Select Committee on Foreign Affairs Fourth Report


Fairness of the ICTY

32. Many Serbs view the ICTY as a one-sided attempt by the international community to punish Serbia as a nation for the crimes of individuals.[69] The Serbian Unity Congress writes that "it is a commonly held belief by Serbs in the homeland and diaspora that the Hague Tribunal is one-sided, biased and politically motivated in its alleged pursuit of justice".[70] Misha Glenny told us that President Kostunica "believes the Hague Tribunal to be compromised by its relationship with the Americans, in particular, and American intelligence. He believes that the Hague Tribunal is being used as a way of demonising Serbs and he makes a persuasive case for this".[71] Carl Bildt writes of "the skepticism shared by many democratic Serbs about the tribunal's justness".[72] Given the recent history of the NATO bombing raids against Serbia and of anti-US propaganda in the state-controlled media under Milosevic, it cannot be surprising that any connection between the United States and the ICTY will be seen by many in Serbia as proof of bias.

33. Several specific examples have been given to us to account for Serbian sentiment against the international court. The Tribunal's "refusal to indict the late Croatian President investigate NATO for the possible commission of war crimes" have been identified as two particular decisions which "were bound to consolidate sentiments among the Serbs that this is not a fair court".[73] Tim Judah has quoted President Kostunica as saying that crimes committed against Serbs by Kosovo Albanian guerrillas are another category of war crime which "have never been treated by the court and never would be treated by the court".[74]

34. We agree with Carl Bildt that the tribunal will be able to bring about reconciliation only when its verdicts are seen as fair by people of the same nationality as those sentenced.[75] The gap between the Tribunal and Serbs will only be bridged with movement from both sides. We will now look at what should be expected from the Tribunal on the one hand and from the Yugoslav authorities on the other to aid this reconciliation.

Action needed from the ICTY

35. A number of our witnesses have voiced very specific criticisms of the ICTY. According to Carl Bildt, it "must do more to dispel the perception that it is the instrument of any one power or nation".[76] Misha Glenny writes that ICTY officials "occasionally forget that their role has a political aspect to it",[77] a view which he echoed in oral evidence.[78] It is a truism that justice must not only be done—it must also be seen to be done.

36. Far more ethnic Serbs have been publicly indicted by the ICTY than other ethnic groups. 78 per cent of those publicly indicted by the ICTY have been ethnic Serbs. Of those publicly indicted by the ICTY and still at large 96 per cent are ethnic Serbs.[79] Ethnic Serbian indictees of the ICTY include the former President of Yugoslavia, the current President of Serbia, the former Chief of Staff of the Yugoslav Army, former Presidents of the Republika Srpska (the ethnic Serb part of Bosnia-Herzegovina) and the former commander of the Bosnian Serb army. In contrast, very few comparably senior politicians or military figures of any other nationality have been indicted by the ICTY.[80] The ICTY cannot and should not hold back in its attempts to bring to justice all those believed responsible for war crimes in the former Yugoslavia. If the ICTY establishes that more Serbs have committed war crimes than other ethnic groups in the Balkans—as it might—then it is right that it should attempt to bring more Serbs to trial than members of other ethnic groups. The ICTY does, however, need to explain its reasons for taking more action against one ethnic group than another. It must also understand that such action could well aggravate Serbian sentiment against it. It is crucial that the Tribunal take action to address this.

37. One area in which action by the ICTY could significantly affect Serb public opinion and show even-handedness is the investigation of crimes committed against Serbs. The Court might want to consider actively soliciting information from Serbs on war crimes committed against Serbs, such as in Eastern Slavonia. At the very least, if the ICTY is ever to gain credibility in Serbia, it should react helpfully, promptly and efficiently whenever Yugoslav citizens of good will attempt to co-operate with it. While we were in Belgrade a Serbian pathologist told us that evidence submitted by him to the ICTY had been lost twice by the Tribunal. We recommend that the Government impress on the ICTY the need to be seen at all times to be acting even-handedly and efficiently in its dealings with all ethnic groups.

