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KOSOVO & YUGOSLAVIA: LAW IN CRISIS |
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KOSOVO & YUGOSLAVIA: LAW IN CRISIS |
[Pittsburgh, April 7] Last week, in the midst of the widening conflict between NATO and Yugoslavia, the professors of the Faculty of Law, University of Belgrade took the extraordinary step of agreeing to answer questions from JURIST: The Law Professors' Network on the legal aspects of the situation. In the belief that throwing the conversation open to our readers would be the most effective way to keep the international and Yugoslav legal communities in touch with one another during the present crisis, we issued an open call for questions and then selected ten of those questions for forwarding to Belgrade. A Conversation with the University of Belgrade Law Faculty
JURIST Exclusive
Here are the final questions and the answers given to JURIST by the members of the Belgrade Law Faculty. JURIST readers wishing to comment on any of these answers should e-mail JURIST at JURIST@law.pitt.edu: please include the words "Belgrade Answers" in the Subject line of your message. For more information, including the latest e-mail from Yugoslavian law professors, lawyers and other academics, international and American responses, and academic commentaries on the legal aspects of the Kosovo situation, see JURIST's Kosovo & Yugoslavia: Law in Crisis.
Question 1. We in the United States are familiar with our own, perhaps unique federal system, which divides sovereignty between the fifty state govenments and the central government in Washington, D.C. In trying to grasp events in Yugoslavia, it is natural for us to assimilate your situation to ours. My questions are these: what is the status of Kosovo under the present Yugoslavian constitution? How do conditions of war or rebellion alter the legal status of the province of Kosovo and its citizens? Answer 1.
Question 2. Although the Serbian leader Milosevic may be able to justify to himself the killing of certain armed men in Kosovo branded as "terrorists" (one must remember here that one person's terrorist is another person's freedom fighter), how do they justify the wholesale burning and looting that is taking place only in Albanian neighborhoods and the forced shipping of thousands of Albanians from Kosovo to neighboring countries?
Answer 2.
Question 3. Albanian Kosovars leaving Kosovo in great numbers report summary the execution, imprisonment, beating and intimidation of civilians of Albanian descent by Serbian military forces and paramilitary forces, many of them masked. Departing Kosovars also report the burning of homes and villages and the destruction of whole cities as a result of deliberate and massive shelling of civilian sectors. Serbian media claim that these reports are exaggerated, and that Serbian forces are merely taking necessary measures to curtail the activities of the Kosovo Liberation Army. There is thus an important dispute over matters of fact. Does the Belgrade Law Faculty, in principle, recognize the authority or necessity of an international tribunal, not involved in the conflict, resolving these questions of fact and determining, as a matter of fact, which side's reports are accurate? If so, what tribunal would the Faculty recognize for that purpose? If not, is the judgment of history simply to depend on who wins the war; i.e., does might make right?
Answer 3.
Question 4. Assume that A) NATO bombardment of targets in Serbia constitutes a violation of the United Nations Charter and a threat to international peace and security, and B) the "deportation or forcible transfer of population" constitutes a "crime against humanity" (as defined by the Rome Statute of the International Criminal Court). If Yugoslavia's armed forces respond to the unlawful NATO attack by expelling Kosovar Albanians from Kosovo, who bears international responsibility for the refugee flows?
Answer 4.
Question 5. Is there legal ground according to Yugoslav law that would make Milosevic accountable for his actions in Kosovo and previously in Bosnia?
Answer 5.
Question 6. I am interested in finding the extent to which Yugoslavia is willing to live by the principles of the United Nations Minorities Convention [or] the European Declaration on the protection of minorities, without any prejudice to the territorial integrity and political indepednec of the state of Yugoslavia. If the answer is in the affirmative, what externally supervised guarantees will be acceptable to Yugoslavia to bring an end to the fruitless bombing currently underway?
Answer 6.
Question 7. What are the most important things you would like us to tell our law students (approximate ages 22-25) and our children (preteen and teenage) about the current conflict?
Answer 7.
