PRIMI FRUTTI DEL GENEROSO IMPEGNO DELLA NATO PER LA MACEDONIA

La lungimirante politica della NATO di sostegno al terrorismo
separatista grande-albanese, oltre a causare morte e distruzione
ed a consentire lo stanziamento di truppe occidentali su quel
territorio, incomincia gia' a dare i suoi frutti dal punto di
vista della trasformazione della societa' macedone.

Dopo decenni di pacifica convivenza, finalmente prendono piede
atteggiamenti separatisti-segregazionisti e la nota politica
del "boicottaggio" delle istituzioni dello Stato multinazionale,
analoga alla politica di auto-apartheid adottata dal partito e
dalle famiglie legate a Rugova in Kosovo - ed appoggiata
dall'arcipelago "pacifista" italiano - a partire dal 1990.
(I. Slavo)

MACEDONIA: MACEDONI E ALBANESI CHIEDONO CLASSI SEPARATE

(ANSA) - SKOPJE, 10 SET - Primo giorno di scuola oggi in Macedonia dove,
a dispetto dei piani di pace, l'odio etnico resta ancora molto forte. In
alcune scuole a Kumanovo e a Tetovo, zone maggiormente coinvolte nel
conflitto, gli studenti albanesi e macedoni hanno chiesto aule separate.
''Vorrebbero classi etnicamente pulite'' ha commentato sconsolato un
insegnante elementare. I 220 studenti albanesi dell'istituto superiore
''Goce Dolcev'' di Kumanovo, oggi hanno disertato le lezioni: ''Non
vogliamo iniziare l'anno scolatisco al fianco dei macedoni'' hanno
annunciato. Gli studenti minacciano di disertare la scuola fino a quando
la loro richiesta non verra' accolta. Situazione uguale e contraria a
Tetovo (nella zona nord-occidentale del paese), area a maggioranza
albanese: qui, nella scuola media ''Bratstvo Migjeni'', sono stati gli
alunni macedoni a non voler partecipare alle lezioni perche' non hanno
ottenuto ''classi separate dagli albanesi''. I genitori degli studenti
macedoni hanno detto di aver avviato contatti con il ministro
dell'Istruzione, Nenad Novkovski, al quale hanno formalizzato la
richiesta. Migliaia di altri studenti di entrambe le etnie non hanno
invece potuto presentarsi a scuola a causa delle condizioni di sicurezza
non ancora del tutto ristabilite. Le scuole sono rimaste chiuse in
gran parte dei villaggi montani della zona di Tetovo, aree tuttora sotto
il controllo della guerriglia albanese e nelle quali le lezioni sono
sospese sin da marzo dello scorso anno, quando inizio' il conflitto
armato. Nei villaggi della regione settentrionale di Kumanovo molte
scuole sono rimaste distrutte nel corso dei bombardamenti e non si sa
quando l'anno scolastico potra' cominciare. Assenti dalle aule anche le
migliaia di ragazzini (albanesi e macedoni) costretti a fuggire dalle
zone del conflitto, e che tuttora vivono come profughi in altre citta'
del paese o in Kosovo. (ANSA). BLL 10/09/2001 18:37

> http://wwww.ansa.it/balcani/macedonia/20010910183731970725.html

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Subject: Ousmane Bin Laden
Date: Thu, 13 Sep 2001 07:43:50 -0400
From: Michel Chossudovsky <chossudovsky@...>
To: (Recipient list suppressed)


WHO IS OUSMANE BIN LADEN?

by Michel Chossudovsky

Professor of Economics,
University of Ottawa


Centre for Research on Globalisation (CRG) at
http:/globalresearch.ca.

The url of this article is
http://globalresearch.ca/articles/CHO109C.html


Posted 12 September 2001

A few hours after the terrorist attacks on the World Trade Centre
and the Pentagon, the Bush administration concluded without
supporting evidence, that "Ousmane bin Laden and his al-Qaeda
organisation were prime suspects". CIA Director George Tenet
stated that bin Laden has the capacity to plan ``multiple attacks
with little or no warning.'' Secretary of State Colin Powell called
the attacks "an act of war" and President Bush confirmed in an
evening televised address to the Nation that he would "make no
distinction between the terrorists who committed these acts and
those who harbor them". Former CIA Director James Woolsey
pointed his finger at "state sponsorship," implying the complicity
of one or more foreign governments. In the words of former
National Security Adviser, Lawrence Eagleburger, "I think we
will show when we get attacked like this, we are terrible in our
strength and in our retribution."

Meanwhile, parroting official statements, the Western media
mantra has approved the launching of "punitive actions" directed
against civilian targets in the Middle East. In the words of
William Saffire writing in the New York Times: "When we
reasonably determine our attackers' bases and camps, we must
pulverize them -- minimizing but accepting the risk of collateral
damage -- and act overtly or covertly to destabilize terror's
national hosts".

The following text outlines the history of Ousmane Bin Laden and
the links of the Islamic "Jihad" to the formulation of US foreign
policy during the Cold War and its aftermath.

* * *

Prime suspect in the New York and Washington terrorists
attacks, branded by the FBI as an "international terrorist" for his
role in the African US embassy bombings, Saudi born Ousmane
bin Laden was recruited during the Soviet-Afghan war "ironically
under the auspices of the CIA, to fight Soviet invaders". 1

In 1979 "the largest covert operation in the history of the CIA"
was launched in response to the Soviet invasion of Afghanistan
in support of the pro-Communist government of Babrak Kamal.2:

"With the active encouragement of the CIA and Pakistan's ISI
[Inter Services Intelligence], who wanted to turn the Afghan jihad
into a global war waged by all Muslim states against the Soviet
Union, some 35,000 Muslim radicals from 40 Islamic countries
joined Afghanistan's fight between 1982 and 1992. Tens of
thousands more came to study in Pakistani madrasahs.
Eventually more than 100,000 foreign Muslim radicals were
directly influenced by the Afghan jihad."3

The Islamic "jihad" was supported by the United States and
Saudi Arabia with a significant part of the funding generated from
the Golden Crescent drug trade:

"In March 1985, President Reagan signed National Security
Decision Directive 166,...[which] authorize[d] stepped-up covert
military aid to the mujahideen, and it made clear that the secret
Afghan war had a new goal: to defeat Soviet troops in
Afghanistan through covert action and encourage a Soviet
withdrawal. The new covert U.S. assistance began with a
dramatic increase in arms supplies -- a steady rise to 65,000
tons annually by 1987, ... as well as a "ceaseless stream" of CIA
and Pentagon specialists who traveled to the secret headquarters
of Pakistan's ISI on the main road near Rawalpindi, Pakistan.
There the CIA specialists met with Pakistani intelligence officers
to help plan operations for the Afghan rebels."4

The Central Intelligence Agency (CIA) using Pakistan's military
Inter-Services Intelligence (ISI) played a key role in training the
Mujahideen. In turn, the CIA sponsored guerrilla training was
integrated with the teachings of Islam:

"Predominant themes were that Islam was a complete
socio-political ideology, that holy Islam was being violated by the
atheistic Soviet troops, and that the Islamic people of
Afghanistan should reassert their independence by overthrowing
the leftist Afghan regime propped up by Moscow."5

PAKISTAN'S INTELLIGENCE APPARATUS

Pakistan's ISI was used as a "go-between". The CIA covert
support to the "jihad" operated indirectly through the Pakistani
ISI, --i.e. the CIA did not channel its support directly to the
Mujahideen. In other words, for these covert operations to be
"successful", Washington was careful not to reveal the ultimate
objective of the "jihad", which consisted in destroying the Soviet
Union.