38. The other important step which the ICTY should be taking is to show some understanding of the political difficulties faced by the Yugoslav authorities in acceding to its demands. Public opinion is one of these difficulties. Mr Crawford suggested to us that the danger of criminal retaliation might be another, and pointed to a feeling among Yugoslav politicians that there was a "need to proceed carefully".[81] The reportedly hostile attitude taken by Carla del Ponte, the ICTY chief prosecutor, in demanding the immediate extradition of war crimes suspects from Yugoslavia is far more likely to compound the difficulties faced by the new government and harden popular Serbian feeling against the Tribunal than to lead to her demands being met. This is not to say that she should not be making the demands that she is—merely that understanding the political sensitivities behind the Yugoslav position needs to be more prominent in how these demands are made.

39. Lack of co-operation with the ICTY by the Milosevic regime has meant that the Tribunal has so far had little access to information about war crimes committed against Serbs. This is certain to change under the new administration. As Carl Bildt recognises, justice at the ICTY is already very slow.[82] It will not be able to widen its investigations without sufficient resources. The new Yugoslav authorities will only be able to justify co-operation with the ICTY to their people if the ICTY acts efficiently and impartially on evidence of war crimes against Serbs. Failure to do so could hamper reconciliation in the region. We are glad that the Minister of State recognises the British Government's role in ensuring that the ICTY has the support it needs.[83] We recommend that the Government do all in its power to ensure that the ICTY has sufficient resources to enable it to deal promptly and efficiently with evidence presented to it.

Action by the European Union: conditionality

40. We have already mentioned the direct conditionality created by the US Congress between aid and Yugoslav co-operation with the ICTY. The US model of conditionality is inherently risky. Congress may find itself in a position of stopping aid and undermining regional stability and future prosperity because, despite substantial progress towards an open and democratic society, Yugoslavia has failed to take certain political actions relating to the ICTY within a tight timescale. Alternatively, it may, by continuing aid, be interpreted as condoning a level of co-operation with the ICTY which is less than ideal. Chris Patten has told us that while there is broad conditionality attached to EU aid to Yugoslavia, it would not "be right for us, for instance, to tie the achievement of certain political goals to the provision of support for electricity imports or the provision of oil for schools or hospitals. I think that would be too exact a conditionality".[84] We agree. We support the EU's approach to conditionality, namely that they "are insistent with Belgrade that they have in due course to meet the same criteria regarding the Hague as the Croatians or as anybody else in the region",[85] and that they keep the standard of Yugoslav co-operation with the ICTY under constant critical review without attempting to establish a specific timescale for co-operation.

Action by Yugoslavia—truth commission

41. As much as the ICTY may do to prove itself impartial, much of the reason for Yugoslav hostility to the Tribunal is the lack of awareness in Yugoslavia about the crimes committed by Serbians and in the name of Serbs against Croats, Bosnian Muslims and Albanians. A 'Truth Commission' has been proposed. This name is perhaps misleading, as it is not—as the South African model might suggest—an exercise aimed at promoting forgiveness and reconciliation. When it was described to us in Belgrade, it was mooted as a public relations exercise within Serbia, aimed at educating people about the crimes committed in their name, as well as about crimes committed against Serbs, knowledge of which Milosevic also suppressed.

42. Misha Glenny has told us that "the problem with truth and reconciliation is that you are dealing with not just Serbia and Yugoslavia but also Croatia and Bosnia-Herzegovina. Were there a truth and reconciliation committee, to be of any value it would require everyone involved to commit themselves to it and the indications that I hear, out of Croatia in particular, is that they possibly would not be very happy with this idea".[86] Any reconciliation will certainly have to involve the region as a whole. We, however, consider that, as a first step, a public education exercise within Serbia may be useful—with strict safeguards.

43. Clearly, such an exercise should not involve any suggestion of an amnesty for those who participated in war crimes. Nor could it serve as an alternative to co-operation with the ICTY—it would rather enable full co-operation with the ICTY on a politically sustainable basis. It is important that any public education exercise should not be selective, and should not put greater emphasis on crimes committed against Serbs than on those committed by Serbs. It is equally important that it should not jeopardise the due process of law by accusing individuals of crimes for which they have not yet stood trial. We look forward to seeing more detailed proposals for a truth commission, with these restricted aims and with these caveats borne in mind. We would regard it as a clear sign of good will if the Yugoslav and Serbian governments consulted the new ICTY office in Belgrade on these proposals. We recommend that the Government encourage the Yugoslav authorities in their attempts to increase public awareness of the war crimes committed in the region, as a precondition for regional reconciliation and to increase public understanding of the role of the ICTY.

Who should try suspected war criminals?

