During his recent visit to Bosnia-Herzegovina, the new foreign minister of Serbia and Montenegro Vuk Drašković invited Croatia to withdraw its charge [of aggression] against Serbia and Montenegro, filed with the International Court of Justice in The Hague, on the grounds that the war in Crotia was a civil, not an international conflict. Mr Drašković based this statement most probably on the positions of the so-called amici curiae (friends of the Court) who made a similar assertion in relation to the trial of Slobodan Milošević. The thesis, however, is legally untenable.

The so-called friends of the Court - Stephen Kay, Branislav Tapušković and Timothy McCormack - submitted a claim to the Hague Tribunal on 3 March 2004, the central point of which is that the Tribunal cannot try Milošević for crimes committed before the war in Croatia acquired the character of an international conflict, i.e. before Croatia became an independent and sovereign country. The war in Croatia, in other words, was a civil war, which is what Mr Drašković asserts too. In their view: ‘The prosecutor insists that the armed conflict in Croatia became an international conflict on 8 October 1991 [when Croatia formally declared independence, following a three-month moratorium accepted under international pressure]. The friends of the Court argue, however, that the armed conflict became an international conflict only at some point between 15 January 1992 [when the EU recognized Croatia] and 22 May 1992 [when Croatia became a member of the United Nations].’

A little known fact

This stance of the friends of the Court is untenable, since the act of recognition is not of a constitutive but of a declaratory nature. Recognition by other subjects of international law, in other words, does not establish statehood, but merely recognizes a given legal fact (hence the word ‘recognition’) established in advance of recognition. Recognition is hence ex tunc, i.e. retrospective. However, what is of far greater interest is the rarely mentioned fact - practically unknown even in the relevant professional circles - that the conflict was from the start an international conflict, because Serbia, according to its own constitution, became an independent state on 28 September 1990, i.e. more than a year before Slovenia’s and Croatia’s own proclamations of independence on 8 October 1991. This fact was obscured by Milošević’s propaganda according to which the cause of the war lay in ‘Croatian separatism’. The fact of Serbia’s independence was camouflaged out of fear of foreign intervention, leaving the impression that Milošević was guarding Yugoslavia’s territorial integrity rather than waging a war of aggression against a foreign territory.

Article 72 of the Republic of Serbia’s 1990 Constitution states: ‘The Republic of Serbia organizes and secures the sovereignty, independence and territorial integrity of the Republic of Serbia, and its international status and relations with other states and international bodies’, as well as ‘the defence and security of the Republic of Serbia’. Article 83 of the same constitution states that the ‘President of the Republic of Serbia is the supreme commander of armed forces in peace and war’. In accordance with this, Article 135 paragraph 2 of the constitution removes Serbia from Yugoslavia’s legal system: Yugoslavia’s laws no longer apply to it. This article envisages Serbia’s right to ‘respect’ the federal laws only when ‘this is in its own interest’. This legal device is known as si volam, i.e. ‘if I wish’, and acts so as to negate every obligation adopted under this condition. It is obvious that if I have the right to behave as ‘I wish’, then I have no obligation at all.

Serbia soon afterwards enacted a number of laws which up to that time had been the prerogative of the federal bodies, i.e. laws in regard to credit and monetary policy, price control policy, the right to impose duty on goods imported from abroad (including from other Yugoslav republics), the right to collect excise, etc. According to the Yugoslav laws allegedly defended by Milošević, both the Serbian constitution and the subsequent legislation represented grave criminal acts. By adopting this constitution, however, Serbia became sovereign and independent, hence outside Yugoslav jurisdiction, so that its deeds could not be subject to legal action by Yugoslav bodies. The international nature of the conflict in Croatia thus derives from the very fact of the existence of an independent and sovereign Serbia, and has nothing to do with the timing of Croatia’s acquisition of its own independent statehood. Mr Draškovićc should not begin his duties as foreign minister by endorsing such an untenable thesis, particularly as our [Serbia’s] foreign partners see it as part of the legacy of the Milošević regime.

Milošević’s legacy

This issue apart, a most unbelievable legal curiosity also deserves mention here, as an illustration of the acrobatic and illusionist ‘legal’ voluntarism of Milošević and his ‘law experts’, who viewed and used both constitution and law as little more than weapons of propaganda. Article 135 of the Republic of Serbia’s 1990 constitution declares that Serbia - despite its independence - will continue to realize ‘its rights in the federation in accordance with the federal constitution’. What can this possibly mean? An independent Serbia, which as we have seen has no duties towards the federation, assumes ‘rights’ within a federation from which it has legally separated itself by proclaiming independence. Serbia thus reserved the ‘right’ to delegate its representatives to the presidency of another state (i.e. Yugoslavia), a presidency that would act as ‘supreme commander’ of the army of that other state.

How could something like this be realized? It was made possible by a conspiracy hatched between the Serbian political leaders and the JNA high command, which committed the latter to removing non-Serbs from its ranks and placing itself at the disposal of the Serbian leadership in return for being paid and maintained with money stolen from the federal treasury. It was possible to realize this, in other words, because this whole constitutional nonsense was upheld by a big stick. The other republics were forced to tolerate this legal nonsense out of fear of the big stick, and to send their representatives to the so-called Presidency of the so-called Yugoslavia for another year, thus practically accepting that an independent Serbia could continue by way of the ‘Presidency’ to govern the ‘territory of Yugoslavia’, i.e. also their own republics. They accepted this imposition in the illusory hope that the big stick would not be used. Legal experts will amuse themselves with this state-legal curiosity for a long time to come.

This article has been translated from Feral Tribune (Split), 21 May 2004