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 releasedor,
where evidence against them is substantial, face new trialsin
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 pardonor, where appropriate,
retry fairly and in publicall 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: www.un.org/icty/inde.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, http://news.bbc.co.uk/hi/english/world/europe/newsid_1185000/1185118.stm. Back
90
www.un.org/icty/briefing/PB210201.htm. 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, http://news.bbc.co.uk/hi/english/world/europe/newsid_1189000/1189391.stm;
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