44. The Government has made it clear in its evidence to us that "the domestic courts of the FRY do not have 'prior jurisdiction' over an indictee if he or she is also accused of crimes against domestic law".[87] Nonetheless, some Yugoslav politicians who met us in Belgrade clearly think it preferable for Serbians to be tried by a domestic court than by an international tribunal. There were several reasons proposed to us for this. The first issue was the perceived bias of the ICTY, which we have discussed above. Linked to this was a worry that suspects extradited to stand trial before a tribunal viewed as anti-Serb within Serbia could be seen as heroes and martyrs by a section of the population. It was also argued that public opinion had turned against indictees such as Milosevic and that they would be likely to be treated more harshly by the Yugoslav judiciary than by the ICTY.

45. Recent demonstrations in Croatia have shown that there is a real danger that suspects sent for trial at the ICTY will be viewed as heroes at home.[88] We do not believe, however, that this is a reason for people accused of crimes against other ethnic groups not to be extradited. It is very much a reason for the ICTY not only to act impartially at all times, but to be seen to act impartially at all times. In addition, public opinion in Yugoslavia seems, according to press reports, to be consistently hostile to Milosevic and other indicted Serbians while it is becoming more sympathetic towards the ICTY.

46. The situation has been potentially complicated, however, by the attitude taken by the ICTY towards a former Croatian general, Mirko Norac, who has been accused of the killing of ethnic Serbian civilians in the town of Gospic in Croatia. According to news reports,[89] Norac voluntarily surrendered himself to stand trial before the domestic Croatian courts, but apparently only after he was given undertakings that the ICTY would not begin any proceedings against him itself. The ICTY has claimed that "there was no deal or arrangement in place between the Tribunal and the Croatian authorities".[90] The ICTY has commented further that it is "important to support a country or state trying their own suspected war criminals" for crimes committed on that country's territory.

47. The problem with this line of argument is that it could equally refer to Milosevic and other Yugoslav citizens, but for the fact that they have been indicted by the ICTY. They too are accused of crimes committed on the territory of their country, albeit in Kosovo.[91] The only reason the Norac case can be tried by the domestic courts, but the Milosevic case cannot, is that the ICTY has chosen to issue an indictment against Milosevic, but not against Norac. There are doubtless excellent reasons for allowing the Croatian courts to deal with Norac, but it is a decision likely to entrench suspicions of bias in Serbia. We conclude that, by allowing a prominent Croat accused of war crimes against Serbs to be tried by the domestic Croatian courts, the ICTY may have made it politically more difficult for the Yugoslav authorities to justify the extradition of Serbian war crimes suspects to the Hague. We welcome the fact that the ICTY has made it clear that the trials of Serbs accused of war crimes before the ICTY might take place in part in the Federal Republic of Yugoslavia.

48. Finally, we come to the argument that Milosevic and other prominent Yugoslav indictees will receive firmer justice from the Yugoslav courts than from the ICTY. We have received conflicting evidence on this point.[92] Though it may well be true that Milosevic and others accused of war crimes would receive a proper trial in Serbia, this is not a valid argument for refusing to extradite them. For one thing, we suspect that the real aim of the current Yugoslav administration is less likely to be to ensure that Milosevic receives justice than to ensure that public opinion in Serbia remains against him. We also believe that Serb demands that Milosevic account to them for the damage that he has done to their country as its president are less pressing than the need for Milosevic to face trial for crimes committed against other ethnic groups in the region. Trials for such crimes clearly cannot take place entirely in Yugoslavia, which is not somewhere that Kosovo Albanian or Bosnian witnesses would be happy to give evidence. We have mentioned above the possibility that parts of some trials before the ICTY could take place in Belgrade.[93] Such flexibility would be welcome, and might go some way towards meeting Yugoslav concerns.

49. Reports in February and March 2001 have suggested that the Yugoslav authorities are preparing to arrest Milosevic on charges such as fraud and embezzlement allegedly committed by him while he was president.[94] We would be supportive, as we suggested above, if any domestic charges against those indicted by the ICTY had the result that Milosevic was available for trial before the ICTY as soon as this could be legally accomplished. Understanding should also be shown if, as Mr Crawford has suggested,[95] domestic charges are a way of easing public opinion into the wider question of war crimes issues.