In the words of CIA's Milton Beardman "We didn't train Arabs".
Yet according to Abdel Monam Saidali, of the Al-aram Center for
Strategic Studies in Cairo, bin Laden and the "Afghan Arabs" had
been imparted "with very sophisticated types of training that was
allowed to them by the CIA" 6

CIA's Beardman confirmed, in this regard, that Ousmane bin
Laden was not aware of the role he was playing on behalf of
Washington. In the words of bin Laden (quoted by Beardman):
"neither I, nor my brothers saw evidence of American help". 7

Motivated by nationalism and religious fervor, the Islamic
warriors were unaware that they were fighting the Soviet Army
on behalf of Uncle Sam. While there were contacts at the upper
levels of the intelligence hierarchy, Islamic rebel leaders in
theatre had no contacts with Washington or the CIA.

With CIA backing and the funneling of massive amounts of US
military aid, the Pakistani ISI had developed into a "parallel
structure wielding enormous power over all aspects of
government". 8 The ISI had a staff composed of military and
intelligence officers, bureaucrats, undercover agents and
informers, estimated at 150,000. 9

Meanwhile, CIA operations had also reinforced the Pakistani
military regime led by General Zia Ul Haq:

"''Relations between the CIA and the ISI [Pakistan's military
intelligence] had grown increasingly warm following [General]
Zia's ouster of Bhutto and the advent of the military regime,'...
During most of the Afghan war, Pakistan was more aggressively
anti-Soviet than even the United States. Soon after the Soviet
military invaded Afghanistan in 1980, Zia [ul Haq] sent his ISI
chief to destabilize the Soviet Central Asian states. The CIA only
agreed to this plan in October 1984.... `the CIA was more
cautious than the Pakistanis.' Both Pakistan and the United
States took the line of deception on Afghanistan with a public
posture of negotiating a settlement while privately agreeing that
military escalation was the best course."10

THE GOLDEN CRESCENT DRUG TRIANGLE

The history of the drug trade in Central Asia is intimately related
to the CIA's covert operations. Prior to the Soviet-Afghan war,
opium production in Afghanistan and Pakistan was directed to
small regional markets. There was no local production of heroin.
11 In this regard, Alfred McCoy's study confirms that within two
years of the onslaught of the CIA operation in Afghanistan, "the
Pakistan-Afghanistan borderlands became the world's top heroin
producer, supplying 60 percent of U.S. demand. In Pakistan, the
heroin-addict population went from near zero in 1979... to 1.2
million by 1985 -- a much steeper rise than in any other
nation":12

"CIA assets again controlled this heroin trade. As the
Mujahideen guerrillas seized territory inside Afghanistan, they
ordered peasants to plant opium as a revolutionary tax. Across
the border in Pakistan, Afghan leaders and local syndicates under
the protection of Pakistan Intelligence operated hundreds of
heroin laboratories. During this decade of wide-open
drug-dealing, the U.S. Drug Enforcement Agency in Islamabad
failed to instigate major seizures or arrests ... U.S. officials had
refused to investigate charges of heroin dealing by its Afghan
allies `because U.S. narcotics policy in Afghanistan has been
subordinated to the war against Soviet influence there.' In 1995,
the former CIA director of the Afghan operation, Charles Cogan,
admitted the CIA had indeed sacrificed the drug war to fight the
Cold War. `Our main mission was to do as much damage as
possible to the Soviets. We didn't really have the resources or
the time to devote to an investigation of the drug trade,'... `I don't
think that we need to apologize for this. Every situation has its
fallout.... There was fallout in terms of drugs, yes. But the main
objective was accomplished. The Soviets left Afghanistan.'"13

IN THE WAKE OF THE COLD WAR

\In the wake of the Cold War, the Central Asian region is not only
strategic for its extensive oil reserves, it also produces three
quarters of the World's opium representing multibillion dollar
revenues to business syndicates, financial institutions,
intelligence agencies and organized crime. The annual proceeds
of the Golden Crescent drug trade (between 100 and 200 billion
dollars) represents approximately one third of the Worldwide
annual turnover of narcotics, estimated by the United Nations to
be of the order of $500 billion.14

With the disintegration of the Soviet Union, a new surge in opium
production has unfolded. (According to UN estimates, the
production of opium in Afghanistan in 1998-99 -- coinciding with
the build up of armed insurgencies in the former Soviet
republics-- reached a record high of 4600 metric tons.15
Powerful business syndicates in the former Soviet Union allied
with organized crime are competing for the strategic control over
the heroin routes.

The ISI's extensive intelligence military-network was not
dismantled in the wake of the Cold War. The CIA continued to
support the Islamic "jihad" out of Pakistan. New undercover
initiatives were set in motion in Central Asia, the Caucasus and
the Balkans. Pakistan's military and intelligence apparatus
essentially "served as a catalyst for the disintegration of the
Soviet Union and the emergence of six new Muslim republics in
Central Asia." 16.

Meanwhile, Islamic missionaries of the Wahhabi sect from Saudi
Arabia had established themselves in the Muslim republics as
well as within the Russian federation encroaching upon the
institutions of the secular State. Despite its anti-American
ideology, Islamic fundamentalism was largely serving
Washington's strategic interests in the former Soviet Union.

Following the withdrawal of Soviet troops in 1989, the civil war in
Afghanistan continued unabated. The Taliban were being
supported by the Pakistani Deobandis and their political party the
Jamiat-ul-Ulema-e-Islam (JUI). In 1993, JUI entered the
government coalition of Prime Minister Benazzir Bhutto. Ties
between JUI, the Army and ISI were established. In 1995, with
the downfall of the Hezb-I-Islami Hektmatyar government in
Kabul, the Taliban not only instated a hardline Islamic
government, they also "handed control of training camps in
Afghanistan over to JUI factions..." 17

And the JUI with the support of the Saudi Wahhabi movements
played a key role in recruiting volunteers to fight in the Balkans
and the former Soviet Union.

Jane Defense Weekly confirms in this regard that "half of Taliban
manpower and equipment originate[d] in Pakistan under the ISI"
18 In fact, it would appear that following the Soviet withdrawal
both sides in the Afghan civil war continued to receive covert
support through Pakistan's ISI. 19

In other words, backed by Pakistan's military intelligence (ISI)
which in turn was controlled by the CIA, the Taliban Islamic
State was largely serving American geopolitical interests. The
Golden Crescent drug trade was also being used to finance and
equip the Bosnian Muslim Army (starting in the early 1990s) and
the Kosovo Liberation Army (KLA). In last few months there is
evidence that Mujahideen mercenaries are fighting in the ranks of
KLA-NLA terrorists in their assaults into Macedonia.

No doubt, this explains why Washington has closed its eyes on
the reign of terror imposed by the Taliban including the blatant
derogation of women's rights, the closing down of schools for
girls, the dismissal of women employees from government offices
and the enforcement of "the Sharia laws of punishment".20

THE WAR IN CHECHNYA

With regard to Chechnya, the main rebel leaders Shamil Basayev
and Al Khattab were trained and indoctrinated in CIA sponsored
camps in Afghanistan and Pakistan. According to Yossef
Bodansky, director of the U.S. Congress's Task Force on
Terrorism and Unconventional Warfare, the war in Chechnya had
been planned during a secret summit of HizbAllah International
held in 1996 in Mogadishu, Somalia. 21 The summit, was attended
by Osama bin Laden and high-ranking Iranian and Pakistani
intelligence officers. In this regard, the involvement of Pakistan's
ISI in Chechnya "goes far beyond supplying the Chechens with
weapons and expertise: the ISI and its radical Islamic proxies are
actually calling the shots in this war". 22

Russia's main pipeline route transits through Chechnya and
Dagestan. Despite Washington's perfunctory condemnation of
Islamic terrorism, the indirect beneficiaries of the Chechen war
are the Anglo-American oil conglomerates which are vying for
control over oil resources and pipeline corridors out of the
Caspian Sea basin.

