal is required by both its Statute and its Rules of Procedure and Evidence to balance the interests of victims and witnesses with the rights of the accused. The Tribunal's practice to date reflects a careful balancing of these interests-according protective measures only to the extent and for the duration necessary, and only when adequate procedural steps can also be taken to safeguard the rights of the accused. In some cases, the Tribunal, like most national courts, including those of the FR Yugoslavia, has admitted statements recorded prior to trial. While the witnesses in such cases are not present at trial, their identity is known and the defendant has an adequate opportunity to rebut their assertions. In other cases, the Tribunal has withheld the identity of the witness from the public (designating him or her, for example as "X"), but in most cases the identity is revealed to the defendant, who again has a fair opportunity to cross-examine the witness. In some cases, the Tribunal has also permitted a witness to testify in a manner that enables him or her to avoid seeing the defendant. The Tribunal has, however, insisted that these arrangements nonetheless enable the defendant and the judges to observe the witness as he or she testifies. In only one case, the Tribunal has accorded a witness complete anonymity, withholding her identity from the defendant as well as the public. In reaching this decision, the Tribunal was guided by the jurisprudence of the European Court of Human Rights, which has held that while such arrangements should be an exception, they may be permissible where the disadvantages to the accused are redressed by other procedural safeguards. The Tribunal's analysis of the use of protected witnesses has been conducted on a case-by-case basis, weighing the rights of the accused against concerns about the security or traumatization of witnesses. In some cases it has refused protection sought for victims and witnesses; in others it has accorded it.
Objections to the ICTY's use of sealed indictments is another argument its critics in Belgrade routinely use. The denouncement of such indictments, to which you have also resorted, obscures the simple fact that the practice of the ICTY does not differ from the enforcement of criminal law in national jurisdictions. Most arrests in states are carried out before the person is notified of the existence of the arrest warrant and indictment. The rationale is obvious: if the person knew about the impending arrest, he or she would be likely to hide or to flee the country, in order to avoid the arrest. This is precisely what the ICTY indictees have been doing, with at least the passive assistance of authorities in Republika Srpska and FR Yugoslavia. The decision by the ICTY Office of the Prosecutor to cease disclosing indictments was therefore justified on both legal and practical grounds.
Finally, Mr. President, we believe that the reluctance to cooperate, in addition to contravening international law would be disrespectful to the victims of war crimes and their families throughout the former Yugoslavia. Accountability for the victims is essential for a meaningful and lasting transition.
This failure to apply the rule of law would be irresponsible on the part of the leadership of the citizens of FR Yugoslavia who wish to move away from the heritage of the Milosevic era. The latest opinion poll of FR Yugoslavia citizens indicates that 60.3 percent believe that Milosevic should be tried by the international tribunal in The Hague. We are confident that remaining mistrust of the Tribunal would decrease if the position of your government were to change. The Tribunal would be seen as an effective instrument for resolution of the past and transition to the future. Indeed, during the recent visit by Chief Prosecutor Carla del Ponte to Belgrade, families of missing Serbs approached Ms. del Ponte to ask for help in resolving the fate of their relatives, and not to swamp her with accusations.
The argument raised recently by one of your close collaborators, Foreign Minister Goran Svilanovic, that the indictees would become "national heroes" if surrendered to the ICTY, appears unfounded. To corroborate the claim, Mr. Svilanovic alleged that the Croat and Bosniac indictees have acquired the status of heroes in Croatia and Bosnia upon the surrender. This is simply counterfactual-opinion polls indicate that 60% of the Croatian population supports the Croatian government's efforts to cooperate with the Tribunal, including the transfer of indictees.
It should also be noted that the governments in Sarajevo and Zagreb have invested significant political capital in cooperation with the Tribunal. The reluctance of the new government in Belgrade to pursue a similar path strengthens the extreme nationalists in neighboring countries. The position of political moderates in the region is weakened by the Yugoslav authorities' refusal to cooperate fully with the Tribunal and this is ultimately detrimental to all who seek respect for the rule of law and human rights in the region.
We hope, Mr. President, that you will give serious consideration to the points addressed in this letter, and, together with other officials in the Serbian and Yugoslav governments, make an unequivocal choice in favor of full-fledged cooperation with the ICTY.
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