Bad Day For Carla
by Ljiljana SMAJLOVIC
NIN, Belgrade, Yugoslavia, January 25, 2001
The reporters who waited for Carla del Ponte at the exit from Vojislav Kostunica's office could see right away that she was displeased with something. Visibly flustered, she curtly refused to address them with so much as a single word even though a joint statement for the press was foreseen by the protocol. It was the reason why a large number of representatives of the domestic and foreign media had gathered on the first floor of the Federation Palace on this Tuesday evening.
Having thus been deprived of a partner with whom to address the reporters, the host also refrained from making a statement; instead, his office issued a statement from which the public learned of the differences in opinion expressed during the meeting. World news agencies found the briskness and open Ms. Del Ponte's anger more meaningful than any statement; and news of her ire spread throughout the world.
No one who reads the daily papers could possibly have been surprised that the Yugoslav president and the Hague prosecutor have different views of the work of the Hague Tribunal. The only surprising thing about it was that Mrs. Del Ponte was apparently surprised by it. Her anger, namely, was no act; her fury was not rehearsed in order to indirectly inform the world public of "the bad news from Belgrade". NIN's sources in the Federation Palace say that during the 70 minute-long meeting with the Yugoslav president, Del Ponte lost her composure several times right from the start. Near the end of the conversation, she was so angry that the Yugoslav president had to comment ("Please do not be angry; anger will not help our cooperation.")
Kostunica trotted out all the unpleasant topics that he said in advance he would initiate in conversation with Ms. Del Ponte. His criticism of the laws of the Hague Tribunal is hardly new and many eminent experts from throughout the world before him have expressed objections to sealed indictments, the concealment of the identities of witnesses and the barring of cross-examination of witnesses, the use of testimony given in one case as factual evidence in another case. Criticisms of the fact that the majority of suspects in The Hague are Serbs and that almost all state leaders on the Serb side have been indicted, thus undermining the principle of individualization of guilt and creating the impression of collective Serb guilt, are also not new. It's also well known that an international group of eminent Western legal experts has bitterly criticized the Hague Tribunal for not conducting an investigation and issuing an indictment against NATO for war crimes committed during the bombing of Yugoslavia. The new development is that Finnish pathologists did not find evidence of a massacre in Racak (Del Ponte admitted that the term "massacre" was not used in Helena Ranta's report but remained true to the Hague interpretation of Racak: "the reality is different: 45 civilians were killed," she said), even though that "massacre" is one of the key charges in the indictment against the former leadership of Yugoslavia headed by Slobodan Milosevic. Another new development is the American use of both depleted and enriched (with plutonium) uranium. When Vojislav Kostunica asked for an explanation, Del Ponte replied that her office must wait until doctors can reliably determine that leukemia was caused by "depleted uranium, which is not banned". She wanted to say something more by way of explanation but the Yugoslav president refused to listen to any more explanations of this kind; instead, he handed Ms. Del Ponte the newest publication on Yugoslav children killed during the bombing.
Definition of Cooperation
What is new, finally, is that Yugoslavia now has a government which is prepared to observe its international obligations, including Milosevic's signature on the Dayton agreement, and which is prepared to cooperate with the Hague Tribunal in accordance with those obligations. During the meeting in the Federation Palace, the Yugoslav side advised Carla del Ponte and her associates of their willingness to cooperate with the Tribunal, stating that it was essential that Yugoslavia conclude a precise legal act with the Tribunal, an agreement that would regulate all the issues of cooperation, including the extradition of suspects. (Croatia passed a constitutional law for this same purpose although representatives of the Tribunal like to stress that they did not ask Zagreb to do so and that, in their opinion, it was a "unilateral act". President Kostunica, on his part, did not neglect to remind his interlocutors that this act, whether unilateral or not, nevertheless exists.) The Hague side did not hide its disappointment at this approach by Yugoslavia and articulated its conviction that the laws and statute of the Tribunal stand far above every Yugoslav law and the Yugoslav justice system. The Yugoslav side insisted on the observance of the procedure and the appropriate sequence of steps, while the Hague side demonstrated haste and contempt for domestic laws and the legislative system.
Finally and most importantly, what is also new is that the new president of Yugoslavia is also an attorney who makes ample use of his professional skills while conducting the business of the state. Of course, in Western countries this would hardly be considered new or unusual: in the West this is more or less the standard background not only for presidents but for politicians as a group. There is, however, a touch of irony in the fact that Ms. Del Ponte expressed frustration when faced with a request for consistent observance of legal procedure in Belgrade. Her exclamation "Only you need a law!" is actually hardly appropriate coming from a representative of high international legal standards even though that representative, like any other prosecutor, is in quite a bit of a hurry. She bore some resemblance to the British officials who at the beginning of the previous century were shocked and distressed when an attorney from India (who would later enter history under the name of Mahatma Gandhi) set out to wage political battle with the British empire by using its own laws against it (he would cite British acts and ask that they act in accordance with them).
