European Court of Human Rights

Council of Europe

F - 67075 Strasbourg Cedex

FRANCE

re.: SLOBODAN MILOSEVIC v. THE STATE OF THE NETHERLANDS

APPLICATION

by

Mr. N.M.P. Steijnen, counsel, Zeist, the Netherlands

Mr. Z. Tomanovic, counsel, Belgrade, Serbia, Federal Republic of Yugoslavia 

Mr. Ch. Black, counsel, Richmond Hill, Ontario, Canada

Professor Mr. M.N. Kouznetsov, counsel, Moskow, Russia

Mr. D. M. Ognjanovic, counsel, Belgrade, Serbia, Federal Repu­blic of Yugoslavia

Professor Mr. A. Tremblay, counsel, Montréal, Québec, Canada

Professor Mr. A. Bernardini, counsel, Rome,  Italy

mailing address:

Mr. N.M.P. Steijnen

Couwenhoven 52-05

3703 ER Zeist

the Netherlands

I. SUMMARY

0.1. If the claims on legality and legitimacy of the so-called tribunal are right, then the Security Council, for the first time in its history, is entitled to penetrate the private lifes and the private legal positions of individual cititzens of States.

This would then raise the question: QUIS CUSTODIAT ?

0.2. If the claim on legality and legitimacy of the so-called tribunal are right, then the prosecutor of this 'tribunal' is even mightier than all the members of the Security Council together.

Because the Security Council members can only act in concert, in order to issue a decisive measure under Chapter VII of the UN Charter, directed toward restoring peace and security.

0.3. But if the claims on legality and legitimacy of the tribunal are right, then the prosecutor could issue such a measure, time and again, acting alone and by a single stroke of her pen.

Because, in such a case, every single arrest warrant, issued by her, must be considered a measure under Chapter VII of the UN

Charter.

To be respected unconditionally by the entire world.

And again this would raise the question: QUIS CUSTODIAT ?

1. This application is made by SLOBODAN MILOSEVIC, former Presi­dent of the Federal Republic of Yugoslavia.

The applicant complains of a violation of his rights under Articles 5, 6, 10, 13 and 14 of the Convention.

2. The applicant reserves the right to file one or more addi­tio­nal appli­cations.

In order to give a further elaboration on certain elements of this application.

II. INTRODUCTION AND STATEMENT OF FACTS

3. This application is made by the former President of the Fede­ral Republic of Yugo­slavia SLOBODAN MILOSEVIC, at present domici­led in the Ne­ther­lands, Sche­veningen (the Hague), in the Deten­tion Unit, Pom­stati­onsweg 32, (2597 JW), P.O. Box 87810, 2508 DE the Hague.

Summary of important facts

The applicant is in dentention on Dutch territory under the auspices of the so-called Yugoslavia Tribunal.

4. The applicant was indicted for the first time in May 1999, during the height of NATO's war of aggression against the Federal Republic of Yugoslavia, when he was President of the Federal Republic of Yugoslavia.

This indictment is in regard to certain alleged crimes against humani­tarian law in Kosovo.

5. On 28 June 2001 he was taken from Yugosla­via, after having already been more out of office as President of Yugoslavia for more than 9 months and during the main part of this time  imprisoned in Belgra­de's district prison.

He was then extradited to the Netherlands and surrendered to the so-called Yugoslav Tribunal.

6. This by a joint action certain elements of the Serbian govern­ment, NATO-officials in Bosnia, NATO-countries on the route between Bosnia and Dutch territory, the Dutch government and functio­naries of the so-called tribu­nal were involved.

7. While on the same day the Yugoslav Constitutional Court just suspended a de­cree, directed to permit the extradition and surren­der of Mr. Milosevic.

And ruled out all further action directed on extradition, pending a final decision of the Constitutional Court.

8. During his detention here in the Netherlands the so-called tribu­nal has twice extended the initial 'Kosovo'-indict­ment and launched two brand-new indictments.

One for alleged crimes in Croatia in a so called 'Croatia'-indict­ment, and another, in december 2001, for alleged crimes in Bosnia, the so called 'Bosnia'-indictment.

9. Caused by his illegal and illegitimate extradition and surren­der out of the Federal Republic of Yugoslavia, and by his transfer to and detention by the so-called tribunal, important human rights of Mr. Milosevic have been breached and are still breached.

Other human rights of mr. Milosevic are violated in the course of his detention by the so-called tribunal.

Facts concerning the tribunal

10. By Security Council Resolutions 808 (1993), dated 22 February 1993, and Security Council Resolution 827 (1993), dated 25 May 1993, an ad hoc internatio­nal tribunal was esta­blished, called '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'.

11. This tribunal was given the task 'to prosecute persons respon­sible for serious violations of international humanita­rian law committed in the territory of the former Yugoslavia since 1991 in accordance with the provisions of the present Statute'.

As it is stated in Article 1 of the 'Statute of the Internati­onal Tribu­nal', adopted 25 May 1993 by Resolution 827 and several times amended by subsequent resolutions.

12. This means that this tribunal has explicitly an ad hoc status and that only those suspect of severe humanitarian law violations are within its alleged jurisdic­tion, who have allegedly committed crimes against humantiarian law in the territory of the former Yugoslavia.

13. A further restriction on the jurisdiction of the so-called tribunal is the limitation with regard to time.

Only the period since 1991 is to be considered.

14. The establishment of the tribunal was merely a decision of the Security Council, not the outcome of a treaty-making process, or the result of a UN General Assemby initiative.

15. Within the system of international law in general and of the UN Charter in particular, the tribunal's appointed status is the status of a subsidi­ary organ of the Security Council, in accordance with Article 29 of the UN Charter.

16. The decision to establish the tribunal was further justi­fied as a measure by the Security Coun­cil, acting under Chap­ter VII of the UN Charter, taken to restore internatio­nal peace and security.

A measure, based on Article 41 of the UN Charter.

Legal outlines of the tribunal

17. Mr. Milosevic stron­gly denounces the legality and legiti­macy of this tribunal for many reasons.

18. And with respect to this he is in good company.

Numerous scholars and other international law experts all around the world have taken the same position.

19. First of all it must be stressed that any suggestion that the Security Council is above the law, or that it is itself the law, has to be rejected resolutely.

According to Article 24 of the UN Charter the Security Council is also bound by the rules of international law and justi­ce.

The Security Council is bound by the UN Charter as well.

20. So it is quite clear that the Security Council is capable of taking decisions which contravenes international law or the UN Char­ter.

21. According to the opinion of numerous prominent internatio­nal law experts the establishment of the tribunal is an exam­ple of such a violation of international law and of the UN Char­ter by the Security Council.

22. The main objections to this tribunal are that it has been established in an abuse of power of the Security Council, that such an ad hoc tribunal, with highly restricted competence with respect to subjects and time, is inherently discrimi­na­tory and that it is set up as a political tool in the hands of mainly western powers, first and foremost the United Sta­tes, to serve their political interests.

23. It must be remembered that this tribunal, challenged to this by its own appointed 'friends' - the 'amici curiae' in the case of mr. Milosevic - did not dare to bring the question of its own legality and legitimacy before the International Court of Justice.

The tribunal dismissed this challenge.

24. So Mr. Milosevic is forced to submit to the juris­dic­tion of this so-called tribunal.

A tribunal to which its most prominent champion, the United States, would never submit any of its own citizens.

25. For it must be stressed that the United States, by far the most powerful and influential member of the Security Council and strong sponsor and advocate of this tribunal, itself would never accept the jurisdiction of such an interna­tional ad hoc tribunal over its own citizens.

26. This is quite clear now.

The Unites States very recently has enacted domestic laws that threaten economic, financial and political sanctions against any State that dares to cooperate with any international court, which pretends to have jurisdiction over American citi­zens with regard to crimes against interna­tional humanitarian law, especially the International Criminal Court proposed by the Rome Treaty.

27. The United States even has accepted a law, which gives the United States' President the power to release American citi­zens who are detained by such international tribunals.

This to be obtained even by military action on the territory of the state where these American citizens are held in custo­dy.

28. This act, called the American Service-members Protection Act (ASPA) is already nicknamed 'The Hague Invasion Act'.

29. So the protagonists of the legality and legitimacy of the tribunal intend to continue propagating that, according to the standards of international law, should it occur that an Ameri­can citizen and, say, a Serbian citi­zen commit a crime against humanitarian law, standing shoulder to shoul­der, it would be acceptable that the Serbian citizen could legitimately be prose­cuted and sentenced before an internati­onal court, but the American would be immune from such prosecution and would go scot-free.

They dare to maintain that international law would accept such an imbalance.

Discriminate prosecution policy by the tribunal in the course of its performance

30. Also in the course of its performance the tribunal blan­tantly and continuously demonstrates its thoroughly political and discri­mate character.

31. As it was stated by the prosecutor in her speech before the UN Security Council of 27 November 2001, the tribunal's prose­cu­tion policy is that its 'focus (..) is on the leaders'.

32. And the tribunal's President, Mr. Claude Jorda, stated in his speech before the UN Gemeral Assembly that:

"The first problem, which I called to your attention last year, is due to the fact that many of the accused, high-ranking political and military figures, remain at large even though it is alleged that, through their criminal actions, they seriously breached international law and order and consequently jeopardised peace and security in the Balkans."

So the question is: which 'high-ranking political and military figures' is the tribunal's President referring to ? 

It could be also 'high-ranking political and military figures' from all parts and parties in the former Yugosla­via.

But that is certainly not the case: the 'high-ranking politi­cal and military figures', so strongly wanted by the tribu­nal's 'impartial' President are only Serb.

Further on in his speech he states:

"The hope of accomplishing our mission at the earliest opportunity kindled by the implementation of these reforms must not lead us to forget that several of the accused - high ranking political and military leaders - remain at large. Some of them reside with total impunity in the Federal Republic of Yugoslavia, while others have taken refuge in the territory of Republika Srpska (...)"

So all 'high ranking political and military leaders' are suspect.

Provided that they are Serb, of course.

33. As it was strongly stressed by the prosecutor during the latest Status Conference on 11 December 2001 in the case against Mr. Milosevic, the tribunal will concentrate now on the construction that all evil in the territory of the former Yugoslavia - in Bosnia, in Croatia and in Kosovo - came final­ly for the most part from the same source: namely a conspiracy by the Serbian leadership to create 'a Greater Serbia', mas­terminded by Mr. Milose­vic.

34. This anti-Serbian paranoia is overtly declared as the tribu­nal's main task.

III. DOMESTIC REMEDIES

35. Looking for legal protection against violations of his human rights, which has been inflicted on the applicant since the very moment of his abduction from Yugosla­via and since the first moment of his deten­tion in the Nether­lands in the premi­ses of the tribunal, Mr. Milosevic has undertaken legal pro­ceedings against the State of the Nether­lands.

36. On 23 August 2001 he summoned the State of the Nether­lands in interim injunction proceedings before the Regional Court in the Hague.

Stating in the writ of summons, inter alia:

"1.Whereas by his abduction from the Federal Republic of Yugoslavia the plaintiff's fundamental human rights were gravely violated; and

2.Whereas, after all, this abduction blatantly in­fringed on the basic righ­ts due to every person with regard to an intended ex­tradition; and

3.Whereas the State of the Netherlands shares a heavy responsibility for this violation of the basic human rig­hts of plaintiff and, by reason of this fact, is liable for the concerned actions in tort imposed upon plain­tiff; and

4.Whereas, because of the deprivation of his liber­ty, pl­ain­tiff being subdued, also fundamental human ri­ghts of plain­tiff are viola­ted, which provid pro­tec­tion aga­inst arbi­trary de­privation of liberty; and

5.Whereas the State of the Netherlands also shares a direct co-responsibility for this deprivation of free­dom,imposed upon plaintiff in breach of basic legal standards; and

(...)

13.Whereas the State of the Netherlands is also, and not in final regard, deeply implicated in these violations of human rights by its granting to this so-called tribunal a place on Dutch territo­ry, by its co-opera­tion with and facilitation of this insti­tute; and

14.Whereas plaintiff invokes the legal protection of the Dutch judge against the violation of his

rig­hts, to which plaintiff is exposed, as a result of the acti­ons of the so-called tribunal, as well as plaintiff is invoking this legal protection against the jurisdic­tion the so-called tribunal intends to pose upon him illegally; and

15.Whereas after all the Dutch judge is the compe­tent judge regarding legal protection of the human rights of all people being on Dutch territory; and

  16.Whereas Article 13 of the European Convention on Human Rights states that the national judge must give acces in cases of violation of human rights, so that this due access to the Dutch court invol­ves also in itself another basic right that plain­tiff is also explicitly claiming; and

(...)

19.Whereas plaintiff claims that the State of the Ne­ther­lands should ensure, without any further delay - or to make every necessary effort -, that plain­tiff will be immediately and unconditi­onally rele­ased, or wil be immediately and uncon­ditinally repatriated to the Federal Republic of Yugoslavia, in accordance with the follo­wing de­mands;

And the demands were:

"The President of the Reginal Court in the Hague is reque­sted:

to order that the State of the Netherlands pro­ceed to the unconditional release of plaintiff, within 8 hours after the pronouncement of the verdict;

Alternatively

to order that the State of the Netherlands , within 24 hours after the pronouncement of the verdict, pro­ceed to repatriate plaintiff or to arrange for his repatria­tion to the territory of the Federal Republic of Yugosla­via;

More alternatively

to order that the State, without any delay, should ex­pli­citly urge the immediate and unconditional release of plaintiff at all relevant international institutes and embodiments;

Further alternatively

to order that the State, without any delay, should ex­pli­citly urge the immediate repatriation of plaintiff to the territory of the Federal Republic of Yugoslavia at all relevant international institutes and embodiments."

37. In these proceedings the State of the Netherlands has put forward:

-that the State of the Netherlands lacks any competence with re­g­ard to any as­p­ect whatsoever of the so-ca­l­led tribunal and its actions;

-that, as a consequence, the State of the Netherlands has no role in the protection of human rights with regard to persons under the authority and competence of the tribu­nal;

-that also the Dutch judge doesn't have any competence with regard to persons under the authority of the tribunal;

-that the State of the Netherlands, more specifically, has no say in the matter of the deprivati­on of freedom of accused, wanted by the tribunal, and that the Dutch judge shall have no competence at all in this respect.

38. By verdict, dated 31 August 2001, the Regional Court in the Hague, after the consideration that the so-called tribunal must be considered legally founded and an impartial and inde­pendent institute, and consequently a legal and legitimate court, rules further as follows:

"3.5.Now the foregoing considerations lead to the con­clu­sion that it has to be assumed that the Tribu­nal is legal and legitimate, then has to be consi­dered the defence of the defendant under 3.1.

With regard to this the following is considered.

It is certain that the State of the Netherlands has trans­ferred its legal competence to examine the claim concer­ning relea­se to the Tribunal ac­cor­ding to the Agree­ment between the Netherlands and the United Nations and the national law based upon this Agreement.

Now Article 9 par. 2 of the Statute with concern to the compe­tence of the Tribunal determines that the primacy in the field of administration of justice layes above natio­nal judiciaries and is allocated to the Tribunal and Article 103 of the UN Charter lets prevail the rules according to the Charter and, consequently, attributes priority to the ruling by the Security Council above any other ruling, it has to be established that the Dutch judge has no competence to deal with the the re­quest of plaintiff to decide on his deprivation of liberty.

All what is stated by plaintiff in connection with this shall fall through owing to this.

3.6.So the foregoing leads to the conclusion that the President has to declare the court incompetent to consider the primary claim of plaintiff. A direct or indirect return to the territory of the Federal Republic of Yugo­slavia, as pleaded in the alterna­ti­ve claim, would actual­ly mean that plaintiff would not be detained any longer with respect to the the facts as indicted by the prosecu­tor of the tribu­nal.

    As such it has to be stated that this is in essen­ce also a claim to release. It has to be added that the alter­nati­ve claims also bring under dis­cussion all kinds of sub­jects (for instance the removal from the Federal Repu­blic of Yugo­slavia, the trans­fer to the tribunal and a pos­sible appeal to the immu­nity from prosecution), which, as pre­viously considered, is also within the exclusive competence of the Tribunal.

Under these circumstances the President declares the court incompetent to consider the alternative cla­ims.

4.The Decision

The President:

Declares the court incompetent to consider the

cl­aims of plaintiff."

39. Mr. Milosevic stipulates, after this verdict, that it is now clear­ly shown that, according to the opinion of State of the Nether­lands and confirmed by the Dutch court, there are no domes­tic remedies at all.

Domestic remedies which could be used in a defence against human rights violations, are, according to the State of the netherlands, not accessible to persons in the hands of the tribunal.

40. Mr. Milosevic has reconciled himself to this joint judge­ment by the State of the Netherlands and the Dutch judiciary, as far as the existence of domestic remedies is concerned with regard to this proceedings and without further prejudices.

41. It is evident now, after this verdict, that even if domes­tic remedies where theoretically available, such remedies could be considered to constitute 'domestic remedies' within the meaning of Article 35 of the Convention.

And, as a matter of fact, the State does not argue that domes­tic remedies even theoretically exist.

42. In addition, the European Court has consistently required that remedies be directly available to alleged victims in order to be adequate and effective.

Now that it is clearly proven that the State of the Nether­lands is denying Mr. Milosevic any domestic remedy, and Mr. Milosevic has given evidence that this is even backed up by the Dutch court, it cannot be maintained that there is any domes­tic remedy which is directly available to Mr. Milose­vic witin the meaning of Article 35 of the Convention.

IV.ADMISSIBILITY OF THE APPLICATION

IV.1.a.State of the facts concerning the domestic juris­dic­ti­on with regard to Mr. Milosevic

43. The High Contracting Party responsible for human rights abuses is the State of the Netherlands.

Since Mr. Milosevic is in the Netherlands, more specifically into Dutch territory.

And consequently within the jurisdiction of the Netherlands.

44. That Mr. Milosevic is within the jurisdiction of the Nether­lands could only have been reasonably contested had there been a treaty-based relevant transfer of sovereign po­wers which would have warranted the conclusion that the State of the Netherlands had totally renounced any jurisdiction with regard to Mr. Milosevic under all circumstances regarding his presence here in the Netherlands.

45. This further assumes that such a broad abdication of jurisdic­tion is possible, according to Dutch positive law, without transfer of territoriality.

This is seriously doubtf­ull.

46. In any case, such an extra-territoriality is definitely not created in the present situation.

47. Though Article 17, introduced at the very last moment by means of amendment to the Dutch law which intended to settle the implementation of the ICTY into the Dutch legal order, namely the "Law setting forth regulations concerning the installa­ti­on of the ICTY" (Wet, houdende bepalingen verband houdende met de instelling van het Internationaal Tribunaal voor de vervolging van personen aansprakelijk voor ernstige schendin­gen van het internationale humanitaire recht, begaan op het grondgebied van het voormalige Joegoslavië sedert 1991), states:

"The Dutch law is not applicable on deprivation of liber­ty, experienced by order of the Tribunal within the premi­ses which are in the Netherland at the disposal of the Tribunal."      

    ("De Nederlandse wet is niet van toepassing op vrijheids­ontneming ondergaan op last van het Tribunaal binnen aan het Tribunaal in Nederland ter beschikking staande ruim­ten."),

whatever the true nature and precise implications of this for the rest of this quite obscure arti­cle might be, this article of domestic law is nevertheless overru­led by what is settled between the State of the Netherlands and the United Nations in an agreement.

48. This agreement is called "Agreement between the Kingdom of the Netherlands and the United nations concerning the Head­quarters 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" (Trb. 1994, Nr 189).

49. Article VI of the Agreement states:

"1. The premises of the Tribunal shall be under the con­trol and authority of the tribunal, as provided in this Agreement.

 2. Except as otherwise provided in this Agreement or in the General Convention, the laws and regulations of the host country shall apply on the premises of the Tribunal.

 3. The Tribunal shall have the power to make regulations operative on the premises of the Tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions. The Tribunal shall promply inform the competent authorities of regulations thus enacted in accordance with this para­graph. No law or regulation of the host country which is inconsistent with a regulation of the Tribunal shall, to the extent of such inconsistency, be applicable within the premises of the Tribunal."

50. So it must be established that the national rule, which states that the Dutch law is not applicable on deprivation of liberty within the premises of the tribunal is quite contra­dictory to the rule of international law stipulating that the basic rule remains that the laws and regulations of the host country shall apply on the premises of the tribunal.

51. As far as this contradiction stretches, the regulation of international law prevails.

52. This regulation of international law clarifies two things:

1.The Dutch laws and regulations, however the above-mentio­ned domestic law regulation the above-mentio­ned domestic law regulation might be interpreted, do apply without any doubt fully also to so-called 'tribunal matters', even on the premises of the tribunal !

The only exception might be where the tribunal has made speci­fic regulations.

And this - again - only so far regulations specifically with regard to the premises of the tribunal are concerned.

2.This Agreement do grant the tribunal no powers which could prejudice the Dutch sovereignty and jurisdic­tion, other than to 'regulations operative on the premises of the Tribu­nal'.

53. This means that this Agreement clearly stipulates that in general the Dutch jurisdiction is lasting unimpeded, even with regard to the tribunal's premises.

54. And that only in precisely defined regulations, which would only apply to situations within the tribunal's premi­ses, the Dutch sovereignty - and thus the Dutch juris­diction - could be conside­red at issue.

55. Such a regulation is explicitly to be reported to the State of the Netherlands.

56. So the con­clusion has to be that, with regard to Mr. Milose­vic, in general the Dutch jurisdiction is unimpeded.

57. A fortiori this Dutch jurisdiction is undoubtedly to be conside­red unimpeded, with regard to every time and every situati­on that Mr. Milosevic is being outside the premises of the tribunal.

58. So Mr. Milosevic is also, and all the more, explicitly clai­ming the full protection of the Dutch jurisdiction in every situa­tion that he is outside the premises of the tribu­nal.

59. Moreover, there is no indication whatever that, within the framework of the Agreement, there would have been made any regula­tion whatsoever by the so-called tribunal - even if legally conceivable at all - that would declare the European Conventi­on and the Dutch jurisdiction regarding this Conventi­on out of order.

Neither in general, nor with regard only to the premi­ses of the tribu­nal.

