Viewed from the constitutional and legal perspective, this time the Montenegrin politicians are right. According to the FRY Constitution and valid legislation, criminal and legal materials are thus divided that criminal procedure before the court, accountability and sanctions for violation of rights and freedoms and federal laws falls within federal jurisdiction, while remaining matters of criminal law fall under the jurisdiction of the member states. As far as possible extradition of the indicted to the Hague tribunal is concerned, it should be emphasized that the matter of execution of criminal sanctions and the procedure for granting of conditional release fall exclusively within the jurisdiction of the member states.
Since, however, the eventual extradition of any of the accused to the Hague tribunal also means relinquishing the execution of the established sentence as well as its eventual reduction by granting of conditional release (such as in the case of Drazen Erdemovic, whose sentence was reduced by one-fifth), this means that this court would assume not only federal but also residual state jurisdiction in matters of criminal law. And this obviously cannot be done without the explicit agreement of both member states.
Hence the request of the SNP that, in addition to a federal law, corresponding state laws also be passed in matters of cooperation with the Hague tribunal is more than justified and based on the Federal Constitution.
In additional to the constitutional, this Hague dispute also has a far more important political dimension. When the SNP insists that the Montenegrin Parliament also pass its own law on cooperation with the Hague tribunal, it wants Milo Djukanovic and his bosses to come out into the open. They have been saying for a long time that they will gladly cooperate with the Hague tribunal and extradite every accused Montenegrin citizen; however, to date they have failed to arrest anyone let alone extradite any of the indicted. And they failed to do this not because they didn't want to but because they didn't dare to.
In other words, the SNP is attempting to shift the blame for the shameful extradition of his own citizens to Milo Djukanovic in the eyes of the Montenegrin public while Djukanovic would like to see this done by the Federal Government so that he can later accuse it of undermining Montenegrin statehood and sovereignty by extraditing Montenegrin citizens.
In Serbia the situation is completely reversed. When Zoran Djindjic and Vladan Batic demand that exclusively a federal law on cooperation with the Hague tribunal is passed, even though they are well aware that matters of execution of sanctions and conditional release fall under the jurisdiction of member state, they are doing this so they can transfer the stigma which will fall on whoever signs the decision to extradite his own citizens from themselves onto Vojislav Kostunica and other members of the federal leadership. That is why Djindjic so cynically states that, with respect to the passing of this law, he personally and all of DOS will support President Kostunica, thereby defending his credibility. The only thing Djindjic neglected to explain is how he and Dusan Mihajlovic were able without any court decision whatsoever to extradite the unfortunate Dr. Milomir Stakic to The Hague only ninety minutes after his arrest without so much as informing President Kostunica, let alone asking for his advice and permission.
What is occurring, therefore, is the following calculated gamble on Djindjic's part: to present himself as the man who holds all the threads in his hands before the powerful foreign factors and who should exclusively be given promised aid as someone "cooperative" while at the same time shifting the odium for a shameful law and the even more vile extradition of his own citizens onto Vojislav Kostunica.
by Kosta CAVOSKI
Then the federal minister for telecommunications, Boris Tadic, a renowned expert on international law, stated unhesitatingly that "Milosevic signed the Dayton Agreement which foresees cooperation with the tribunal" not knowing, poor thing, that nowhere in the Dayton accords is there any mention of any kind of obligation to cooperate with the Hague Tribunal.
Even greater ignorance was demonstrated by the erudite Zarko Jokanovic when he said that "the Hague tribunal was... conceptually conceived in Dayton and operationalized [sic] in the Paris peace agreement" and that this court, as an organ of the UN, "is practically an organ of our country, too". If he had read anything at all on the subject beforehand, he would have learned that the Hague tribunal was established on May 25, 1993 by UN Security Council Resolution 827, while the Dayton accords were initialed on November 21, 1995 and subsequently adopted and signed on December 14, 1995 in Paris.
If we ignore for the moment the above-mentioned laymen, the greatest surprise actually came from Momcilo Grubac, the federal justice minister and a respected professor of criminal process law. In 1999 (six years following the establishment of the Hague tribunal) in a Commentary on the Law on Criminal Procedure he explicitly wrote, citing Article 17, Section 3 of the Constitution of the Federal Republic, that "the extradition of domestic citizens is prohibited". As soon as he became a minister, he changed this "interpretation" and began to claim that the federal Constitution does not prohibit the extradition of citizens to the Hague tribunal; but that this cannot be done, however, until a law regulating cooperation with that tribunal is enacted. And when it became unclear whether this law would be passed at all, he announced that even without it and a "precise legal procedure", it was still possible on what is popularly known as a "catch as catch can" basis, that is without a law, to cooperate with The Hague.
