KK-Forum,
om Milosevic, Haag-domstolen og liknende saker. Fra ZNet, på
http://www.zmag.org/CrisesCurEvts/Pacifica/hague.htm
Muligens vil dette støte an mot KVJ' og OG's oppfatning av statuttene, og
tolkes som en oppfordring til at
>>at Milosevitj
>>og lignende kannibaler skal få gå fritt omkring osv.
og dermed kvalifisere til krav om utestengning evt etter
folkedomstolsavgjørelse. Vi får se.
Knut Rognes
**************
Should Milosevic be tried at the Hague?
By Andrej Grubacic
Using as pretext the recent arrest of Yugoslavia's ex-president Slobodan
Milosevic, the
author of the following article proposes to offer a brief analysis of the
current Yugoslav intellectual climate.
It is most expedient, for our purposes, to begin by identifying the
phenomenon hereafter
referred to as "the Belgrade consensus" - a set of positions unanimously
advocated by non-governmental organizations and liberal intellectuals in
Belgrade on the question of Milosevic's legal fate, and concerning the
somewhat
more complicated problem of what intellectual engagement in today's
Yugoslavia
entails.
The Belgrade consensus is informed by three arguments: the argument about
the validity of the
Hague Tribunal, the argument about the political expediency of cooperating
with
that institution, and the argument about collective guilt. In this
treatment we
will try to bring into question the legitimacy of all three of these
arguments
which currently exercise public opinion in Yugoslavia - indeed, as strange
as it
may sound to your readers, are almost universally accepted in Belgrade's
progressive circles. The intellectuals and activists who oppose this
consensus have conveniently been labeled 'ultraleftists' and thereby
successfully eliminated from the public debate.
Is the Hague Tribunal really legal and legitimate, as Belgrade's liberals
contend?
The supporters of Milosevic's extradition most often begin with the
assertion that
the Hague Tribunal is an administrative body created by the UN Security
Council;
they seek the legal basis for the assumed duty to cooperate in UN
declarations
which require member states to accept and carry out its decisions.
Furthermore, they see no legal obstacle in the constitution of the Federal
Republic of Yugoslavia, since, according to article 17, the option of
extraditing a Yugoslav citizen is excluded only in cases involving another
state.
And yet, an entirely different picture emerges from our own analysis. It is
indeed true that UN member states have an obligation to carry out decisions
of the Security
Council, but only in cases in which such decisions are legally valid,
i.e. when arrived at in accordance with the specific powers conferred
upon it by the UN Charter.
We believe it is well known that The Security Council has been entrusted
with the "primary
responsibility for the maintenance of international peace and security" which
implies its right to investigate any dispute capable of endangering the
fundamental values of the so-called international community, as well as the
right to recommend appropriate procedures with a view to resolving a
particular
dispute (Chapter VI of the Charter.)
In case these recommendations prove ineffective and, as a result, there is
a breach of
peace, the Security Council has the right to apply coercive measures,
including
those of a military nature (Chapter VII of the Charter.)
Evidently, there is no provision for the Security Council's authority to
establish any type
of international institution, especially not one of a judicial nature.
For this reason, Article 29 of the Charter which the Security Council
invoked in
establishing the Hague Tribunal does not constitute a legally valid basis,
as it
merely authorizes it to "establish such subsidiary organs as it deems
necessary
for the performance of its functions."
However, as subsidiary organs can only be considered bodies of an expert or
operative
nature, such as, for example, commissions, subcommissions, committees or
bodies
of a similar scope.
In this respect, as representative bodies would qualify the many expert
commissions
attached to other UN organs (the International Law Commission which
prepares the blueprints for international conventions) or committees like
the well known Legal Committee. As an international court can in no case
be a 'subsidiary body' but only an independent institution, so too can this
tribunal have no legal foundation, especially not in the above cited
Article of the Charter. Consequently, the tribunal is illegalunder
international
law, and all its decisions so far can accordingly be considered not legally
binding
Jurists are well acquainted with the tenet that the independence of the
judiciary is the
primary basis for its legal competence.
Otherwise, courts are subject to the political dictates of another authority
(usually the executive), which is an element of dictatorship.