60. The State of the Netherlands and the Dutch judiciary neverthe­less hold the opposite view.

And they argue that they have no competence anyhow and anywhe­re.

61. However, it is evident that Article 17 of the earlier mentioned Dutch law does not furnish legal grounds ruling out of order the Convention and the Dutch juris­dic­tion regar­ding this in­strument, as part of the Dutch legal order.

Nor might there be any other legal basis for such a ruling out.

62. If only because of the fact that, of course, treaty obli­ga­tions, like those with regard to the Convention, cannot be put aside simply by a national rule.

Neither into the whole of the Netherlands, nor into only a part of its terrritory, like the premises of the tribunal.

63. Those treaty obligations with respect to the issue of the applicability of the Convention and the responsibility of the High Contracting Parties for compliance with this Conven­tion are laid down in the Articles 1 and 13.

Article 1 of the Convention stipulates:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention."

64. Since the Dutch jurisdiction in general is unimpeded, even within the premises of the tribunal, and all the more in situations when Mr. Milosevic is outdoors these premises,

the State of the Netherlands is bound to guarantee these rights and freedoms fully to Mr. Milosevic.

Also against infringe­ments by the tribunal which occur or threaten to occur.

65. But there occurs also a legal obligation for the Dutch judicia­ry.

According to Article 13 of the Convention.

This Article reads:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

66. So should there occur a violation of these rights, not­withstanding that the State of the Ne­therlands is bound to secure such rights and freedoms, then the Dutch judiciary must intervene.

67. Obviously this treaty obligation binding the Dutch judici­ary to intervene with respect to infringements on human rights applies also for Mr. Milosevic.

68. That it most certainly should not to be assumed, as a quick judge­ment, that the jurisdiction of a party to a treaty within the framework of this Convention would be lifted, also follows from the juris­prudence of the European Commission and the European Court with respect to extraterritorial acts of by states.

69. It is a basic tenet of the Convention that states are bound to secure the rights of:

"all persons under their actual authority and responsibi­lity, not only when that authority is exercised within their own territory but also when it is exercised abroad."

(Cyprus v. Turkey, App. No. 8007/77, Dec. Adm. Comm., 13 DR 85 at para. 19 (1978) 

And in Cyprus v. Turkey, App. Nos. 6780/74, 6950/75, Dec. Adm. Comm., 18 YB 82 at 120 (1975) it is considered that the

"authorised agents of the State, including.. armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property "within the jurisdic­tion" of that State, to the extent that they exercise authority over such persons or property. In so far as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged."

NOTA BENE : 'by their acts or omissions'.

70. So even when there exist a certain measure of what is called 'actu­al authority' by State number one over some citi­zens of State number two, these subjects abroad can claim to be

'wit­hin the juris­dic­tion' of State one, in so far as they are affected by the acts or omissions of state one.

71. Since this applicable even to persons on the territo­ry of another State, it must certainly be valid for persons within the territory of the State itself.

Like Mr. Milosevic being on Dutch territory.

72. It is abundantly clear that the person of Mr. Milosevic is affected repeatedly and profoundly by the 'acts and omissi­ons' of the State of the Netherlands.

For instance in the act of hosting this so-called tribunal.

Or in the omission to host this tribunal by agreement, but with­out stipulating an adequate protection of human rights by this tribunal.

Or in the act of complicity in the illegal kidnapping and abduc­tion of Mr. Milosevic to the Hague.

Or in the omission of failure to provide any legal instrument or provision to Mr. Milosevic in order to counteract the human rights violation he has to suffer at the hands of the tribu­nal.

And so on.

73. Consequently it is beyond any reasonable doubt that, with regard to the circumstances of Mr. Milosevic, there still exists a situation where, in general, the Dutch jurisdiction is unimpe­ded.

IV.1.b.Conclusion

74. This means that the State of the Netherlands, also with regard to Mr. Milosevic, is bound to the obligations of Arti­cle 1 of the European Convention on Human Rights.

75. Which implies that the State of the Netherlands, undoub­tedly maintaining jurisdiction over Mr. Milosevic in general, is bound to safeguard his human rights as set out in the Conven­tion.

76. And it means also that the Dutch judiciary is bound to the obligation of art. 13 of the Convention.

Which implies that the Dutch judiciary has to intervene imme­diately on his behalf in order to offer due protec­tion against the violations of his human rights.

77. Nevertheless, the State of the Netherlands and the Dutch judiciary take a different view.

Holding that they have no competence at all with respect to violations Mr. Milosevic' human rights, since his abduction to the Nether­lands.

IV.2.a.The theoretical situation that in general domestic juris­dicti­on with respect to Mr. Milosevic is to be con­sidered lifted

78. But even in the situation that it is likely to be assumed that in general jurisdiction with regard to any treatment of Mr. Milosevic would have been trans­ferred to the so-called tribu­nal - which is without any doubt not the case -, still an enduring full commitment to the protection of his human rights by the Convention is compulso­ry for the Netherlands.

79. This obligation applies just as much to the tribunal.

80. In this regard all jurisprudence of the tribunal itself, which more or less overtly stipulates that the safeguarding of some of the human rights seth forth in the Convention is only compulsory before domestic courts and not before a tribunal like this, is completely unacceptable and must be regarded as without any authority.

81. Also since this would create a large measure of inequality between accused persons who are brought before domes­tic

cour­ts, and persons who - for the same alleged offenses ! -  would have the hard luck to be indic­ted before a tribunal like the ICTY.

82. And such a double standard would also deprive the norms, protected by the Con­ven­tion, of their peremptory character.

83. Such a legal inequality would be a mockery of all basic prin­ciples of the rule of law.

84. So even in a situation where it is assumed that in gene­ral the jurisdiction with regard to any treatment of Mr. Milosevic would have been transferred to the ICTY, this so-called tribu­nal would still have to meet the same obligations in safeguar­ding the human rights set forth in the Convention with respect to Mr. Milose­vic as any domestic court.

85. Under these conditions the State of the Netherlands, which would have transferred its primary jurisdiction to the so-called tribunal, remains at least jointly liable, in terms of the Convention, for all human rights violations which are  committed by this tribunal, in as much as the State of the Nether­lands should not have stipu­lated sufficient securities against possible breaches of human rights by this tribunal.

86. In general it must be stated that it is also the opinion of the European Commission that States may not escape their obligations under the Conven­tion by delegating powers to private bodies or by maintaining that they had no control over their agents.

Vide 13 DR 231(1978).

87. So even under such circumstances an admissible applicition against the State which has transferred powers remains possi­ble.

88. It must be understood that a far-reaching transfer of powers to the so-called tribunal has not taken place , as is set out in detail above, but - apart from that - it is true that:

"The transfer of powers to an international organisation is not incompatable with the Convention..".

As is also held by the Commission in M and Co v. FRG.

89. However, the Commission added explicitly to this observa­tion:

"provided that within that organisation fundamental rights will receive an equivalent protection."

See application No. 13258/87, Dec. Adm. Comm., 33 YB 46, at 52 (1990).

90. So even when it is assumed, on a purely theoretical basis, that all jurisdictional powers with regard to Mr. Milosevic were to be transmitted to the so-called tribunal, this still could have been done only in accordance with the Convention and with full guarantee that these fundamental rights of the Convention would receive an equivalent protection.

91. Since in that specific case of M and Co v. FRG protection was afforded under European Union Law, the Commission declared the application inadmissi­ble ratione materiae.

92. But even while the Commission declared the M and Co-appli­cati­on inadmissable, the Commission reiterated that the par­ties to the Convention remain responsible:

"[f]or all acts and omissions of their domestic organs allegedly violating the Convention regardless of whether the act or omission in question is a consequence of domes­tic law or regulations or of the necessity to comply with international obligations. [T]he Commission recalls that 'if a State contracts treaty obligations and subsequently concludes another international agreement which disables it from performing its obligations under the first treaty, it will be answerable for any resulting breach of its obliga­tions under the earlier treaty. (cf. No.235/56, Dec.10.6.­58, Yearbook 2, p. 256(300). The Commission considers that a transfer of powers does not necessarily exclude a Sta­te's responsibility under the Convention with regard to the exercise of the transferred powers. Otherwi­se the guarantees of the Convention could wantonly be limited or excluded of their peremptory character. The object and purpose of the Convention as an instrument for the protec­tion of individual human beings requires that its provi­sions be interpreted and applied so as to make its safegu­ards practical and effective (cf.,. Eur. Court H.R. Soe­ring judgment of 7 July 1989, Series A no. 161. p. 34, para 87). Therefore the transfer of powers to an interna­tional organisation is not incompatible with the Conventi­on provided that witin that organisation fundamen­tal rights will receive an equivalent protection." (ibid. at 51-52)

93. It is a matter of fact that, if the State of the Nether­lands were supposed to have - more or less - transferred juris­dictional powers, originating from its own sovereignty, to the tribunal, this should have happened by way of the above mentioned Agree­ment between the Kingdom of the Nether­lands and the United Nations.

And it would then be the obligations arising from this treaty, which would possibly disable the State of the Netherlands from performing its obligations under the Convention.

As it was the Netherlands that entered voluntary into this agreement.

94. So the State of the Netherlands remains, in any case, answera­ble for every breach of human rights under the authori­ty of the tribunal, in as much as the Netherlands has not entered in any agree­ment that would have provided and safegu­ar­ded such complete protec­tion of Mr. Milosevic' human rights of the same value as that available under exclusi­ve Dutch juris­diction.

95. As noted by the Commission in M & Co v. FRG:

"the legal system of the European Communities not only secures fundamental rights but also provides for control of their observance".

That was the conclusion of the Commission with respect to the legal system of the European Communities.

But, as will be outlined in more detail here below, this could definitely not be concluded with regard to the so-called tribunal.

96. Since the tribunal's structure and self-fabrica­ted rules do not offer a sufficient substantive and procedu­ral protecti­on for the fundamental human rights guaranteed under the Convention, neither do they provide such a protection in its practice as a per­for­ming court such a protection.

97. It is true moreover that in M & Co v. FRG it is stated by the European Commission that it can't be expected from a State which is transferring sovereign powers to an international organisation - under which certainly also the transfer of jurisdictio­nal powers should be under­stood -, that this State, time and again, in each individual case should examine whether the basic rights of the Convention were respected.

So this judgement also says:

"The Commission has also taken into consideration that it would be contrary to the very idea of transferring powers to an international organisation to hold the member States responsible for examining, in each individual case before issuing a writ of execution for a judgment of the Europe­an Court of Justice, whether Article 6 of the Convention was respected in the underlying proceedings."

98. But the Commission could only arrive at this conclusion, because this case was concerning a tranfer of powers to the Europe­an bodies and since, first of all, it was determined that, as cited above,

"The legal system of the European Communities not only secures fundamental rights but also provides for control

of their observance."

99. So the criterion obviously should be, as is also layed down in this judgement and already is cited above, that there has to be provi­ded:

"..that within that organisation fundamental rights will receive an equivalent protection."

100. Thus the conclusion is justified that, as long as it is not guaran­teed that fundamental rights in that organisation will receive an equivalent protection, or it is not safegu­arded that that organi­sation will provide for a proper con­trol of their observance, the State which has transferred jurisdic­tio­nal powers to the organisation in question, can not back out its ultimate responsibility to guarantee the observance of these basic rights.

101. In fact, as long as such a full observance is not ensu­red, the transferring State itself even could not ab­stain from the obliga­tion to control, time after time and in each indivi­dual case, whether or not there might be a viola­tion of basic rights at issue.

102. So here is the key question with regard to this, as yet, mainly theoreatical issue : can the tribunal reasonably be regarded as an international organisa­tion offering a balanced protection of human rights ?

103. If that is not the case, then the States whose intention it is to transfer­ jurisdictional power to this tribunal - or having already trans­fer­red such power -, cannot back out of their ultimate responsibility for the observance of these human rights.

IV.2.b.Final conclusion

104. So the final conclusion can be nothing else than that, whatever way you look at it, the State of the Nether­lands

preserves its responsibilities under the Convention, even with regard to the exercise of possibly transferred powers.

No matter to what extent these powers are actually transfer­red.

105. As far as such powers are to be considered as actually trans­ferred - which is, as set out here above, mostly not the case - this responsibility of the tranferring state can only end  when it is fully assured that there would be, in the context of the receiving organisation, an equivalent protecti­on for the Convention's human rights and there would be provi­sions for control of their observance.

106. As will be elaborated here below, this is definitly not the case within the framework of the so-called tribunal.

V.THE VIOLATION OF THE CONVENTION'S HUMAN RIGHTS, GUARANTEED BY ARTCLE 5, UNDER DUTCH RESPONSI­BI­LITY AND/OR CO-RESPON­SI­BI­LITY

V.1.Violation  of the Article 5 par. 1-provision of the Con­vention

V.1.a.Violation of Article 5 par. 1 in general with respect to the requirements of a national legal basis for de­tention itself and for detention-procedures and/or the requirement of demo­cratic legitimatio­n for such a detention and detention-procedures

107. Article 5 par. 1 ECHR holds an enumeration of all cases in which deprivation of liberty is permitted.

This enumeration is limitative.

See Ireland v. UK, Publ. ECHR, Series A, vol. 25 (1978) p. 74.

108. The deprivation of liberty imposed upon Mr. Milosevic is contradictory to what is stated with regard to all situations mentioned in Article 5 par. 1, namely that a deprivation of liberty is only legal and legitimate, when 'in accordan­ce with a procedure prescribed by law' and likewise has to be 'law­ful'.

109. With regard to all cases mentioned in Article 5 par. 1 it is requi­red, as is evident from the terms of the opening words of the second sentence 'in acordance with a procedure prescri­bed by law', that the relevant procedure, by means of which the deprivation of liberty is imposed, has to be regula­ted in the national legislation, so that the legality and legitimacy of that deprivation of liberty can be tested on that basis.

110. So this national legislation has also to be itself in accor­dance with the Convention.

See Winterterp-case, Publ. ECHR, Series A, vol. 33 (1980), p. 19.

111. In addition to this it is also prescribed for each case sepa­rately that this deprivation of liberty has to be 'law­ful', whichs means that it also has to be permitted in the national law and that this national law itself should be 'lawful'.

See X v. FRG, Yearbook XIV (1971), p. 342 (346).

112. So these two requirements constitute a double key upon the legality and legitimacy of all forms of deprivation on free­dom.

113. It is not asking too much also to apply this standard in the situation of an international tribunal being set up.

114. On the contrary, it must be considered that it was also completely feasible for the Dutch legis­lature fully to meet these two general and basic requirements at the moment that the possibility of deprivation of freedom by such a tribunal came at issue.

115. In fact, the second requirement, namely that each mode of deprivation of liberty which might be allowable, must be 'lawful' - i.e., law-based - is, nota bene, a basic feature of Dutch national criminal law.

116. And also the first requirement, namely that each mode of allowable depriva­tion of freedom has to be 'in accordance with a procedure prescribed by law', would have been, if desired, easily met by the State of the Netherlands by esta­blis­hing such a national legal provision within the frame­work of the new Dutch law with regard to the implantation of the tribunal into the Dutch legal order: the above cited 'Law, holding regulations concerning the installation of the ICTY'.

117. After all, as being the State designated to facilitate depri­vation of freedom by this tribunal on its territory and  bearing not only the responsibility to accomodate its national legislation with the demands forthcoming from the establishing and functioning of the tribunal, but also with the responsibi­lity to adapt this new national legislation to the require­ments of the European Convention, the Dutch legislator has had enough opportunity to resolve this problem of the first requi­rement in a suitable way.

118. Nevertheless,the Dutch legisla­ture deliberately neglects to do so.

As it also neglects to create a natio­nal provision that deten­tion by this tribunal should be 'in accordance with a procedu­re prescribed by law'.

119. It must be re-stated: nevertheless.

Because this omission was explicitly pointed out in the Dutch Parliament in the course of the enactment of this 'Law, hol­ding regulations concerning the installation of the ICTY'.

It was pointed out by the Dutch Labour faction (PvdA) in the Final Report with regard to this bill, stipulating:

"A gap is threatening to originate, since the Dutch law requires a legal base in order to keep persons here in detention. This legal base seems to be lacking, as far as the period is concerned in which someone is handed over for prosecution, but has not yet been tried. Article 27 of the Statute of the tribunal gives only a definite answer about the execution of a verdict. Imprisonment is to be accor­ding to the applicable law of the country involved. And Article 29 gives only a limited definitive answer. In the Statute there is nothing further to find about custo­dy, except that, according to Article 15, the tribu­nal should create rules of procedure and evidence."

(Tweede kamer 1993-1994, 23 542, nr. 5, p. 2)

120. So the Dutch Labour Party came with an amendment, the Amendment Van Traa, in order to rectify this omission in the bill. It reads:

"The tribunal is competent to take and hold in custody persons whose arrest is ordered as a suspect by the tribu­nal."

And gave herewith the following explanation:

"By means of this amendment it is intended to comply with Article 15, par. 1 of the Constitution, saying that by or by virtue of the law the situations are determined in which someone could be deprived of his freedom."

121. It is to be stressed in this connection that it is not only a constitutional obligation, according to Dutch national law, that detention by the tribunal be considered law­ful only when there is first created at least a national provision, like the proposed amendment by the Dutch Labour fraction, but that this is after all an obligation, imposed by the Conventi­on.

122. However, the Dutch government refused to accept this amend­ment, with reference to the above mentioned Agreement between the Netherlands and the United Nations, and concluded the Memorandum in reply to the final report, inter alia:

"This implies that the Tribunal is responsible for the legality  of the detention, for the way of execution of this detention, for the guarding and treatment of the detainees in these premises and for the detention regime, applicable to them."

and:

"In principle the Tribunal is responsible for the esta­blisment of the necessary rules with concern to the execu­tions of the detention into the available premises.  Rather it will be included in the Agreement between the United Nations and the Netherlands that these regulations have to be in accordance with general standards, determi­ned by the United Nations itself, for the treatment of detainees."

and:

"In so far as this detention is to be going through into the detention premises of the Tribunal, nothing is requi­red to be settled in this present bill." 

(Tweede Kamer, 1993-1994, 23 542, nr. 6, blz. 2-3)

123. So the Dutch legislature, consciously and fully aware of the possible choice of wether or not to achieve such a natio­nal provision, has deliberately refused to do so.

And did create, acting like this, voluntarily and unnecessari­ly, a legal situation that made it inevi­table that in the future, when the tribunal is into operational, not only would this constitutional obligation be violated, but so would be the obli­gation of the Convention would be viola­ted.

124. Meanwhile nothing came out of the above mentioned promise by the government that 'it will be included in the Agree­ment between the United Nations and the Netherlands that these regulations have to be in accordance with general stan-d­ards, determined by the United Nations itself, for the treat­ment of detainees'.

125. On the contrary, not only is no trace of any such regu­lati­on in this Agreement, but such a provision is even expli­citly exclu­ded between the treaty parties in this Agree­ment.

It is true that in Article VI, par. 3 of the Agreement, as is pertinent to this issue, it states that:

"The Tribunal shall have the power to make regulations operative on the premises of the tribunal for the purpose of establishing therein the conditions in all respects necessary for the full execution of its functions" [..]

However, there is no provision in the Agreement, with regard to the rules which the Tribunal will make 'for the full execu­tion of its functions', that rules made with res­pect to deten­tion should have to meet any standard whatsoever set by the United Nations.

126. And it is even explicitly layed down in the side-letter by the Dutch Chargé d'Affaires, dated 29 July 1994, that precisely the opposite, which means: nothing at all, about the conditions of detention should be stated in that Agreement:

"It is the understanding of the Parties that none of the regulations made operative by the Tribunal based on the power given to it under Article VI, paragraph 3, of the Agreement, shall relate to any question of the treatment of the suspect, accused or other persons detained on the premises of the tribunal; these matters shall be dealt with by the Tribunal in accordance with its competence under Article 15 of the Statute of the Tribunal adopted by the Security Council by its resolution 827 (1993) of 15 May 1993."

(Tractatenblad 1994, nr. 189, p. 17-18)

127. So the Dutch Parliament is deliberately deceived by the Dutch government on this issue.

The Dutch government has given the Dutch Parliament the false hope that the Parliament will continue to have a say with regard to the legislative creation of guarantees about the treatment of detainees would not be parted with completely.

But finally this national say has been completely abandonned.

128. This despite the expressed role, imposed by Article 5 par. 1 of the Con­vention on the national commitment.

129. However, also into this Article 15 of the Statute, menti­oned in the side-letter, it is absolutely not determined that the rules which were to be applied by the tribunal, were to be in accordance with the general standards for the treatment of detai­nees.

This Article stipulates, on the contrary, only that the judges of the tribunal are supposed to make up themselves their own the 'rules of procedure and evidence', and this 'for con­duct in the pre-trial phase'.

And as another task is moreover explicitly mentioned in Arti­cle 15 of the Statute: the making of rules 'for the protec­tion of victims and witnesses'.

Yet as far as the making of rules for 'the protection of accused', also the Statute is as silent as the grave.

130. So the final result is that the safeguards as to the procedure on deprivation of liberty and the legality of the deten­tion itself, which the Co­nven­ti­on expects to be forthcom­ing from national regula­tions, are totally absent.

131. It could not even be said that the alleged basic legiti­mation regar­ding this tribunal, namely the Statute, gives any - substitute - regulation on this issue of deprivation of free­dom.

The regulation of any procedure with regard to the deprivation of freedom by the tribunal is, on the con­trary, transferred completely downwards.

To the tribunal's regulations themselves.

132. So the fact that there was no national involvement of any kind with respect to the regulation of the deprivation of freedom by the tribu­nal places a breach upon the Convention.

This means that all democratic legitimation, which should be an integral constituent of such a regulation, is absent.

133. As far as it would have been possible to put opposite to this a substitutional, pseudo-democratic legitimation, to be represented by the Security Council as an important part of the United Nations, there should have been at least at issue a regulation of this aspect of deprivation of freedom into the Statute.

In any case, even of such a possible substitutional pseudo-democra­tic legitimation, there has come nothing at all.

It's all transferred down to the so-called tribunal itself.

Causing all democratic control on this issue of depri­vation of freedom, assumed by the Conven­tion, to be totally lacking.

134. Besides, the regulations made in this respect by the tribunal itself are, to make matters even worse, poor and cannot stand up to even the minimum imaginable standards.