It is not, of course, our intention to point out the ignorance of the aforementioned laymen or to reveal the inconceivable contradictions and lack of consistency on the part of a respected expert and university professor. We would like, however, to point out how every strong passion, whether driven by ambition, self-interest or panic, and the eclipse of reason leads to contradictory, naive and even stupid explanations and statements.
At this time it is possible to say that during the summer of last year some of the leaders of the former and present Democratic Opposition of Serbia, upon receiving great sums of money in order to conduct their pre-election campaign, accepted certain obligations toward their foreign "benefactors". It is not excluded that the granting of significant amounts of material assistance - the amount of six billion German marks has been mentioned - was also qualified in a like manner.
After a long delay, when the passing of the above-mentioned law on cooperation with the Hague became completely uncertain, certain DOS leaders were literally panic-stricken when they realized they could not carry out the obligations which they earlier accepted toward their "benefactors". And fear, as our people wisely say, sullies the honor of many a man; thus even DOS leaders have begun to make ill-considered, inaccurate and even dangerous statements.
The only thing left for us to do is to ask ourselves how a state based on law and the rule of law can ever be established in our country if our citizens are arrested on a "catch as catch can" basis, as Momcilo Grubac argues, as was the case in the abduction of Dr. Milomir Stakic, and if they are extradited to The Hague without a "precise legal procedure" and court protection. Because bandits, too, in popular terms, work on a "catch as catch can" basis. What then, exactly, is the difference between a minister of justice and a bandit?
The reason which Covic cited when he issued his ultimatum that General Krstic must remain in that temporary assignment deserves a profound consideration. "General Krstic," said Covic, "is the signatory of all documents in connection with the return into the Ground Security Zone (GSZ) and, as far as the international community is concerned, the guarantor of their implementation". And Zoran Djindjic, who cannot resist bringing the authority of his only true competitor into question whenever he gets the chance, immediately added that "every personnel change... may endanger the results that we have achieved".
If Covic and Djindjic hadn't told us this, we probably would have continued to believe that the foreign factors were concluding agreements with our state as such, not with various individual officials acting on behalf of the state. After Covic's explanation, however, it turns out that those agreements are only valid as long those who arranged and concluded them on the state's behalf, in this case, Covic and General Krstic, stay in office as their guarantors. And if they, God forbid, should leave these "temporary" positions, everything achieved thus far - added Djindjic - would be endangered.
We are left asking ourselves the question from whom Covic learned to personalize the state and state policies in such a way that "every personnel change" endangers the agreements which previous officials have concluded. From Slobodan Milosevic, who was until recently his political sponsor and party chief. When he signed the so-called Dayton accords in Dayton and Paris, Milosevic did not do so only in the capacity of the official representative of FR Yugoslavia but as their personal guarantor and, as American officials at the time were wont to say, as "the key factor of peace in the Balkans". This was the reason why the Western powers sent Felipe Gonzales at the beginning of 1997 to save Milosevic, as the personal guarantor of the Dayton accords, from the embittered people in the streets of all the larger towns in Serbia.
However, after mastering the art of personalizing the state and state agreements from his former political sponsor, Covic has now gone one step further; as the deputy prime minister of Serbia, he is publicly demanding the promotion of a federal general, something he wouldn't have even dared to imagine, let alone have done under Milosevic because at that time he knew full well that the command of the Yugoslav Army falls under the exclusive jurisdiction of the federal president. And, what is even worse, he has also advised us that the Democratic Opposition of Serbia has some form of jurisdiction over the position of Yugoslav Army chief of staff and that the federal president does not have exclusive jurisdiction over his appointment, either.
In 1832 William Marcy Tweed, a senator from New York, declared that "(After elections) the winner gets the loot." This appears to be the very principle which DOS leaders followed when they distributed the majority of attractive ambassadorships abroad according to party affiliation. Now Covic is trying to expand this principle to the Yugoslav Army as well, so that distribution military ranks and official appointments can also become political spoils. He already has the name of his candidate, and other DOS leaders may well follow the same route. Candidates for general would have no other option than to join the ruling political parties and to seek their personal promotion and a higher position on the basis of party affiliation, just as Seselj asked that some of his men be appointed as judges while he shared power with Milosevic.
