The Federal Constitution of Yugoslavia, promulgated in 1992, established Yugoslavia as a democratic state “founded on the rule of law.” The forty-nine articles of the section on rights and freedoms guarantee all Yugoslav citizens their basic civil and political rights, such as free speech, free association and the right to a fair trial.
Regarding minority rights, the constitution guarantees the rights of minorities to “preserve, foster and express their ethnic, cultural, linguistic and other attributes, as well as to use their national symbols, in accordance with international law.”68 Article 20 states that:
Citizens shall be equal irrespective of their nationality, race, sex, language, faith, political or other beliefs, education, social origin, property, or other personal status.
Yugoslav law guarantees all defendants the right to due process. Article 23 of the federal constitution forbids arbitrary detention and obliges the authorities to inform a detainee immediately of the reason for his or her detention and grant that person the right to a lawyer. Article 24 obliges the authorities to inform the detainee in writing of the reason for his or her arrest within twenty-four hours. Detention ordered by a lower court may not exceed three months, unless extended by a higher court to a maximum of six months. Article 25 outlaws torture of a detainee, as well as any forcible extraction of confessions or statements. The use of force against a detainee is also a criminal offense. Article 25 says:
Respect for the human personality and human dignity shall be guaranteed in criminal and in any other proceeding in the case of deprivation or restriction of liberty and during the enforcement of a penalty.
Any violence against a person deprived of liberty or whose liberty has been restricted, as well as any extortion of a confession or statement shall be forbidden and punishable. No one may be subjected to torture, degrading treatment or punishment.
The Criminal Code of Yugoslavia (1976) contains a number of criminal offenses with sanctions envisaged for torture or degrading treatment. Article 190, on the extortion of depositions, states:
Whosoever in an official capacity resorts to force, threat or other impermissible means or impermissible ways with the intention of extorting a deposition or other statement from the accused, witnesses, experts or other persons, shall be punished by imprisonment from three months to five years.
If the extortion of the deposition or statement is attended by severe violence or if, due to the extortion of a statement, particularly grave consequences have arisen for the accused in criminal proceedings, the perpetrator shall be punished by imprisonment of at least one year.
Article 191, on maltreatment in the discharge of office, states:
Whosoever in an official capacity ill-treats, insults or generally treats another person in a way outrageous to human dignity, he/she shall be punished by imprisonment from three months to three years.
Police abuse, arbitrary arrests, and the failure to accord due process in trial proceedings violate international human rights norms binding upon Yugoslavia, in particular, those codified in the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).69 The provisions of international humanitarian law, which came into play with the outbreak of armed conflict in Yugoslavia, bar much of the same conduct. An essential difference, however, is that while certain human rights standards may be derogated from in officially declared public emergencies that threaten the life of the nation, the provisions of international humanitarian law are nonderogable, for both governments and insurgency forces, such as the KLA.
The fighting in Kosovo during 1998 has unquestionably been of sufficient intensity to fall within the bounds of Article 3 common to the four 1949 Geneva Conventions, which regulates internal armed conflicts.70 In view of the KLA’s command structure, control of territory, and expressed willingness to abide by the rules of war, HumanRights Watch has also been evaluating the conduct of the KLA and government forces by the standards enshrined in Protocol II to the Geneva Conventions.71
The most grievous affront to basic international human rights and humanitarian norms that Human Rights Watch has documented in Kosovo is the violation of the right to life. The ICCPR, Common Article 3, and Protocol II absolutely prohibit the killing of detainees. Also barred by the Convention against Torture, as well as the above documents, is the torture and ill-treatment of detainees, and thus the beatings and other forms of police brutality that are frequently practiced against ethnic Albanians in Kosovo.72
Article 9 of the ICCPR prohibits arbitrary arrest or detention. To comply with Article 9, the state must specify in its legislation the grounds on which individuals may be deprived of their liberty and the procedures to be used in enforcing deprivations of liberty. Only arrests conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual police officers. Moreover, the prohibition on arbitrariness means that the deprivation of liberty, even if provided for by law, must still be proportional to the reason for arrest, as well as predictable. Article 9 also specifically requires that detainees be immediately informed of the reasons for their arrest and promptly told of any charges against them, and that they be brought promptly before a judge empowered to rule upon the lawfulness of the detention. In the view of Human Rights Watch, these requirements have been routinely violated in Kosovo.
Finally, the right to due process at trial is protected under Article 14 of the ICCPR. Article 14 guarantees, among other rights, that a defendant must enjoy a “fair and public hearing by a competent, independent and impartial tribunal”; must “have adequate time and facilities” for the preparation of his defense; must have access to and the ability to communicate with legal counsel of his own choosing; and must be allowed to “examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf.” Reinforcing these guarantees are Protocol II’s similar due process protections for crimes “related to the armed conflict.”73 It is evident that the summary trials and restrictions on the right to defense that Human Rights Watch has documented in Kosovo have not accorded with these requirements.
68 Constitution of the Federal Republic of Yugoslavia, Article 11.
69 Yugoslavia ratified the ICCPR on June 2, 1971; it ratified the Convention Against Torture on June 20, 1991. According to Article 16 of the federal constitution, Yugoslavia “shall fulfill in good faith the obligations contained in international treaties to which it is a Contracting Party.”
70 On July 7, 1998, the International Criminal Tribunal for the Former Yugoslavia declared publicly that the hostilities in Kosovo had reached the level of an armed conflict, although the starting date for that designation was not specified. In October 1998, a cease-fire was declared between the KLA and the Yugoslav government. For further information on the history and conduct of the conflict, see Human Rights Watch, “Federal Republic of Yugoslavia: Humanitarian Law Violations in Kosovo,” Vol. 10, No. 9, October 1998.
71 Protocol II supplements Common Article 3. It is invoked when armed conflicts:
take place in the territory of a High Contracting Party between its armed forces and dissident armed forces of other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
Protocol II, art. 1(1). For a more comprehensive discussion of Protocol II’s applicability, see Human Rights Watch, “Federal Republic of Yugoslavia: Humanitarian Law Violations in Kosovo,” pp. 52-54.
72 ICCPR, art. 7; Convention against Torture, arts. 2 and 16; Article 3 Common (prohibiting “cruel treatment and torture” of persons taking no active part in the hostilities); Protocol II, art. 4(2)(a) (prohibiting “cruel treatment such as torture” of persons taking no active part in the hostilities).
73 Among other due process requirements, Article 6 of Protocol II provides that defendants must be prosecuted before a court “offering the essential guarantees of independence and impartiality,” and must enjoy “all necessary rights and means of defense.”