2006-08-29

The judge and the general

AP is reporting comments made by Wolfgang Schomburg, a judge at the ICTY, in which he suggested that the EU's linkage between Serbia's association talks and the war-crimes question could be counterproductive. "It can certainly become counterproductive if a country perceives itself taken hostage because of one or two wanted people," he said in an interview. He also said that the Tribunal was there to judge individuals, not states.

These comments are so wrong at so many levels it's tough to decide where to start. At the most basic level, of course, it's entirely up to the EU to make this linkage (which is a tried and tested approach, not something new they just came up with) and frankly none of the ICTY's business. It's also highly tendentious to imply, as his reported statements seem to do, that the linkage somehow means that the ICTY is now running the risk of judging states not persons. (I'm open to the suggestion that this apparent implication is an artifact of the way the interview, which was made by Austria Press Agency, was reported by AP.) And if Serbia "perceives itself" taken hostage, that's, frankly, Serbia's problem -- perhaps it then shouldn't have applied for association with the EU, or indeed signed up at Dayton to the obligation of catching war criminals (sorry, "persons indicted for war crimes").

But perhaps the judge wasn't just airing his personal views? Perhaps his comments have to be seen in the context of recent statements by unnamed "sources close to EU diplomats" (whatever those may be -- waiters? Cleaning ladies?) reported by Politika to the effect that it was "not unrealistic" to expect a stabilization agreement to be concluded even with Mladic at large? Wouldn't be the first time that the EU went wobbly on Serbia. We shall know more in September.

5 comments:

Yakima_Gulag said...

I agree that it is wrong to even consider letting Serbia into the E.U. without handing over war criminals, and the same should be required of Montenegro, which is a known hangout for some war criminals.

WARchild said...

The court shouldn't do politics. It can say whether it is satisfied with the cooperation or not but it shouldn't get involved into suggesting policies. Let Solana and Rehn do that. The mere fact that a judge is talking to the press is bad.

As for the perception of Serbs being hostage, it is not a perception but a conscious decision to be so. Serbia is not hostage to one or two people. It ultimately is hostage to itself and to the fact that on its value system Mladic in liberty is better than Mladic in the Hague.
Under these circumstances I don't see how "being kept" hostage is unjust to Serbs.

Yes, being bad makes it easier for Bruxelles to reject.

Anonymous said...

The judge has every right to speak his mind. In fact, I think he is making an important point about the way in which the administration of justice is being held ransom to politics.

Contrary to other views here, I believe that the current actions of the EU are in fact counter-productive and the judge was right to say so. All of those accused of war crimes must be put on trial. However, linking Serbia's progression to towards EU membership so directly with the capture of Mladic means that the country is in fact being held hostage. If this means that, paradoxically, Serbia is less likely to hand him over as an act of defiance, then the administration of justice will in fact have been hampered, rather than advanced!

But what I find more troubling is the double standards. Croatia was allowed to go all the way to the start of negotiations before Gotovina was handed over. Why can't the same be applied to Serbia? If this were the case, at least then the EU could point to a clear precedent, which would help to lessen feeling that it was being singled out for special treatment.

By the way, even Sanader admitted that the arrest of Gotovina was far easier for Croatia to handle than Mladic is for Serbia. As he noted, Gotoviona was a serving member of the Croat armed forces known to the government. Mladic was an irregular serving in another state at a time when there was a completely different government in power in Belgrade. Holding the current administration so directly responsible for his capture is in many ways unfair.

Yakima-Gulag - I agree with your comments. I also hope that a number of Montenegrins will be held to account for their role in the events of the 1990s. It is long overdue. If we want to attribute ongoing responsibility to states, which some here obviously do, then I think the time has come to call the Montenegrin Government to account. For too long it has played Austria to Serbia's Germany.

Yakima_Gulag said...

@Annonymous, unusually reasoned comments for an annonymous commentator!
Here's why the judge should not have spoken: Judges are supposed to be OBJECTIVE. So they are not to be involved with politics.
As far as the difference between Serbia and Croatia in E.U. accession, 1. Serbia has been less compliant, 2. Croatia has been more compliant.
Sanader is wrong it's not easier for Croatia to comply, unfortunately the popular cult of people who are war criminals is just as strong in Croatia as in Serbia. So no it really wasn't easier to turn in war criminals for Croatia as against for Serbia.
Mladic wasn't entirely an irregular, he was recieving a military pension and irregulars don't ordinarily recieve military pensions.

Anonymous said...

Yakima-Gulag - my point is that if a judge feels that politics is obstructing the administration of justice, he or she is perfectly right to point this out. As it happens, every day judges make statements that might be seen to be political. Indeed, one could argue that if this were not the case our system of justuce would be failing. The reason we have a neutral judiciary is precisely in order to allow judges to speak out without fear of retribution from disgruntled politicians, upset at what they have heard from a judge’s bench. Indeed, our very civil liberties rest upon the right of judges to comment on how political actions affect the administration of justice!

If we are to be honest with ourselves, the reason we are getting upset in this case has nothing to do with the principles at play here and everything to do with the subject matter. We are so used to hearing about the collective guilt of the Serbians, that we have forgotten that the role of the ICTY is to judge individuals as individuals and not as representatives of the Serbs, Croats, Bosnians and Kosovo Albanians. In fact, as far as the administration of justice is concerned, I think that the judge was actually making one of the most astute and objective observations about the current progress of the war crimes trials that I have heard.

As for Croatia, the point Sanader was making is that the Croatian Government was far less able to rightfully claim that they did not know where Gotovina was than the Serbian Government is over the whereabouts of Mladic. It was not a statement about the political cost of handing one or other of them over. Again, in the interests of perceived fairness, Serbia should be allowed to continue along its EU path up to the point of actual negotiations. In fact, it seems as though more and more EU officials realise that their current hard line stance might in fact be counterproductive, which, after all, is the point recognised by the judge - albeit for different reasons.