Question 8. Have the laws of Kosovo been changed, even indirectly (for example, regarding clothing or public activities) to make Moslem practices punishable either in criminal or civil courts?
Answer 8.
Question 9. Relative to the "taking" of 3 US soldiers near the Macedonia-Kosovo border, by what principles of international law did Yugoslavia arrest the soldiers in the first instance, and under what international law principles does Yugoslavia propose to try them?
Answer 9.
Question 10. How has the NATO bombing affected your daily lives?
Answer 10.
The Yugoslav federal system, as in the United States, divides power between member states and the Federal government. Federalism in Yugoslavia dates back to the first communist Constitution, enacted in 1946, after the World War II. The Socialist Federal Republic of Yugoslavia encompassed six member states (republics): Serbia, Montenegro, Croatia, Slovenia, Bosnia and Herzegovina and Macedonia. In 1991 the latter four seceded, while Serbia and Montenegro remained in the Federal Republic of Yugoslavia (hereafter: FRY). Neither Kosovo and Metohia (the official name of the territory), nor Vojvodina ever had the status of a member state (republic): these territories represented autonomous provinces within the Republic of Serbia. The autonomous status was given to these provinces in order to promote the rights of the minorities (Albanian and Turkish in Kosovo and Metohia and Hungarian, Slovak and Romanian in Vojvodina). One can not disregard the fact that in Croatia or Macedonia (where large Serbian and Albanian minorities, respectively, existed) the autonomous provinces were not created by the communist authorities, led by a Croatian – Tito. Actually, the giving of autonomy was an undemocratic grant of power at Serbia’s expense; the Albanian minority in Kosovo and Metohia was constantly abusing it, terrorizing the Serbian population in the Province and actually expelling them out of Kosovo and Metohia. Therefore the percentage of the Serb population in Kosovo and Metohia diminished from more than 50% to around 10% in less than a few decades of the communist-led Albanian home-rule.
Even in the present Yugoslav state – in order not to diminish the acquired rights of minorities – the autonomous provinces of Kosovo and Metohia, as well as of Vojvodina (in the northern part of the country) have been retained within the Republic of Serbia. However, the 1990 Constitution of the Republic of Serbia redesigned the scope of autonomy in a way that all political, cultural, ethnic and religious rights of all peoples (including Albanians) were preserved (even increased, since the communist framework of the previous constitutions was abandoned), but excluded any possibility of creation of a sovereign Albanian state in Kosovo (on the very territory of Serbia) and provided guarantees for the survival of the remaining Serbs in the Province. It is within the jurisdiction of the autonomous provinces to regulate cultural, linguistic, educational, health, welfare, environmental and other issues relevant for the well being of the population, in accordance with the laws of Serbia, which are based on the international standards (Article 116 of the 1990 Constitution of the Republic of Serbia). It is important to note that the draft of the 1990 Constitution of Serbia has been approved by the predominantly Albanian parliament of the Autonomous Province of Kosovo and Methohija. Particularly, it should be emphasized that the minority rights include the right to use the native language in all official communications, as well as the right to have education (up to the university level) in this language. Contrary to the situation in Vojvodina, where Hungarians, Slovaks, Romanians and other minorities actively participate in the political life, making use of all constitutionally guaranteed minority rights, Albanians, those you hear about, refuse to take part in governmental bodies and in the political life of their country; they created their own parallel (illegal) institutions, whose only purpose is secession. Finally, in 1997 and 1998 the Albanian separatist movement created its armed wing – the so-called KLA – and started the armed attacks, using terrorist tactics against Serbia and FRY and even against moderate ethnic Albanians. Their ultimate goal is establishing of independent Kosovo; even the Rambouillet Accord, signed by the Kosovan Albanians, includes a clause, which keeps the door towards independence ajar (after the expiry of three years transitional period).
The legal status of the province of Kosovo and Metohia (as well as of Vojvodina) has not been changed at all as a result of hostilities and the war that is imposed against Serbia and FRY. Of course, once the status of war has been declared (when the first NATO missiles struck), it pertains to the entire territory of Yugoslavia, certain freedoms having been correspondingly limited in accordance with the law.