Neither in theory nor in practice, as will be made evident fur­ther on in this application.

V.2.b.Conclusion

135. So the conclusion is that the detention of Mr. Milosevic is illegal.

136. First of all, since his deprivation of liberty is contra­ry to the general obligation of Article 5 par. 1 of the Con­venti­on: that any deprivation of freedom must be based upon a proce­dure prescribed by law - i.e., according to the juris­prudence of the European Court, prescribed by national law.

138. Even any kind of pseudo-demo­cratic legitima­tion, directly derived from the Securi­ty Coun­cil as a representative of the United Nations, into the form of the Statute, is missing.

139. Secondly, since his deprivation of freedom is also con­trary to the obligation, imposed by Article 5 par. 1 of the Convention, that all modes of detention, mentioned in Article 5 par 1, were only allowable when the specific mode would be 'lawful'.

I.e., would be layed down, according to the jurisprudence of the European Court, in a national law.

Or, alternatively, would at the very least derive some pseudo-democra­tic legiti­mation directly from the Security Council, as substi­tute for the United Nations, along the line of the Statute.

Neither of which is the case.

V.3.Violation of the Article 5 par. 2-provision of the Con­vention

140. Article 5 par. 2 of the Convention reads, as far as relevant here:

"Everyone who is arrested shall be informed promptly (..) of any charge against him."

And Article 9 par. 2 ICCPR reads, as far as relevant:

"Anyone who is arrested shall be informed at the time of the arrest of any charges against him."

So the term 'promptly', used in the Convention's version of this basic human right, has the explication of 'at the time of the arrest' in the ICCPR's version.

Unmistakably it is a basic requirement that everbody who is arrested shall be enabled to get informed immediately of any charge against him.

141. This basic human right is not compatible with the proce­dure, layed down in Article 50 of the Rules of Procedure and Eviden­ce, fabricated by the so-called tribunal.

Article 50 of the Rules reads:

"(A)(i) The Prosecutor may amend an indictment:

(a) at any time before its confirmation,

wi­thout leave;

(b) between its conformation and the as­signment of a case to a Trial Chamber, with the leave of the Judge who confirmed the in­dictment, or a Judge assigned by the Presi­dent; and

(c) after the assignment of the case to a Tri­al Chamber, with the leave of that Trial Cham­ber or a Judge of that Chamber, after having heard the parties.

(ii) After the assignment of the a Trial Chamber it shall not be necessary for the amended indictment to be confirmed.

(iii) (...)

(B) If the amended indictment includes new charges and the accused has already appeared before a Trial Cham­ber in accor­dance with Rule 62, a further appearance shall be held as soon as practicable to enable the accused to enter a plea on the new charges.

(C) The accused shall have a further period of thirty days in which to file priliminary motions pursuant to Rule 72 in respect of the new charges and, where neces­sary, the date for trial may be postponed to ensure adequate time for the preparation of the defence."

142. So, according to the tribunal's rules, the prosecution is permitted to introduce a nearly unlimited number of new in­dict­ments again­st any person already in custody under a cert­ain 'basic' indictment.

143. And that is what has happened with respect to Mr. Milose­vic, facing time and again, sometimes extensions of the origi­nal indictment, like the orginal 'Kosovo-indictment', and at other moments brand-new indictments.

Like the 'Croatia-indictment'.

And the 'Bosnia-indictment', even containing a brand-new indictment of genocide !

144. Mr. Milosevic was informed of this last and the most serious charge imaginable nearly half a year after his ar-

rest !

And, moreover, while the alleged events occurred nearly ten years earlier !

145. The absurdity, impudence and obtuseness of this 'Bosnia indict­ment' of genocide by the so-called tribunal becomes quite clear when it is recalled that Mr. Milo­sevic was at the time praised by the entire world community for his peace-making role in Bosnia.

146. The so-called tribunal wants to make forget this, in its blatant effort to rewrite Balkan history.

147. And this is all happening under the pretext of 'an amend­ment' of the indictment.

148. Both this specific Rule and the tribunal's practice are in contravention of this basic human right of Article 5 par. 2 of the Convention, jo. Article 9 par. 2 ICCPR.

149. This tribunal's practice, at least with regard to the charges against Mr. Milose­vic, even exceed Rule 50 in ample measure.

And there­fore is also a seri­ous abuse of power within the framework of the tribu­nal's illegal and illegitimate regulati­ons on this field itself.

V.4.a.Violation of the Article 5 par. 4-provision of the Con­vention

150. The basic right, stating that every one who is detained is entitled to the right to a swift court decision on the legi­timacy and legality of his detention, is continuously violated with respect to Mr. Milosevic.

151. On the occasion of the initial appearance on 3 July 2001 before the so-called tribunal and during the subsequent so-called status conferen­ces on 30 August 2001 and 29-30 October 2001, Mr. Milosevic, time and again, denoun­ced the illega­lity and illegitimacy of his deten­tion in no uncert­ain terms.

He did so by stressing continuously the illegality and illegi­timacy of the so-called tribunal.

152. Reasonably this charge could not be interpreted other than as including a challenge of the legality and legitimacy of his detention and a demand for immediate release.

So this challenge was clearly to be seen as a challenge accor­ding to Article 5 par. 4 of the Convention.

Article 5 par. 4 reads:

"Every one who is deprived of his liberty by arrest or deten­tion shall be entitled to take proceedings by which the law­fulness of his detention shall be decided speedily by a court and his release ordered if the detention is not law­ful".

153. Nevertheless, no response at all has been forthcoming on this continuous complaint, put forward by Mr. Milosevic, that his custo­dy is ille­gal and illegitimate.

This challenge, so clearly laid down already during the first session of the tribunal in his case and subsequently repeated time and again.

154. On the contrary, everytime Mr. Milosevic expressed this challenge and tried to begin explaining and substantia­ting this complaint, the president in charge was there like a flash to reach out immediately to the button of the micropho­ne, in order to turn it off.

155. So there is certainly no doubt that there are no terms at all for any opinion that there would have been, in the course of this initial appearance and the subsequent status conferen­ces, a judicial test of the legitimacy and legality of the detenti­on of Mr. Milosevic, or that these court sessions in any way might have been seen as 'taking proceedings' according to the requi­rements of Article 5 par. 4 of the Convention.

156. On the contrary, the judge of the tribunal has done the utmost to prevent the issue of the legality and legitima­cy of his detentention from being raised by Mr. Milosevic and to prevent him from explaining his view.

157. This under the evident pretext that such foundations by Mr. Milosevic for his stand would be a purely political state­ment, not allowable in the court-sessions in question.

Without giving any further arguments for this position.

158. So the protocols of the initial appearance of 3 July 2001 read with respect to this interferences:

"THE ACCUSED: I consider this Tribunal a false Tribunal and the indictment a false indictment. It is illegal being not appointed by the UN General Assembly, so I have no need to appoint counsel to illegal organ.

JUDGE MAY: Mr. Milosevic, in due course, you will have the chance to put motions challenging the jurisdiction or any other preliminary matters which you you wish to do. We take it that you wish to proceed without counsel, although it's a matter which you may wish to reconsider in due course. This Initial Appearance is simply to deal with these matters; first of all, the indictment itself and, secondly, for you, if you wish, to enter your plea of guilty or not guilty to it."

and:

"THE ACCUSED: [Interpretation] Mr. President --

JUGDE MAY: Just one moment please. The Trial Chamber will treat your response as a waiver of your right to have the indictment read out. The next part of the procedure is to move towards having that indictment put to you."

and:

"THE ACCUSED: [Interpretation] This trial's aim is to produce false justification for the war crimes of NATO committed in Yugoslavia.

JUDGE MAY: Mr. Milosevic, I asked you a question. Do you wish to enter your pleas today or are you asking for an adjournment to consider the matter further ?

THE ACCUSED: [Interpretation] I have given you my answer. Furthermore, this so-called Tribunal...

(Trial Chamber confers)

JUDGE MAY: The Rules state that if an accused fails to enter a plea, then the Trail Chamber shall enter a plea of not guilty on his behalf. Mr. Milosevic, we treat your response as a failure to enter a plea, and we shall enter pleas of not guilty on each count on your behalf.

THE ACCUSED: [Interpretation] As I have said, the aim of this tribunal is to justify the crimes committed in Yugo­slavia. That is why this is a false Tribunal--

JUDGE MAY: Mr. Milosevic, this is not --

THE ACCUSED: [Interpretation] -- an illegitimate one.

THE INTERPRETER: I'm sorry, the microphone is not on.

JUDGE MAY: Mr. Milosevic, this not the time for speeches. As I have said, you will have full opportunity in due course to defend yourself and to make your defence before the Tribunal. This is not the moment to do so."

And the protocols of the Status Conference of 30 August 2001:

JUDGE MAY: Turning then to the accused. Mr. Milosevic, are there any issues you wish to raise in connection with your case or with your physical and mental condition ? You know the rules. No speeches at this stage. You'll have the opportunity to defend yourself in due course. But if there are issues you want to raise about the case or about your condition, then this is the chance to do so.

THE ACCUSED: Well. I would like to know, first of all, can I speak or you are going to turn off my microphone like the first time ?

JUDGE MAY: Mr. Milosevic, if you follow the rules, you will be able to speak. If you deal with relevant matters, of course you will able to speak.

THE ACCUSED: Well, that is my next question. I would like to make presentation on the illegality of this Tribunal.

JUDGE MAY: You've already put a motion in on that topic. Are you asking to be able to address it -- the Chamber orally on that topic ?

THE ACCUSED: If I cannot make the presentation orally that can take 40 munites, I will give that in writing, and my --

JUDGE MAY: Yes. Well. Why don't you -- sorry.

THE ACCUSED: My associates will give it to the press if you don't allow me to make it public here.

JUDGE MAY: If you make it in writing, it can be made public in due course. If you have it in writing, it may be more convenient to deal with it in that way.

THE ACCUSED: Well, that is your decision.

JUDGE MAY: Very well.

THE ACCUSED: So we have to communicate as civilised per­sons, not with switching off the microphone or to use the force for that so we can understand each other, what is possible, what is not. So I will leave it to you in wri­ting.

JUDGE MAY: Very well."

and:

"THE ACCUSED: The third question is why I am isolated from the press, especially in the circumstances in which every single day there is something printed or broadcast against me as a pure lie ? So you are keeping me in isolation not to communicate to the press even by telephone, which is only -- which is available to me. There are some represen­tatives of the press. Maybe there are somebody within them who would like to know the truth. I believe that nobody has to be afraid of the truth, and if there is on one side all that machinery you represent, all that secret servi­ces, military machinery, media machinery, and everything else, and on my side only the truth, if you are isolating me from the communications with the press, then it is clear that it is completely discriminatory, and you cannot even mention the idea of even-handedness in any kind of that procedure you have in mind.

JUDGE MAY: Mr. Milosevic --

THE ACCUSED: And please, I want to remind you, I'm not recognising this tribunal, considering it completely illegitimate and illegal, so all of those questions about counsels, about representations, are out of any question. I saw in the newspapers that --

JUDGE MAY: Very well. Mr. Milosevic, there must be an end to this. Just one moment. Let me deal with the matters you raised. The Rules of the Detention Unit provide that there should not be communication with the press. Those are the Rules and they must be followed. They don't discriminate against you. They are applied to all the accused who are in detention. As for your point about not recognizing the tribunal, you have made it and we have heard it and there is no need to repeat it. Now, is there anything else you want to add ?

THE ACCUSED: Well, I understood that they were dealing with that problem of illegality of the Tribunal as a problem of jurisdiction. It is clear to any lawyer in the world that question of jurisdiction can be open when juridical institutions are concerned, and you are not a juridical institution; you are a political tool.

JUDGE MAY: You've made all these points. Mr. Milosevic, we're not going to listen to -- we are not going to listen to these political arguments. You have your motion on jurisdiction which you can put in and which we will consi­der.

THE ACCUSED: But that is not a question of jurisdiction, just because of that --

JUDGE MAY: We will consider it.

THE ACCUSED: You are a political tool of those who --

JUDGE MAY: Very well. This hearing will be adjourned now untill Monday, the 29th of October."

And the protocols of the so-called status conference of 29 October 2001:

 "JUDGE MAY: Mr. Milosevic, it's now your opportunity to address us on the motions before us today. There is no need to repeat what's in the written submissions because we've read all those. It's also your opportunity to ad­dress us on the Prosecution motion to amend the in­dict­ment, if there's anything you want to say about that, it's now your chance to do so.

THE ACCUSED: [Interpretation] In the first place, I am not submitting any motions to this court because I do not recognise this Court. If what I am saying into this mi­crophone is considered by you to be a submission on my part, that's up to you.

Secondly, with respect to amicus curiae, it is my under­standing that your explanation, when appointing the amicus curiae, was that thereby a contribution would be made to a fair trial, if in such an illegal proceedings one can talk of a fair trial. I think in doing so, you have added a new concept to a set of new concepts, because now we are in a situation when two teams are working for the cause of the same party. So this could now be termed as the "Hague fair play".

As for this flood of new amendments and indictments, this deluge cannot flood and cover up the truth, because the truth is known to millions of people.

I have heard here, as I heard on the previous occasion, some concern because I am not reading the documents from this false indictment, because allegedly I should know what I am charging with.

Let me tell you, I know very well what I am being accused of. I haven been accused because in a legal way and with legitimate means on the basis of the right to self-deter­mination that belongs to every nation, I defended my nation. I had the honor to defend my nation from the criminal aggression carried out against it, and to defend my people from terrorism whereby the the Clinton administ­ration cooperated closely with.

And this is also something that no one will be able to deny.

The truth cannot be sunk by any kind of flood of false accusations.

And I have no intention still to familiarise myself with the contents of something that has been totally fabricated and that is far from the the truth.

As for the polemics I have been listening to as to who was competent and who was not and whether a particular govern­ment should have done something prior to another govern­ment, I wonder and I am astonished  that not even the attorney from Belgrade, a member of the amicus curiae, that he should be speaking about competencies while for-

g­etting that no government had the competence to enter into arrangements whereby the Constitution of Serbia and the Con­stituiton of Yugoslavia was being violated.

I'm glad that the gentlemen from the amicus curiae are aware that they cannot speak on my behalf and that I have nothing in common with tham.

JUDGE MAY: Very well. Thank you.

(Trial Chamber confers)

JUDGE MAY: We will consider the motions, preliminary motions, on which we have been addressed this morning."

159. It is clearly outlined in the course of the above quoted interferences, that every opportunity is seized by the so-called tribunal to keep Mr. Milosevic away from the core of the matter: this tribunal, and so his detention, being only an illegal and illegi­timate political tool.

160. This is helped by phrases like: 'This is not the time for speeches'; or: 'We are not going to listen to these poli­tical arguments'; or: 'If you deal with relevant matters'.

161. While, on the other hand, there are introduced hypocriti­cal and malignant phrases like: 'Are there any issues you wish to raise in connection with your case ?' And: 'If there are any issues you want to raise about your case, then this is the chance to do so."

162. While Mr. Milosevic is constantly and systema­tically deprived of the opportunity to speak freely on his defence and to put forward those arguments relevant to reveal the truly political nature of this so-called tribunal, the amici curiae are given an uninterrupted and indefinite spea­king time.

Speaking about all issues they want to deal with.

Including the political matters which Mr. Milosevic was  prohibited from arguing on.

As was to great extent the case during the so-called status confe­rence on 29 October 2001.

The amici curiae were given the opportunity to speak about these so-called 'political matters' as registered on page 37 up to page 40 and page 50 up to page 56 of the protocols of this status conference.

163. The same is true for the prosecutor.

She also got the opportunity to speak freely and unimpeded­ly for as long long as she wanted on all 'political' issues, connected with the case of Mr. Milosevic from her point of view.

As is registered in the protocols of this status conference of October 29th on pages 56 to 66.

164. And of course the tribunal finally could not refuse Mr. Milo­sevic the opportunity also to say something at the end.

This, however, was done explicitly only under the deliberate wrong assumption that what, among other things, was at issue, was the consi­deration of a preliminary motion by Mr. Milo­sevic.

165. This misrepresentation misled Mr. Milosevic and threw him off balance.

Mr. Milosevic, after the flood of interruptions by the tribu­nal during the previous court session already in the dark about the very right even to mention in passing any ques­tion which could be interpreted by the tribunal as 'poli­tics'!

166. The so-called tribunal thus distorting his 'right to speak' on 'political' matters closely connected with his case, only granted on this one occasi­on, further­more purely a hollow ritual, by not addressing one single question to mr. Milose­vic, showed also on this way that it is dead set on triviali­zing whate­ver defence by Mr. Mileso­vic might present.

167. Thus also also this time reducing his 'right to speak' to an absolute mockery and a pure window-dressing.

168. As already has been stressed, on all previous occasions Mr. Milose­vic was simply prohibited from speaking about these kinds of 'poli­tics' by the so-called tribunal.

169. And this while, according to the so-called tribunal's own decisions, a jurisdictional plea cannot be considered as barred from examination by the possible political or non-legal character of the issues that may be raised.

So that the accused positively should be allowed to argue political and non-legal arguments to show the lack of indepen­dence of the so-called tribunal.

As is layed down for instance in par. 25 of the Tadic interlo­cutory appeal decision.

170. So in its fanaticism to create firm conditions that Mr. Milo­sevic can be brought down to, the so-called tribunal doesn't give even a damn about its own jurisprudence.

171. Mr. Milosevic has stressed permanently that he doesn't recognise the so-called tribunal.

The consequence is that none of his acts, wordings or wri­tings can be interpreted as acts, wordings or writings within the tribunal's framework and regulations. Unless explicitly is stated the opposite.

Nevertheless, the tribunal has, as is already stipulated above, deliberately and in spite of Mr. Milosevic's intenti­ons, regarded some documents, produced by him, as a 'prelimi­nary motion' in the sense of the regulations of the tribunal.

This because it suited the tribunal, since it could inter­prete this as Mr. Milosevic performing an act in accor­dance with the tribunal. 

172. However, even in this situation where Mr. Milosevic during the status conference of the 29th October repeated urgently - as is quoted abo­ve - that none of his documents should be regar­ded as 'a prili­minary motion' in the sense of the tribu­nal's regulati­ons, the so-called tribunal passed over all this in silen­ce.

And it held on, in silence and without any further argumenta­ti­on, male fides, to this false interpretation.

173. Instead of this, the tribunal should have taken the stand that these documents were only to be considered in the way they were intended: namely, as a challenge, once again and this time in a writ­ten form, by Mr. Milosevic to the legitima­cy and legality of his deten­tion according to Article 5, par. 4 of the ECHR, juncto Arti­cle 9, par. 3 ICCPR. 

174. And again, another at­tempt to induce the court to deal with these provisions.

No more or less than that.

175. But instead of this, the tribunal considered Mr. Milose­vic's documents a 'preliminary motion' in the sense of the tribunal's regulati­ons at one hand, which was wrong, and at the other hand it qualified - afterwards ! - this alleged 'preliminary moti­on'-procedure as  - also - 'procee­dings' in the sense of Article 9, par. 3 ICCPR jo Article 5, par. 5 ECHR, which is - as is to be expo­sed further on - also wrong.

176. The tribunal came to this twofold interpretation of this procedure in a serious attempt to restore an earlier omissi­on. Namely, it had still not met the requirements of this human right's provision with regard to the position of Mr. Milose­vic.

For till that very moment of the status conference of 29 October 2001, the tribunal had permanently failed to comply with this peremptory norm, according to a reasonable interpre­tation to consider as continuously invoked by Mr. Milose­vic from the begin­ning of his detention on the 28th June 2001 in the premises of the tribunal.

177. An attempt by the tribunal, which was, anyhow, doomed to fail.

Because, first of all, the procedure which was followed was wrong.

And secondly, this procedure was, moreover, very delayed.

178. So, if the tribunal had treated the documents produ­ced by Mr. Milosevic indeed as they reasonably were to be inter­pre­ted, namely exclusively as another attempt - again and this time on a written basis - to force procee­dings, and final­ly a decision, all in accordance with Article 5 par. 4 ECHR, jo. Arti­cle 9 par. 3 ICCPR, then this treatment still would have fai­led to meet essential requirements of this provi­sion.

Because of essential procedural deficiencies.

And because it would still lack the imperative speed, as required in terms of this provision.

179. Which means that, in any case, there still would have been a situati­on of fail­ure to meet the provision's require­ments, even when the tribunal had finally manifest the inten­tion to comply with this provision in the course of October-Novem­ber 2001.

180. So that, in any case, even under such terms, there would have been a violation of this human right of Mr. Milosevic.

181. The first breach of the obligations for the fulfilment of this provisi­on, which would have taken place, even under the above mentioned presupposed conditions, is a procedural fail­ure.

Of course, Mr. Milosevic should have been notified beforehand, that a legal procedure, during which a test of the lega­lity and legitimacy of his detention would have allegedly been at stake, was to be imple­mented.

It is of course unacceptable that any detainee, challenging the legitimacy and legality of his detention, should not have a fair chance even to be aware at the 'moment suprême' that such 'proceedings', as stipu­lated in this provision, were to be performed !

Nevertheless, such a preposterous situation was here at issue with regard to Mr. Milosevic.

182. This should be considered utterly inconvenient with the very essence of what to be seen as 'taking' proceedings in the sense of Article 5 par. 5 of the Convention.

And also this is in accordance with neither the juris­prudence of this Arti­cle by the European Court itself, nor the general requirements of due procedu­re and fair play !

183. Nevertheless, the tribunal suddenly pushed forward in the context of the so called 'Decision on preliminary motions', dated 8 November 2001, that the written docu­ments of Mr. Milosevic were to be regarded not only as a 'prelimina­ry motion', but also, from that very moment on and like a bolt from the blue, as a recourse to the provi­sion of Article 9 par. 3 ICCPR - and so to Article 5 par. 4 of the Convention -.

184. This  was came to pass even though, in the course of these alleged 'procee­dings', nobody - and certainly not Mr. Milosevic ! - was aware that the procedure that was taking place, was to be conside­red as 'proceedings' in the sense of the Article 9 par.3 ICCPR, jo. Article 5 par. 4 Convention-provision.