The two main Chechen rebel armies (respectively led by
Commander Shamil Basayev and Emir Khattab) estimated at
35,000 strong were supported by Pakistan's ISI, which also
played a key role in organizing and training the Chechen rebel
army:

"[In 1994] the Pakistani Inter Services Intelligence arranged for
Basayev and his trusted lieutenants to undergo intensive Islamic
indoctrination and training in guerrilla warfare in the Khost
province of Afghanistan at Amir Muawia camp, set up in the
early 1980s by the CIA and ISI and run by famous Afghani
warlord Gulbuddin Hekmatyar. In July 1994, upon graduating from
Amir Muawia, Basayev was transferred to Markaz-i-Dawar
camp in Pakistan to undergo training in advanced guerrilla tactics.
In Pakistan, Basayev met the highest ranking Pakistani military
and intelligence officers: Minister of Defense General Aftab
Shahban Mirani, Minister of Interior General Naserullah Babar,
and the head of the ISI branch in charge of supporting Islamic
causes, General Javed Ashraf, (all now retired). High-level
connections soon proved very useful to Basayev.23
Following his training and indoctrination stint, Basayev was
assigned to lead the assault against Russian federal troops in the
first Chechen war in 1995. His organization had also developed
extensive links to criminal syndicates in Moscow as well as ties
to Albanian organized crime and the Kosovo Liberation Army
(KLA). In 1997-98, according to Russia's Federal Security
Service (FSB) "Chechen warlords started buying up real estate in
Kosovo... through several real estate firms registered as a cover
in Yugoslavia" 24

Basayev's organisation has also been involved in a number of
rackets including narcotics, illegal tapping and sabotage of
Russia's oil pipelines, kidnapping, prostitution, trade in
counterfeit dollars and the smuggling of nuclear materials (See
Mafia linked to Albania's collapsed pyramids, 25 Alongside the
extensive laundering of drug money, the proceeds of various illicit
activities have been funneled towards the recruitment of
mercenaries and the purchase of weapons.

During his training in Afghanistan, Shamil Basayev linked up with
Saudi born veteran Mujahideen Commander "Al Khattab" who
had fought as a volunteer in Afghanistan. Barely a few months
after Basayev's return to Grozny, Khattab was invited (early
1995) to set up an army base in Chechnya for the training of
Mujahideen fighters. According to the BBC, Khattab's posting to
Chechnya had been "arranged through the Saudi-Arabian based
[International] Islamic Relief Organisation, a militant religious
organisation, funded by mosques and rich individuals which
channeled funds into Chechnya".26

CONCLUDING REMARKS

Since the Cold War era, Washington has consciously supported
Ousmane bin Laden, while at same time placing him on the FBI's
"most wanted list" as the World's foremost terrorist.

While the Mujahideen are busy fighting America's war in the
Balkans and the former Soviet Union, the FBI --operating as a
US based Police Force- is waging a domestic war against
terrorism, operating in some respects independently of the CIA
which has --since the Soviet-Afghan war-- supported
international terrorism through its covert operations.

In a cruel irony, while the Islamic jihad --featured by the Bush
Adminstration as "a threat to America"-- is blamed for the
terrorist assaults on the World Trade Centre and the Pentagon,
these same Islamic organisations constitute a key instrument of
US military-intelligence operations in the Balkans and the former
Soviet Union.

In the wake of the terrorist attacks in New York and Washington,
the truth must prevail to prevent the Bush Adminstration together
with its NATO partners from embarking upon a military adventure
which threatens the future of humanity.


ENDNOTES

Hugh Davies, International: `Informers' point the finger at bin
Laden; Washington on alert for suicide bombers, The Daily
Telegraph, London, 24 August 1998.

See Fred Halliday, "The Un-great game: the Country that lost the
Cold War, Afghanistan, New Republic, 25 March 1996):

Ahmed Rashid, The Taliban: Exporting Extremism, Foreign
Affairs, November-December 1999.

Steve Coll, Washington Post, July 19, 1992.

Dilip Hiro, Fallout from the Afghan Jihad, Inter Press Services, 21
November 1995.

Weekend Sunday (NPR); Eric Weiner, Ted Clark; 16 August
1998.

Ibid.

Dipankar Banerjee; Possible Connection of ISI With Drug
Industry, India Abroad, 2 December 1994.

Ibid

See Diego Cordovez and Selig Harrison, Out of Afghanistan: The
Inside Story of the Soviet Withdrawal, Oxford university Press,
New York, 1995. See also the review of Cordovez and Harrison in
International Press Services, 22 August 1995.

Alfred McCoy, Drug fallout: the CIA's Forty Year Complicity in
the Narcotics Trade. The Progressive; 1 August 1997.
Ibid

Ibid.

Douglas Keh, Drug Money in a changing World, Technical
document no 4, 1998, Vienna UNDCP, p. 4. See also Report of
the International Narcotics Control Board for 1999,
E/INCB/1999/1 United Nations Publication, Vienna 1999, p
49-51, And Richard Lapper, UN Fears Growth of Heroin Trade,
Financial Times, 24 February 2000.

Report of the International Narcotics Control Board, op cit, p
49-51, see also Richard Lapper, op. cit.

International Press Services, 22 August 1995.

Ahmed Rashid, The Taliban: Exporting Extremism, Foreign
Affairs, November- December, 1999, p. 22.

Quoted in the Christian Science Monitor, 3 September 1998)

Tim McGirk, Kabul learns to live with its bearded conquerors,
The Independent, London, 6 November1996.

See K. Subrahmanyam, Pakistan is Pursuing Asian Goals, India
Abroad, 3 November 1995.

Levon Sevunts, Who's calling the shots?: Chechen conflict finds
Islamic roots in Afghanistan and Pakistan, 23 The Gazette,
Montreal, 26 October 1999..

Ibid

Ibid.

See Vitaly Romanov and Viktor Yadukha, Chechen Front Moves
To Kosovo Segodnia, Moscow, 23 Feb 2000.

The European, 13 February 1997, See also Itar-Tass, 4-5
January 2000.
BBC, 29 September 1999).


The URL of this article is:
http://globalresearch.ca/articles/CHO109C.html

Copyright Michel Chossudovsky, Montreal, September 2001. All
rights reserved. Centre for Research on Globalisation at
http://globalresearch.ca Permission is granted to post this text on
non-commercial community internet sites, provided the source
and the URL are indicated, the essay remains intact and the
copyright note is displayed. To publish this text in printed and/or
other forms, including commercial internet sites and excerpts,
contact the author at chossudovsky@..., fax:
1-514-4256224.

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Subject: BELGRADE LAW PROFESSORS' VERDICT
Date: Mon, 10 Sep 2001 18:04:31 +0200
From: "Vladimir Krsljanin"


In their aggression against the law and justice, NATO&Soros
clerks in the so-called "International Criminal Tribunal for
Former Yugoslavia" based in the Hague, decided to ignore, as
essentially unpleasant for their dirty work, the initiative of
leading law experts and law professors of Belgrade University to
appear in the court room as real AMICI CURIAE (in its real
meaning - as FRIENDS OF JUSTICE) and expose monstrous
character of this institution, for long time successfully hidden
from public.