Next Question...The question involves assuming an erroneous premise: "one person’s terrorist is another person’s freedom fighter". According to this premise one could view Jihad terrorists as freedom fighters. Terrorism is not a relative term, there are well known definitions of it. And of course, only some organizations are terrorist, never whole communities or ethnic groups. There is no doubt that the so-called KLA is a terrorist organization. There were widespread international suggestions to put them on the list of terrorist organizations, but out of political reasons this was never followed through appropriately.
Last year the KLA and Albanian terrorists killed dozens of policemen on duty and wounded hundreds of others, mainly shooting at them while they were on routine patrol in the police car (at one point it almost became an everyday occurrence often covered by Western media). KLA kidnapped hundreds of Serbian civilians from streets and their houses, and more than two hundred of them were never found again even with the help of the OESC Verifiers Mission. This terrorist organization also killed a large number of Albanians that did not want to join them, mainly those who were either supporters of the moderate Albanian nationalists Mr. Rugova, or who were loyal citizens of FRY. (For additional information please refer to http://www.mfa.gov.yu/Kosovo/Kosovo/index_e.html and http://www.mup.sr.gov.yu/domino\kosovo.nsf/pages/index-e)
Even before the KLA established itself as the armed-wing of the Albanian separatist movement, numerous cases of burning and looting of Serbian houses by Albanians, as well as other forms of pressure on the Serbian population, were recorded and made possible because of the tolerant attitude of local Albanian home rule officials. This was the "quiet ethnic cleansing" of Serbs from Kosovo and Metohia in the preceding years. This is how the number of Serbs in this province came down to 10% from more than 50% in the last few decades.
In these circumstances one could not be surprised that certain individuals out of control retaliated in the same manner, which we strongly condemn and expect this to be fully investigated and those responsible quickly prosecuted. However, there is no doubt that the tragic refugee flight, initiated after 24 March 1999, is a result of NATO bombing. Hundreds of thousands are fleeing the fighting and the bombing in all directions. To Albania, only Albanians flee. To Macedonia, Montenegro and Serbia, members of all ethnic groups flee. You are probably not informed about the trains coming everyday to central Serbia, and in particular to Belgrade, carrying refugees – Serbs, Albanians, Gypsies, Turks and others. There was no Western media coverage of the Albanian refugees on the Belgrade railway station and in Belgrade hospitals after they arrived from the inflicted area. It is not well known that 100,000 Albanians already live in Belgrade and that Albanians from Kosovo are coming to houses of their friends and relatives in Belgrade and other parts of Serbia, unobstructed by the authorities.
The exaggerating of the consequences of the Yugoslav military and police activities on the terrain in Kosovo (such as the "news" of the execution of Mr. Fehmi Agani /the close associate of Mr. Rugova/, the torching of Mr. Rugova’s home, or bidding with the number of refugees), on one side, and total neglecting of the sufferings of non-Albanian inhabitants of Kosovo, as well as of the Albanians who seek for refuge in central Serbia, represent the part of the propaganda war against FRY. One can not but conclude that this implies an attempt to divert the attention of the public from the fact that the crime of aggression on a sovereign state has been committed by NATO and that the sufferings of civilians – both in Kosovo and in the rest of the FRY – are caused by the wide-scale assault.
Common sense tells us that the cease-fire and the peace negotiations must begin immediately. While bombs are used as a means for resolution of the Kosovo problem, nobody will be able to stop this bloody mess.
Next Question...With regards to an international criminal tribunal, as the vast majority of countries, we strongly support such a project. But we would prefer a permanent court of that kind, with jurisdiction over all citizens of the world, where judges and prosecutors are elected for fixed periods of time in an appropriate manner and where the procedures are prescribed in advance, not as the case unwinds or by the tribunal itself (as is the case of the Hague Tribunal for War Crimes in the former Yugoslavia). Ad hoc tribunals could be used as instruments of a few powerful states, who took international law into their own hands and want to use it to force a political outcome, while keeping their nationals beyond reach of such type of justice.