185. Furthermore it was not possible to identify the procedu­re which was followed, as a procedure in the sense of this human rights provision, since this procedure was definitely not in accordance with the requirements of the term 'procee­dings', as used similarly into Article 9 par 3 ICCPR and Article 5 par 4 ECHR.

186. Of course it is unacceptable that the demands on 'taking' and 'proceedings' might be regarded as having been met by such, from the perspective of the Convention, quasi-'procee­dings', of  which nobody even was aware, at the moment that they took place, that they actually were taking place.

Not even the tribunal itself.

And certainly not the most interested party, Mr. Milosevic !

187. After all, the Article in the tribunal's regulations, dealing with priliminary motions, namely Rule 72 of the Rules of Procedure and Evidence, as amended 12 July 2001, doesn't mention at all the testing of the legality and legitima­cy of detention as being within its scope.

And moreover, the enumeration, laid down this Rule 72, must be seen as limitative.

So that, reasonably, nobody should expect, in advance, that the tribunal was to going to qualify the decision within the framework of the so-called 'preliminary motion' as a decision in the sense of Article 9 par. 3 ICCPR, jo. Article 5 par. 4 ECHR, and the procedure followed within the framework of this 'preliminary motion' as 'proceedings' in the sense of this provision.

188. It is true that it is the official view of the State of the Nether­lands that it might be possible to pick up the trail of the right of Article 5 par 4 at Rule 65 of the Rules of Proce­dure and Evidence of the so-called tribunal.

However, this is an obvious misrepresentation.

Rule 65 deals only with the possibility of requesting a provi­si­o­nal release.

Regardless of the question whether the detention would be legal or illegal.

This provision seems to be only a grant.

So the character as well as the possible outcome of the provi­sion of Rule 65 differ greatly from the the provision of Article 5 par. 4 of the European Convention.

189. That neither Rule 72, nor Rule 65, nor any other of the tribu­nal's regulations provides a basis for meeting the requi­re­ments of Article 9 par. 3 ICCPR and Article 5 par. 4 ECHR is also explicitly admitted by the tribunal itself.

In the 'Decision on preliminary motions' of 8 November 2001 the so-called tribunal itself states:

"38. This provision is not reflected in the International  Tribu­nal's Statute. However, as one of the fundamental human rights of an accused person under customary interna­tional law, it is, nonetheless, applicable, and indeed, has been acted upon by this International Tribunal".

190. So this view of the State of the Netherlands that Rule 65 might be seen as an equivalent provision to Article 5 par. 4 of the Convention is not even shared by the so-called tribu­nal itself.

191. Evidently the absence of an antipode of Article 9 par. 4 of the ICCR - and so of Article 5 par. 4 of the ECHR - into the Statute of the so-called tribunal constitutes a serious omis­sion.

192. This omission involves not only that the procedure which was finally followed at the moment that the tribunal decided to pick up this peremptory obligation was highly defi­cient, but also that another basic requirement of Article 9 par. 3 ICCPR jo. Art. 5 par. 4 ECHR was not met at all.

And that is the requirement of speed.

193. The tribunal tries to create the impression that this specific moment in October/November 2001 was the first moment to interpret the continu­ous chal­lenge of the legiti­macy and legality of the tribunal, as put forward by Mr. Milose­vic from the beginning of his detention at the end of June 2001 as an appeal upon this human rights provision.

194. The 'Decision on the preliminary motions' of 8 November 2001 says:

"40. One of the essential features of the right of an accused person to challenge the legality of his detention is that such a challenge should be heard as promptly as possible."

'As promply as possible' is here to be understand as: as soon as this chal­lenge is made.

195. As is demonstrated above, Mr. Milosevic has raised this chal­lenge already at the first court session, the initial appea­rance on the 3rd of July 2001.

196. The text of the Decision continues:

"For that reason, the Chamber will treat this motion as proceedings by which the accused is challenging the lega­lity of his detention."

197. First of all, as is stressed above, there was no motion at all by Mr. Milosevic. And secondly, doubtless this challen­ge was already made by Mr. Milosevic many months earlier.

So this action by the tribunal was definitely not carried out 'promptly' at all.

198. And this paragraph of the 'Decision' finally states:

"The Chamber is in the position to do this because the challenge has been raised by the accused, and it has heard arguments on this question from all parties, as well as the amici curiae."

199. First of all there is no reason why the tribunal should not be seen as being 'in the position to do this' months before.

Secondly, the suggestion that this challenge was only raised recently is false.

Thirdly, there is no reason why it would not have been possi­ble to hear 'all parties' earlier.

And fourthly, it is certainly not an obligation of this provi­sion to hear 'all parties'.

200. So clearly the tribunal is trying to cover up with these would-be argumentation that it has completely failed for a long while to comply with the requirements of this basic right.

And that it is now undertaking to redress this fail­ure.

Trying to force the implementation of this provision into the straitjacket of a procedure, coincidentally at hand at the very moment that the tribunal realised itself that it was in serious­ default.

Giving shape to this provision to late and on a unlawful way, not according its basic requirements.

201. This supports the conclusion that the so-called tribunal

actually is not interested at all in this basic right.

Though the so-called Yugoslavia-tribunal has now is existed for already many years and there have already been many people accused, this issue of the challenge of the legali­ty and legitimacy of detention has never been raised before in the context of this tribunal.

With only one exception: by the Rwanda Tribunal in 1999 in the Barayagwiza-case.

To put it another way: the so-called tribunal has, till now, obviously and consistently been succesful in avoiding to identify and to handle any and all complaints about the lega­li­ty-issues of deten­tion as complaints in the sense of Arti­cle 5 par. 4 of the Convention.

202. So it sure that the so-called tribunal has turned this basic right into an illusion.

And that the wordings, quoted below, are only window-dres­sing and lip service paid to the peremptory character of this norm.

For the tribunal continues in the above quoted decision:

"39. In Barayagwiza (44) the Appeals Chamber of the Inter­nati­onal Criminal Tribunal for Rwanda stresses the impor­tance of the right of the accused to invoke that provisi­on, which in some common-law jurisdictions is called habeas corpus",

which doesn't mean at all that the tribunal doesn't make this basic right an illusion, since it is now sure that within the framework of the tribunal's regulations, there is no recourse at all to such a provision as required by Article 5 par. 4 of the Convention, and this is by now clear­ly revealed.

203. And since it is, after all, not only the procedure of the so-called 'preliminary motions', but it are also the procedu­res of the initial appearance and of the status confe­rences, held by the tribu­nal, which could not possibly be seen as a provision which affords the detainee the right 'to take pro­ceedings', as stipula­ted in Article 5 par. 4 of the Conven­ti­on.

This is a matter of fact, just because this procedure of the so-called preliminary motion and the procedure of the initial appearance and status conferences share both the same failure, namely not giving Mr. Milosevic the opportunity to give in further details his view on the issue.

And this opportunity to give one's further opinion is to be consi­dered a requirement of adequate procee­dings in the sense of Article 5 par 4 by the European Commis­sion.

See Report European Commisssion dated 15 December 1977, par. 103 in the Winterterp-case.

204. So there is certainly no doubt that there are also no terms at all for any opinion what­soever that the detention of Mr. Milosevic is based upon a judicial test.

A judicial test preceded by a course of proceedings that provides with adequate guarantees.

See ECHR 18 June 1971, Publ. ECHR, Series A, vol. 12 (1971), p. 40-41.

205. And, with respect to the Tribunal's regulations, there is also a final failure in the light of the requirements of Article 5 par. 4.

206. Paragraph 4  gives the right to a decision by a 'court'.

In the Neumeister-case the European Court has assigned as the decisive criterion with regard to this point that the autho­ri­thy, competent to decide:

"must be independent, both of the executive and of the parties to the case."

See ECHR 27 June 1968, Publ. ECHR, Series A, vol. 8 (1968), p. 44.

207. So the final point is this.

Since the set-up of the tribunal is deliberately so chosen as to represent a glaring breach on the principle of the separa­tion of powers, finally nothing will come of 'indepen­den­ce', either of 'the executive' - since this tribunal is its own execu­tive -, or of the 'parties to the case' - since this tribunal is also expressly a party to this case.

208. So even if the tribunal were able to develop a manner to deal with the obligation to offer some kind of provision in order to challenge the lawfulness of detention, such a provi­sion would not be able to meet the requirements of Article 5 par. 4 of the Convention.

209. Even then it would remain impossible to implement this specific requirement.

Because this 'court' fundamentally lacks the imperative inde­penden­ce.

210. The consequence of this is that for anyone who falls into the hands of this so-called tribunal, there is no adequate recourse to a provision, like Article 5, par. 4 of the Conven­tion for the Protection of Human Rights and Fundamental Free­doms, which is part of basic human rights.

211. Mr. Milosevic's attempts to find otherwise protection for com­pliance with this basic right, by seeking access to the domes­tic - Dutch - court, have failed, now that this domestic court feels that it has to decla­re itself incompetent with re­gard to the protection of Mr. Milosevic's human rights.

212. All this makes it utterly clear that so far there has been no guarantee whatsoever that Mr. Milosevic can exercise this fundamental right.

In fact, until this very moment, this fundamen­tal human right is simply denied him.

213. Besides, it is to be taken into account that Article 5 par. 4 of the Convention also establishes the right to chal­len­ge the legitimacy and legality of the detention - both formal and material - not only one time, but in regular con­trol.

See the Winterterp-case, in which is stated that the institute of detention:

"would appear to require a review of lawfulness to be available at reasonable intervals."

See ECHR 24 October 1979, Publ. ECHR, Series A, vol. 33

(198­0), p. 23.

So to deny Mr. Milosevic this basic right, means consequently to deny him a fundamental right that does not occur just once, but is perma­nently recurring.

V.4.b.Conclusion

214. The deprivation of liberty to which Mr. Milosevic is submit­ted is also illegal and illegitimate, since the right of Article 5, par. 4 of the Convention is continuously denied to him by the so-called tribunal.

The tribunal even lacks a provision to meet this human right.  

215. Alternatively, it must be stated that the so-called tribunal constantly denies him constantly the recourse to this provision in accordance with its requirements.

This is occurring deliberately and/or because of impotence as a result of the tribu­nal's structure and the content of its regulations.

216. Instead the tribunal finally offers a quasi-provi­sion.

The only right conclusion with respect to this quasi-accomoda­tion, made under the pretext of a procedure in accordance with the provision of Article 5, par. 4, is that not only is the requi­re­ment of a 'speedy deci­sion' not met, but also that the so-called decision, made a long time after the beginning of this challenge to the legitimacy and legality of the detenti­on, is also not taken in accordance with the other requi­re­ments concerning this provisi­on, especi­ally the requi­rements with regard to 'taking procee­dings'.

V.5.a.Violation of the Article 5-right to liberty and secu­rity by illegal kidnapping, extradition to the Nether­lands and surrender to the tribunal

217. It is to be considered as, on the one hand, a basic right with a separate iden­tity and, on the other hand, as a right connec­ted with the right of recourse to the judiciary in order to test the legitimacy and legality of a detention, as guaran­teed in Article 5 par. 4 of the Convention, jo. Article 9 par. 4 ICCPR, that everybo­dy is entitled to seek legal pro­tec­tion against extradi­tion and surrender.

218. And it is also the State of the Netherlands, which fully recogni­zes this right as a basic right, inextricable from Article 5 par. 4 of the Convention, and subsequently also with Arti­cle 9 par. 3 ICCPR.

219. This recognition of the basic character of this right by the State of the Netherlands is, inter alia, expressed by the above-cited 'Law, holding regulations concerning the installa­tion of the ICTY'.

A basic feature of this domestic law is that it holds the principle that the transfer of accused to the so-called tribu­nal can not be anyway in the least an automatic activity.

And that, in any case, intervention by the (Dutch) judiciary is required in order to make such transfer legal and legiti­mate.

220. According to that principle, this law contains a series of provisions, in order to give shape to this principle.

221. The basic assumption of the State of the Netherlands is that the State is obliged to co-operate with the so-called tribu­nal.

But this obligation does not means at all that there exists any obligation to comply blindly with all requests of the tribu­nal, also in the sphere of extradition and surrender.

222. So after first stating that there should be a co-opera­tion with the tribunal, the Dutch government never­theless in the Explanatory Memorandum of the 'Law, holding regulations concerning the installation of the ICTY' goes on to state:

"We are of the opinion that States have the right, and in front of the persons put under custody the duty, to inqui­re whether they have in concrete circumstances indeed the obligation to co-operate with the Tribunal.

Ultimately is here at issue the deciding of the legality of deprivation of liberty in the sense of Article 9 par. 4 of the International Covenant on Civil and Political Rights, under which every Contracting State which applies deprivation of freedom has to offer access to the own national judge. That's why the assignment of a role to the own national judge, as foreseen in Articles 2-5 can not be avoided.

Article 3 deals with the phase of the provisional arrest, preceding the consideration by the judge of the request for extraditon and surrender to the Tribunal.

(...)

It is prescribed that a suspect, arrested into the Nether­lands, is to be brought before the prosecutor in the Hague.

This is connected with the fact that in Article 4 the Regional Court in the Hague is declared, under exclusion of other courts, to be the competent court, in order to deal with surren­der cases. (...)

Article 4 settles the procedure with regard to the consi­derations of and the decision on requests to surrender. The grounds which enable the judge to inquire the admissi­bility of the surrender are limited to those, mentioned in paragraph 3 (...).

The Minister of Justice, as the representative of the State, should decide finally upon the request, as it is applied by the Tribu­nal, and should take care, if the request is granted, that could be complied with the requi­rements of Article 5.

(Tweede Kamer 1993-1994, 23 542, nr. 3, p.4-5)

223. The Articles 2-5 of the 'Law, holding regulations concer­ning the installation of the ICTY' read as follows:

Article 2

'At the Tribunal's request persons can be surrendered to the tr­i­bu­nal due to pe­nal acts to which the Tr­i­bu­nal is co­mpe­t­ent ac­co­r­d­ing to its St­a­tu­t­e.'

Article 3

1.At the Tribunal's request persons whose arrest is

war­ran­ted by the Tribunal and who were found into the Ne­ther­lands, can be placed under custody.

2.Every prosecutor and deputy-prosecutor is competent to order such a custody.

3.The content of the Articles 14, paragraph two up to and in­cl­u­d­ing five, 15, 16, paragraph one, ad a and 17 of the Law on Extradition is applicable accor­dingly, on the under­stan­ding that the person arres­ted should be brought in as soon as possible to the prose­cutor in the Hague.

Article 4

1.In order to deal with requests by the tribunal with regard to surrender the Regional Court in the Hague is exclusively competent.

2.The Articles 21 up to and in­clu­ding 27 and 28, first para­graph, of the Law on Extraditi­on are appli­ca­ble accor­din­gly.

3­.When the court, dealing with the admissibility of the re­quest by the tribunal, shall decide­ either that it can not be determi­ned­ that the per­son­

brou­ght into the court is the one whose surrender was reque­s­ted, or that the surren­der was asked with regard to penal offen­ces, which are, according to its Statute, ap­parently beyond the competence of the Tribu­nal, then the court in its judgement will rule out the surren­der.

(...)

Article 5

After granting the request with regard to surrender the person who is te be surrendered will be placed immedia­tely at the disposal of the Tribunal. A deprivation of liberty, orde­red according to Article 27 of the Law on Extradition, can be continued up to this moment.'

224. So the system which the Dutch State has in mind, within the relationship between the State of the Netherlands and the so-called tribunal with respect to surrender, is clear and plain:

with respect to the issue of surrender to the so-called tribu­nal explicitly a promi­nent role is allocated to the Dutch judiciary.

225. And it is the Dutch judge, who is specifically assigned by the Dutch legislator for this task, who finally has the last word with repect to such a surren­der.

226. That legal obligation, namely to follow the way along the Dutch judiciary and not to surrender automatically on a demand by the so-called tribunal, has been clarified and underlined once again in the Memorandum in reply to the final report with regard to the bill:

"States have the obligation to lend their co-operation to the Tribunal, as asked, in cases within the sphere of competence of the Tribunal. But there lies also a respon­sibility - and up to the person who is to be brought before the penal court the duty -  to check whether the obligation based upon Article 29 exists indeed in any concrete case.

These checks will be, as we will assume, in a concrete situation marginal, but nevertheless with respect to content."

And elsewhere in the Memorandum:

"Secondly, Article 2 intends to clarify that the procedure with regard to surrender can not take place otherwise than according to the subsequent Articles (the Articles 3, 4 and 5), i.e., exclusively in accordance with a procedure, which  provides for the intervention by the Dutch govern­ment in the form of the Public Prosecutor, Regional Court in the Hague and the Minister of Justice."

(Tweede Kamer 1993-1994, 23 542, nr. 6. p. 6 and 7)

227. When it is to be considered a general legal principle that surrender to the so-called tribunal cannot be handled as an automatic activity, but that it is always the judge who has to have the last word with regard to surrender, at least when persons are concerned who came across and were arrested on Dutch territory, then this same principle of legal protection should also be applicable to any accused person, arrested abroad.

Also according to Dutch legal perception.

228. Otherwise it would raise the anomaly that an indi­vidu­al, arrested abroad would enjoy less legal protection than the same indivi­dual - or any other person - in the case that he had been arrested on Dutch territory.

Such a inequality in legal protection would be inacceptable and so it cannot be presupposed that the Dutch government would endorse such an inequality.

229. It is consequently viewed in that light, that the system of Article 7 of the 'Law, holding regulations concerning the installation of the ICTY' must be interpreted.

Article 7 of this domestic law reads:

'1.Transit of persons who are to be surrendered as sus­pects to the Tribunal by the authorities of a for­eign State, shall happen under orders of Our Minis­ter by and under guarding of Dutch civil servants.

2.(...)

3.The transporting outside the premises under the autho­rity of the Tribunal of persons who are in the Nether­lands depri­ved of their freedom, by order of the Tri­bunal, shall happen at the re­quest of the Tribunal under or­ders of Our Mi­nister by and underguarding of Dutch civil ser­vants.'

230. So the fact that in such a situation of transport of a person, suspected by the so-called tribunal and arrested abroad, it is not prescribed by this domestic law that it is required that also such a person, first of all, has to pass before the Dutch judge, can only be reaso­nably explai­ned when it is assumed that the Dutch legis­lature evi­dently pre­supposes that such a check by the judiciary would already would have taken place in the country where the person concerned was arre­sted.

231. And, as a further assumption, that since the foreign judiciary in the land of origin would have already provided adequately for this legal protection and, as a conse­quence, the services of the Dutch judge would not be needed in order to meet this legal obligation.

232. This is also understood to be the case by the members of Parlia­ment, the co-legislator.

So it became clear, among other things, by the words of the MP Sipkes at the oral debate on the bill:

"As far as I am concerned, the protection of the civili­ans - not only of the Dutch civilians, but of all civili­ans who possibly could be brought in here - remains really guaranteed and shall every State undertake investigations by itself whether the person concerned could come indeed before the tribunal; and is later on to be considered whether the granting of a pardon would be at issue.

To my opinion, there shall be then no contradiction with what is an obligation, to be fulfilled as legislator, in the direction of the subjects, namely to protect them, as far as they are under the Dutch jurisdiction."

(Tweede Kamer 1993-1994, 3 March 1994, 57-4243)

233. In the case of Mr. Milosevic nothing about this legal protec­ti­on was realized.

He was extradited and surrendered on 28 June 2001 by a joint operation of certain elements of the Serbian government, the governments of a number of NATO-countries, especially of course of the Netherlands, and elements of the so-called tribu­nal.

234. Mr. Milosevic had resorted to the Yugoslav judiciary, in order to safeguard his right to bring about a final judgement by the domes­tic judge on the legality and legitimacy of an inten­ded extra­dition and sur­render to the so-called tribunal.

Since it is, as clearly demonstrated above, a basic right for everyone who is about to be extradited and surrendered.

235. A fundamental right, also explicit accor­ding to the Dutch legislature.

236. In the case of Mr. Milosevic, the competent court to deal with this question was the Yugoslav Constitutional Court.

237. A Decree, made by the Federal Government, in order to esta­blish a legal base for extradition of Yugoslav citizens and with regard to possible extradition and surrender to the so-called tribunal, was suspended by the Yugoslav Constitutio­nal Court by a provi­sional judge­ment dated 28 June 2001.

In the same judgement, any action which could be performed by anyone, on the basis of the Decree was prohibited by the Constitutional Court.

All further decisions were adjourned.

This judgement of the Court was unanimous voted by all four to judges.

238. With that judgement Mr Milosevic was found himself expli­cit­ly under the protection of the national judiciary.

A protection which has anyon who comes to deal with an inten­tion to extradition and surrender, has the right to invoke.

It's being an explicit human right.

239. So everybody was bound to respect and to observe this right of Mr. Milosevic.

So bound were the elements in the Serbian government, who had unlawfully and ille­gitima­tely extradited and surrendered Mr. Milosevic.

So too were the NATO-countries, which were involved in this opera­tion, by lending a helping hand with respect to the preparati­on and execution of this transfer and its transit through their airspace.

So too were the elements of the so-called tribunal, who are bound by the rule of law, but have completely ignored it.

And so was finally the State of the Netherlands, without the full co-operation of which the whole operation would have been truely inoperable and impossible.

240. But instead of this, still on the same day that the Constitu­ti­onal Court of Yugoslavia issued its provisional verdict suspending the Decree of the Federal Government and prohibi­ting any further action with regard to extradition and surren­der, Mr. Milosevic was removed from his cell in Belgrade and transported to the Hague. 

241. So while the decision to surrender him was suspended by this domestic court and any further decision was pending, the process of formation of a judicial opinion by the Yugoslav Constitutional Court, and the legal protection forthcoming from that process, was grossly inter­rupted and violated.

242. By a combined action of military precision, launched by a joint organisation of certain elements within the Serbian go­vernment, the Dutch gover­nement and elements of the so-called tribunal, Mr. Milo­sevic was kidnapped out of the jail in Belgrade where he had been detai­ned, with civil assis­tance of the Nether­lands extradited to the Netherlands, flying with military and civil assistance to Dutch territory and finally surrendered to the so-called tribunal.

