South Slavic: November 23, 2000

Where To Try Milosevic: In The Hague Or Belgrade? Part I

Stanko Pihler is a criminal law professor of the Faculty of Law in Novi Sad. Dusan Batakovic is an assistant professor in the History Department of the Faculty of Philosophy in Belgrade. The two men spoke together recently on RFE/RL's Radio Most (Bridge) with Omer Karabeg.Part II will appear on 30 November.

Omer Karabeg: Should the new Yugoslav government extradite former President Slobodan Milosevic, who has been indicted for war crimes, to the Hague tribunal? Mr. Batakovic, Vojislav Kostunica, who is the new president of Yugoslavia, has stressed that the Hague tribunal is an instrument of American policy. He said that even before he became president and has maintained that attitude since being elected. Do you share his opinion?

Dusan Batakovic: The Hague tribunal was created at a specific point in time and it certainly had strong political overtones�. I think that a compromise solution should be found that would be acceptable for our country and meet the standards of international jurisprudence.

This is why I think that all the accused from the region--and first of all high-profile politicians--should be tried in our country, while representatives of the Hague tribunal�should be allowed to attend the trials and provide information from their records. I think that would be the best solution for political and legal reasons.

Omer Karabeg: Mr. Pihler, do you agree that the Hague tribunal is an instrument of U.S. policy?

Stanko Pihler: I do not have that impression. I consider the Hague tribunal an instrument of the international community. It is based on the UN Charter. It is a legal and legitimate institution, a specialized court of the international community created by a Security Council resolution.

I think that the dilemma whether Milosevic should be handed over to the Hague tribunal should be put in a broader legal and political context. First, one should answer the question whether we are ready at all to cooperate with the tribunal, and then we can answer your question�. It would not be legally and politically impossible to try Milosevic at home, but I would not be so sure that the international community would accept it.

Dusan Batakovic: I think that it is less important where the indicted war criminals are tried. The point is that they are sentenced and brought to justice. My general attitude is that the best solution would be if they were tried by our courts, and for several reasons. First, that would restore confidence in our judicial system, which, not only in the last 13 years of Milosevic's rule, but throughout the last half of the century, was under the burden of ideology and poorly co-ordinated with international law. Let me remind you that Josip Broz Tito used to say that we should not stick blindly to the law. He thus set the stage for the lawlessness that came to fruition under Milosevic.

I also think that it is important not to destabilize the political situation in Yugoslavia. Declaring open season on war criminals and urging their extradition to The Hague would shake the very foundations of credibility of the new government that has yet to be [fully] established in the Federal Republic of Yugoslavia. Once Milosevic is gone [from politics], the ideological impetus that made the Hague tribunal so pronouncedly anti-Serb will disappear from the political stage as well.

I was allowed to see the records of the tribunal and especially the expert views of some international history experts. I must say that there were elements in some presentations that implied the guilt of the entire Serbian people.

Do not misunderstand me. I do think that it is in the best possible interest of the Serbian people, the Serbian state, and the Federal Republic of Yugoslavia to have those responsible for crimes brought to justice. This is what makes the cooperation with the Hague tribunal absolutely necessary. However, that does not mean that those indicted for war crimes must necessarily be tried in The Hague.

Omer Karabeg: Mr. Pihler, do you think that the extradition of Milosevic and others indicted for war crimes to The Hague tribunal could destabilize the new government?

Stanko Pihler: No, I do not think so. On the contrary, I think that the new government would earn a higher level of credibility in the international community.

By the way, I am somewhat reserved towards the new government regarding its attitude towards the international community, and especially towards the Hague tribunal. I think that established political patterns cannot be jettisoned easily and that lots of time and trouble will be involved before new attitudes take root.

As far as the tribunal is concerned, it seems to me that some things are incontestable. First, the Hague tribunal has been constituted as an organ of criminal prosecution and as a specialized court of the international community. This was done after some very serious crimes against humanity and violations of international law were committed in the region of the former Yugoslavia.

Another point is that the tribunal is functioning. It is prosecuting [indicted criminals] and pronouncing sentences. It is reasonably effective and accords a high degree of rights to the defendants. The charges it formulates are presented in a serious fashion.

All this was enough for me to conclude that it would be politically opportune, morally legitimate, and legally justified not only to express our readiness in principle, but to launch effective cooperation with the tribunal. We should therefore modify our domestic laws to that end�.

The entire concept of criminal liability accepted by the tribunal asserts the principle of individual liability and not collective responsibility. It also stresses the principle that all the indicted are equal before the tribunal. A people is never charged, but only an individual. And it is not true that members of only one people are indicted. Quite the contrary.

Dusan Batakovic: Cooperation with the Hague tribunal is not open to debate, either for me or for Mr. Pihler. But we do not agree about what the new government should do. I am thus not talking about the legal aspect, I am talking about what is opportune from the perspective of domestic politics.

I think that Mr. Pihler and I agree that Milosevic should be brought to justice. We disagree about the form of the trial. I do not think that a trial in The Hague would be opportune at this moment. It would be better to use another possibility foreseen by the basic provisions according to which the Hague tribunal was established. According to those principles, those responsible can be tried in their countries of origin.

In the course of the tribunal's work to date, I have noticed that many of those indicted for war crimes from Bosnia were somehow deprived of adequate legal protection. I had the impression that lawyers for the Serbs were assigned by Milosevic's establishment, which obviously took care that no trail for war crimes in Bosnia, Croatia, or Kosovo was allowed to lead to the administration, army, or police.

At the same time, it seems to me that the experts were biased. I do not know whether Mr. Pihler has already seen the records, but I was thunder-struck when I read some of their testimonies. I saw these experts presenting our history in a distorted fashion. The history of the Serbs is shown as a continuous yearning for occupying other people's territories and destroying every non-Serb element on those territories, which I consider a very wrong view.

Omer Karabeg: Mr. Pihler, do you think that Slobodan Milosevic and others indicted for war crimes from Serbia could be fairly tried in Serbia?

Stanko Pihler: At this moment--no. I do not think that it will be possible in the near future, and there are many reasons for that. I think that the reasons are mostly political, but there are also many psychological ones. The process of stabilization in Serbia will last a long time, especially where the rule of law is concerned. This is why I find the solution I advocate more suitable.