Serbia: Tug of War over Remains of Yugoslavia (II)
The discussion about the legitimacy problem of the ICTY has not begun with former Yugoslav president Slobodan Milošević's death in ICTY custody (March 11, 2006) but it has furthered discussion also in mainstream publications. Harvard International Review hinted at the contradictions related to the ICTY (proclaimed principles of justice vs. doubts concerning legality, neutrality, and legitimacy) and pointed out that it has not been a neutral legal institution. (1) Elsewhere questions of fairness and impartiality have been raised openly: the interference of international politics with legal procedures and standards, the entanglement of trial sponsors, prosecution, and judges, the neclecting of legal standards. Hans Köchler has discussed the inherent problems of the international legal order in general, and the ICTY in particular. (Köchler 2003, 2005) A recent book by an observer of ICTY challenges the conduct of the trial against Milošević. (Civikov 2006)
A report of the NATO Parliamentary Assembly from 2000 had already stressed the bias in dealing with the situation in Kosovo before the NATO attack. (2) Heinz Loquai, General with the Germany Army and staff member of OSCE in Vienna, who appears to have been sacked by then German ministry of defence Rudolf Scharping for his criticism (Spiegel 2000), challenged legitimacy and legality of the NATO attack against Yugoslavia. (Loquai 2000). Furthermore he and others (Mandelbaum 1999, MccGwire 2000) stressed that the NATO attack produced the humanitarian catastrophe it had claimed to combat. The behind the scene collaboration with and support of the Kosovo Liberation Army (KLA) by "Western" secret intelligence has been described as well. (Fallgot 1998, Küntzel 2000, Walker and Laverty 2000)
Embarrassments Unlikely to Disappear
"Western" bias did not stop with the attack against Yugoslavia. It is likely to haunt the Balkans for the times to come. In Kosovo "Western" management of the Serbian province (United Nations Interim Administration in Kosovo - UNMIK) ran into troubles when members of the ally KLA were accepted staff members of the Kosovo Protection Corps, or members of the provincial government, including the post of a so called prime minister.When in 2001 British SAS soldiers captured Kosovo Albanians "suspected of being involved in the mass killing of Serbs", as the London Guardian reported, four of the detained were
"believed to have been identified as members of the Kosovo Protection Corps, which grew out of the Kosovo Liberation Army and is headed by the KLA's commander, Agim Ceku. KLA members were trained by the SAS before it was disbanded after the Kosovan war, and the arrests are likely to embarrass Nato, the UN, and other international agencies trying to impose law and order in the Serbian province". (Norton-Tayler 2001)
Already in 2000, the Guardian had printed an article on a secret UN report dealing with the Kosovo Protection Corps (KPC):
"Murder, torture and extortion: these are the extraordinary charges made against the UN's own Kosovo Protection Corps in a confidential United Nations report written for Secretary-General Kofi Annan. […] The KPC is led by General Agim Ceku, who comes in for fierce criticism from the report. His earlier pledges not to tolerate any criminal behaviour by KPC members and to expel anyone who violates the law are mocked by the report, and Ceku, who was formerly a senior commander in the KLA, comes in for personal criticism." (Sweeney and Holsoe 2000)
Agim Ceku was arrested twice for allegations of being involved into war crimes, in 2003 (Slovenia) and 2004 (Budapest). Then chief of the UN Mission of Kosovo, Harri Holkeri, intervened successfully for his release, he argued that Mr. Ceku belonged to his jurisdiction only. The Government of Serbia protested that the warrant issued via Interpol in Belgrade had been internationally ignored, and stressed that Kosovo would belong to its jurisdiction. The Serbian Minister of Justice complained in a letter to chief prosecutor of the Hague tribunal Carla del Ponte that she did not prosecute KLA leaders like Agim Ceku, Hashim Taqui and others, although there were evidence to do so. (Government of Serbia 2003 and 2004, Slovenia News 2003) Needless to say, it was not received well by Kosovo Serbs when in March 2006 Agim Ceku replaced Bajram Kosumi, who had come under pressure for accepting favors by business men, as prime minister of Kosovo. Mr. Kosumi himself had followed Ramush Haradinaj, who faced charges at the ICTY in The Hague, only a year earlier. (Moore 2006) The trial against Mr. Haradinaj will start on March 5, 2007. (Southeast European Times 2007)
While the appointment of Mr. Ceku led to renewed discussions on war crimes he allegedly had committed during the Yugoslav succession wars, when he was member of the Croatian army (Center for Peace in the Balkans 2006), Interpol felt prompted to issue a statement regarding Agim Ceku: The diffusion notice by a Serbian court on genocide charges had been
"duly registered in Interpol’s database of wanted persons. On 10 March 2006, Mr Ceku was appointed Prime Minister of Kosovo. In line with international jurisprudence that international arrest warrants against persons enjoying immunity under international law – such as Foreign Affairs Ministers and Heads of State and Heads of Government – should not be issued, Interpol’s policy is not to process such information, or if already processed and registered, not to maintain it in its active databases in such circumstances. Accordingly, based on the above and the status of the civilian government of Kosovo under United Nations Security Council Resolution 1244 (1999), the General Secretariat decided to suspend all information concerning Mr Ceku currently registered in Interpol’s databases during the time he continues to serve as the Prime Minister of Kosovo." (Interpol 2006)