243. Dutch co-operation with this unlawful extradition and unlawful surrender took the form of:

-the diplomatic support of the State of the Netherlands to the preparation and execu­tion of this unlawful extradition to the territory of the Nether­lands and the unlawful surrender to the so-called tribu­nal;

-the co-operation and coordination tuning with all other parties invol­ved in this operation, among which were other NATO-countries;

-the opening of its airspace and borders to this illegal trans­port;

-the escor­ting of the transport by Dutch Apache helicop­ters;

-the providing of other military and civil facili­ties;

-the involve­ment of Dutch civil and military personel in this operation;

-the unlawful surrender to the so-called tribunal, once arri­ved on Dutch territory;

-and finally the political support to this illegal and unlaw­ful opera­tion.

244. So his basic right to seek protection of the judiciary against illegal extradition or surrender, a fundamental right of everybody confronted with the intention to extradite and surrender him, was completely trampled by the above mentio­ned joint enter­prise.

245. The fact that Mr. Milosevic is deprived, in a totally lawless way, of his right to acquire, first of all, a judicial decision about the legality and legitimacy of a possible surrender to the so-called tribunal, and the fact that he is now detained without such a decision by the judiciary, entails a completely unaccep­table violation of the Rule of Law.

And at the same time, as a consequence, this constitutes a grave infringement on the right to liberty and security, as guaranteed by the European Convention.

246. On 6 November 2001, the Constitutional Court of Yugosla­via is­sued its final judgement, declaring the Decree of the Fede­ral Government on extradition of Yugolslav citizens uncon­sti­tutio­nal and illegal.

247. All these factors make the detention, posed upon Mr. Milose­vic, completely illegal and illegitimate.

248. Doubtless the forcible removal of Mr. Milosevic from the jurisdiction of the District Court of Belgrade and the Federal Constitutional Court of Yugoslavia was in se in con­travention of Yugovlav law.

249. First of all Mr. Milosevic was detained in the district prison of Begrade by force of decisions made by the examining judge of the District Court of Belgrade, re. Ki.nr. 318/01, and Kv.nr. 1042/01, dated 30 April 2001, for a duration until 1 July 2001.

So primarily he was being held under the jurisdiction of the District Court of Belgrade.

250. In respect to the intention to extradite him to the Nether­lands and to surrender him to the tribunal, he had resor­ted to the Federal Constitutional Court of Yugoslavia.

251. This Constitutional Court had ruled, by provisional measu­re ofn the 28th of June 2001, that all further acts by any federal organ of the Federal Republic of Yugoslavia and by any organ of the Republic of Serbia, aimed at the extradition and surrender of Mr. Milosevic, must be suspended.

Pending a further decision on the legitimacy and legality of extradition and surrender, according to a decree on extraditi­on, of Mr. Milosevic and two other Yugoslav citi­zens.

252. So secondly he was being held under the jurisdiction and protec­tion of the Federal Constitutional Court of Yugoslavia.

253. Nevertheless, the fact that Mr. Milosevic was being held under the jurisdiction of both this penal court and under the speci­fic protection of the Yugoslav Constitutional Court was ignored by certain elements of the Serbian Government.

Perhaps in co-operation with certain elements of the Federal Government of Yugoslavia.

254. And the prohibition by the Federal Constitutional Court to proceed with extradition measures was completely ignored and violated.

255. Certainly this was a breach of Yugoslav law and an in­frin­gement on the the Rule of Law in Yugoslavia.

256. So on the same night of the 28th June of 2001 the Presi­dent of the Federal Republic Yugoslavia Mr. Kostunica addres­sed the Yugoslav public on television, stating, among other

t­hings:

"I address you at a very hard, nearly disastrous and decisive moment for our country.

 (..)

The surrender tonight to the Hague of the former President of Yugoslavia and the preceding extradition of Milomir Stakic, could not be considered as lawful and constitutio­nal.

The Federal Constitutional Court issued a temporal measure suspending the decree on co-operation with the Hague tribunal, pending a definitive judgement with regard to the constitutionality of this document and, when there would have been elementary respect for legal procedures, then this measure should have been respected. What has taken place must be regarded as seriously to put in danger the the constitutional order of our country.

The Rule of Law and the constitutional state, can not be founded upon injustice and illegality.

By now the most undemocratic methods are used (..): law­lesness and indifference with regard to civil rights, as well as the taking of humiliating steps, wich were asked, at such a term, by nobody of the international communi­ty.

Co-operation with the Hague, which was af course neces­sa­ry, was converted on this way in merely extradition and surren­der of the accused, without any form of protection for the civili­ans concerned and, with as the final result, without any protection to the legal rights of the State   itself.     

Even fundamental legal procedures were not respected, like there was someody here, even faster than certain persons abroad, intended to fulfil as swift as possible any obli­gation, committed at some moment."

257. The reason why certain elements in Serbia had put on their agenda that Mr. Milosevic was quickly to be turned into an ordinary object to be extradited and surrendered is not an secret one.

It is well-known to the public all over the world.

It was the prosecutor of the so-called tribunal herself who had put pressure upon the United States to withhold its con­sent to an aid program of 1,3 billion dollars to Yugoslavia by a western donor conference, to be held on at the 29th of June 2001 at Brussels.

So, as a result of that action by the prosecutor, the United States were really threa­te­ning to veto this aid package.

With the result that Mr. Milosevic was handed over at the eve of the beginning of this donor conference.

In fact he was sold for money, and this was the public impres­sion all over the world.

258. In an interview with the American TV-network Fox on August 25, 2001, Mr. Milosevic compared his extradition and surrender to the tribunal with the slave trade. "They can bargain me for money", Mr. Milosevic stated in this inter­view. An interview that really infuriated the tribunal's administra­tion. Because all contacts by Mr. Milosevic with the press were to be seen as prohibi­ted.

259. Finally the traders were themselves betrayed in their turn. In an interview with the German magazine Der Spiegel, a few weeks later on, the Serbian Prime Minister Zoran Djind­jic bitterly lamented the outcome of the donor conferen­ce:

"Der Spiegel: You have taken the risk of the extradition and surrender of Milosevic to the war criminals-tribunal.

Was it worthy the stake ?

Djindjic: We didn't attached any condition to the extra­dition. So we intended to show our good will with regard to the integration into the International Communi­ty. But I have to confess that I am really shocked about the farce of that western aid, which should be altogether 1,3 billi­on dollars...

Der Spiegel: What is 'a farce' ? This is quite a lot of money.

Djindjic: Better told, the donor conference has not taken place at all and we had thrust 50 million marks into our hands. We try here to reform the country and to propagate, despite the NATO-bombardments, a pro-western course - and in Brussels thre are ten bureaucrats, who act in accordan­ce with  the motto: when the light goes out, we slam on the brakes.

Der Spiegel: Can you clarify yourself more ?

Djindjic: In August we were to get the first part of 300 million Euro. Suddenly we were told that of that part 225 million Euro would instantly be held back for debts, which were still partly owed by Tito. Two-thirds of this sum has to be seen as 'penal interest', since Milosevic has for during ten years refused to pay back this debts. The remainder, 75 million Euro, we get be paid at the earliest in November. These are the principles in the West, they told us. (..)."

260. This bribing of the Yugoslav and Serbian administrations by western powers, especially by the Untited States, instiga­ted by the prosecutor of the so-called tribunal, must be seen as part of the daily grind with respect to Yugoslavia, as already experienced by this country for decades.

261. After the policy of monetary measures and economic coer­cion  against Yugoslavia in the eighties, the sanction policy and, finally, the military aggression in the first part of 1999, and after the devastating effects of this consistent policy of destruction to the standard of living of the people of Yugo­slavia, was continued again by the Western powers after NATO's war against Yugoslavia by political means.

262. More the 100 million dollars were spent by the United States alone in order to bring down the goverment.

By financing the opposition, by supporting the opposition media and by setting-up a chain of broadcasting and tv-stati­ons all around Yugoslavia in order to spread a constant wall of anti-government and pro-Western propaganda all over the country.

Threatening the people at the same time with an end­less conti­nua­tion of the sanctions, and even an aggravation of the sanctions regime already in existence.

263. All these continous actions were a flagrant, brutal and overt violation of the leading principle of the United Nations and its Charter, and therefore of the most important principle of inter­na­tional law, the principle of non-intervention.

264. As stated by Mr. Milosevic himself in his paper 'Presen­tation of the illegality of the ICTY and the illegality of the sur­render to the ICTY' of 30 August 2001:

"In Yugoslavia, the U.S., in violation of the internatio­nal and domestic laws of both Yugoslavia and the U.S., has installed a government of its choice in the Republic of Serbia and ousted President Milosevic for the presidency of the Federal Republic of Yugoslavia by bombing, economic coercion including sanctions, physical threats, covert operations and corruption of the electoral process.

The U.S. Creates Client Governments By Forcing Electi­ons, Using Millions Of Dollars To Purchase Unity For Its Candidate, Then Finance A Campaign That Buys Votes And Corrupts Democracy.

The U.S. injected more than 100.000.000 US dollar to defeat the government at peoples unity, in power until October 2000.

The U.S. has intervened in many foreign elections and often installed governments subservient to its interests by that means.

(...)

President Milosevic Was Surrendered To The ICTY By A U.S. Installed Serbian Government In Violation Of The Constitutions Of the Federal Republic Of Yugoslavia, The Republic of Serbia, The Statute Creating The ICTY, While The Supreme Constitutional Court Of Yugoslavia Reviewed The Request For Surrender For A Bribe Of 1.3 Billion Dollars.

The U.S. installed government of Serbia surrendered Presi­dent Milosevic, in violation of the Constitution of the Federal Republic of Yugoslavia and the Republic of Serbia, while the request for surrender was under review by the Constitutional Court of Yugoslavia, and in violation of the Security Council statute creating the Tribunal, which provides that surrender shall be accomplished in accordan­ce with domestic laws of the nation requested to make the surrender.

The United States threatened to block 1.3 billion U.S. in international aid unless the surrender was accomplished by the date it set.

Such conduct and the partication and acceptance of it reve­als contempt for the rule of law by the Tribunal, the new government of Serbi­a, or United Nations.

The illegal seizure of an individual and his delivery to isolation in the prison of an illegal international tribu­nal in a distant nation threatens the freedom of everyone. For the United States to engage in, or accept, internatio­nal kidnaping of political leaders tells that world the old ways of violence, deceit and coercion are its ways. Those ways will be met in the only way they can be met: by the same means.

The New U.S. Installed Government Of Serbia Is Using Its Police Power To Crush Political Opposition In Serbia.

The current government of Serbia is engaged in chrushing and demonizing its domestic political opposition. The Republic of Serbia will surrender accused persons to the ICTY in violation of its own laws, as it did President Milosevic, to destroy political opposition at home and receive payments of money and support from abroad.

It acts to frustrate any support, or investigation for the defense of President Milosevic hoping to eliminate rival domestic political power. It attempted to bar entry and deport Ramsey Clark when he flew to Belgrade in June to discuss the ICTY prosecution of President Milosevic. It may fabri­c­ate evidence, destroy evidence and control and coerce witnesses to assist in conviction by the ICTY, but it will seek to frustrate defense efforts to obtain docu­ments, other evidence, and witnesses in Yugoslavia, needed for the defense in the Hague.

The People Of Serbia And Yugoslavia Risk A Tragic Future From The External Manipulation And Control Of Their Governments.

The new government of Serbia is a puppet for the United States."   

265. The tribunal, and the State of the Netherlands, do not deny that the extradition and surren­der of Mr. Milosevic were unlawful and in defiance of domestic legal and constitu­tional regulations, according to Serbian and Yugoslav law.

They do not deny that these acts constituted grave brea­ches of the Rule of Law, in violation of domestic law. 

But at the same time it is the position of the tribunal that what was done was allowable, since these acts in contra­vention of Serbian and Yugoslav domestic law were to be regarded as compulsory for the Serbian and Yugoslav authori­ties, accor­ding to internatio­nal law.

266. And the position of the tribunal's prosecution section goes even further.

The prosecutor even alleges that the prima­cy of the so-called tribunal is such that domestic legislation is totally unimpor­tant.

267. This stand is a mockery of the conception of law.

The prosecutor makes the mistake of defining her own ambiti­ons, namely to replace the rule of law and the sovereignty of the states concerned by her own authority, as a matter of supreme law.

268. As it is constituted in all civilised legal systems, the binding obligations of the Rule of Law require that the domes­tic judge have the decisive voice in determining whether an extradition or surrender is lawful or not.

The extradition to the Netherlands and surrender to the so-called tribunal here under discussion do not change this principle at all.

Whether the prosecution section of the so-called tribunal, in close connection to the judicial section, likes this or not.

269. We can see this principle also reflected in the above quoted domes­tic law system, established in the Netherlands itself, with respect to surrender to the so-called tribunal.

Here also the primacy of the Dutch judiciary regarding sur­ren­der is firmly esta­blished as a principle of law that cannot be surpassed.

270. As already indicated - as it is also the position of the State of the Netherlands itself -, this follows directly from the provi­si­ons of Article 5 par. 4 of the Convention, jo. Article 9 par. 4 ICCPR.

271. With regard to Yugoslavia the same legal principles are at work.

There is no reason why the state of the Federal Republic of Yugoslavia should be prevented from examining the demands on extradition of this tribunal, and why it should not have been allowed to examine the jurisdiction of this boasting tribunal, in order to take the appropriate decision and to act accor­din­gly.

Since everywhere in the world this domestic procedure should  have been respected, this were to be happen also in this specific case, as an act of respect to the rights of the accused whose extradition and surrender was requested.

272. So the observations, made by the tribunal, in the so-called 'Decision on preliminary motions', dated 8 November 2001, under 45 to 51, are completely wrong.

And only bypass the core of the matter.

The essence is: was the way the so-called tribu­nal acted, in order to get Mr. Milosevic into its custody and control, legal and legi­tima­te, from the point of view of general legal prin­ci­ples and rules and, more specifically, its own rules ?

273. In the 'Decision on preliminary motions' the trial cham­ber deems all violations of law whatsoever legitimized.

By using the trick of only highlighting, now and again, the obligation to obey the orders of the tribunal.

274. And by turning a blind eye to the fact that this obli­gation, for what it is worth, furthermore can not be seen to be in any way the end of the legal interpreta­tion's problems about the consequences of this pretended obligation, but only the begin­ning.

275. Herewith the tribunal suggests that no law on earth could give limitations to the right - and even the duty - eventually to commit eventually the most severe breaches of whatever law, even the laws of the tribunal itself -, in order to obey a command by the tribu­nal.

This by emphasising, under 45 and 46 of this Decision, among others:

"The importance of complying with requests under Article 29 cannot be over­stressed."

And:

"The purpose of Rule 58 is to ensure that domestic proce­dures relating to the surrender and transfer of an per­son, from a State in respect of whom a request for arrest and transfer has been made, are not used as a basis for not complying with the request. (...)

That being the case, the Rule should be given an inter­preta­tion that takes full account of its purpose."

This paragraph of the 'Decision on preli­minary motions' is unacceptable from a legal point of view.

Rule 58 stipulates:

"The obligations laid down in Article 29 of the Statute shall prevail over any legal impediment to the surrender or transfer of the accused or of a witness to the Tribunal which may exist under the national law or extradition treaties of the State concerned."

276. First of all, this Rule 58 itself is in contravention of interna­tional law with res­pect to human rights.

Since it does not include the obligation of respect of the human rights guaranteed by the international law with regard to arrest and transfer of the accused to the Tribunal.

That obligation cannot in any way be derogated since those rights belong to the jus cogens.

277. Moreover, this specific Rule must be considered to be void, because the tribunal was not legitimatized to make such a regulation, as a hierarchically inferior legal power.

As legislative power it is supposed to deal only with the procedure and evidence before the tribunal, since the legisla­tive competence conferred to the judges of the tribunal is limited to those questions only.

And such a regulation therefore cannot determine the relations between a superior act like the Article 29 of the Statute and some other acts of a different nature.

278. Thirdly, the pretended purpose of the illegitimate Rule 58 is clear enough, namely to stipulate that the domestic legal order can not resist the Article 29-obligation ad 2(e): to comply, without undue delay, with an order by the tribunal to surren­der or transfer the accused to the tribunal.

But then a new problem arises: Rule 58, already illegitimate in se, should also not be seen as a correct working-out of Arti­cle 29 of the Statute.

Article 29 mentions explicitly, as an integrated constituent, the factor 'without undue delay'.

This element is not to be traced back into Rule 58.

Which can not mean that this element should have been elimina­ted as an integral part of pretended law.

279. Of course there could not reasonably exist a situa­tion of 'undue delay', when a State is undertaking due action, and pre­tending to be legally bound to it, in order to change its domestic law.

With a view to making possible an extradition and surrender.

Which was performed by the Yugoslav government at the moment of the abduction of Mr. Milosevic.

As will be demonstrated later on.

280. And finally, the content of Rule 58, whether legitimate or not, is relatively irrelevant with respect to this specific case.

Relevant is whether it was allowed or not to the tribunal to organise a joint operation, with assistance from Serbian ele­ments and NATO-allies, as well as, more specifically, in con­spiracy with the State of the Netherlands, in order to ex­tract Mr. Milose­vic from Yugoslavia and from the jurisdic­tion of the Yugoslav domestic courts, at the very moment that the so-called Tribunal would have come to the conclusion that the Federal Republic of Yugoslavia was definitely in default of alle­ged obligation to hand over Mr. Milo­se­vic.

And whether or not it would have been allowed to extract him from Yugosla­via in an high-handed action and without even consulting the Security Council.

Let alone lea­ving further decisions to this latter body.

281. And even from the point of view that the government of Yugo­slavia should have been in principle obliged to co-operate with the so-called tribunal and to comply with orders of this institution, whether or not specifically on the basis of Rule 58 - and the latter is, as we have seen, definitely legaly wrong -, even then it was, as already explained above, flatly in contradiction to all basic custo­mary and domestic norms - as also esta­blished in the Netherlands with regard to intenti­ons of surrendering accused to the tribunal - to deny any recourse to the domestic judge.

282. But also none of the rest of the above quoted consi­dera­ti­ons under 45 and 46 of the 'Decision on preliminary motions' even remotely answers the pinching question - at any rate pinching if one assumes the so-called tribu­nal to be legal - namely, what kind of means might be used, from a legal point of view, in order to achie­ve this aim that there will be com­pliance with orders by the tribunal.

And when these means might be put into use.

And that's the very point here. 

283. Furthermore, it can not be regarded as a right interpre­tation of law - not even by the believers in the legality and legiti­macy of the so-called tribunal - that, as is said under 47 of the 'Decision':

"The Federal Republic of Yugoslavia has an obligation under the Statute to comply with the the request to arrest and transfer the accused and, therefore, cannot rely on its internal law (..)".

The pretended causal connection, holding that because there would be an alleged obligation to comply with a request to transfer an accused, the showing of some consideration with the domes­tic legal order with respect to this extradition and surrender issue should be regarded as in contravention of inter­natio­nal law is, from a view of legal systematics, false, illogical and inconsis­tent.

False, if only because it is a priciple of basic law that everybody should have the right to appeal to the domestic judiciary against his extraditon and surrender, as it is also explicit­ly settled in the Dutch legal system with regard to surrender to the so-called tribunal.

As is to seen in the implementati­on of this basic right in national legal orders. As is demon­strated not only in the Netherlands and in the Dutch domes­tic legis­lation, but also in Germany.

As was shown in the case of Tadic.

Tadic was arrested in Germany.

And Germany worked for months on the adoption of a law on the basis of which Tadic was finally extradited and surrendered to the so-called tribunal.

284. Instead of showing due respect for this basic right, the so-called tribunal pretends that from now on a new doctrine of international law has been established.

A doctrine which makes it possible that from the Republi­ca Srpska, and now also from Yugoslavia, persons - of course all of them Serbian people - were to be extradited and surrendered like ob­jects.

In the American way, dating from the time when the West was won and lawlessness there ran rampant.

285. Sending NATO-posses after accused persons, arresting them on the territory of a sovereign state and surrendering them uncondi­tionally to the Hague executi­oners.

This was the case, for example, with Mr. Milomir Stakic, Mr. Momir Talic, Mr. Dragan Nikolic, Mr. Steve Todorovic, Mr. Momcilo Krajsnik, Mr. Miroslav Vuckovic , Mr. Milan Vuckovic and others

Many innocent people - all the accused must be considered innocent until proven otherwise - have already been killed by these barbaric and terro­ristic actions. 

286. Finally, also certain pronoun­cements by the Secreta­ry-General of the United Nations, as quoted in number 45 of the 'Decision on prelimina­ry motions', do not al­ters­ these facts a bit.

They read:

"The significance of this legal obligation is highlighted in the Report of the Secretary-General who said that "the establishment of the International Tribunal on the basis of a Chapter VII decision creates a binding obligation on all States to take whatever steps are required to imple­ment the decision" and that "an order by a Trial Chamber for the surrender or transfer of persons to the custody of the International Tribunal shall be considered to be the application of an enforcement measure under Chapter VII of the Charter of the United Nations."

287. First of all, it must be stressed that pronouncements of the Secretary-General do not create law and are not even a source of law.

It is not the Secretary-General who makes the law, but the Secre­tary-General must only to respect and implement the law.

288. Secondly, it should be pointed out that it is dubious - even for believers in the legalitity of the so-called tribunal - that the Secretary-General's concept that any surrender order by the tribunal should be consi­dered an enforcement measure under Chapter VII of the Charter, is a correct inter­pretation of the Char­ter.

The fact that the set-up of the so-called tribunal is conside­red to be an - to the opinion of many scholars and others, it must be stressed by the way: illegal and illegitimate - enfor­cement measure under Chapter VII of the Charter, does not in any way mean, and certainly should not be automatically con­strued to mean, that also each order of this tribunal should be considered to be an enforcement measure under this Chap­ter.

That would suit the tribunal just fine, but it is neither just from the view of legal systematics, nor is it logical.

289. Not every demand made by a subsidiary organ of the Secu­ri­ty Council can automatically have the same status as an order by the Security Council itself !

And it is the system and the rulings of the Charter itself which prevent the assumption that orders, by no matter who or what in connection with a subsidiary organ, might be automati­cally regarded as 'an enforce­ment measure under Chapter VII of the Charter'.

Of course it cannot be that simple !

290. Since it is more than clear that the Charter stipulates, for each enforcement measure within the framework of Chapter VII, time and again, that every stage of the compre­hensive procedure of Chapter VII of the Charter must be passed

thro­ugh.