Moreover, one of the intrinsic characteristics of the contemporary systems
of capitalist
democracy is precisely the strict division of power into three branches -
legislative, executive and judicial: a division which, above all, assumes
their
mutual independence in the exercise of authority.
In the case of the Hague Tribunal, however, the principle of the
independence of the
judiciary has been entirely invalidated, although it is a legal and political
principle which ought to be fundamental.
In addition, all previous practice in establishing international courts
further refutes the claims of
those who accept the authority of the Hague Tribunal: in all cases so far on
record, the formal and factual shaping of any kind of international
tribunal has
rested exclusively on the will and interest of states, thereby securing its
requisite legitimacy.
Thus, the UN Charter provided the basis for the establishment of the
International Court of Justice
with authority to resolve disputes between states; all the members of the
Charter are ipso facto members of this court's statute.
The International Tribunal for the Law of the Sea was established in 1982
by the UN Convention on the Law of the Sea as a tribunal with a specific
jurisdiction.
The European Court on Human Rights was established by the Convention for
the Protection of Human Rights and Fundamental Freedoms, which was adopted
by the members of the Council
of Europe as long ago as 1950.
The Allied agreement of 1945 established the so-called Nuremberg trials for
the purpose of prosecuting suspected Nazi leaders; their statute was
adopted by the many states with an
interest in these trials. The 1948 Convention on the Prevention and
Punishment
of the Crime of Genocide provided for the establishment of a special criminal
court for this type of crime; the fact that it has not been established to
this
day is a direct consequence of the absence of will on the part of a number of
states.
The same reason prevented the establishment of a criminal court for the
prosecution of crimes committed by American citizens in Vietnam, which
resulted in the formation of Russel
Tribunal as a kind of "court of conscience."
Finally, at the international conference held in Rome under the auspices of
the UN, the statute
for a permanent International Criminal Court was adopted by the will of 120
states (the US of course, voted against it); its taking effect was
conditional
upon ratification by 60 signatory states.
The above cited examples offer clear insight into the procedure for
securing legitimacy for international courts. In the case of the Hague
Tribunal this procedure was patently
disregarded, whereby this institution was stripped of its legitimacy and this
tribunal turned into a scandalous precedent in international practice of this
sort.
Such a precedent indicates the likelihood of future disrespect for
international standards in this area,
particularly the use of such quasi-tribunals to effect the political
interests
of capitalist elites.
As for the above cited constitutional article on extradition, in our
opinion, the estimate of it as
legal grounds for the extradition of a citizen of a sovereign state are more
than suspect.
As an instrument of international legal aid for criminal cases, extradition
applies to citizens of a
foreign state; both the procedure itself as well as the conditions under
which
it is carried out are subject to strict regulation by internal legislatures.
As a rule, however, domestic citizens are not liable to such measures, and
a statement to such
effect is usually articulated on a constitutional level.
International practice has so far shown that the question of extradition is
most often regulated by
bilateral or multilateral contracts or else it is executed under the
principle
of reciprocity.
For our purposes, the European Convention on Extradition concluded by the
member states of the Council of Europe in 1957 and amended in 1975 to
extend to [those who commit] war crimes
and crimes against humanity may serve as an illustrative example.
A particularly interesting detail of the convention is the contractual
provision by which states reserve the right to refuse the extradition of
their own citizens, even those accused of
severe breaches of the laws and customs governing war (article 6. paragraph
1a.)
Here again the standard negative stance on the extradition of a state's own
nationals has been
expressed.
For this reason we do not see why the FRY should be considered outside the
established framework of such practice.
Keeping in mind these facts, which dispute the legality and legitimacy of
the Hague Tribunal and
indicate the common understanding regarding the option of extraditing one's
own
citizens, we are free to conclude that there is not a single legal basis
for the
FRY's duty to meet such demands from the Hague.
To be sure, this is not a position to be construed as an attempt to exempt
Slobodan Milosevic, or any
other Yugoslav citizen, from criminal responsibility , if it has been
established.
In fact, domestic internal criminal regulations require the authorized
judicial organs to react in every
specific case in accordance with their official line of duty.