Serbia, ICTY, and Conditionalities
The next step in the springtime between the European Union (EU) and Serbia would be the Stabilisation and Association Agreement (SAA). Negotiations, however, have been called off by the EU on May 3, 2006: "The Commission stressed its readiness to resume negotiations as soon as full cooperation with the ICTY is achieved." (EU Commission 2006b: 5) Chief ICTY prosecutor Carla del Ponte expressed in an address to the UN security council on December 15, 2006, nevertheless her disappointment about Serbian re-integration progress which was not accompanied by successful arrests:"The European Union has been a key partner over the past years. Nineteen out of the 24 accused currently on trial were transferred to The Hague as a direct result of the European Union’s policy of conditionality. I trust the EU will remain a reliable supporter of the ICTY. Despite its clear failure to capture Karadžić and Mladić, NATO over the years has provided a useful political support to the Tribunal. The recent decision by NATO to allow Bosnia and Herzegovina and Serbia into the Partnership for Peace, however, is a powerful signal that the international support for the Tribunal is decreasing." (United Nations 2006)
The Viennese Standard meanwhile quoted a diplomat in Brussels saying that the acceptance of an independent Kosovo on part of Serbia could be the deal of not giving the Mladić case top priority. (Der Standard 2007: 3)
Read in part III: Disintegration of Yugoslavia.
(1) "[M]uch of the problem is inherent in the ICTY. Its self-declared accomplishments of helping to heal the wounds of war and promoting “respect for the Rule of Law across the former Yugoslavia� are inextricable from the question of its perceived legitimacy. Rather than advance reconciliation in Yugoslavia, the ICTY seems to have created a popular narrative that the West orchestrated a politically motivated show trial against a wrongly deposed leader. Major US media sources have opined that the proceedings have a distasteful air of “victor’s justice.� And indeed, the ICTY is fundamentally not a neutral institution. In the oft-quoted acknowledgment of NATO spokesperson Jamie Shea in May 1999, “NATO countries are those that have provided the finance to set up the Tribunal, we are amongst the majority financiers, … we want to see war criminals brought to justice, and I am certain that when Justice Arbour goes to Kosovo and looks at the facts, she will be indicting people of Yugoslav nationality. I don’t anticipate any others at this stage.� Most of the ICTY’s funding comes from discretionary spending by the large NATO countries through the United Nations. NATO and EU forces in the former Yugoslavia are responsible for apprehending war crimes suspects (some of whom remain at large). Despite its noble purpose of holding war criminal to account, the ICTY is an institution of the great powers." (Harvard International Review 2006)
(2) "The arbitrary violence meted out by Serbia's security forces was sharply condemned, as were the terrorist acts committed by the UCK […]. As the situation worsened there was increasing partisanship on the part of the West in favour of the Kosovo Albanian victims and, as such, a shift in the direction of the UCK, which in the case of the United States and Great Britain led to clear partisanship for the UCK in 1999. This shift rapidly took place after the first formal meeting with US Ambassador Chris Hill on 15 June 1998 despite the fundamental conflict of interests. While the NATO countries wanted to prevent a massacre and were otherwise interested in stability in the region, and at most advocated restoring Kosovo's autonomy, the UCK sought to worsen the situation in order to motivate the population to take part in an uprising for independence. […] The UCK used the Holbrooke-Milosevic agreement as a pause to regroup and to gather strength after the setbacks suffered during the summer. Under the influence of the Kosovo Verification Mission (KVM) the level of Serbian repression eased off in the period from October to December 1998. On the other hand, there was a lack of effective measures to curb the UCK, who continued to raise money from donations in the United States and Western Europe - particularly in Germany and Switzerland - to advertise for recruits, and to smuggle weapons across the Albanian border. As of December 1998 there was a strong increase in the number of UCK attacks on Serbian security forces and civilians. The conflict escalated again, creating a humanitarian crisis which motivated NATO to intervene. The alleged massacre of Racak, the circumstances of which have not been fully clarified to this day, created the feeling that there was a need to act and led to the NATO air strikes strongly desired by the UCK after the failure of the Rambouillet negotiations." (NATO 2000)
Sources
Center for Peace in the Balkans (2006): General Who Ordered Attacks on Canadian Troops Becomes Prime Minister of the U.N.-Administered Serbian Province of Kosovo. March 14, 2006. (February 3, 2007)
Civikov, Germinal (2006): Der Milošević-Prozess. Bericht eines Beobachters. Vienna.
