The dubious legality of the extradition of former Yugoslav President Slobodan Milosevic to The Hague has led some to question whether a system of international justice can ever be truly fair and impartial. Many observers say that while the UN war crimes tribunal is capable of conducting a fair and open trial, justice may have been better served if the Yugoslav government was given sufficient time to create a constitutional framework for Milosevic's extradition -- and if the former president had first been tried in Serbia.
Prague, 23 July 2001 (RFE/RL) -- On June 28, Slobodan Milosevic was taken from a Belgrade prison cell and handed over to officials from the UN's International Criminal Tribunal for the former Yugoslavia, or ICTY. The long-awaited transfer of the former head of state was a triumph for The Hague-based tribunal, which since its creation in 1993 had apprehended only lower-level defendants. Many applauded the transfer, but nearly a month later, some are still questioning the way in which Milosevic was delivered to The Hague and wonder what impact his extradition and eventual trial for alleged war crimes in Kosovo will have on the future of an international justice system.
Ivan Vejvoda, head of Yugoslavia's Fund for an Open Society, says the legality of the transfer -- which involved the Serbian government using an article in its own constitution to circumvent the Yugoslav Supreme Court's temporary freeze on the extradition -- was "a question of interpretation."
But, Vejvoda added, the imperative of pushing ahead with political stabilization and social reform in Yugoslavia -- plus the importance of securing some $1.3 billion in international aid at a donors' conference that coincided with the date of Milosevic's rushed transfer -- meant that the ends ultimately justified the means.
"Whether you think that the [Yugoslav] constitutional court, which as you know are membered by people Milosevic appointed, should determine whether it's legal or illegal, I simply think that the Serbian government followed the best self-interest of this country and proceeded forward."
Both defenders and critics of the extradition acknowledge the difficulty of securing an easy resolution to the Milosevic question in a country that is grappling with two levels of government and two -- often contrary -- federal and republican constitutions. Nina Bang-Jenson is a staffer in the Washington office of the Coalition of International Justice, a non-profit organization working in tandem with the war crimes tribunal. She describes the protracted attempt by the ruling coalition in Belgrade to forge a legal route for Milosevic's extradition as "a promising political process," and one the tribunal was willing to watch unfold -- up to a point.
In the end, however, Bang-Jenson says the domestic constitutional concerns of any country are secondary to the authority of the ICTY -- including the Federal Republic of Yugoslavia, a UN member since November 2000. She adds that a firm legal justification for the Milosevic handover was also not necessary since it technically constituted a "transfer" to an international body, and not an "extradition" to another country's criminal justice system.
"Every state, every country in the world -- but particularly a UN member state -- has an obligation to abide by orders of the tribunal. And an order of the tribunal was pending with regard to the transfer of persons who had been indicted -- an order that had to be enforced by every member state of the UN. Countries have enacted what are called 'domestic enabling laws' to create the legal framework for these transfers, but they're really not necessary. The obligation remains and is there regardless of whether there's a domestic law or not."
Others, however, express concern that Milosevic's transfer and eventual trial will send the world a negative message about Yugoslavia's capacity for self-governance and proper judicial procedure. Critics say the tribunal's push for the transfer and the Serbian government's cooperation -- which was apparently conducted without the approval or knowledge of Yugoslavia's democratically elected president, Vojislav Kostunica, himself a constitutional lawyer -- was overly zealous, and threatens to weaken, rather than enhance, the course of reform in the country.
Ramesh Thakur is a political scientist and a vice rector of the United Nations University in Tokyo. He says that Serbia should have been given the chance to begin its own judicial process against Milosevic. Thakur compares the 11th-hour rush to extradite Milosevic to a situation where the U.S. government decided to act on a contested issue that has just been brought before the Supreme Court without giving the court time to rule.
"Much as I understand the desire to see Milosevic brought to justice, I think that in the larger scheme of things, it's much more important to embed a system of constitutional governance in Serbia -- and I don't think it helps if an executive overrides or circumvents its constitution, and ignores its own judicial system. Especially as I think, in fact, it is much more important for the people of Serbia overall to be made aware of the crimes that were committed in their name, to confront that ugliness in their very recent past, and to overcome it by confronting it instead of running away from it."
Milosevic himself has contested the tribunal's jurisdiction, and his defense lawyers are preparing to contest the extradition in a Dutch court. But Thakur says he believes justice will ultimately be served in the Milosevic case, regardless of where he is tried. Thakur adds, however, that by sending the former Yugoslav president to The Hague, both the ICTY and the Serbian government have run two potential risks. One, he says, is that the trial -- conducted in what is perceived as a Western court that is far from the eyes of Serbian citizens -- might spark a revival of Serbian nationalism that could have been easily quelled with an open and transparent trial at home. The other is that the tribunal proceedings will further "blur the distinction" between truly independent international justice and what Thakur calls "judicial colonialism."
So, Thakur says, despite its stated objective of "universal" justice, the ICTY may have a hard time shaking off accusations of Western bias:
"The tribunal is located in a NATO country. It is funded principally by the NATO countries. It depends for its evidence-gathering chiefly on the intelligence and other activities of the NATO countries. It has depended for enforcement of its edicts and directives mainly on the NATO countries. And so on and so on and so on."
Vejvoda of the Open Society Institute in Belgrade says most Yugoslavs feel "a great sense of relief" that the issue of Milosevic's transfer has been resolved. But at the same time, he agrees that justice might have been better served had Milosevic first been allowed to stand trial in his own country:
"[Milosevic] should have first been tried here, together with and in the presence of The Hague court people, and then extradited. So [there would have been] a kind of two-step arrangement in which he would first face the domestic court and [public opinion here could] see him sitting in the dock, in front of our court and our people. And then, in a second step, [he could] be moved over there -- but again, as I said, all in coordination and in the presence of The Hague people."
Vejvoda adds that the recent decision by Serbian Justice Minister Vladan Batic to indict and try, in domestic courts, a number of war criminals not sought by The Hague may help see justice dispensed within the country as well. The ICTY's continued pursuit of non-Serbian war criminals -- like Croatian generals Rahim Ademi and Ante Gotovina -- may also go a long way, he says, toward curbing any anti-Western and anti-tribunal sentiment growing in Serbia.