If that is not taking place, then it is impossible to allot the status of 'enforcement measure' !

That is something quite different from the assumption that whatever warrant might be issued from behind the tribunal's writing desks, would be given automatically such a status !

291. If every demand made by the the so-called tribunal as a subsidiary organ of the Security Council really were conside­red to be an enforcement measure under Chapter VII of the Charter, the prosecutor of the so-called tribunal would be, at one go, the mightiest person on earth !

Consequently every demand, every act, every step, made by her, would acqui­re immediately and unconditionally the aureole of the highest law, only to be obeyed on the same level as were it an enforcement measure by the Security Council itself !

Every demand, every act, every bureaucratic measure by the prosecutor, consequently were to be complied with immediately and uncondi­tional­ly.

No matter how unlikely !

As for instance would be a demand to sur­render the former presi­dent of the United States, as a suspect of crimes in Yugosla­via by his role in NATO's bombard­ments.

And every demand, every act, every measure by the prosecutor consequently were to be regarded automatically as 'a measure to restore peace under Chapter VII of the Charter'. 

No matter how criminal of character !

As for instance the posses, instigated by the prosecutor, in order to hunt down Serbian suspects in the territory of Bosni­a. Actions far beyond her competence, resulting already in may deaths.

And no matter that these acts constitute grave breaches of the tribunal's own regulations. Which state that in case of non-compliance with tribunal's orders to extradite and surrender a suspect, the prosecutor must address the Security Council.

Instead of acting with violence, on her own initiative !

As will be elaborated here below under 305-320.

292. And thirdly, even when these pronouncements of the Secre­tary-General are considered valid - at least from the stand­point of those who consider the tribunal a legal institution -,  even then the question arises: what action would be allo­wed from a legal point of view, if the State concerned refuses to comply with this obligation ?

Or if it is only the tribu­nal that thinks this State is not comply­ing.

293. The so-called tribunal is suggesting in its 'Decision on preli­minary motion' that really any action whatsoever, in order to gain custody of an accused, should be deemed allowa­ble.

If the tribunal really means this, then it under­lines again the extent to which this so-called tribunal, para­chuted into the legal order, is a true menace to this same legal order.

Like a cuckoo in its nest.

Pushing out all attain­ments of the constitional state and of the international legal order.

Including even its own internal regula­tions.

294. These pretentions by the so-called tribunal to what is conside­red to be lawful are not only a travesty of justice and an unadulterated abuse of power, but they are yet another expression of a manifest disre­gard for the tribunal's own regulations.

295. With respect to alleged non-compliance with so-called obliga­tions to obey orders coming from the tribunal, there is, first of all, Article 9 par. 2 of the Statute itself.

Which states:

"The International Tribunal shall have primacy over natio­nal courts. At any stage of the procedure, the Internatio­nal Tribunal may formally request national courts to defer to the competence of the International Tribunal in accor­dance with the present Statute and the Rules of Procedure and Evidence of the International Tribunal."

296. So it is clear that - even when the tribunal is conside­red to be legal -, in the situation that Mr. Milose­vic found himself under the jurisdiction and protection of the District Court of Belgrade and, at the same time, of the Federal Con­stitutional Court of Yugoslavia, the way indi­cated by this Article should have been followed.

Namely, to file a formally request at these courts, in order to defer to the competence of the so-called tribunal.

297. Such a request was not made by the tribunal, neither to the District Court of Belgrade, nor to the Federal Constituti­onal Court of Yugoslavia.

298. With respect to the fact that there is an obvious need to make an extensive and specific basic regu­lation concerning this obligation to give up the jurisdic­tion on a request by the so-called tribu­nal, the only reasonable interpretation is that when a domes­tic court has seized jurisdic­tion with regard to any subject, this jurisdiction is of a legally strong nature  and is not simply to put aside.

So also in the case of Mr. Milosevic.

299. Nevertheless, the tribunal pretends that it could simply have simply brushed aside this jurisdiction of the District Court and of the Federal Constitional Court in the case of Mr. Milose­vic.

Even without addressing any formal request to these courts to defer its competence.

300. There was all the more - in as much as there is any belief in the legality and legitimacy of this so-called tribu­nal - an obligation to address a formal request to these courts, as these courts are in the pos­session of concur­rent jurisdiction, according to Article 9 par. 1 of the Statute, and it could not have been excluded before­hand, that there existed, with respect to the jurisdiction of these domestic courts regarding Mr. Milosevic, a situation accor­ding to the terms of Rule 8 and 9 of the Rules of Proce­dure in general, and, more specificcally, of what is said by Rule 9 ad (ii) an (iii).

Article 9, par. 1 of the Statute reads:

"The International Tribunal and national courts shall have concurrent jurisdiction to prosecute persons for serious violation of international humanitarian law in the terri­to­ry of the former Yugoslavia since 1 January 1991".

And the Articles 8 and 9 of the Rules of Procedure give a more specific regulation with regard to the deferral of jurisdicti­on by domestic courts and read respecti­vely:

Rule 8

"Where it appears to the Prosecutor that a crime within the jurisdiction of the tribunal is or has been the sub­ject of investigations or criminal proceedings instituted in the courts of any State, the prosecutor may request the State to forward all relevant information in that respect, and the State shall transmit such information to the Prosecutor forthwith in accordance with Article 29 of the Statute".

Rule 9

"Where it appears to the Prosecutor that in any such investigations or criminal proceedings in the the courts of any State:

(i) the act being investiged or wich is the subject of those proceedings is characterized as an ordinary crime;

(ii) there is a lack of impartiality or independence, or the investigatios or proceedings are designed to shield the accused from international criminal responsibility, or the case is not diligently prosecuted; or

(iii) what is at issue is closely related to, or otherwi­se involves, signicant factual or legal questions which may have implications for investigations or prosecutions before the Tribunal,

the Prosecutor may propose to the Trial Chamber designated by the President that a formal request be made that such court defer to the competence of the Tribunal".

301. So, according to its own pretended regulations, the so-called tribunal's prosecutor had first to inform herself if there was possibly a situation of 'investigations or procee­dings designated to shield the accused from international criminal responsibility' with respect to this domestic juris­diction and prosecution.

302. The prosecutor has suggested many times that this would have been the case.

And this without taking the procedural imperative out of this position.

303. Further she should also have investigated whether would  'the case was not diligently prose­cu­ted'.

Since the prosecutor did not even take the trouble to inform herself of the precise allegations and inves­ti­gati­ons of the Yugoslav prose­cutors with respect to the domestic indictment against Mr. Milosevic, she was in absolutely no posi­tion to find a ground for her actions regarding Mr. Milosevic and the comptence of the domestic courts in any opinion what­soever about the appli­cability of this part of the regula­tions.

304. And finally the same can be said about the question whether 'what is at issue' in the course of these domestic investiga­tions and allegations, was to be considered as 'clo-s­ely rela­ted to, or otherwise involved with, significant factual or legal questions which may have implications for investigations or prosecution before the Tribunal'.

305. In absolute disdain for the sovereignty of Yugoslavia and for the respectability of the Yugoslav legal institutions as well as for the domestic laws of Yugoslavia, and even with great disdain for the pretended regulations of the so-called tribunal it­self, the prosecutor has left undone such due investigations and deliberately taken the road of lawlesness.

306. Because, in case of non-compli­ance with a possible re­quest for deferral by the Yugoslav Courts, following of the course of the regulations of the tribunal itself would have brought the prosecutor straight to Rule 11 of the Rules of Evidence.

Saying that, in a case of such a non-compliance, the procedure which must be observed shall be:

1) the Registrar must notify the State concer­ned of this failure;

2) the State concerned still gets a last chance to satisfy the trial chamber, by taking the due steps, and;

3) it is then up to this trial chamber to re­quest of the presi­dent of the so-called tribunal to report the matter to the the Security Council;

4) of course it is then up to the president to decide whe­ther he would report this non-deferral to the Security Council or not;

5) And finally, it would obviously be a matter for the Secu­ti­ry Council to undertake any action with respect to this alleged non-deferral, or not;

307. These many, many steps - steps passing through the regis­trar, to the trial chamber, the president of the so-called tribu­nal and finally to the Security Council itself - are neglected by the prosecutor, in complicity with the rele­vant judges of the so-called tribunal.

308. And avoiding, in that way, the Security Council, the final decisive body in cases of non-compliance with any re­quest for deferral.

309. Instead of this, the prosecutor, in total abuse of her quali­fications and putting her own political anti-Serbi­an and anti-Milosevic political agenda first, has done everything that, accor­ding to general legal standards as well as those pretended by the so-called tribu­nal itself, could illegally and illegitimately be done, and has now gone on yo act comple­tely on her own.

310. But even when it is deemed that, in this specific case, there is no need at all for a request for defer­ral to the domes­tic courts in Yugoslavia, and consequently also the proce­dure prescri­bed in Rule 11 would not have been appli­cable, even then the final stage were to be the Security Coun­cil.

311. And even then it should have been up to the discretional power of the Securi­ty Council whether or not to take fur­ther action.

And it was not considered to be up to the prosecutor to take any form of total­ly illegal and illegitimate high-handed and headstrong action.

Whether or not covered up by any judge of the so-called tribu­nal.

312. The exclusive and final deciding power of the Security Council itself, also in cases like this, is beyond a shadow of a doubt reflected in the system of the tribu­nal's regulations itself.

This with respect to all cases of non-compliance with such pre­tended obligations.

313. This system is stressed, as far is relevant here, in Rule 7bis, juncto Rule 61 final part.

Saying respectively:

Rule 7bis

"(A) In addition to cases to which Rule 11, Rule 13, Rule 59 or Rule 61 applies, where a Trial Chamber or a perma­nent Judge is satisfied that a State had failed to comply with an obligation under Article 29 of the Statute which rela­tes to any proceedings before that Chamber or Judge, the Chamber or Judge may advise the President, who shall report the matter to the Security Council."

Rule 61

"(E) If the prosecutor satisfies the Trial Chamber that the failure to effect personal service was due in whole or in part to a failure or refusal of a State to cooperate with the Tribunal in accordance with Article 29 of the Statute, the Trial Chamber shall so certify. After consul­ting the President Judges of the Chambers, the President shall notify the Security Councel thereof in such manner as the President thinks fit."     

314. So also in case of non-compliance of any State with, directly, the sur­render and transfer of an accused, it is finally, and again exclu­sively, up to the Security Council to undertake fur­ther action.

315. It is amazing and shocking that not only does the prese­cutor not give a damn about the tribunal's own regulations with respect to this crucial issue, but this happens in close collaboration with the judges of this so-called tribunal.

316. In this way the so-called tribunal it­self, as an entity, ruthlessly reveals its own legal standard.

Or better said, its lack of one.

317. The aim of the all is quite clear: the whole tribunal is set up to describe recent Yugoslav history as the result of, mainly, Yugoslav and Serbian aggression, genocide and barba­rism.

And in order to legitimize and to seal this falsification of Balkan histo­ry by condemnations.

318. Of course, this is to be done, first of all, by senten­cing the former Serbian and Yugoslav President.

319. This end justifies all means.

And certainly any illegal me­thod in order to get him into the hands of the tribunal.

320. Furthermore still and apart from this compulsory obli­gation to give shape to this basic obligation of giving access to a domestic court, in order to test the legitimacy and legality of extradition and surrender, and also apart from the obligation at least to follow its own rules, there should have been no need for this tribunal to bring this question to a head.

321. No need for gravely violating the Yugoslav domestic legal order and the obligations of international customary law, nor for bypassing its own self-fabricated rules.

There was after all no need for such a rush into this job.

As it was stressed even by the President of Yugoslavia at the time in the already above quoted TV-speech on the night of the kidnap­ping. 

Suggesting that this speed, not even demanded by the so-called 'international community', reflected someone's personal agen­da.

322. No need for such a rush - even when one takes s point of departure the as­sump­tion that co-operation with this so-called tribunal is compulso­ry, which is a false assumption -, because Yugoslavia under­took to pass regulations which would enable co-operation with the so-called tribunal precisely as stipula­ted in the tribunal's regulations.

And to set aside in this way the situation that there is no law in Yugoslavia covering extradition and surrender of an national to a foreign body.

323. And at the very moment when the Federal Government was acting to create a domestic provision for extraditi­on, ele­ments of the republican government, jointly operating with the Tribunal and NATO-countries, first of all among them the Nether­lands, fulfilled the kidnapping of Milosevic to the Hague.

324. As far as this was done by the government of the Serbian Republic, there was - even within the false assumption that the tribunal's word is law - no legitimation whatsoever for such an action.

Because Serbia is not a member of the United Nations, and it had no obligation at all to implement orders by the tribu­nal.

325. Moreover, according to domestic law of Yugoslavia, this was something that only the federal government had the right to decide about.

By the federal organs through appropriate procedures.

326. And finally also the arrest warrants with regard to Mr. Milo­sevic, issued by the tribunal dated 24 May 1999 and 22 January 2001, were not at all directed to the Serbian authori­ties, but to the Federal Republic of Yugoslavia.

327. So there was no legal obligation at all for the Serbian gover­nmemt to lend a helping hand to the tribunal, neither from the point of view of domestic law, nor from the position of inter­national law.

328. On the contrary, by acting the way certain ele­ments from the Serbi­an goverment actually did, they  gravely violated the domestic legal order.

329. According to Yugoslav law extradition and surrender was none of their business.

So in terms of the domestic legal order and constitution this conduct was completely arbitrary and purely a kidnapping.

330. It is the president of the so-called tribunal, Jorda, himself, who do not hesitate to spread, among the public and even troughout the UN General Assembly, a misinterpretation of responsibili­ties and obligations with regard to compliance to Security Council orders.

Also suggesting that it was Serbia which had to fulfil legal obli­gations in this field.

331. In his address to the UN General Assembly on 26 November 2001 he stated with respect to this issue:

"The arrest and transfer of Slobodan Milosevic to the Hague last June attests to the resolve of the authorities of Serbia to comply with its international obligations arising out of Security Council resolution 827 and Article 29 of the Statute of the International Tribunal."

332. By this deliberate false interpretation of obligations accor­ding to international law this unlawful and arbitrary way of acting by elements in the Serbian government was completely turned around into an action not only lawful but even com­pulsory for Serbia.

333. How different is the tone of that same tribunal, needing in the courtroom to turn this illegal, self-instigated practi­se !

Then, suddenly, these so-called 'obligations' on Serbia are transformed into 'not an egregious violation of rights'.

As is stated in the 'Decision on preliminary motions', dated 8 November 2001:

"51. In the light of that jurisprudence, the Chamber holds that the circumstances in which the accused was arrested and transferred - by the government of the Republic of Serbia, to whom no request was made, but which is a con­stituent part of the Federal Republic of Yugoslavia, to whom the request for arrest and transfer was made - are not such as to constitute an egregious violation of the accused's rights."

334. Not only was there no request made to Serbia, but moreo­ver it is impossible to hold that Serbia, not being a member state of the United Nations, should have to comply with any pretended order at all.

335. So there was no obligation whatsoever according to inter­nati­onal law, on which Serbian governmental ele­ments could have legitimatized their breaches of the domestic legal and constitional order.

Nor could the tribunal invoke any such ground, in order to legitimatize its instigation of those breaches of the Yugo­slav legal order and the domestic Rule of Law.

336. The only conclusion that can reasonably be drawn is that, by instigating certain elements of the Serbian government to participate in the joint operation in order to kidnap Mr. Milosevic and to extract him from Yugoslavia and out of the jurisdiction of the domestic Yugoslav courts, the tribunal has instigated these elements of the Serbian government to commit higly criminal acts.

337. The tribunal, making itself by these actions the leader of a criminal organisation.    

338. The tribunal that, if it were at least in practice acting accor­ding to the standards of a legal and legiti­mate organ, was not only not constantly occupied with committing the gravest violati­ons of law, as this tribunal has actually been doing, as in in­stances when it instigates ot­hers, e.g., ele­ments of the Serbian go­vernment and authorities of the Nether­lands, to assist in violations of international law, domestic law and the law of the tribunal itself, but it than even were to consi­der itself, more positively, also to be bound to  strictly uphold the Rule of Law.

339. This also includes a duty to annul any abuses of power that are carried out in its name.

340. Certainly when these direct breaches of the law, commit­ted by the so-called tribunal itself, and the abuses of power, com­mit­ted in its name, are of such a gravity as those in question, the only correct conclusion can be that there is taking place such a travesty of justice and such an unadulte­rated abuse of power, and, conse­quently, an abuse of process, that - even if the tribunal were taken to be legal, which is not the case -  this highly abusive tribunal would have com­pletely forfei­ted its right to try Mr. Milosevic.

341. In the light of these egregious violations of his basic rights by the tribunal itself, and by others in a joint con­spiracy, the tribu­nal - even when believed to be legal and legi­timate - would have no reasonable choice other than to ab­stain from trying Mr. Milosevic.

342.In the R. v. Horseferry Road Magistrates' Court, Ex parte Ben­nett, it was held that, for the maintenance of the rule of law, where an accused person was forcibly abducted from anot­her country in violation of international law and the laws of the state and in disregard of the extradition procedures, the prosecution of the accused was to be regarded as an abuse of process and, consequently, his release was to be ordered.

See Decision of the House of Lords dated 24 June 1993 (1994) I AC 42 (1993) 3 ALL ER 138 (1993) 3 WLR 90.

343. In the Barayagwiza appeal decision, para. 86, the tribu­nal itself held that a case should be dismissed, when:

"in light of serious and egregious violations of the accused's rights [hearing of the case] would prove detri­mental to the court's integrety."

It is not possible to imagine how more harm to the tribunal's pretended 'integrety', could have been inflicted upon it than has already by its own lawless actions.

So, consequently, there is no integrety left to this tribunal.

Even if one believes in its legality and legitimacy.

And, accordingly, also from this point of view, is is without any jurisdic­tion with regard to Mr. Milosevic.

V.5.b. Conclusion

344. The so-called tribunal makes the false suggestion that it is a law of the Medes and Persians, that all its orders must be followed without asking questions, being of the same status as orders of the Security Council itself, acting under Chapter VII of the UN Charter.

345. But of course neither decisions of the Security Council are sa­cred, nor in the least are decisions by the tribu­nal, even assu­ming that it were a legal and legitimate insti­tu­tion.

346. It is this distortion of the legal reality that the tribunal tries to introduce by making this frantic attempt to give its actions an aura of legitimacy.

347. Nobody is duty-bound to accept and implement the Security Council decisions that are not in accordance with the UN Charter, which is, by the way, clear in and of itself even if it were not written anywhere.

348. As is confirmed by the International Court of Justi­ce in its Advisory Opinion dated 21 June 1971 'Legal conse­quence of the protracted presence of South Africa in Namibia despite Security Council Resolution 276/1970'.

349. Once again this is applicable to decisions of the so-called tribunal.

350. All modalities elaborated above point imperatively in the same direction.

Namely, that the abduction, extradition and surrender of Mr. Milosevic, just like the withholding of recourse to the judge in order to decide on the legality and legitimacy of his extradition and surrender, as well as the breaches of the tribunal's own regulations - all these facts considered indi­vidually and jointly -, constitute an intolerable infringement on the right of Mr. Milosevic to liberty as well as to his right to personal securi­ty.

As guaranteed to everyone in Article 5(1) of the Convention.

351. Respect of human rights is a pillar of the UN Charter.

So the decisions by the the so-called tribunal, violating Mr. Milosevic's human rights, are also in contravention of the Charter.

352. Since Mr. Milosevic was extradited - in violation of the tribunal's own process regulations - to the Netherlands and surrendered to the tribunal in an unlawful way and with grave violations of his basic right to resort to the judiciary with respect to extradition and sur­render, even in con­traven­tion of human rights principles of jus cogens-character, he is entit­led to restitutio in inte­grum.

V.6.a.Violation of the Article 5-right to liberty and secu­rity by the unlawful arrest and prosecution of Mr. Milosevic as a former Head of State.

353. The exercise of jurisdictional power over one's own citizens is part of each State's sovereignty.

354. And there is no rule of law whatsoever, whether of a treaty law-type or a customary law-type, that gives the Secu­rity Council the competence to usurp this right of sover­eign­ty of any State and to determine that the Security Council hence­forth will start to try individuals of that State, without conside­ring the juris­dictional competence of the State con­cer­ned, by way of an organ to be established to this end.

Like the so-called tribunal.

355. As far as the States which were part of the former Yugo­slavia are concerned, it must be taken into consideration that none of the States that were formed there has recognised this compe­tence of the Security Council to form a tribunal, in order, by so doing, to 'relieve' those States of this aspect of their sover­eignty.

Hence there can be no doubt whatsoever that nothing other than the usurpation of sovereignty by the Security Council is at issue.

356. Thus, 'sovereign equality', the explicit objective held by the UN Charter, and laid down in Article 2 par. 1 of the Char­ter, is actually no longer a reality for States which were a part of the former Yugoslavia.

357. From the perspective of this usurpation of the right of the State to try its indi­vidual citizens - which is in and of itself already a clear-cut violation on the sovereignty of all those States of the former Yugoslavia already victimised by the Security Council -, an even more drastic infringement of this sovereignty was affec­ted by the Security Council by attempting as well to force on the States con­cer­ned the idea their Heads of State should not be entitled to immunity from prose­cution.

358. This attempt to rewrite international customary law, in order to fit its own political preferences, was formulated by the Security Council in Article 7 par. 2 of the Statute of the so-called tribunal, and reads as follows:

"The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal res-

    ­ponsibility nor mitigate punishment."

359. But it is definitely not up to the Security Council to deter­mine the contents of international law. This is a matter of internati­onal law itself.

360. First and foremost, there is nothing in international law indicating that the Security Council could, merely by a single stroke of its pen, declare defunct the right of a Head of State to immuni­ty.

361. Never before has there been evidence of even the possibi­li­ty that Heads of State - and we are talking here explicitly about Heads of Sovereign States - could randomly be declared deprived of their immunity.

362. With respect to this issue, it is impossible to consider the Tribunals of Nürmberg and Tokyo, set up after World War II to adjudicate the crimes of the Axis-powers, as precedents.

If only because these countries were defeated and occupied, and their rights of sovereignty were at that moment explicitly suspended by the vistorious parties.