It still remains to be seen who is the true guarantor of peace, security and territorial integrity in the Presevo valley. According to Covic, it appears to be just him personally and General Krstic as "respected collocutors of KFOR and the Atlantic alliance". In our opinion, it can only be the Yugoslav Army and the Ministry of Internal Affairs. Expert negotiator Covic has already taken on the responsibility of deploying some sort of multiethnic police to replace the effective police forces and, under the guise of "demilitarization", to evict the Yugoslav Army from Bujanovac and Presevo by the middle of July, despite the fact that no new garrison has even begun to be built halfway between these two towns.
Hence, according to this concept, this new multiethnic police will be capable of doing what not even MUP units have managed to do since November 2000: to fend off the first attacks of the terrorists and prevent them from taking up residence and fortifying their positions in Veliki Trnovac and Lucane.
Even though cognizant of constitutional limitations, i.e., of the fact that both federal and state constitutions prohibit the extradition of Yugoslav nationals, the leaders of DOS claimed for several months that this cooperation, including the extradition of Yugoslav citizens, could be regulated by a federal law which would remove this obstacle; If they were legalists at least to the same degree as Croatian officials, they would have proposed the ratification of a constitutional law, not an ordinary one. Because like our own federal Constitution, the Croatian Constitution (Article 9, Paragraph 2) also foresees that Croatian citizens "cannot be extradited to another state" and therefore, the ratification of a constitutional law on cooperation with the Hague tribunal was the only formally correct way of changing this constitutional stipulation.
And when, due to the justified and constitutionally based opposition of the Montenegrin Socialist People's Party (SNP), the ratification of an ordinary federal law was derailed, we had the emergence of an almost incredible concept by Zoran Djindjic that the subject material of cooperation with the Hague tribunal should be regulated by a government decree. This was even proposed by justice ministers who know very well that the subject material of criminal law which impacts the most important human rights absolutely must not be regulated by sub-legislative regulations.
Finally, what was supposed to be the strongest argument in favor of direct "cooperation" with the Hague tribunal of all was invoked and that was that its Statute is an international act that does not require enactment of any other law or decree. It was stated that our state took on certain international obligations which require this very form of direct cooperation.
In support of this, first it is said that Slobodan Milosevic signed the Dayton Agreement which mandates this form of cooperation. However, this is not true, for Article IX of the General Framework Agreement reads as follows:
"The Parties shall cooperate fully with all entities involved in implementation of this peace settlement, as described in the Annexes to this Agreement, or which are otherwise authorized by the United Nations Security Council, pursuant to the obligation of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law."
The only provision of the Dayton Agreement which specifically mentions the Hague tribunal is Article XIII, Section 4 of Annex 6; however, this provision only obligates authorities in Bosnia-Hercegovina to cooperate with that tribunal, not authorities in Yugoslavia.
Then the even more convincing argument is cited that our country, as a member of the UN, is obligated to cooperate with the Hague tribunal, an organ of the UN. It is interesting that this claim is being made by the same attorneys who made the same argument prior to October 5, 2000 except at that time they made absolutely no mention of the fact that our country was not a member of the UN, even though after the coup they advised the new government to seek admission to the UN as a new country.
For purposes of clarifying these alleged obligations, we will use the example of Germany, which no one, not even Zoran Djindjic, can accuse of failing to honor its obligation except during its armed attack against Yugoslavia. Article 16, Paragraph 2 of the German Constitution explicitly prohibits the extradition of German citizens. Since Article 3 of the German law on cooperation with the Hague tribunal does not state explicitly that only foreign but not domestic citizens can be extradited, this legal issue was resolved by the following statement by the person who proposed this law:
"I wish to reiterate here as well, before the German Bundestag, that according to Article 16, Section 2 of the Constitution, the provision regarding extradition cannot be applied to German citizens."
German citizens, therefore, cannot be extradited or transferred to the Hague tribunal in accordance with either the Constitution or the law, even though Germany, a member of the UN, consciously honors all of its international obligations.
Why then are certain DOS leaders so persistent in insisting on the obligation of our country to extradite its own citizens to the Hague tribunal when other countries, e.g., Germany, do not have such an obligation? Only because they have personally assumed such an obligation.