Foreign Minister Anna Lindh
Ministry of Foreign Affairs
Dear Foreign Minister Lindh:
We have appreciated the willingness of the European Union to press Belgrade for meaningful cooperation with the International Criminal Tribunal for the former Yugoslavia ("the Tribunal"). We are writing today to convey Human Rights Watch's concerns about Yugoslavia's continued failure to cooperate with the Tribunal and in particular to provide an assessment of the draft Law on Cooperation of the Federal Republic of Yugoslavia with the International Criminal Tribunal (the Draft Law) that is being considered in Belgrade.
Yugoslav President Vojislav Kostunica has repeatedly cited the adoption of a law as the necessary precondition for cooperation with the Tribunal. Human Rights Watch, however, has never believed that the adoption of a cooperation law was necessary for Yugoslavia to arrest and surrender the individuals indicted by the Tribunal. Recently, Serbian Prime Minister Zoran Djindjic and other officials have acknowledged this fact. The real test of Yugoslavia's cooperation rests in the willingness to arrest and surrender those indicted by the Tribunal. As you know, no such surrenders have occurred since April. Moreover, for the reasons elaborated below, we believe the Draft Law currently being considered in Belgrade has many loopholes and ambiguities that will obstruct the Tribunal's work. The Draft Law can only be seen as further evidence of a lack of will to cooperate with the Tribunal.
General Provisions Section
The Draft Law compares negatively with the relevant provisions of Slovenia's law on cooperation with the Tribunal. The Slovenian legislation acknowledges the primacy of the Tribunal's jurisdiction. It states explicitly that proceedings before the International Tribunal shall always have precedence over proceedings relating to the same matter before a Slovenian court. By contrast, in the Yugoslav Draft Law there is no acknowledgement of the primacy of the Tribunal over proceedings in Yugoslav courts nor any acknowledgement of Yugoslavia's overarching obligation to cooperate with the Tribunal.
The Draft Law states that [a] request for cooperation or the realization of certain decisions by the International Criminal Tribunal shall be accepted if it is based on the provisions of the Statute and the Rules of Procedure and Evidence of the International Criminal Tribunal and if it does not contravene the Constitution of the Federal Republic of Yugoslavia. (emphasis added.)
Given this wording, it is unclear which entity has the ultimate authority to decide whether a Tribunal request is based on the provisions of the Tribunal's Statute and Rules of Procedure and Evidence. The language could be construed to empower the Yugoslav courts to determine not only whether a request for cooperation contravenes the Constitution of the Federal Republic of Yugoslavia, but also whether the Tribunal is acting in accordance with its own Statute and Rules. This interpretation would make the Yugoslav judiciary the master of the Tribunal's competence. Such a relationship blatantly reverses the obligations of United Nations member states articulated in Security Council Resolution 827 (1993). This ambiguity highlights the need for amendments throughout the Draft Law to clarify the authority of the Tribunal and give it full effect.
The Draft Law further states that the Tribunal cannot act in a way that would jeopardize Yugoslavia's sovereignty or national security interests. Because some may consider the type of crimes the Tribunal will be prosecuting as relevant to issues of sovereignty, these particular criteria are inappropriate and bound to cause conflict and delay. It is significant that neither sovereignty nor national security interests appear in the corresponding Slovenian or Croatian cooperation laws.
In addition, the procedural aspects of this provision are disturbingly vague. The Draft Law provides that the government of a constituent republic may request that the Federal Minister of Justice lodge a complaint with the Tribunal that an act of cooperation could jeopardize national sovereignty or security interests. We are concerned that the Draft Law leaves unclear how any resulting conflict between Yugoslavia and the Tribunal would be resolved.
Deferral of Jurisdiction to the Tribunal
The Tribunal Statute, adopted by the U.N. Security Council, gives the Tribunal authority to require a national court to defer its jurisdiction over a domestic criminal case to the Tribunal's jurisdiction. The Draft Law provides that a Yugoslav court shall reject a Tribunal request for deferral if the indictee has already been sentenced by a competent Yugoslav court, except for situations covered by Article 10(2) of the Tribunal's Statute. Article 10(2) provides for retrial in certain limited circumstances namely if: (a) the act for which the person was tried was characterized as an ordinary crime; or (b) the national court proceedings were not impartial or independent, were designed to shield the accused from international criminal responsibility, or the case was not diligently prosecuted. While the reference to Article 10(2) of the Statute is appropriate, we are concerned that the Draft Law fails to clarify whether the Yugoslav court or the Tribunal would make the ultimate determination of whether the criteria set forth in that article have been met.
Of equal concern is a provision in the Draft Law specifying that Yugoslavia may reject a Tribunal deferral request if it does not pertain to the "same crime" at issue in the domestic case. Yet, under the Tribunal's Rules of Procedure and Evidence, there is no such limitation on the Tribunal's authority to require national courts to defer to its jurisdiction. In fact, those Rules explicitly contemplate deferral when the Tribunal's case does not pertain to exactly the "same crime" at issue in a case before domestic courts, i.e., when the domestic proceedings characterize an act under Tribunal investigation as "an ordinary crime"; or when the domestic case is "closely related to, or otherwise involves significant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal." This difference between the Draft Law and the Tribunal Rules is problematic because a deferral request that is appropriate under the Tribunal's Statute and Rules could nonetheless be rejected by Yugoslav courts pursuant to the Draft Law.
Surrender of Individuals
The most decisive section of the Draft Law enumerates the conditions required for surrendering an indictee to the Tribunal. These include confirming the identity of the person whose surrender is requested and determining that the crime falls within the jurisdiction of the Tribunal. Under the Draft Law, a court in a constituent republic of Yugoslavia would decide whether the conditions for surrender had been satisfied and would forward its decision to the government of the republic. The government then would decide on the surrender of the person.
By having courts and governments of constituent republics ascertain whether the alleged crime falls within the Tribunal's jurisdiction, the Draft Law creates yet another instance in which courts and government officials can potentially interfere with requests for surrender. Moreover, given that only the courts and governments of the constituent republics of Yugoslavia would be involved, and not the federal government of Yugoslavia, there is also a concern that an indictee could raise potential constitutional challenges relating to the authority of constituent republics to surrender indictees to the Tribunal.
For all these reasons, we believe the current Draft Law does not provide the legal groundwork for full and prompt cooperation between Yugoslavia and the Tribunal. In fact, the loopholes in the Draft Law could seriously delay or obstruct the kind of meaningful cooperation that the European Union is on record as supporting. Human Rights Watch believes that, together, the weaknesses in the Draft Law, the Yugoslav authorities' failure to surrender any indictee to the Tribunal since April, and their failure to commit publicly to surrendering Milosevic, should dictate that the European Union further postpone the June 29 Donor Conference or withhold its participation from the meeting.
Europe and Central Asia division
Brussels Office Director