50. Bringing domestic charges against Milosevic could, however, be an attempt to pre-empt the ICTY. This we would condemn, particularly as a domestic trial on these charges would fail to take account of the even more serious crimes committed against other ethnic groups in the region. According to Chris Patten, the President of Croatia has said that "you can only absolve a whole country from guilt if you assign guilt to the individuals who have actually been responsible for appalling crimes".[96] We agree. We recommend that the Government, reminding the Yugoslav authorities of their obligations under international law, make it clear that a domestic trial of Milosevic on charges unrelated to war crimes can in no way be allowed to delay or supersede his trial before the ICTY for the war crimes of which he stands accused.

Kosovo Albanian prisoners held in Serbia

51. The issue of Kosovo Albanian prisoners held in jails in Serbia continues to represent a major obstacle to peace and reconciliation. (We discuss below the issue of Serbs missing in Kosovo.[97]) We heard in Belgrade from the Humanitarian Law Centre that in June 1999 about 2,100 Kosovo Albanians were transferred from prisons in Kosovo to prisons in the main part of Serbia. According to the United Kingdom Government, 673 of these remained in jail in late February 2001.[98] Approximately 200 of these have been charged with terrorism. In February 2001 the Yugoslav parliament passed a law which provided an amnesty both to those who had avoided fighting in the Yugoslav army during the Kosovo conflict, and to Kosovo Albanian prisoners charged with and convicted of conspiring against the state. It did not, however, provide an amnesty to those Kosovo Albanians convicted of terrorism. The Federal Justice Minister has, according to press reports, promised to review the status of these prisoners, and to ask President Kostunica to pardon those who have been convicted on insufficient evidence.[99]

52. According to the Humanitarian Law Centre, while it was possible that some of the Kosovo Albanian prisoners in Serbian jails were guilty of the crimes of which they had been convicted, none had been given a fair trial. Among those convicted of terrorism, on extremely tenuous evidence, were 143 Kosovo Albanians from the town of Djakovica. Press reports suggest that they may receive individual pardons.[100] For justice to be done, prisoners should be released—or, where evidence against them is substantial, face new trials—in all cases where there have been substantial procedural irregularities in the judicial process.

53. Although the amnesty law is an important step towards reconciliation and acknowledging past errors, it risks creating a false distinction between those Kosovo Albanians who are granted amnesties and those who are not, not because they are genuinely guilty, but because of the crime of which they were convicted. We welcome the importance attached by the Government to the rapid resolution of this issue and repeat its calls for the federal and Serbian governments to release all Kosovo Albanian prisoners held without charges or on political grounds.[101] We recommend that the Government continue to put pressure on the Yugoslav authorities to pardon—or, where appropriate, retry fairly and in public—all Kosovo Albanian prisoners held in Serbian jails on charges of terrorism.

69   Although, according to Mr Crawford, popular opinion and media coverage of the Tribunal in Yugoslavia are becoming less negative-see Q219. Back

70   Appendix 6, ev. p.91. Back

71   Q26. Back

72   Foreign Affairs, A Second Chance in the Balkans, January/February 2001. Back

73   Ev. p.5. Back

74   Goodbye to Yugoslavia, p. 2. Back

75   Foreign Affairs, A Second Chance in the Balkans, January/February 2001. Back

76   Ibid. Back

77   Ev. p.5. Back

78   Q12. Back

79   Figures provided on 16 January 2001. Back

80   Indictees listed on the ICTY web site:­e.htm. Back

81   Q242. Back

82   Foreign Affairs, A Second Chance in the Balkans, January/February 2001. Back

83   Q190. Back

84   Q238. Back

85   Q238. Back

86   Q31. Back

87   Ev. p.39. Back

88   Q12. Back

89   BBC News, 23 February 2001, Back

90 Back

91   The public indictment of Milosevic, Milutinovic, et al deals only with crimes committed in Kosovo, not in Bosnia or Croatia. Back

92   Q12; Appendix 9, p.98. Back

93   See para. 29. Back

94   BBC News, 26 February 2001,; Financial Times, 1 March 2001, p. 9; The Guardian, 1 March 2001, p. 17. Back

95   Q219. Back

96   Q270. Back

97   See para. 133. Back

98   HC Deb 26 February 2001, col. 458W. Back

99   International Herald Tribune, 28 February 2001, p.7. Back

100   Ibid. Back

101   See HC Deb 26 February 2001, col. 458W. Back

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