Therefore, claims that domestic judicial organs are not competent to carry
out such procedures remain unacceptable.
The FRY is duty-bound, as a signatory to the General Framework Agreement
for Peace in Bosnia and Hercegovina (article 9) to " cooperate in the
investigation and prosecution
of those who have committed war crimes and other breaches of international
humanitarian law," but, as can be seen, even this article does not provide
for
the hand-over of Yugoslav citizens.
The argument for the legality and legitimacy of the Hague tribunal - an
argument which constitutes
the first part of the Belgrade concensus - has thus been stripped of all
factual support.
However, is cooperation with the Hague tribunal as useful and politically
advantageous as proponents of the Belgrade concensus insist?
Hardly. The handover of Slobodan Milosevic to the Hague would make the
Serbs the only people in
memory whose president has been extradited and sentenced.
From this situation would follow a host of harmful implications.
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First and foremost, it would legitimize the bombing of the FRY by countries
of NATO .
The few hundred Serbian and Albanian civilian casualties would be forgotten.
Payments of war reparations for a completely devastated infrastructure
would be avoided.
The new military humanism , by now a fully ensconced ideology, would be
given its definitive stamp of approval.
The burden of collective responsibility for the wars in the Balkans would
be borne exclusively by the Serbs.
Milosevic, a politician who under no circumstances ought to enjoy our
sympathy, would be idolized in Yugoslavia as a sort of socialist or
nationalist martyr, depending on the interpretation.
Finally, is the extradition of Milosevic our moral duty by which, alone, we
can atone for the
collective sins of our nation? In order to fully understand and and evaluate
this position - on which, as a matter of fact, the entire Belgrade concensus
rests- it is neccessary to uncover the origin of this unusual argument which
enjoys so much sympathy among Yugoslavia's liberal intelligentsia.
It seems to us that the answer should be sought in the phenomenon of
"balkanistic discourse" -
the only discourse which, from the point of view of power, has the
authority to
speak about the Balkans.
If we were to approach the problem of "balkanistic discourse" from Levinas'
perspective of "otherness," much popular these days in liberal intellectual
circles in Yugoslavia, adopting
the primacy of the ethical over the ontological, we could apply the
relationship *I- Other* to Europe and the Balkans: in forgetting that it
can build its own identity only through a relationship with the Other ,
Europe is closing itself off into an essentialist framework and rendering the
Balkans an impersonal object of knowledge, thereby annulling their Otherness.
In this sense, knowledge appears exclusively as an extension of power,
since the establishment of a
Balkan identity stands in the service of immediate political interests.
In our view balkanistic discourse is thus a colonialist discourse which
deprives the Other of the
right to self-determination.
The historical thesis we present here is not all that original; it assumes
a centuries-old, deep European involvement in the political, ethical and
confessional state of the Balkans.
The famous myth of ethnic conflicts - "the Balkan powder keg" - is not an
effect of inherent, genetic
traits, but of a planned revision of the Balkans' ethnic-confessional image
and
structure, and the constant practice of transferring populations by Rome,
Byzantium, the Ottoman empire and the Hapsburgs.
Led by the old Roman strategic motto divide et impera , which,
incidentally, itself arose
during the Roman campaigns in Dalmatia, the great powers have always sought
to
prevent the territorial consolidation of the Balkans.
"Balkanistic discourse" came into existence to obscure this sort of
political practice.
From "Balkanology" to assorted "experts on the Balkans," the manufacture of
knowledge has produced its own reality.
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The erstwhile discipline of Austro-Hungarian balkanology provides an
excellent example of the ties
between academic institutions and centers of power, as well as of how an
"Austro-Hungarian Balkans" came into being and acquired a referent in reality.
Today, a renewed connection between "knowledge" and "power" is evident in
the correspondence
between, on the one hand, the scientific and media-produced image of the
Balkans, and the currently prevailing foreign policy attitudes on the other.
The uniform assessment of the Slavic character as primitive and the Balkans
as a "repository of evil" allows us to discern an intention to indict as a
reliable instrument of
control/conquest.
In this way, Balkanistic discourse is characteristic of a method of
projection, in that one's own sins
are projected onto the Other.