Instead, they have appointed three attorneys (from Holland,
England and Yugoslavia), proven as real FRIENDS OF (WHITE)
HOUSE, to serve as quasidefense for president Milosevic. That
way their attempted trial of president Milosevic would become
the greatest political FARCE ever seen. Belgrade professors
already condemned in press conference such illegal and absurd
decision of both "Tribunal" and those three attorneys. Accepting
such a role they should lose their licenses, Belgrade professors
stated.

For the sake of justice, the full text of the initiative of Belgrade
law professors, is hereby given.

TO THE INTERNATIONAL TRIBUNAL FOR
THE PROSECUTION OF PERSONS
RESPONSIBLE FOR SERIOUS VIOLATIONS
OF INTERNATIONAL HUMANITARIAN LAW
COMMITTED IN THE TERRITORY OF THE
FORMER YUGOSLAVIA SINCE 1991

To the Trial Chambers in all the cases before the
Tribunal

PROPOSAL FOR APPEARANCE BEFORE
TRIAL CHAMBERS BY VIRTUE OF RULE 74
ON PROCEDURE AND EVIDENCE (AMICUS
CURIAE)



The Professors and Assistant Lecturers of the
Faculty of Law of the University of Belgrade have
been following with great attention the work of the
International Tribunal for the prosecution of persons
responsible for serious violations of international
humanitarian law committed in the territory of the
former Yugoslavia since 1991, as the institution that,
by a number of elements, is new and specific and all
the more interesting therefore from the purely
theoretical standpoint and then also as an organ
whose work will strongly affect the current and
future situation in the space of our country and the
situation throughout the region. A large group of
teachers and associates of our institution has
already in the country itself taken initiatives in order
to ensure respect for the constitutionality and
legality in the field of prosecution of persons charged
with violations of international humanitarian law and
especially in the field of respect for the legal norms
concerning fundamental human rights. It is our firm
belief that the prosecution of perpetrators of criminal
offences which have violated international
humanitarian law is one of the imperatives and
prerequisites for the normalisation of relations and
for restoring stability in the space of the former
Yugoslavia just as it is the case in all regions of the
world where such offences were and are still being
committed and are regrettably a regular corollary of
virtually all wars and conflicts. However, we also
firmly believe that one cannot create law out of
non-law and that therefore when prosecuting and
trying in court even such serious offences as those
that the Tribunal has been dealing with, the rules of
international law must be strictly respected and
particularly those among them that protect
fundamental human rights and freedoms that are of a
universal nature and that as jus cogens, within the
framework of international law, have a hierarchically
superior position vis-a-vis the majority of other
rules. This action-taking in accordance with the law
is everywhere a necessity that cannot be called into
question. However, in the case of the conflicts that
took place in the past ten years or so in the former
SFRY, respect for law is all the more essential as
these were conflicts that left tragic consequences on
virtually all peoples in these parts, conflicts that
represent at the same time both the expression and
the integral part of the tragic fate of these peoples,
whose troublesome past left behind a number of
disputes and unresolved situations over which they
quarrelled and waged wars also throughout their
history and over which they continue to quarrel even
today.

Bearing in mind both the mentioned necessity of
strictly respecting law, both generally and
specifically regarding the issues related to the
conflict in the former Yugoslavia, and the huge real
importance that the Tribunal and its works have for
our country and the region, for our fate and the fate of
future generations in these parts, we consider it
important and from the standpoint of our human and
our professional conscience necessary to approach
the Tribunal and request that our representatives be
allowed by the Trial Chambers in the above
mentioned proceedings to appear in accordance with
Rule 74 on procedure and evidence before the Trial
Chambers conducting these proceedings and present
for each of these proceedings their specific
objections based on the general objections that we
shall make in this correspondence, which concern
respect of international law in the Tribunal's work
and in particular the norms protecting human rights
and fundamental freedoms.

We were prompted to take this step also by the
statement by Judge May during the first appearance
of former President Slobodan Milosevic before the
Tribunal, to the effect that the international law
would be applied to the accused in future. This would
have to mean also that in the course of proceedings
the Tribunal would respect all of his human rights,
both those prescribed by the International Covenant
on Civil and Political Rights and others. This
statement, of course, also applies to all other
indicted persons.

We wish to point out that we decided to approach the
Tribunal in this way even though we share the view
of a large number of top-ranking international legal
experts world-wide that the International Tribunal
for prosecution of persons responsible for serious
violations of international humanitarian law
committed in the territory of the former Yugoslavia
since 1991 was established in the manner contrary to
the UN Charter in support of which we shall also
present our arguments but as the Tribunal does exist
in fact as it functions and keeps in custody several
dozens of indicted persons, both Serbs and Croats
and Muslims, which from our viewpoint and from the
viewpoint of law is all the same, our professional and
human responsibility and conscience make it
incumbent upon us in this way, too, to try to
contribute to the respect of international law with
regard to all these indicted persons, no matter which
national grouping they belong to because they are all
equal before the law.

We are, likewise, of the opinion that in the interest of
law, justice and peace, it would be useful in our
region for the Tribunal's relevant Trial Chambers to
approach the Faculties of Law in Sarajevo, Zagreb
and other university centre in the space of the former
SFRY, whose scholars, whose competence we had
the opportunity to personally witness during many
years of close co-operation, also could make an
important contribution to ensuring consistent and
impartial law enforcement with respect to all the
indicted for violations of international humanitarian
law. For our part, we have been prompted to
approach the Tribunal in this manner also by the fact
that unlike the state authorities from other states
formed in the space of the former SFRY that care for
the status and rights of their citizens being held on
trial at the Tribunal, as well as for the dignity of their
own state and peoples living in it, our state
authorities do not perform their duty with respect to
their citizens and their country but, as a rule, are
doing precisely the opposite. Nevertheless, we wish
by our remarks and suggestions to promote justice
and respect for law, also relative to the citizens of
other states from the region, believing it to be our
duty to adopt a strictly professional attitude on this
plane as well and treat all equally.

In the text below, we shall present (I) our view of the
legal validity of the acts establishing the Tribunal,
but would not discuss that topic further, since the
Tribunal actually exists and tries people and that in
these proceedings in every case international law
should be observed; as well as (II) our general
observations regarding the set-up and the works of
the Tribunal, which our representatives would
present in more specific terms on each individual
case if the relevant Trial Chambers would grant
permission for appearance in the proceedings in the
amicus curiae capacity.





I.ABSENCE OF LEGAL GROUNDS FOR
ESTABLISHING THE HAGUE
TRIBUNAL IN THE SECURITY
COUNCIL ACTS

The Criminal Tribunal for the Former
Yugoslavia was established by UN Security
Council resolutions 808/93 and 827/93 and, as
explicitly stated in these acts, in accordance
with Chapter VII of the UN Charter.

However, the legal grounds of the acts
establishing the Tribunal, can be challenged,
i.e. it can be noted with full certainty that the
aid Security Council resolutions were
adopted in contravention of the UN Charter.
The Tribunal's establishment is legally
problematic, i.e. contrary to the valid rules of
international law and primarily the UN
Charter, on several grounds.