Nervousness of Prosecutor
The nervousness and haste of Ms. Del Ponte as the Hague prosecutor is understandable when placed within the context of the international environment. Like every prosecutor, she is fighting for a trial that will be most advantageous to her case: that is why she fervently desires the trial to take place in The Hague. This issue, however, is one that is actually not decided on by the prosecutor but by the president of the Tribunal. And despite all the claims of Ms. Del Ponte that Tribunal is completely free of political pressure from the Western countries which finance it, we should note that a day before the September elections the London "Financial Times" presented a scenario according to which the trial of Slobodan Milosevic might, under certain conditions, be held in Belgrade. And on January 16 of this year, the most influential newspaper in the world, "The New York Times", not known for its lenience toward the Serbs nor its affinity for their state interests, published an editorial asking for the West's understanding for the "useful compromise" proposed in Washington by Goran Svilanovic: that the trial of Milosevic take place in Belgrade with the participation of the Hague Tribunal. The Hague as the venue for a trial against Milosevic is already gradually slipping away from Ms. Del Ponte. The day after her meeting with Kostunica, that is, on Wednesday, the London "Times" also published an editorial approving the idea of a trial in Belgrade.
Opposition of DOS
While the behavior of Ms. Del Ponte is understandable as legitimate from the viewpoint of the interests of a prosecutor, voters may have a harder time understanding the recent behavior of some of the leaders of the Democratic Opposition of Serbia (DOS) with respect to the issue of the possible extradition of Slobodan Milosevic to The Hague. Namely, Vojislav Kostunica has never hidden his opposition to the extradition of suspected war criminals. He said so loud and clear at the very beginning of the pre-election campaign and no one from the DOS refuted him, at least not until recently. No one from the West openly opposed him, either, probably to prevent reducing his chances of winning. But a few months after the elections, there are signs of strife within the DOS and of a power struggle; and intolerance toward Kostunica, both ideological and personal, carefully hidden before, has surfaced. The Yugoslav president enjoys such great popularity among the public that apparently this is starting to worry those observers and key figures in our political scene who don't like him; and it may not be a bad thing for his political health, as well as for the political health of this country, to have them publicly opposing him.
However, there are a few problems with public disagreements regarding The Hague. First of all, the statements of certain DOS leaders that Milosevic should be extradited without hesitation (Zarko Korac, Nenad Canak, Dragan Veselinov, Vladan Batic and others) indicate, to say the least, a certain lack of consistency with respect to the voters. In politics it is not prudent to promise one thing before the elections and then do something else after the elections. A responsible politician will try not to mislead the voters and even demand that their wishes be followed after election. Second, it's well known that Vojislav Kostunica is not only a man of his word but that he also has a rather conservative and formal interpretation of personal credibility. It's more or less common knowledge that he would rather resign from the position to which he was elected then fail to honor the promises he has made. It's also well-known that his pre-election promise not to extradite was not the result of affinity toward Milosevic but of state interests and rather serious legal doubts in the integrity of the Hague Tribunal, not to mention observance of the Constitution which does not allow extradition. It was also motivated by the wish to free people of fear.
Perhaps we've all forgotten some things by now but at the time, when we couldn't be sure that Milosevic would lose the elections so convincingly (nor ever admit to receiving hundreds of thousands of votes less than Kostunica despite the fact that he refused to acknowledge defeat in the first round), it was very important that the majority of the population be convinced of the possibility of a peaceful transfer of power without any witch hunts or attacks on political opponents. Maybe the majority of DOS leaders never personally agreed with this but for the sake of a united front they kept their opinions to themselves. With regard to The Hague, we already have a true cacophony of opinions in Serbia.
"The state leadership did not agree on a common strategy. In a situation where the government is representing several positions and, what is more, those positions are different than that of the state president, it will be difficult to achieve a strong negotiating position with respect to the Tribunal." So wrote the Zagreb magazine "Nacional" last week, commenting on the Croatian state leadership. Sounds familiar?
After the meeting with Kostunica Ms. Del Ponte clenched her teeth; it's as if she knows that she'll get a better reception in meetings with some of the other Yugoslav politicians and that she will find allies for her position in Belgrade.
State or Tribunal
Both the federal and Serbian ministers of justice have elaborated recently on their interpretation of the problem of constitutional limitations with regard to the extradition of war crimes suspects. Both Momcilo Grubac and Vladan Batic apparently agree that the fact that the Constitution of this state does not allow extradition to another state is no obstacle as the Hague Tribunal is not "another state" but an international tribunal to which the aforementioned constitutional limitation does not apply. And the preferred term is no longer "extradition" but "transfer" of the suspects. The American legislation which makes financial and every other form of assistance to Yugoslavia contingent upon its cooperation with the Hague Tribunal, including the arrest and "transfer" of suspects to The Hague, likewise does not mention the word "extradition". Even Ms. Del Ponte during her visit to Belgrade did not ask for the extradition of Milosevic because she is aware that the Constitution does not permit extradition; she just wanted a "transfer".
The word "transfer" sounds more benign than extradition of a citizen of one's own country to a foreign court: as if one were talking about a sack of potatoes or local livestock.
Kostunica offered The Hague cooperation under certain conditions; those conditions are very hard to reject because they concern the rule of law. It's confusing that a good part of the DOS, unlike the president, is now perhaps ready to offer even more than is being asked of Yugoslavia at the moment. We seem to have gone overnight from the stubborn rejection of everything that the West wants to a placid acceptance of everything the West hasn't even thought of asking for yet. While some leaders of the DOS are recommending The Hague, the Western media is writing in chorus how a trial in Belgrade would carry greater credibility among the local population.
Translated by S. Lazovic (Jan. 26, 2001)