The Tribunals of Nürmberg and Tokyo thus clearly established a 'victors justice'.

363. As regards the states of the former Yugoslavia, however, time and again, the complete integrity of their sovereignty and the fact this sovereignty must be respected was explicitly recalled by Security Council reso­lu­tions.

364. Time and again this full entitlement to their own sover­eignty was also stated by the same Security Council, while tryin, at the same time, to erode this very same sover­eign-

ty, not only by usurping from these states their jurisdictio­nal power over indi­vi­dual citizens through the so-called tribunal - which was, after all, intended to be a subsidiary organ of the Security Council itself -, but by trying, at the same time, even to fur­ther dismant­le this sovereignty by stipu­lating that Heads of State of these particular states should not be entitled to immunity.

365. The immunity accruing to Heads of State is after all closely tied to the sovereignty of the State itself, and forms an important mode of expression thereof.

366. Immunity of Heads of State is therefore first of all immunity ratione materiae.

Which means more an instrument to safeguard the sovereignty of the State then a personal prerogative.

367. The most important reason for the principle of immunity of Heads of State is indeed that whatever a Head of State does in his func­tion as Head of State, is to be regarded as the acts of the State itself.

368. The customary rules on this subject are the same for Heads of States and former Heads of State.

369. In other words: if a Head of State, or a former Head of State, is prosecuted outside his countr and has to stand  trial for his actions in his function as Head of State, the State itself would be put to stand on trial.

370. Sentencing the Head of State would then automatically imply a sentencing of the State itself.

371. With respect to Mr. Milosevic, if his immunity as a former Head of State is indeed revoked on the mere authority of the Security Council, it would mean that it is not only him who is standing trial and then being sentenced, but that, along with him, the whole of the Federal Republic of Yugosla­via is being tried and sentenced.

372. In view of the principles of civil liability for criminal acts, which are now also widely recognised in internatio­nal law, if Mr. Milosevic is sentenced for alleged acts, unmista­kenly committed in his function as Head of State, the Federal Republic of Yugoslavia would be then, according to civil law, automatically and immediately liable for the consequences of these alleged crimes attribu­ted to him.

373. This liability in terms of civil rights standards for violati­ons of fundamental humanitarian law is primarily of a customary character, though it is also treaty-based in some conventi­ons.

This was already the case in Article 3 of the Fourth Hague Con­vention of 1907. But this liability for compensation wuth regard to violations of the norms of humanitarian law is, more recently, explicitly expressed also in Article 91 of the First Additi­onal Proto­col of 1977 at the Geneva Conventions.

374. Consequently, if Mr. Milosevic were convicted for alleged actions, alleged­ to have been undertaken by him in his functi­on as Head of State, the Federal Republic of Yugoslavia would then risks being con­fronted with claims for billions of dol­lars for dama­ges.

In the same way that is now being done to Iraq.

375. With the consequence that the country and the Yugoslav people, for uncountable years to come, would be doomed to paupe­rism.

376. This principle of civil liability for alleged crimes against humanitarian law is also expressed in par. 7 of UN Reso­lution 827 (1993), concerning the establishment of the tribunal:

"Decides also that the work of the International Tribunal shall be carried out without prejudice to the right of the victims to seek through appropriate means, compensation for damages incurred as a result of violations of interna­tio­nal humanitarian law."

377. Billions of dollar in claims for damages are already filed against Yugoslavia by Croatia at the International Court of Justice.

When the Yugoslav leadership, in the person of the former Head of State, is condemned for alleged violations of humani­tarian law, there is no stopping and nothing stands in the way of a full and unconditional awarding of that claim.

378. This is the ominous ultimate consequence of the Security Council's attempt to deprive, in contravention of internatio­nal law, the Heads of State of the countries of the former Yugoslavia of their immunity.

379. First of all - and exclusively ! - to victimize the State of the Federal Republic of Yugoslavia and the Yugoslav people.

Because - deliberately - the former Head of State of Yugosla­via is the only Head of State of the Republics of the former Yugoslavia, who has been indicted by the so-called tribunal.

380. Deliberately, because Yugoslavia and the Serbs have been cast in the role of scapegoat.

And the very raison d'être of the so-called tribunal is to bring this matter to a conclusion with the convictions first of all, of the Yugoslav leadership.

381. That's why there is this utter discrimination in the prosecution policy at the so-called tribunal.

Setting a course for the destruction of the former Head of State of Yugoslavia.

And, consequently, for further destruction for Yugoslavia itself and its people.

This is punishment for daring to resist western dictates and NATO-terror.

And not concerning itself with people like the late Presi­dent of Croatia, Franjo Tudjman, or the former President of Bosnia, Alija Izetbe­go­vic.

383. Moreover, this prosecution of Mr. Milosevic as a former Head of State is once more under the explicit and self-contra­dicting fiction that the sovereignty of the State concerned re­mains nevertheless intact !

384. Since it is indeed a condition set forth by the UN Char­ter it­self, this unlimited respect for the sover­eignty of the State concerned should be a reality.

385. And this same Security Council

which is denying Mr. Milosevic his right to immunity as a former Head of State is actually not only breaking down the sover­eignty of Yugo­slavi­a, but is also acting as a tool to bring Mr. Milosevic as well as the whole Yugo­slav nation to trial,

this same Security Council is, all the while, bound by the UN Charter provisions which give it the explicit order to respect and safegu­ard the sover­eignty of the UN Member States!

386. Sovereingty of the state doubtless is a matter of peremp­tory law.

The UN Charter knows only a few basic assumptions.

And the paradigm of the sovereign equality of all States is the most important one.

387. So as a matter of consequence, sovereignty cannot be harmed or restricted without the explicit consent of the State concern­ed.

Only by free will can the State give up parts of its sover­eignty, for instance, on a treaty law basis.

Which is in fact frequently the case in the common practice of States.

388. However, no matter how frequently States in their every­day  daelings with other Statesmay be in complete agree­ment with limita­tions placed on their sovereignty, this is always done only on the basis of free will.

389. Sovereignty is thus an absolute prerogative of the State.

Nobody can touch it without the State's approval.

And the UN Charter is even built around this basic principle.

390. As sovereignty of States is definitely the most widely recog­nised example in international law of a norm of an ius cogens-cha­racter, it must be stressed that the immunity of a Head of State, as a basic condition for and most important expression of this sovereignty, is also to be seen as a pe­remptory norm of international law.

391. So it is a well established matter of customary law that a Head of State enjoys immunity from criminal, civil and admini­stra­tive jurisdiction.

And that he retains such immunity for acts, or alleged acts, committed in his function as a Head of State, when he is no longer in that function.

Sir Arthur Watts put it this way in his monograph in the the Hague Letters, entitled 'Legal Position in International Law of Heads of State, Heads of Governments and Foreign Ministers' (1994) 247 Receuil der Cours, 53, 88 and 89:

"A Head of State's immunity is enjoyed in recognition of his very special status as holder of his State's highest office...A former Head of State is entitled under interna­tional law to none of the facilities, immunities and privileges which international law accords to heads of States in office...After his loss of office he may be sued in relation to his private activities, both taking place while he was still head of State, as well as those occur­ring before becoming Head of State or since ceasing to be Head of State...A Head of State's official acts, performed in his public capacity as Head of State, are however subject to different considerations. Such acts are acts of the State rather then the Head of State's personal acts, and he cannot be sued for them even after he ceased to be Head of State."

Satow, in his 'Guide to Diplomatic Practice' (5th editi­on, 1978), comes to the same conclusion:

"The personal status of a head of a foreign state therefo­re continues to be regulated by long established rules of customary international law which can be stated in simple terms. He is entitled to immunity - probably without exeption - from criminal jurisdiction..(2.4) A head of state who has been deposed or replaced or has abdicated or resigned is of course no longer entitled to privileges or immunities as a head of state. He will be entitled to continuing immunity in regard to acts which he performed while head of state, provided that the acts were performed in his official capacity."

And Oppenheim, in his famous 'International Law' (9th edition, 1992, par. 456), formulates it as follows:

"All privileges mentioned must be granted to a head of state only so long as he holds that position. Therefore, after he has been deposed or has abdicated, he may be sued, at least in respect of obligations of a private character entered into while head of state. For his offi­cial acts as head of state he will, like any other agent of a state, enjoy continuing immunity."

392. Now assuming a case in which that a former Head of State had allegedly committed crimes during the period that he was a head of state.

Might he be considered to have done this in his functi­on as Head of State ? Or should he always be regarded as having committed these crimes as private activities ? Because it would be a fact that it cannot be considered a part of the task of a Head of State to commit crimes ?

This last concept is manifestly untenable.

As Sir Arthur Watts indicates in his above-quoted monograph (p. 56/57):

"A Head of State clearly can commit a crime in his perso­nal capacity; but it seems equally clear that he can, in the course of his public functions as head of State, engage in conduct which may be tainted by criminality or other forms of wrongdoing. The critical test would seem to be whether the conduct was engaged in under colour of or in ostensi­ble exercise od a Head of State's public autho­rity. If it was, it must be treated as official conduct, and so not a matter subject to the jurisdiction of other States whether or not it was wrongful or illegal under the law of his own State."

393. So, since the character of the allegations made by the so-called tribunal against Mr. Milose­vic are indispu­tably that of alleged crimes which could only have been committed in his function as a Head of State, his immunity as a former Head of State doubtless also stretches over the whole of these false incrimi­nations. 

394. Since Mr. Milosevic enjoys immunity with respect of all false incriminations, brought forward against him by the so-called tribunal, as a matter of customary international law, of even a peremptory character, Article 7, par. 2, of the Statute, stipulating that the official position of a Head of State shall not relieve of criminal responsibility nor mitiga­te punishment, is unmistakably to be considered void.

395. The tribunal writes down in the 'Decision on preliminary moti­ons' of 8 November 2001 that:

"28. There is absolutely no basis for challenging the vali­dity of Article 7, paragraph 2, which at this time re­flects a rule of customary international law."

The tribunal continues:

"29. The history of this rule can be traced to the dece­lopment of the doctrine of individual criminal responsibi­lity after the Second World War, when it was incorporated in Article 7 of the Nuremberg Charter (33) and Article 6 of the Tokyo Tribunal Charter (34)."

396. But is has to be stressed that there have been existed in Germany as well as in Japan after World War II very specific condi­tions and circum­stances, with a decisive influence on the legal appreci­ations according to international law.

These conditions were unique and once-only, just like the values of the judgements connected with them.

So also the legal qualifica­tions must be seen as non-recur­rent.

397. Most important fact is that the Nuremberg and Tokyo Tribunals were held after Germany and Japan had been complete­ly defeated and occupied.

In fact, they had ended to exist as political entities and they had been transformed into purely occupied territories.

So also all elements of sovereignty had been ended.

398. In such a specific situation all claims based on sover­eignty, as also the claim to immunity of Heads of States which is to be derived from this basic tenet, loose their basis.

And is no more of any significance.

399. How different is the situation with regard to the new States, formed upon the territory of the former Yugoslavia.

These States are in the full possession of their sovereignty.

As it is also stressed, once and again, in Security Council resolutions.

Those resolutions are also repeatedly stating that their sove-

r­eignty must be respected.

400. And it cannot be denied that immunity of their Heads of State is an important constituent of this sovereignty.

401. That the tribunals of Nuremberg and Tokio cannot be viewed as the expression of an opinio juris, which brought to an end the customary international rule that Heads of States enjoy immunity, is also clearly demonstrated by all post-war scholars and their scientific works.

They consistently expressed over the past decades that there exists a very broad communis opinio juris that the immu­nity of Heads of States still is to be considered a matter of customa­ry international law, even of a ius cogens-charac­ter.

So unaffected by the assumptions at the Nuremberg and Tokio Tribunals.

402. The so-called tribunal, as already cited above, mentions further in the 'Decision on preliminary motions', in the same quote under 29, with respect to this point of alleged criminal responsibility of Heads of States:

"The customary character of the rule is further supported by its incorporation in a wide number of other instru­ments, as well as case law.

30. As for instruments, the following may be mentioned: Article IV of the Convention for the Prevention and the Punishment of the Crime of Genocide; (35) Principle III of the Nuremberg Principles; (36) Article 6 of the Statute of the International Criminal Tribunal for Rwanda; (37) Article 6, paragraph 2, of the Statute of the Special Court for Sierra Leone; (38) Article 27 of the Rome Statu­te of the International Criminal Court ("ICC"); (39) and Article 7 of the Draft Code of Crimes against Peace and Security of Mankind (40).

31. Particular mention must be made of the Rome Statute of the ICC which, although not yet in force, has been signed by 139 States and now has 43 of the 60 ratification requi­red for its entry into force. This is a multilateral instrument of the greatest importance, which, even at this stage, has attracted fairly widespread support. The Cham­ber also attaches particular significance to the Interna­tional Law Commission's Draft Code for Crimes against Peace and Security of mankind, prepared in 1996. The Chamber cites this two modern instruments as evidence of the customary character of the rule that a head of State cannot plead his official position as a bar to criminal liability in respect of crimes over which the Internatio­nal Tribunal has jurisdiction."

403. If the norm that Heads of State enjoy immunity really is to be considered a norm of international customary law of ius cogens, then, first of all, deviation of such a norm is not allowable.

As is also explicitly stated by Article 53 of the Vienna Convention on Treaties.

404. Moreover, in order to change such a peremptory norm, there apply very severe criterions, as is also stipulated by Arti­cle 53 of the Vienna Convention.

Such a change could only take place 'by a later norm of gene­ral international law of the same nature'.

405. Such 'a later norm of general international law of the same nature' could only emerge after a long proces of birth of an opinio iuris, and after a long standing state practice.

406. The fact that now the Rome Statute of the ICC is in existence, stipula­ting that also Heads of State are liable in respect of severe crimes against humanitarian law, certain­ly does not mean that it must be concluded now that there has been raised a new opinio iuris.

407. First of all, the Rome Statute of the ICC is a matter of treaty-based law.

Which means that all 43 States wich have ratified this treaty, have done so purely on a basis of their own free will.

408. As is already pointed out here above, every State is, of course, free to give up as much sovereignty as it wants to do.

The immunity of its own Head of State is part of this sover­eignty.

So if a State joins a treaty, implying to give up the immunity of its own Head of State as a part of its sovereignty,  the very essence of this is that it happens by free will.

409. But that does not mean at all that any volutary relin­quis­ment of such a part of sovereignty, within the framework of a treaty, tends to establish a new opinio iuris.

410. On the contrary, not the fact that 43 States now have ratified the Rome Treaty is decisive, but the factor that all the more than hun­dred other States of the UN have not ratified the Rome Treaty.

411. As long as the vast majority of States in the internatio­nal community have not ratified the Rome treaty, this circum­stance represents an extra argument that there can be absolu­tely no alternative opinio iuris, indi­cating that Heads of State no longer enjoy immunity, derived from the mere existen­ce of such a treaty.

412. But there is more.

Though all states are cosidered equal in the eyes of interna­ti­onal law, it must be stressed that politically, economically and militarily powerful countries would never even think of rati­fying the Rome Treaty.

For example, the United States, and then Russia and China wuold absolutely absolutely refuse to place not only their  Heads of State, but even their citizens in jeopardy of non-domestic prosecution.

413. In the United States recently even passed through its Congress a domestic law which provides the American administ­rati­on with the right to undertake armed action against any coutry that imprisons an American citizen with the intention of bringing him before the ICC !

414. The fact that the US has meanwhile signed the Rome Trea­ty, acting in such male fides, has no other significance than that the US is trying in this way to hold on to the Rome Treaty Process.

However, they have never any intention of ratifying it.

415. So, as long as the vast majority of States do not parti­cipate in the Rome Treaty and the today's wold most important States can't even imagine having their Heads of State subjec­ted subject to a trial by a non-domestic judiciary, the Rome Treaty only shows that there is not even remotely a remote devolopment of a new opinio iuris.

416. Also the mention by the so-called tribunal of the Draft Code of Crimes against Peace and Security of Mankind, created by the Internatio­nal Law Commission, is meaningless.

The point is that the work on this Code has come to a stand-

s­till.

Just because important States, again the US is the example, have blocked all further developments.

Since they don't accept the idea that their own citizens might be subjected to a non-domestic jurisdiction and might be punished for crimes by non-domestic judges.

Let alone that they would ever accept that their own Head of State be submitted to non-domestic jurisdiction !

417. Anyway, it is strange that the so-called tribunal invokes a legal instrument which explicitly mentions crimes against peace as the most important crimes against humanitarian law, while this same tribunal pretends that crimes against peace are beyond its competence.

And it takes this erroneous position, not by reason of the seve­rity of crimes or by reason of legal systematics, but under orders from the United States.

418. This in spite of the fact that it are especially the Nurem­berg principles and Nurem­berg judgements, which explicit­ly stress that crimes against peace do not differ from other war crimes or crimes against humani­ty, in that 'they contain unto themselves the evil of the whole'.

As it is explicitly stated in the verdict by the International Military tribunal of Nuremberg, recorded in H. M. Attorney-General (ed.): 'The Trial of German Major War Criminals, Part 22, HMSO London 1950:

"To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the evil of the whole." (p. 421)

419. Nevertheless the so-called tribunal takes the position that it is not competent to deal with crimes against peace.

Though the Charter of Nuremberg is explicitly mentioned by the Secretary-General of the United Nations as part of conventio­nal international law, applicable by the so-called tribunal.

As it is stated in his report pursuant to paragraph 2 of the Security Council resolution 808 (1993), S/25704, dated 3 May 1993.

420. But the United States, the real master of this tribunal, has ruled out the power of the so-called tribunal over crimes against peace.

To keep itself out of range after leading NATO's war of ag­gres­si­on war against the Federal Republic of Yugoslavia.

421. Finally, the tribunal mentions the Pinochet case in defense of the thesis that there has been esta­blished a new opinio iuris and a new state practise.

422. With respect to this, first of all, one example of a judge­ment in favor of a certain thesis cannot, of course, be regarded as the establishment of a state practice !

Secondly, this verdict by the House of Lords of the United Kingdom in the Pinochet case was certainly far from overwhel­ming.

It was a pronouncement by the smallest possible majority.

Thirdly, the fact that Pinochet was a dictator, who had come to power in a bloody putch, certainly contributed to the outcome.

Mr. Milosevic is a democratically elected President, reflec­ting as such the not only the sovereignty of the State, but also democratically legitimatized for his actions

423. And even if one would considers the conviction of Mr. Jean Kam­banda by the Rwanda Tribunal aa a second example, mentio­ned by the tribunal, that makes only two.

And two cases do not make a state practice.

Moreover, the Kambanda verdict originates from the same source as the indictment against Mr. Milosevic.

Because there are evident cross-connections between the Rwanda tribunal and the Yugoslavia tribunal.

So this could not be recorded as a verdict, separate from the so-called tribunal.

V.6.b.Conclusion

424. The customary international rule that Heads of State enjoy immunity is still in existence.

There is no such 'rule of customary character that a head of State cannot plead his official position as a bar to crimi­nal liability', as pretended by the so-called tribunal.

Not even as 'coming law'.

425. So Mr. Milosevic is illegally deprived of his freedom and security as a former Head of State.

In contravention of Arti­cle 5, also on this specific ground.

VI.THE VIOLATION OF THE CONVENTION'S HUMAN RIGHTS, GUARAN­TEED BY ARTICLE 6, UNDER DUTCH RESPONSIBILY OR CO-RES­PONSIBILTY

VI.1.Standing jurisprudence of the European Court with regard to the compliance of the tribunal with Article 6 of the Con­vention

426. It is true that in the view of the European Court, as expres­sed in Naletilic v. Croatia, ECHR 4 May 2000 (Appl. no.

51891­/99), the so-called tribu­nal is to be considered

 "..an international court, which, in view of the content of its Statute and Rules of Procedure, offers all necessa­ry guarantees including those of impartiality and indepen­den­ce."

And that consequently the European Court concludes:

"Accordingly, no issue arises under Article 6 par. 1 in this respect."

427. However, this judgement can only to be taken in the sense it is and no more.

And certainly one cannot generalize this pronouncement. Con­cluding that the European Court would also have stated defi­nitely by this specific ruling that the tribunal is to be regarded as acting according to the Art. 6 par. 1 obligations in the course of its func­tioning as judici­ary body as well.

428. Doubtless this judgement does not stretch so far.

The court leaves this point completely aside.

It only stipulates that 'in view of the content of its Statute and Rules of Proce­dure' 'all necessary guarantees' were offe­red.

And that 'in this respect' no issue under Article 6 par. 1.

would arise.

429. In other words: the European court's view in this respect is that the procedu­ral law of the tribunal is deemed to provi­de a suffi­cient base for an impartial and independant treat­ment.

But this in no way means that the tribunal's practice should also be regarded as automa­tically in accordance with these stand­ards.

430. In the following it will be clearly demonstrated that at least the tribunal's practice is in a massive and multifarious way in severe breach of the Article 6 par. 1 standards.

Generally as well as well as specifically with regard to Mr. Milosevic.

431. But that is not the only point.

In the following it will also be proven that the opinion of the court, as expressed in the above mentioned judgement, namely that the content of the procedural law of the tribunal is to be seen as offering sufficient guaran­tees according to Article 6 par. 1 -  which opinion clearly has the character of a provisio­nal ruling given without a profound searching of the state of affairs concerning this tribunal -, has to be revie­wed as well.

VI.2.Violation of the Article 6 right to a fair trial by an independent tribunal by the fact that it will be im­possible in se to declare this so-called tribunal an independent tribu­nal

432. The tribunal is raised as a subsidiary organ of the Security Council, in accordance with Article 29 of the UN Charter.

A subsidiary organ of the Security Council is a subsidiary organ of the Security Council, and cannot be, at the same time, a totally independent institution.

433. As a subsidiary organ of the Security Council, it has also received a clear assignment by the Security Council: to func­tion as a Security Council measure to restore peace and order in the territory of the former Yugoslavia.

434. Of course this assignment clearly underlines, once more, that this tribu­nal simply cannot be an independent organ.

It is contrary to logic to qualify a subsidiary organ, with a clear political assignment, nevertheless as independent.

435. To state it the other way around: the tribunal cannot be, at the same moment, independent and a political instrument.