To start with, the Security Council is the UN
executive organ responsible for taking care
of peace and security world-wide and as
such it may not establish judicial organs. It
has the right to establish its subsidiary
organs (Article 29 of the Charter stipulates:
"The Security Council may establish such
subsidiary organs as it deems necessary for
the performance of its functions"), but as it
itself has no right to perform any judicial
unction, it cannot transfer to its subsidiary
organ any powers that it does not hold (and
within the powers it has, it may not transfer
to its subsidiary organs the decision-making
right, because this is the Security Council's
xclusive right that is exercised according to a
strictly prescribed procedure). This
interpretation is also confirmed by Article 28
of the Rules of Procedure of the Security
Council adopted on 24 June 1946 based on
Article 30 of the Charter (that is still, even
after 55 years, called "Provisional Rules of
Procedure"). This Article of the Rules of
Procedure reads as follows: "The Security
Council may appoint a commission, a
committee or a rapporteur for a specific
question". A year after the adoption of the
Charter, the Security Council, where the
representatives of the key UN founding
members played a dominant role, notably
important figures such as Ernest Bevine,
eorges Bidault, Joseph Paul-Boncour,
Edward R. Stetinius Jr., Andrei Y.
yshinsky, Andrei A. Gromyko, etc. that may
virtually be considered the Charter's
authentic interpreters, thus interpreted in the
mentioned way which subsidiary organs the
Security Council might have.

In addition, the Security Council's
competence under Article 24 of the UN
Charter is the following:

"1. In order to ensure prompt and effective
action by the United Nations, its members
confer on the Security Council primary
esponsibility for the maintenance of
international peace and security and agree
that, in carrying out its duty under this
responsibility, the Security Council acts on
their behalf.

2. In discharging these duties, the Security
Council shall act in accordance with the
purposes and principles of the United
Nations."

As part of the thus defined function, the
Security Council's key task is to take care of
respect for the principle set forth in Article 2,
item 4 of the Charter, according to which:
"All Members shall refrain in their
nternational relations from the threat or use
of force against the territorial integrity or
political independence of any state or in any
other way inconsistent with the purposes of
the United Nations." In case this principle is
violated, i.e. that there is "a threat to peace,
violation of peace or aggression" (Article 39
of the Charter), the Security Council may
ecide on the implementation of measures
(diplomatic, economic-financial and
ilitary), that must be based on Chapter 7 of
the UN Charter and whose aim it is to
maintain or restore peace and security in the
world. In international law, i.e. the part of it
concerning war and peace, there is a
traditional division into the rules concerning
the right to war (jus ad bellum) and the rules
regulating the rules of warfare, therefore,
those that are applied when the war has
already broken out in order for the war as an
otherwise inhumane phenomenon, to be made
as humane as possible, i.e. to alleviate the
orrors (this is about the so-called right in
war - jus in bello). With its above mentioned
role of taking care of peace and security in
the world, i.e. of respecting the ban on the
threat of force and the use of force, the
ecurity Council is an organ that looks after
the implementation of the rule jus ad bellum.
International criminal law, for its part, has as
its aim, primarily to prevent and punish
criminal behaviour during war conflicts, i.e. it
aims at humanising warfare, i.e. primarily
falls under the framework of "the law in
war"- "jus in bello". Of the criminal offences
within the framework of international law, it
is only the so-called "crimes against peace"
fall within the framework of "jus ad bellum",
i.e. it is only by these criminal offences that
the rules within the framework "jus ad
ellum" are violated, while all other criminal
offences fall within the framework of "jus in
bello". The Statute of The Hague Tribunal
tipulates that this Tribunal shall try virtually
all offences within the framework of
international criminal law except crimes
against peace, i.e. all the offences with the
exception of those directed against peace
and security in the world. Therefore, of all
international criminal offences, The Hague
ribunal does not deal only with those
offences that violate the values for whose
preservation the Security Council is
responsible (but, the Security Council does
not ensure the preservation of those values
through any judicial but through its executive
function). Consequently, the Criminal
Tribunal for the former Yugoslavia, through
its judicial function, does not prevent
recisely the offences that violate the values
for whose protection the Security Council is
responsible, meaning that the aims that it has
to attain and the aims of the Security Council
whose subsidiary organ it is, are not the
ame.

It follows that the Security Council was not
authorised to establish the Tribunal neither
from the standpoint of the nature of its
unction nor from the standpoint of the aims
that it aspires to fulfil.

In addition to the above mentioned, the
International Criminal Tribunal for the former
Yugoslavia, is a Tribunal only for crimes
ommitted in a particular space, i.e. in the
territory of several states formed following
their secession from the former Yugoslavia.
In addition to this Tribunal, such a tribunal
exists only for Rwanda. On the other hand,
the criminal offences of the same nature
were committed and are being committed in
ar-torn areas the world over. It is not only
that selective justice cannot be considered
true justice, but this selectively established
justice also contravenes the principle of
sovereign equality of states proclaimed in
rticle 2, item 1 of the UN Charter.

In support of the above arguments, we shall
recall the indubitable authority of Professor
Mohammed Bedjaoui, President of the
nternational Court of Justice. In his book
"The new world order and the control of the
legality of the Security Council acts"
("Nouvel ordre mondiale et controle de la
legalite des actes du Conseil de Securite",
Bruxelles, 1994), he included in the eight
Security Council resolutions that he
onsidered legally most disputable and that
would, as such, be the first to be subjected to
control, also the two mentioned resolutions
on the establishment of the ad hoc Tribunal
for the former Yugoslavia - resolutions
808/93 and 827/93.

The only legally valid way in which an
international war crimes tribunal may be
established is the one resorted to in Rome in
1998, when the Statute was adopted of the
Permanent International Criminal Court of a
general jurisdiction. Regrettably, this Statute
has not yet come into force due to the
insufficient number of instruments of
ratification.

Since the Security Council is a political organ
and since its decisions are of a political
nature and given that in international law it is
considered legitimate and permissible for the
states to oppose the implementation of
political decisions taken by international
organisations, including the UN, that are
unlawful, it may be possible to conclude that
the mentioned Security Council resolutions
whereby the Tribunal was established do not
create legally valid obligations from the
standpoint of international law and law in
general. With respect to the UN Security
Council, this conclusion stems from Article
25 of the UN Charter, which reads as
follows: "The members of the United Nations
agree to accept and carry out the decisions
of the Security Council in accordance with
the present Charter." In its advisory opinion
of 21 June 1971 (in the case of the legal
consequence of the protracted presence of
South Africa in Namibia despite Security
Council resolution 276/1970), the
International Court of Justice confirmed that
the states are not duty-bound to accept and
implement the Security Council decisions
that are not in accordance with the Charter,
which would, by the way, be clear by itself
even if it were not written anywhere.

Nevertheless, as we have already noted,
despite the mentioned objections related to
the legal grounds of the Tribunal's
establishment, we have decided to request
that our representatives be allowed to appear
before the Trial Chambers in all the
mentioned cases in accordance with Rule 74
on Procedure and Evidence. We proceed
from the fact that the Tribunal exists and
unctions and from our wish for international
law to be respected in all the mentioned
proceedings.

II.THE SET-UP AND WORK OF THE
HAGUE TRIBUNAL IS CONTRARY TO
INTERNATIONAL LAW PRIMARILY
IN THE FIELD OF HUMAN RIGHTS



What poses a particular problem when the Hague
Tribunal is concerned is the fact that both its set-up
and the method of work are, to a considerable extent,
contrary to a number of rules in international law,
particularly those in the field of human rights and
fundamental freedoms. Especially important among
these rights are those stipulated in the International
Covenant on Civil and Political Rights, adopted and
open for signature by UN General Assembly
resolution 2200A (XXI) of 16 December 1966, that
took effect on 23 March 1976, as one of the central
documents adopted internationally. The Tribunal's
rules are often contrary also to the general legal
principles as recognized by the civilized nations and
particularly the general principles of criminal,
substantive and procedural law having universal
value (legality of sanctions, two-instance court
proceedings, division of legislative and judicial
functions, etc.). It is also noteworthy that the Hague
Tribunal works also in contravention of a number of
provisions of the European Convention on Human
Rights and Fundamental Freedoms, as well as the
practice of the European Court of Human Rights.