The effective manufacture of knowledge engenders feelings of fear and
guilt, and as a consequence
encourages uncritical acceptance of imposed, alien values, or heterophylia.---
One aspect of the construct of a new, fictional "Balkans" is particularly
important: the "semantic
imprisonment" we are confronted with as a result of linguistic violence,
beginning, above all, with the verb "to balkanize," for which most of the
world's dictionaries give "to divide" as the primary meaning.
Linguistic terrorism is only one part of the larger process of
stigmatization whose aim is the
establishment of social control and the imposition of silence upon the Balkan
peoples so as to allow others to speak in their name.
Thus everyone can speak about the Balkans but the Balkanites; their right
to speak has been taken away by a balkanistic discourse which has imposed
upon them the idea of a geographically conditioned collective guilt.
But can such a concept as collective guilt apply to an entire people - in
this case, the Serbs?
In writing about the German people's guilt for the crimes committed during
the second world war, the German philosopher Karl Jaspers asserts that a
people cannot be guilty - be it
in a political or moral or criminal or metaphysical sense.
The citizens of a state can be held politically responsible for allowing -
through voting, passivity or
conformism - the creation of a regime in their state which will go on to
perpetrate in their name crimes against its own citizens or those of another
state.
Responsibility, however, is not the same as moral guilt. Jaspers rightly
points out
that moral guilt applies only to cases in which people are entirely
insensitive
to the suffering of other people and have unconditionally identified with
their
army and their state to the extent that they are unwilling to know about the
misdeeds being committed by their state's army.
The very concept of a people's collective guilt is founded on two mistaken
assumptions.
The first is the idea that "a people," as an entity, is equivalent to all
those individuals who belong to
it.
Such a categorical, typological designation of human beings has, throughout
the course of history -
i.e. even when there were no nations and ethnicities , although there always
have been divisions into groups - brought enormous misfortune upon human
beings
by turning them against each other.
The other mistaken assumption treats all members of a given ethno-national
group as identical from
the outset, as having always shared the same values, the same objects of
love or
hatred.
Finally, it is worth noting that numerous and serious negative consequences
come with the use of the
term "collective guilt." I will point out only one.
When an ethno-national group is declared morally guilty, its members
inevitably perceive this sort of label as a threat, regardless of whether
they believe, as they usually do not,
that they have a reason to feel guilty.
The experience of threat to the group causes the group, in defense, to
strengthen internal ties and to
close itself off from the outside; the group becomes exclusive and
homogenized.
This paves the way for an ever greater number of antagonized groups as well
as increased antagonism between groups.
In the final outcome those who are marked for collective guilt suffer as
much as those who proclaimed them guilty.
The only benefit to be derived is by those who care to have the peoples who
inhabit a given region, in this case the Balkans, continue to watch each
other over the barrels of their guns, even after hostilities have ceased.
And that is just one, by no means unimportant, reason for which collective
guilt ought not be used as
either a concept or an argument.
Let us emphasize in our conclusion the need to establish a critical
meta-science which would examine the scientific and institutional "
manufacturing of the Balkans."
This project must become the responsibility of every genuinely engaged
intellectual because what is at issue here is the falsification of
knowledge - a falsification subservient to
the interests of power.
The formulation of a new idiom, which we could call "balkan discourse" (as
opposed to "balkanistic discourse") is the conditio sine qua non of the
struggle for the
recognition of our own identity, even our own name (the name Balkans has
today,
surely not for the first time nor by accident, been supplanted by the formal,
geographic designation "Southeastern Europe").
The principle of "the Balkans to the Balkan peoples" calls for an immanent
consolidation, the
realization of the need for Balkan unity, a new internationalist unification
which is in the spiritual interest of Europe itself.
Once seen through the prism of our interpretation, all three of the
arguments which make up the
Belgrade consensus have to be rejected.
Neoliberal ideology, the manufacture of acceptance and guilt, the whole
complex of ideas that the liberal mandarins and so-called non-governmental
organizations are trying to market need
to be opposed by scientific arguments, and intellectual and activist
engagement.
In this respect, grass-roots initiatives like the "Initiative for Economic
Democracy" offer
reasons for a cautious optimism.
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