An impartial permanent international criminal court (as conceived by the Rome Statute of 1998) could serve as a mechanism for establishing criminal liability of individuals for international criminal acts regardless of their nationality or the nationality of their victims. This pertains not only to Serbs and Albanians but also to all those individuals that brought the decision for aggression against FRY. These individuals not only committed a crime of aggression, but may be held responsible for certain war crimes (such as use of forbidden weapons, like the "cluster bomb", killing the civilians in their homes by cruise missiles, like in the Serbian city of Aleksinac in the night between 5 and 6 April 1999, or use of ecologically destructive tactics and materials, like in Bosnia and in the Gulf War).
Next Question...
This question is not based on reality: although NATO bombardment is in violation of the UN Charter and "deportation and forcible transfer of population" is a crime against humanity, the Yugoslav armed forces have not responded to the NATO crime with their own crime. In fact, we strongly believe that both mentioned crimes could be attributed to NATO. However, given your question, it is our legal opinion that, hypothetically speaking, if one assumes that "deportation and forcible transfer of population" is carried out by the Yugoslav armed forces, both sides would be responsible.
Next Question...
FRY signed and ratified all international conventions and covenants prescribing crimes against humanity and international law. Therefore, each and every person who committed these crimes shall be prosecuted and, if found guilty in the due process of law, convicted. The president of FRY (as well as members of Federal and republics’ parliaments, president of the Government, ministers and some other officials) is protected by the immunity against criminal prosecution, but the immunity may be withdrawn by voting of the members of the Federal Parliament [Article 97 (5) and (6)].
However, one should notice that if Mr. Milosevic (or any member of the Yugoslavian delegation) had signed the Rambouillet "Accord", containing several provisions aimed at extracting Kosovo and Metohia from Serbia’s and Yugoslavia’s legal system and creating an entity with almost all attributes of a sovereign state (with the competencies which exceed those of the two Yugoslavia’s constituent republics) and possessed by the NATO troops, he could have faced trial for several crimes which could be labeled "high treason": the crime of acceptance or recognition of occupation of a part of the national territory (Article 115 of the Federal Criminal Code – between 10 and 20 years of imprisonment) and the crime of jeopardizing the independence of FRY (Article 117 of the Federal Criminal Code – between 5 and 15 years of imprisonment).
Next Question...
Despite Yugoslavia’s continuing efforts in the past few decades to persuade other UN members to adopt a convention on protection of minorities within the World Organization, some bigger members such as the United States of America and some other NATO states persistently resist, thus, the United Nations never adopted such a convention. Instead, the UN adopted a non-binding Declaration on the Rights of National, Ethnic, Religious and Language Minorities in 1992. Therefore it is unclear to us what UN Convention on minorities are you referring to.
There is also the Framework Convention on the Protection of National Minorities, adopted in 1994 by the Council of Europe, which is considered to be the most developed and detailed binding act in the field. Unfortunately, some member states of the Council of Europe, such as France, have not signed the convention and officially declare that they will not sign it in the future. Yugoslavia is not a member state of the Council of Europe although it officially applied to become part of that organization. Since this Convention is open for signing by non-members on invitation by the Committee of Ministers of the Council of Europe, Yugoslavia officially expressed the intention to sign the Convention. The Committee of Ministers, however, shows no intention to invite our country to sign. Despite this, on December 3rd 1998, the Yugoslav Federal Parliament adopted a law by which it ratified the Framework Convention (Official Gazette of the FRY, International Contracts, 6/1998) making the Convention’s provisions directly applicable in Yugoslavia.
Also, you should know that even before adoption of the Framework Convention, the Yugoslav legal system had, in different laws, bills and other acts, numerous provisions relating to the rights of minorities, making guarantees that by far exceed those contained in the Framework Convention. In these circumstances, the reasons for our independent adoption of the Framework Convention itself are not only political and symbolic but practical as well: we wanted to complete our system with a specialized act, which is to serve as a legal pillar. The existing laws serve as the already developed part of the Convention (which is necessary for every member to develop since it is only a "framework" convention). To be attached: a detailed analysis of the relation between the provisions of various Yugoslav laws with the provisions of the Framework Convention.