Finally, a number of Rules of Procedure and Evidence
as well as a number of practical procedures before
the Tribunal run counter to the rules of the indicted
person prescribed in Article 21 of the Tribunal's
Statute that correspond to the rules stipulated in
Article 14 of the International Covenant on Civil and
Political Rights, so that our remarks concerning
respect for Article 14 of the Covenant as a rule also
apply to respect for Article 21 of the Statute.

Mentioned below are just some of the most important
violations of international law that appear in the
Tribunal's set-up plan and in its works.



1.Legislative and judicial functions are mixed

The Tribunal appears both as a legislative
and as a judicial body. The judges write the
Rules of Procedure and Evidence themselves
and are authorised to amend them (Article 15
of the Statute titled "Rules of Procedure and
Evidence" stipulates: "The judges of the
International Tribunal shall adopt the Rules
of Procedure and Evidence for work pending
trial, for the conduct of court proceedings and
appellate proceedings, for the acceptance of
vidence, for the protection of victims and
witnesses, as well as for other relevant
issues". They, therefore, both make law and
apply it.

The Rules of Procedure and Evidence are
frequently amended. In eight years of the
Tribunal's existence, it developed eighteen
amendments to the Rules. Such frequent
amendments of the Rules lead to legal
insecurity.

The legal insecurity and inadequacy of the
Rules of Procedure and Evidence is also
augmented by the fact that right from day one
they represented a mixture of different
systems and that their interpretation often
argely depends on the judge that is applying
them and particularly on the legal system and
tradition in the framework of which he was
trained. Such a nature of the rules and their
too frequent amendments make it impossible
to establish a stable court practice. As a
result, neither the defence nor the
rosecutors nor the judges themselves are
able to fully follow and master this practice.

What additionally undermines legal security
is also the fact that the English and the
French versions of the Rules do not always
coincide as well as the fact that with respect
to some issues, there is a discrepancy
etween the Rules and the Statute (which is
an act superior to the Rules) so that the
judges, at their own discretion, have the
possibility to opt for solutions that are more
convenient to them at the given moment. The
iscrepancies of the mentioned types that will
be presented in this paper are only a part of
these discrepancies.

The absence of separation of the legislative
function from the judicial function also gives
the judges the possibility and the
uthorisation to interpret these Rules
depending on circumstances and without any
control. The defence has no means or
possibility to challenge the interpretation of
these rules by the Tribunal even if that
interpretation is evidently incorrect. It does
not have either the possibility to challenge
the legality of these rules even in cases
when they evidently contravene the Statute's
provisions which often happens in practice
as we shall see from some examples in the
text below.





2.The prosecutor's and the judge's functions
are mixed

According to its Statute, the Tribunal was
established as the "International Tribunal for
the prosecution of persons responsible for
serious violations of international
humanitarian law committed in the territory
of the former Yugoslavia since 1991". This is
how it was defined also in the Rules of
rocedure and Evidence.

Consequently, judging by the text of the
Statute, the Tribunal's task is prosecution.
This is clearly not a normal function of a
ourt that should try the accused (the French
version of the Statute, true, is more correct
than the English version because it
stipulates that the Tribunal shall "try in
court" (juger) - "Le Tribunal international
penal pour juger les personnes presumees
responsables de violations graves du droit
international humanitaire commises en
ex-Yougoslavie depuis 1991" - however, in
the text of the Rules of Procedure and
Evidence, the word "juger", meaning `try in
court', has been replaced by the word
"poursuivre", meaning "prosecute").

Both versions (the English and the French)
of the Rules of Procedure and Evidence take
the English version of the definition from the
tatute. Describing the institution under
discussion as the "International Tribunal
(Court) for the prosecution of persons
responsible for serious violations of
international humanitarian law committed in
the territory of the former Yugoslavia since
1991".

The mentioned inappropriate determination of
the Tribunal's function is not solely limited to
linguistic imprecision. It finds its practical
implementation also in the fact that the
Tribunal (i.e. the Trial Chambers and the
Prosecutor's Office) represents a single
organisational unit with a joint Secretariat.
Such institutional unity of the Prosecutor's
Office and the Court is unacceptable and
inconceivable in any modern judicial system.

Further materialisation in the mentioned
definitions of the proclaimed "prosecuting"
role of the Tribunal is also effected through
its actions that are characterised by
violations of a number of rights of the
ndicted persons and prevention of providing
adequate defence which will be discussed
later on.

What is also indicative in the mentioned
definitions is the fact that the Tribunal was
established to prosecute "persons
responsible...". Defining things in this way
runs counter to the modern legal and social
chievements, namely, in contemporary world,
any normal judicial system is characterised
by the fact that courts try "indicted persons"
who are presumed innocent until proven
guilty (Article 14, paragraph 2 of the
International Covenant of Civil and Political
Rights stipulates: "Everyone charged with a
riminal offence shall have the right to be
presumed innocent until proved guilty
according to law."; a similar provision is also
contained in Article 21 paragraph 3 of the
Tribunal's Statute, but this provision runs
counter to the manner in which the Tribunal
has been defined and the way it functions).
The mentioned French versions of the
Statute and the Rules go even a step further
o deny this fundamental premise of modern
justice and they indicate that the Tribunal
shall try in court or prosecute "persons
presumed responsible..." ("les personnes
presumees responsables...").

This establishment of the "presumption of
guilt" does not remain solely verbal but also
has its practical implementation, to be
iscussed later on.



3.Violation of the two-instance proceedings
principle

Article 14, paragraph 5, of the International Covenant
on Civil and political Rights, prescribes the right to
two-instance proceedings in the following way:
"Everyone convicted of a crime shall have the right
to his conviction and sentence being reviewed by a
higher tribunal according to law." The mentioned
provision evidently presumes a distinction between a
lower and higher judicial instance, a thing considered
normal and commonplace in all modern legal
systems.

At the Hague Tribunal, the same judges are members
of both first-instance (the term "first-instance" is
used in the French version of the text, while the
appropriate term from the English version is "Trial")
and Appellate Chambers. Namely, Rule 27 on
Procedure and Evidence reads:

"Rule 27

Rotation

A.Permanent Judges shall rotate on a regular
basis between the Trial Chambers and the
Appeals Chamber. Rotation shall take into
account the efficient disposal of cases.

B.The Judges shall take their places in their
new Chamber as soon as the President
thinks it convenient, having regard to the
disposal of part-heard cases.

C.The President may at any time temporarily
assign a member of a Trial Chamber or of the
Appeals Chamber to another Chamber."

A judge, therefore, may be in a first-instance
Chamber in one case and a member of the Appeals
Chamber in another. Therefore, the decision of every
judge acting as a member of a first-instance
Chamber are subject to control by other judges who
are in that case members of the second-instance
Chamber, whereas in other cases that very same
judge takes part in second- instance proceedings in
the control of the work of these other judges that
now appear as members of second-instance
Chambers. This is how the system of mutual
cross-control functions, impeding clear
two-instance nature in trials and may result in
deviations primarily towards a benevolent attitude
and confirmation of first-instance decisions made by
other judges when acting in second-instance
proceedings, so that they can be expected to
reciprocate this benevolence when their roles are
reversed.

This double position of judges undermines
considerably their independence and impartiality.

This organisation also gives the judge the possibility
to take part in decision-making as a
second-instance judge and at the same time to apply
the stands from such decisions as the court practice
established in second- instance proceedings in
cases that he tries as a judge in first-instance
proceedings.

The paradoxical possibility for the same judge to
decide on the same legal issue in one case within the
framework of a first-instance Chamber and at the
same time in a second case within the framework of
an Appeals Chamber gives this judge a legally
unacceptable benefit of providing to his stand and
first-instance decision simultaneously the legal
force and the confirmation of judicial practice
established at the second-instance level.