Der Standard (2007): Anzeichen für Mladić-Deal. February 3/4, 2007, p. 3.
EU Commission (2006b): Serbia 2006 Progress Report. Brussels, November 8, 2006.
Fallgot, Roger (1998): How Germany Backed KLA. In: The European, 21-27 September 1998.
Government of Serbia (2004): Holkeri's intervention to release Ceku is abuse of office. Belgrade, March 2, 2004. (February 3, 2007)
Government of Serbia (2003): Indictments against KLA leaders must be filed. Belgrade, August 15, 2003. (February 3, 2007)
Harvard International Review (2006): Credibility and Legitimacy of International Criminal Tribunals in the Wake of Milosevic's Death. May 06, 2006. (February 2, 2007)
Interpol (2006): Interpol statement concerning arrest warrant for Agim Ceku. Interpol Media Release, March 28, 2006. (February 3, 2007)
International Progress Organization (IPO) (1999): Memorandum. (February 1, 2007)
Köchler, Hans: Global Justice or Global Revenge? International Criminal Justice at the Crossroads. Philosophical Reflections on the Principles of the International Legal Order. Vienna and New York, 2003.
Köchler, Hans: Global Justice or Global Revenge? Reflections on International Criminal Justice and the Role of the United Nations Security Council. Lecture at the International Conference on "The Hague Proceedings against Slobodan Milošević: Emerging Issues in International Law," The Hague, Netherlands (26 February 2005).
Küntzel, Matthias: Germany and the Kosovo. How Germany paved the way to the Kosovo War. Contribution to the 2nd International Hearing of the European Tribunal concerning Nato’s war against Yugoslavia. Hamburg, April 16, 2000. (February 2, 2007)
Loquai, Heinz (2000): Der Kosovo-Konflikt – Wege in einen vermeidbaren Krieg. Baden-Baden. (=Demokratie, Sicherheit, Frieden 129)
Mandelbaum, Michael (1999): A Perfect Failure. NATO's War Against Yugoslavia. In: Foreign Affairs 78 (1999), No. 5, 2-8.
Mccgwire, Michael (2000): Why Did We Bomb Belgrade? In: International Affairs 76 (2000), No. 1, pp. 1-23.
Moore, Patrick (2006): Kosova: Top General Named Prime Minister. In: Radio Free Europe/Radio Liberty, March 2, 2006. (February 3, 2007)
NATO Parliamentary Assembly (2000): General Report: Kosovo Aftermath and Its Implication for Conflict Prevention and Crisis Management. (February 2, 2007)
Norton-Taylor, Richard (2001): Albanians Held for Massacre of Serbs. In: The Guardian, March 29, 2001. (February 3, 2007)
Slovenia News (2003): Former Kosovar Rebel Leader Arrested at Brnik Airport. Ljubljana, October 22, 2003. (February 3, 2007)
Southeast European Times (2007): Haradinaj ordered to return to ICTY by February 26th. February 4, 2007.
Spiegel (2000): Kritik am Kosovo-Einsatz : Schasste Scharping einen OSZE-General? June 22, 2000. (February 2, 2007)
Sweeney, John, and Holsoe, Jens (2000): Revealed: UN-Backed Unit's Reign of Terror. In: The Guardian, March 12, 2000. (February 3, 2007)
United Nations (2006): Address by Carla del Ponte, Prosecutor of the International Criminal Tribunal for the Former Yugoslavia to the Security Council. December 15, 2006. (February 3, 2007)
Walker, Tom and Laverty, Aidan (2000): CIA Aided Kosovo Guerrilla Army. Disclosure Angers European Diplomats. In: The Sunday Times. London, March 12, 2000. Quoted In: Center for Peace in the Balkans. (February 3, 2007)
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