In addition, Yugoslavia accordingly adhered to all other acts relating to minorities and adopted by OSCE and other organizations. Furthermore, FRY openly accept all recognized systems of control for respect of the acts of the Framework Convention and the European Convention on Human Rights and Fundamental Freedoms (competence of the European Court for Human Rights).
Regrettably, FRY was denied access to the Council of Europe and its instruments of control. Thus, all our efforts in this respect have been rejected. Instead, we were offered NATO military forces as "peace keepers" if we willingly accept their presence, or NATO military forces as war-makers if we don’t. What a choice!
Next Question...Tell your students and children the following:
In every nation there are good and evil people. There are no good and evil nations.
Violence breeds violence. Only negotiations, no matter how difficult and how long they might take, can bring a lasting peace.
If you pass judgment on someone, make sure you at least get to hear both sides of the story without prejudice. Don’t be so righteous!
Tell them especially to think for themselves and not take for granted what they hear in the news. Media are biased. You know that. Just remember how they concealed the ethnic cleansing of hundreds of thousands of Serbs within a week (early August 1995), carried out by the Croatian forces. There is no reason for them to be making an exception in this case. Those small inconsistencies you can notice even on CNN if you watch carefully always hide large lies. The leaders of the NATO alliance had to resort to lies in order to justify their actions. Just because someone is your president does not mean that the course your country is taking is the right one. It becomes painful and degrading when you feel helpless in influencing a gigantic establishment bent on having its way (talk about democracy!). Taking the easy way out and siding with the media-created mainstream will still cost many human beings in the end, and the ones who will pay are rarely the ones that should.
Next Question...
The dishonesty of pro-Albanian propaganda is mind boggling. No change of laws took place at all whatsoever: it is unimaginable that such changes of legislation could occur in a multi-ethnic and multi-religious country such as FRY. At least 100,000 Moslems live in the capital – Belgrade, while all the witness who visited Kosovo and Metohia can confirm that Albanians (especially in rural areas) wear traditional Moslem garments, and the religious services are held regularly throughout the province. The observers could notice that Albanians freely manifested their religious beliefs in praying, teaching, practice, worship, observance, etc. Specifically, there is not a single case of anybody being prosecuted either in criminal or in civil courts for Islamic or any other religious practice.
Next Question...[Editor's Note, April 7: This answer was drafted before the beginning of the release negotiations currently underway.]
Yugoslavia is a contracting party to the Geneva Convention on the Treatment of Prisoners of War of August 12th, 1949 (Geneva Convention III), as well as other 1949 Geneva Conventions and two Additional Protocols of 1977.
Article 2 of the Geneva Convention III provides that it "…shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them".
Article 4 of the same Convention defines who is considered a prisoner of war:
"A. – Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. …"
The three American soldiers detained by our armed forces (apprehended on the territory of FRY) are obviously prisoners of war. As a contracting party to the Geneva Convention III, Yugoslavia will treat them and all other prisoners of war in conformity to these international acts.
The effects of NATO bombing are far reaching and can be felt dramatically in all aspects of our lives. The civil infrastructure (bridges, factories, central heating system in Belgrade, schools, houses, etc.) is being destroyed to a large extent. Certain parts of the country are cut off from the rest; people are separated from their friends and families (like in Novi Sad, the second largest city in FRY, far away from Kosovo, because all bridges over the Danube river are demolished). Men, women and children are spending sleepless nights in cold and damp bomb-shelters, because the air attacks usually take place when the dark comes. Children are particularly affected: the schools are closed, long-term psychological consequences can only be imagined, while the short-term can already be seen in each family. As the university professors, we must emphasize that classes are not held and that our students, most of whom were devoted to the ideals of liberal democracy, now feel betrayed. Faced with the dilemma whether to pursue their struggle for more democracy in Serbia, or to defend their country, they unanimously choose defense. Nevertheless, a strong sense of purpose and unity is awoken in everyone and the sense of humor keeps us sane.
Next Question...
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JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.
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