The true unacceptability of such a rule that allows
the same judges to participate both in first-instance
and Appeals Chambers is further strongly
accentuated by the fact that the rotation does not
take place under any rules laid down in advance, but
according to the decision of the President, who is
authorised at any moment to temporarily assign a
judge to another Chamber.

(1. continua/follows)

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1.The rules on detention and the practice when
ordering detention - breach of the right to liberty

Before the Tribunal, detention is a rule and
temporary release an exception (Rule 64
stipulates that "upon being transferred to the seat
of the Tribunal, the accused shall be detained...",
whereas Rule 65, paragraph (A): "once detained,
an accused may not be released except upon an
rder of a Chamber").

This contravenes international law and
particularly the International Covenant on Civil
and Political Rights. In its Article 9, this Covenant
proclaims the right to liberty as one of the basic
human rights. Article 9, paragraph 3, inter alia,
stipulates: "It shall not be the general rule that
persons awaiting trial shall be detained in
custody...".

The judges of the Hague Tribunal are not
duty-bound to elaborate on their arrest warrants
and detention decisions. This contravenes Article
9, paragraph 2 of the International Covenant on
Civil and Political Rights, which reads: "Anyone
who is arrested shall be informed, at the time of
rrest of the reasons for his arrest and shall be
promptly informed of any charges against him".
This situation also contravenes principle 11/2 of
the UN General Assembly resolution 173 (XLIII)
of 8 December 1988, titled "A set of principles for
protecting all persons placed in any form of
custody or detention", according to which: "The
person placed in detention and possibly his
Defence Counsel shall be communicated without
delay and in full the arrest warrant and the
reasons explaining it".

Detention pending trial before The Hague Tribunal
is of an indefinite duration. In practice, detention
pending trial lasts very long and, bearing in mind
the length of the trial itself, this problem becomes
even more pronounced and more unacceptable.
This long detention contravenes the first sentence
of Article 9, paragraph 3 of the International
Covenant on Civil and Political Rights. It reads as
follows: "Anyone arrested or detained on a
riminal charge shall be brought promptly before a
judge or other officer authorised by law to
exercise judicial power and shall be entitled to
trial within a reasonable time or to release".

Too long a detention pending trial is not consistent
with the court practice of the European Court for
Human Rights that applies the European
Convention on Human Rights and Fundamental
Freedoms where detention is limited to up to two
years (in the FRY law it is up to six months). In
the case of Momir Talic, the two-year period of
detention is just about to expire and the trial has
not even begun.

At The Hague Tribunal, there is no right to
compensation of damage in case of unlawful
detention either. This contravenes Article 9,
aragraph 5 of the International Covenant on Civil
and Political Rights, which reads: "Anyone who
has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation".



2.Legality of sanctions

Article 15 of the International Covenant on Civil
and Political Rights prescribes:

"1. No one shall be held guilty of any criminal
offence on account of any act or omission which
did not constitute a criminal offence, under
national or international law at the time when it
was committed. Nor shall a heavier be imposed
than the one that was applicable at the time when
he criminal offence was committed.

...

2. Nothing in this Article shall prejudice the trial
and punishment of any person for any act or
omission which at the time when it was
ommitted was criminal according to the general
principles of law recognised by the community of
nations."

This is about the rule of criminal and international
law that usually finds expression in the sentence:
"Nulum crimen sine lege, nula poena sine lege",
and also comes under the corps of the universally
ccepted basic human rights.

When it comes to the legality of determining the
criminal offences which are tried before The
Hague Tribunal, this legality cannot be called into
question even when it is about the offences
committed before the Tribunal's Statute was
adopted. For, they were stipulated as such by
different international instruments (Convention on
the Prevention and Punishment of the Crime of
Genocide, the Geneva Conventions on
International Humanitarian Law), as well as by
national Criminal Codes. However, no
international norm envisaged sanctions for
violation of international humanitarian law before
the Tribunal's Statute adopted in May 1993.
Penalties are prescribed for the crimes from this
group stipulated by the Criminal Law of SFR
Yugoslavia and all the states formed in that
space. Namely, for each offence a separate
inimum and maximum penalty may be imposed
within the scope of the general minimum and
maximum penalty applicable in the respective
legal systems.

However, the Tribunal's Statute stipulates
penalties very vaguely. This is inappropriate for
modern criminal law. Article 24 of the Tribunal's
Statute prescribes:

"The first-instance Chamber shall pass only
prison sentences. When determining the terms of
imposing a prison penalty, the first-instance
hamber shall be guided by the general practice of
passing prison sentences applied by the courts in
the former Yugoslavia."

The former Yugoslavia's Criminal Code stipulated
as the heaviest penalty the term of imprisonment
of up to 15 years and exceptionally a 20-year term
but only as a substitute for the death penalty.

However, the Tribunal's Rule of Procedure and
Evidence also contravene even the thus
formulated Article 24 of the Statute. Namely, Rule
101 stipulates the possibility of passing a life
sentence: "The persons found guilty by the
Tribunal may be given a term of imprisonment that
may go up to life sentence". In addition, it is
noteworthy that the Rules of Procedure and
vidence, as a document containing procedural
rules should not even regulate the term of
imprisonment because this is an issue governed
by criminal substantive law.

This evident discrepancy between the Rules and
the Statute as the superior of the two cannot be
denied by the claim that the quoted Article 24 of
the Statute recalls the conditions of serving prison
sentences in the former Yugoslavia. Namely, it is
clear that that provision concerns the duration of
prison sentences in the former SFRY as this was
the only thing that could be determined by the
courts. The same cannot be said of the conditions
of imprisonment that the courts do not deal with.
The French version of the Statute is even more
explicit on the matter. Namely, instead of the
expression "general practice regarding prison
sentences in the courts of the former Yugoslavia",
this version uses the words "la grille generale des
eines d'emprisonnement appliquee par les
Tribunaux de l' ex-Yougoslavie ("General
frameworks for determining prison sentences
applied by the courts in the former Yugoslavia".
The term "grille" denotes the frameworks, i.e. the
ermitted range for determining the length of prison
sentences. This interpretation of ours is also
confirmed by the UN Secretary General's report
f 3 May 1993, which clearly states that: "when
determining the duration of prison sentence, the
first-instance Chamber shall be guided by the
general frameworks for determining prison
sentences applied in the courts of the former
Yugoslavia".

Finally, it should be pointed out that in its practice
so far the Tribunal passed prison sentences
largely exceeding the maximum prison sentence
that could be passed in the formed SFRY.



3.Absence of reasons for exclusion of criminal
responsibility

Neither the Statute nor the Rules envisage any
reason for the exclusion of criminal responsibility.
However, modern criminal law, i.e. the general
principles of criminal and international law,
generally recognise and accept the existence of
reasons for the exclusion of criminal responsibility
(such as necessary self-defence, extreme need,
coercion, etc.).

In its practice, too, the Tribunal does not take into
account the existence of such circumstances. For
example, in the case of Drazen Erdemovic, the
Tribunal refused to treat coercion as a basis for
the exclusion of responsibility but simply as an
extenuating circumstance when deciding how
eavy a penalty to impose. (According to
Erdemovic's claim, which the Tribunal accepted
as justifiable, he had actually been threatened
with death unless he committed the crimes of
murder for which the Tribunal later tried him).



4.Violation of the right to defence by treating
elements relevant for defence as confidential

In its work, the Tribunal has the possibility to issue sealed
indictments (Rule 53 on Procedure and Evidence, titled
"Non-disclosure of Indictment", paragraph (A) stipulates:
"(A) In exceptional circumstances, a Judge or a Trial
Chamber may, in the interests of justice, order the
non-disclosure to the public of any documents or
information until further order."). One cannot challenge
the right of the prosecuting organs to prosecute suspects
without disclosing that they are after them. However, it is
not legally acceptable and sustainable that a given person
is aware that proceedings have been initiated against him
and, in particular, that the indictment has been issued
against him without making it possible for him to learn
why he is being prosecuted and by keeping that fact
confidential. Thus, for instance, in the case against Zeljko
Raznatovic Arkan, the Tribunal announced that Arkan had
been indicted without letting the public or the accused
learn about the contents of the indictment.

We also wish to point out that the quoted provision
(which, as such, is itself inappropriate for modern law)
stipulates the keeping of indictments confidential (even
vis-�-vis the accused), as well as other documents and
information as an exception while, in practice, this is
increasingly becoming a rule.

The prosecutor forwards too late to the Defence Counsel
the data on the identity of the witnesses and the victims,
as well as these witnesses' allegations, i.e. the claims
regarding the victims against the accused, so that the
Defence Counsel does not have enough time to collect
data and evidence to possibly refute all these allegations
and claims. The Tribunal tries to justify this practice by
reasons of security of the witnesses and the alleged
victims. However, an institution that has at its disposal all
the means available to the Tribunal quite certainly will not
find it a problem to simultaneously provide security to
witnesses and alleged victims and give the accused and
his Defence Counsels enough time to prepare the defence.

An extreme scenario based on this approach is the
possibility, permitted under Rule 75 on Procedure and
Evidence, to keep the identity of a witness or a victim a
total secret until the very end and for the witness to be
heard by means of various technical devices (picture or
sound distorting devices or closed-circuit television; by
giving a witness a pseudonym, etc.). These methods make
it impossible to establish a given person's identity. Such
action makes it impossible for the Counsel to prepare the
defence and by its nature opens up the possibility for
manipulation rather than contributing to protecting a given
person. Namely, when a witness is heard on an actual
event that has really taken place, the accused can
conclude based on the actual contents of the witness
hearing which particular person is speaking, so that
keeping identity a secret does not make much sense.
However, it gives exceptional advantage to false
witnesses and victims, who may make statements
without any risk to themselves about something that
never happened. Namely, their identity is kept a secret
and the accused cannot conclude who they are based on
the contents of their statement as they testify about
something that never happened.

The above mentioned methods are used in particular to
violate Article 14 on the International Covenant on Civil
and Political Rights that protects the right of the accused
in the proceedings and whose paragraph 3, inter alia,
stipulates that:

"3. In the determination of any criminal charge against
him, everyone shall be entitled to the following minimum
guarantees, in full equality:

a.to be informed promptly and in detail in a
language which he understands of the
nature and cause of the charge against
him;

b.to have adequate time and facilities for
the preparation of his defence and to
communicate with counsel of his own
choosing;

...."

The above mentioned methods also violate the similar
provisions of Article 21, paragraph 4, items a) and b) of
the Tribunal's Statute.



1.Disproportionate difference between the terms of
work of the Prosecutor's Office and the Defence

The Prosecutor's Office has disproportionately
more favourable terms of work than the terms and
means available to the Defence. Not only is this
unfair but also, inter alia, violates the right to
efence, particularly in the part concerning the
above quoted Article 14, paragraph 3, item b) of
the International Covenant on Civil and Political
ights (as well as Article 21, paragraph 4, item b)
of the Tribunal's Statute).

Namely, the Prosecutor's Office has offices in
several towns in the territory of Yugoslavia, has a
large number of investigators and an unlimited
capacity of access to all cases before the
Tribunal. The Defence Counsels do not have any
of this, i.e. have it but to a much more moderate
xtent. Thus, for instance, in some of the cases
(particularly those against the highest officials of
the Republika Srpska that are on trial - Momcilo
rajisnik and Biljana Plavsic), the problem arose of
actual feasibility for the Defence Counsels to read
all the documents submitted by the Prosecutor's
ffice that have so many pages that the usual group
of several Counsels would need several years of
full-time work to read only once the contents of
the submitted documents.

The costs of litigation before the Tribunal are so
high that no accused can afford to pay them. The
Tribunal pays Defence Counsels ex officio and
the amounts of their fees are exceptionally high,
particularly if viewed from the Yugoslav
perspective and measured by our yardsticks.
owever, in real terms, even these amounts are
inadequate to meet the overall needs for a quality
defence compared to the formidable means and
possibilities available to the Prosecutor's Office.
In addition, by employing this method of paying
the Attorneys, which is a rule rather than an
exception, which would be normal, the Tribunal's
Secretariat keeps the Defence under control and
ndermines its independence.



2.Violation of the principle "audiatur et altera pars"
in some cases

Rule 94 on Procedure and Evidence, paragraph
(A) stipulates that: (A) A Trial Chamber shall not
require proof of facts of common knowledge but
shall take judicial notice thereof". This rule,
otherwise widely accepted in procedural
legislation, becomes problematic before The
Hague Tribunal because allegations made by the
mass media are often considered as generally
ccepted facts related to the Yugoslav crisis and
have, as a result of frequent repetition, acquired
the character of notorious facts. In a situation
hen the judges, as a rule, do not have enough
preliminary knowledge about the overall context of
the events underlying the ongoing proceedings,
which will be discussed later on, the mentioned
procedural possibility poses a big treat to the
accused placing him at a great disadvantage.

Paragraph (B) of the same rule prescribes: "(B)
At the request of a party or proprio motu, a Trial
Chamber, after hearing the parties, may decide to
take judicial notice of adjudicated facts or
ocumentary evidence from other proceedings of
the Tribunal relating to matters at issue in the
current proceedings". Notwithstanding the fact
that it is obliged to previously hear the parties,
meaning to also give the possibility to the accused
to plead, the Trial Chamber may take as proved,
ven if the accused challenges them, the facts
established in the course of some other
proceedings before the Tribunal since the quoted
provision only envisages the obligation to hear the
parties but not the obligation to supply proof again
if the accused (or possibly the Prosecutor) claims
that these facts have not been correctly
established. Although the facts already proved in
another case are at issue here, perhaps the facts
proved in these other proceedings are not
important for the accused to the extent that he
would challenge the Prosecutor's allegations
thereon; namely, they do not significantly affect
the verdict in that case and therefore the accused
may not wish to enter into a debate thereon.
However, in the case where later on these very
same facts are taken as established and proved,
they may be of major importance to the accused
and the accused will not be given the possibility
for presenting new evidence. Given that in
different cases the accused are different and that
the Prosecutor's Office is the same in all of them,
and given that the Prosecutor's Office decides
when it will issue a particular indictment, it has
the possibility to adjust the sequence of
ndictments submitted, so that the same disputable
issue in particular earlier proceedings will appear
as an issue of no particular importance to the
ccused. In some later proceedings, however, the
same issue may be of crucial importance to the
contents of the verdict and the position of the
accused and may make the accused in the
later-on initiated proceedings face a situation
here he will not be able to challenge the
Prosecutor's allegation that will decide his fate.

In the mentioned way, the anyway inequitable
position of the Defence vis-�-vis that Prosecutor
is additionally aggravated and the right of the
accused to effectively challenge the Prosecutor's
allegations and succeed in having evidence
supplied in his favour is seriously undermined.
And this right is also stipulated and protected by
Article 14 of the International Covenant on Civil
and Political Rights (as well as by Article 21 of
the Tribunal's Statute).


(2 - continua/follows)

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