Because it can only perform the service of peace as an exten­ded piece of the Security Council.

Since the service of peace is an exclusive prerogative of the Security Council.

436. So this pretended independence can only exist in the imaginati­ons of the tribunal's protagonists, but not in reali­ty.

That would be an inherent contradiction.

437. The fact that it is a subsidiary organ, and moreover has been given with a clear assignment, cast its shadow before it actually is beginning to perform.

Like it is stated by Mr. Milosevic in his 'Presentation':

"The very psychology of the enterprise is persecutorial. Few judges appointed to serve on a tribunal created under such circunstances will feel free to acquit any but the most marginal, or clearly mistaken, accused, or to create an appearance of objectivity."

438. That the so-called tribunal is not independent is further proved by the fact that it is up to the Security Council to decide on its termination.

439. With respect to this factor, it is finally to be stressed that this datum greatly influences also the prosecution policy by the tribunal.

For knowing that its existence is only temporarly, and that it is up to the Security Council to decide when it will end, it has to set its prosecution's aims.

440. That the tribunal is not only not independent in se, but that it also abundandly shows this lack on independency in practice as well, will be considered later on in this applica­tion and in an additional application.

VI.2.a.Violation of the Article 6-right to a fair trial by the fact that the so-called tribunal is illegally founded by the Security Councel as an abuse of power and consequently do not represents 'an inde­pendent and impartial tribunal established by law'

441. The so-called tribunal was establised by the Security Council resolutions 808/93 and 827/93 and, as explicitly stated in this acts, in accordance with Chapter VII of the UN Charter.

442. So here is at issue a decision of the Security Council, and besides a unique and far-reaching one.

443. Without also explicitly pronouncing this, it is continu­ously suggested by many sides, that Security Council resoluti­ons are ultimate law and must always be obeyed unconditional­ly.

This suggestion, mala fide also strongly supported by the so-called tribunal, is false.

As already mentioned above and is confirmed by the Internatio­nal Court of Justice: States are not duty-bound to accept and implement the Security Council decisions that are not in accordance with the Charter.

See Advisory Opinion 21 June 1971 'Legal consequence of the protracted presence of South Africa in Namibia despite Securi­ty Council Resolution 276/1970'.

Which would, by the way, be clear by itself even if it where not written anywhere.

444. The fact that there is no obligation to label all Securi­ty Council resolutions authomatically as ultimate law, just blindly to comply, implies and justifies at the same time

a right - and even a duty - to inquire and test any Security Council resolution, in case that there will be reasona­bly ground to doubt its legality and legitima­cy.

445. Definitely there is abundant reason here to question the legality and legitimacy of this particular resolution.

Numerous scholars and other legal experts all over the world cast doubt on this this legitimimacy and legality, or even renounce this quite openly.

Including the indutable authority of Professor M. Bedjaoui, former President of the Internati­onal Court of Justice.

Who included 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 legalité des actes du Conseil de Sécurité"), Bruxelles, 1994, in the eight Security Council Resolutions that he considered legally most disputable and to be the first to be submitted to control, also both mentioned resolutions on the establisment of the so-called tribunal.

And like the eminent Dutch scholar in international law, Prof. P. de Waard, saying on Dutch radio on August 10, 2001:

"I think that the Security Council has transgressed its competence by creating this tribunal. That it is not to be sneezed at that the tribunal is about to make deep inroads into the private life of individual persons, and that this is going to be done by the Security Council, an non-demo­cra­tic instutition."

Also like, for instance, the American politic philosopher Lum­mis in The Nation of September 26, 1994:

"Where does the U.N. get the power to prosecute individu­als ? The International Tribunal was established by Secu­rity Council resolutions, but that answers nothing. Where does the Security Council get such power ? The legal ficti­on is that the power comes from Chapter VII of the U.N. Charter. Chapter VII authorizes the U.N. to deploy the armed forces of member states in peacekeeping operati­ons. Strech the words as you will, you cannot make them say that the U.N. has the power to put people in jail under criminal charges. On the contrary, the Charter, written by representatives of states jealous of their power, fall all over itself to insist that the U.N. may never usurp the sovereign rights of states."

446. In a separate addition to this application will be pre­sented a further comprehensive survey of scholars and their pronounce­ments, discrediting the legality and legitimacy of the so-called tribunal, from all over the world. 

447. Of course there can be no discussion about the point that Article 41 of the UN Charter 'empowers the Security Council to adopt measures, not involving the use of force, to give effect to discharge its obligation under Article 39 to maintain or restore international peace and security' and that 'Article 41 lists certain measures which may be taken by the Security Council', as is stated by the tribunal in the 'Decision on preli­minary motions' of 8 November 2001.

These are matters of fact.

448. But even when it would be true that, as is also declared under 6 of this Decision, 'it is perfectly clear that the list is not exhaustive..', which can already seriously doubted from a legal point of view, even then the continuation of this sen­tence, layed down by the tribunal, is absolutely and manifest­ly untenable.

This sentence continues: '..and that it is open to the the Security Council to to adopt any measure other than those specially listed (emphasis added), provided it is a measure to maintain or restore international peace and securi­ty.'

449. It is impossible to view this position of the tribunal as a correct interpretation of law.

For of course it is untrue that the Security Council might adopt any measure whatsoever, if aimed at maintaining or restoring international peace and security.

Nevertheless this is what the so-called tribunal wants every­body to believe.

450. The implicit assumption that is hidden behind this state­ment and that the so-called tribunal intends to introduce, is that the words of the Security Council are ultimate law.

And that the authority of the Security Council is so absolute, that any decision by the Security Council is te be accepted without further ado as legal and legitimate, and finally that thus a check with regard to legality and legitimacy would be not only unnecessary, but even contrary to international law.

451. Like it is stated by Mr. Milosevic in his 'Presentation on the illegality of the ICTY and the illegality of the sur­render to the ICTY', dated 30 August 2001:

"Unless It Is Limited By The U.N. Charter And Interna­ti­o­nal Law, The Security Council Can do Whatever It Choos­es To Do

If is is not restrained by the United Nations Charter, the Security Council can commit any act it desires disre­gar­ding all law. Early proponents of the United States world power claimed such unbridled discretion for the Security Council publicly. Thus is 1950 John Foster Dulles wrote:

"The Security Council is not a body that merely enforces agreed law. It is a law into itself.. No principles of law are laid down to guide it, it can decide in accor­dance with what it thinks is expedient."

If unchallenged, this concept of Security Council power means that the most powerful international organ created by the Charter of the United Nations "to end the scourge of war" is above all law, domestic and international."

452. But such a thesis, also mala fide sponsored by the the so-called tribunal, cannot be accepted.

Because, as is also emphasized in the above mentioned judge­ment of the Internatio­nal Court of Justice of 21 June 1971, States are not duty-bound to accept Security Council resoluti­ons that would be in contravention of interna­tional law.

453. And this being so, as a consequence, it will next

pre­suppose, as yet a further assumption, that there should exist a basic right to check the legality and legi­tima­cy of Security Council resolu­tions.

So that finally it must also to be accepted that there exist a place for such a check.

So a check on the legality and legitimacy of Security Council resolutions with respect to the establishment of the tribunal is permissible and lawful.

454. But besides this, it is, of course, a bit like being led up the garden path by the tribunal when it tries trying to make us belie­ve that the Security Council, from a legal point of view, might adopt 'any measure, other than those listed in Article 41 of the Charter'.

The Security Council can not, because also the Security Coun­cil is also bound by the Rule of Law, and especially, of course, by the UN Charter.

So the Council cannot take measures which exceed this frame­work.

And if and when the Council - nevertheless - does take such measures, it inevitably exceeds its authori­ty.   

455. From the perspective of inquiring into the establishment of the tribunal by the Security Council, the follo­wing must be noted.

456. Nothing in the UN Charter indicates the existence of a right of the Security Council to perform any judicial functi­on.

457. Moreover, there is no indication whatsoever within the frame­work of the United Nations, its embodiments and regulati­ons, that the Security Council would in any case have the right to perform any judicial function with regard to the legal position of indivi­dual citizens.

The so-called tribunal is intended to be a subsidiary organ of the Security Council, according to Article 29 of the UN Char­ter.

Since the Security Council don't possess a right to perform such judi­cial function in general, it also cannot transfer such compe­tence in general to any subsidiary organ.

Because the Security Council cannot transfer any powers that it does not hold.

458. Moreover, the Security Council cannot tranfer any judici­al function with regard to, more specifically, the legal position of individual citizens.

This is because there is no trace in the UN Charter that permits any United Nations body to penetrate directly into the private lives of individual citizens of UN Member States.

459. So too, this non-existent power cannot be transmit­ted by the Security Council to a so-called tribunal.

As Mr. Milosevic has already stressed in his 'Presentation':

"There are three fatal legal flaws in the so called Inter­national Criminal Tribunal for the former Yugoslavia. Each has disastrous consequences for the human quest for peace, the rule of law, democracy, truth and justice.

1.The Charter Of The United Nations Does Not Empower The Security Council To Create A Criminal Court

The U.N. Security Council has seized power it does not posses, corrupting the Charter of the United nations, placing itself above the law and threatening "We Peoples of the United Nations" with a lawless future in which a superpower employs the scourge of war to have its way. Nothing in the history of the planning, drafting, discus­sion, approval or ratification of the U.N. Charter im­plies, or is consistent with an intention to empower any body created by, or under, the Charter to establish any criminal tribunal. The words of the Charter and their textual inferences, the structure and allocation of power and duties, including those in the incorporated Statute for the International Court of Justice, all negate the existence of any capacity under the Charter to ordain criminal courts. The Criminal Tribunal for Former Yugosla­via is illegitimate and its creation a corruption of the United Nations.

There would never have been a United Nations if its Char­ter stated, or implied, that a criminal court could be created under its authority.

No one who believes in historical truth, or that words have meaning, can, after examining the history of its creation and its text, contend that the Charter of the

United Nations empowers the Security Council to create a criminal court."

460. As stated before, any presumption that all act of t­he Security Council are to be considered a priori as well done from a point of view of law, is unacceptable.

461. The so-called tribunal claims this discretion for the Security Council - and, thereby, for itself -, in order to achieve its politi­cal aims.

As also stressed by Mr. Milosevic in his above-cited 'Pre­sentation':

"Creation Of The International Criminal Tribunal For The Former Yugoslavia Was A Lawless Act Of Political Expe­diency By The United States Designed To Demonize And Destroy An Enemy And Frustrate Creation Of A Legitimate International Criminal Tribunal

At the insistence of the U.S. the Security Council nearly fifty years after it came into being forged a new and powerful weapon capable of demonizing a nation and its people and depriving individuals of their liberty for the rest of their lives and placed it largely in the hands of the United States.

The principal precedents for such pseudo-judicial actions over several millennia preceding the creation of the U.N. are trials of leaders and soldiers of vanquished populati­ons by the victors in war, and courts used by colonial powers to control and punish subjugated peoples. The precedents are many and the violence and hatred they usually exposed and caused was extreme."

462. So the establishment of the so-called tribunal was a lawless act by the Security Council.

463. But even if the Security Council were to be considered as being competent to perform judicial functions, and in that respect, even permitted to penetrate directly into the private life of individual citizens - which is definitely not the case -, then still the Security Council would not be allowed to trans­fer such a competence to any subsidiary organ, such as, for in­stance, the tribunal, if this presup­posed competence is meant to have the scope of measure under Arti­cle 39 of the UN Char­ter, so intended to be a measure under Chapter VII of the Charter, aimed at maintaining and restoring international peace and security.

464. Because within the the powers it has, the Security Coun­cil may not transfer to its subsidiary organs any of its decision-making rights.

465. This interpretation is also confirmed by Article 28 of the Rules of Procedure of the Security Council, adopted on 24 June 1946 and based upon Article 30 of the UN Charter.

Though these Rules of Procedure, after more than 55 years, still have a provisional status, they nevertheless represent an important source of explication.

466. Article 28 of the Rules of Procedure of the Security Council reads:

"The Security Council may appoint a commission, a commit­tee or a rapporteur for a specific question."

So this is the way the UN Charter's most important interpre­ters, a year after the adoption of the UN Charter, meant to dea­l with the question of what kind of subsi­diary organs the Security Council might establish, in order to implement Arti­cle 29 of the Charter.

This interpretation was given by the founding fathers, repre­sentatives of the Key UN founding members, who played a promi­nent role, and other notably important people, such as Ernest Bevine, George Bi­dault, Joseph-Paul Boncour, Edward E. Steti­nius Jr., Andei Y. Vyshinsky and Andrei A. Gromyko. 

Appointment of a committee, commission or rapporteur is miles away from trying to make use of Article 29 of the UN Charter in order to transmit decision-making rights, belonging insepa­rately to the Security Council itself, to one of its subsidia­ry organs.

467. And finally this.

Even ifthe Security Council were to be considered as compe­tent to perform judicial functions, even to the extent of penetra­ting directly into the legal order of the UN Member States and consequently into the private lives of individual citizens of these Member States, and even if the Security Council were competent to transfer decision-making power to its subsidi­ary organs, even all this still would not provide the so-called tribunal with the competence to present all its separa­te decisions, orders and warrants as measures within the frame­work of Chapter VII of the UN Char­ter.

468. Because in order to reach this specific status, there are strictly prescribed procedures. And it is not possible to derogate these provisions.

469. So even when the Security Council has to be regarded as, theoretically, being capable of trans­ferring decision-making power to any of its subsidiary organs, even then this compe­tence actu­ally can not be properly executed by this subsidiary organ.

Since each decision of this subsidiary organ must follow the same comprehensive procedure as any decision by the Security Council itself, in order to gain the status of 'mea­su­re to maintain or restore international peace an security'.

470. So even in that case, each order, decision or warrant issued by the so-called tribunal, not having followed these lines of the comprehen­sive proce­dure, prescibed in the UN Charter, in order to reach a valid 'measure to maintain or restore international peace and security', could in no way whatsoever be sold as 'a measure to main­tain or restore inter­natio­nal peace and security'.

471. Nevertheless, the so-called tribunal is basing its whole pretended power on this clearly false and untenable assumpti­on that all its - countless ! -  orders, decisions and war­rants must be seen as, one by one, as just such separate 'measu­res to main­tain or restore international peace and security' !

472. This clearly is nonsense, from the perspective of the UN Charter.

473. However, establishing that this assumption of the tribu­nal is nonsense, from a legal point of view, at the same time knocks out from under it the very fundaments that support this so-called tribu­nal.   

VI.2.b.Conclusion

474. The Security Council cannot perform any judicial functi­on.

Moreover, it cannot perform any judicial function inter­fe­ring with the sovereignty of States.

The Security Council, in any case, cannot claim lawfully judicial functions directed against individual citizens of States and penetrating directly into their private lives.

475. If the Security Council should, nevertheless, be suppo­sed to have such power, as a legal and legitimate power under Chapter VI of the UN Charter, then this power is definitely to be consi­dered as a decision-making right.

It is then to hold that such a decision-making power is only to be used by the Security-Council itself and cannot be trans­ferred.

476. If, in spite of this, it is to be assumed that the Secu­rity Council can transfer decision-making power to any of its subsidiary organs, then such a subsidiary organ can only claim that its measures be judged as measures accor­ding to Chapter VII of the UN Charter, when such measu­res are to be establis­hed in accordance with the procedure pres­cribed in the UN Charter for the establisment of measures of enforcement.

477. There is no order, warrant, measure or verdict, issued by the so-called tribunal, that can meet this standard.

478. So there are definitely no legal terms to qualify any order, warrant, measure or verdict by the so-called tribunal as an enforcement measure in accordance with Chapter VII of the UN Char­ter.

479. As a consequence thereof, nobody is hold to comply with such acts of the tribunal.

VI.3.a.Violation of the Article 6-right to a fair trail by the fact that the tribunal is illegal too, and, since it infringes, on two separate and dis­tinct ways, on the prin­ciple of the sovereign equality of States, is not an impartial and independent insti­tution as well

480. As had it is already been pointed out under chapter V of this appli­cation, the most outstanding principles of interna­tional law are the principles of sovereignty and equality of States.

The UN Charter itself is even built on these two basic prin­ciples.

481. And they have the status of ius cogens. Which means that these leading principles must be respected under all circum­stances.

VI.3.1.a.Violation of the principle of sovereign equality by the mere establisment of the tribunal and, in doing so, the creation of a discriminatory pro­se­cuti­on in contravention of Article 6 of the Convention

482. So it undeniable that the Security Council too is bound to respect this principles unimpairedly.

483. It is, in fact double-bound.

Firts by the general principles of customa­ry inter­national law with a peremptory status, and second and more specifical­ly, by the UN Charter itself.

484. It is also pointed out already under chapter V of this application, this tribu­nal drastically violates by its perfor­mance and the way it was established, the prin­ci­ple of sover­eignty as well as the principle of equality.

485. The fact that the Security Council pretends that it may set aside, at the same time, ànd the principle of sovereignty ànd the the principle of equality - and this even under the blatant hypocritical pre­text that the victimized States would hold their sovereignty -, is to be qualified as the worst thin­kable violation of international law and of the UN Charter by the Security Council.

486. In fact this is a pernicious action, instigated and wringed by the United States, the sole remaining superpower in the world. Which succeeds more an more in molding also the Security Council to its will.

With total disregard of what is law or not.

487. The position of disproportionate domination by the the Security Council - and within the Security Council itself, by the United States -  is also strongly denounced by Mr. Milose­vic in his 'Presenta­ti­on':

"All but fifteen nations are excluded from Security Coun­cil counsels. Each of the five permanent members can veto its actions. The Security Council is subject to domination by a single nation. The representative of each member votes as instructed by the national governments that appoints him and to serve the interests of that govern­ment, not as an international statesmen serving all peop­les and the purposes for which the U.N. was created. The Security Council is inaccessible, anonymous and less responsive to democratic processes than any other interna­tional politi­cal institution."

The result of this is, as is also stated by Mr. Milosevic in his pre­sentation, that:

"All rights of all nations, races, religions, cultures, poli­ti­cal parties and individuals are thereby subordinated to the will of the Security Council, and the single super­power that too ofter will dominate it."

488. A pernicious action by this single remaining superpower, the United States.

That would never tolerate such kind of blunt interfe­rence in regards to its own sovereignty, as it has instiga­ted to impose upon the States on the territory of the former Yugosla­via. By forcing the set-up of this so called-tribunal.

489. So not only having made a mockery of the principle of sover­eignty with respect to the States of the former Yugosla­via, but also having made a traves­ty of the basic principle of equality between states, which is a leading princi­ple of the United Nations, the UN Charter and internati­onal law. 

VI.3.2.a.Violation of the principle of sovereign equality by the set up of the tribunal as limited in space and time in its competence and, by acting so, the crea­tion of a discriminate prosecution in contra­vention of Article 6 of the Conventi­on

490. There is also a second important breach of the principle of sovereign equality: the fact that the tribunal and its task are limi­ted to the territory of the former Yugoslavia only, and that this so-called tribunal is, further, also limited in time.

491. The last point, the limitation in time, will be conside­red later on. The first point wil be elaborated now.

492. In the 'Decision on preliminary motions', dated 8 Novem­ber 2001, it is stated by the so-called tribunal that this will be no problem:

"8. The accused argues that the creation of an ad hoc court targeting one country "corrupts justice and law"; that an ad hoc court "violates the most basic principles of all law (..)".

9. Human rights bodies have, on several occasions, pronounced on the legitimacy of ad hoc tribunal (13). The decisions of these bodies establish that there is nothing inherently illegitimate in the creation of an ad hoc judicial body, and that the important question is whether that body is established by law, in the sense that, as it is stated in the Tadic Jurisdiction Appeal, it "should genuinely afford the accused the full guarantees of fair trail set out in Article 14 of the International Covenant on Civil and Political Righ­ts. (14)"

493. First of all, the so-called tribunal builds its defense on this specific point primarily upon its own ruling. Actually in the Tadic case.

Of course this cannot be seen as a strong argumentation: an ad hoc tribunal parrying the challenge of the legitimacy of its own ad hoc status by reference to its own jurisprudence.

494. Secondly, the reasoning in the Tadic verdict is careless and manifestly incorrect.

Since an separate importance must, of course, be ascribed to the factor 'establishment of a court by law'.

This factor 'establishment by law' forms a separate basic right, that can be claimed. 

495. And incorrect is the conception, pronounced in the 'Deci­sion', that this specific requirement would be covered automa­tically when a defendant 'is afforded the full guarantees of fair trial set out in Article 14 of the Interna­tional Covenant on Civil and Politi­cal Rig­hts'.

There must be, at the very least, shown any evidence of this implementa­tion - evidence which is, by the way, completely lacking.

496. Thirdly, it is simply not true that, when an ad hoc court once would have been 'established by law' and/or 'the full guaran­tees of fair trial set out in Article 14 ICCPR had been affor­ded', the objections against the selective and dis­crimi­nate character of prosecution would be lifted.

Such objections are, after all, of a complete different nature as covered by the Article 14 ICCPR-provisions. 

497. The position set forward by this application, is that there exists a discri­minate prosecution policy, which is demonstrated by the fact that only parti­cu­lar alleged suspects are going to be prosecu­ted, but elsew­here in the world everyo­ne suspected of the same kind of crimes go free.

498. And this problem is not met by any guarantee whatsoever that this dis­cri­minated category suspects, who actually are prosecu­ted, will be prosecuted by a court - yes or no - 'esta­blished by law' and - yes or no - in accordan­ce with 'the full guarantees of fair trial set out in Article 14 ICCPR'.

That affects not at al the discriminate nature of this prose­cution and the assault on the principle of sovereign equali­ty this discrimination represents.

499. So this reasoning by the so-called tribunal, in the Tadic decision as well in the 'Decision on preliminary moti­ons' of 8 November 2001, leaves even these objections completely untou­ched !

500. Moreover, this reasoning by the tribunal is even unfair with respect to its own position, which is, as has been said, already in itself passing the problem.

501. First of all, the tribunal suggests that the law iself, which the law that would have no further problems with such discriminate courts, once the requirements of Article 14 ICCPR have been properly met.

However, on the other hand the tribunal itself, in a footnote to the 'Decision on priliminary moti­ons', says that it will be 'the Covenant' that might not be radically opposed to 'milita­ry or special courts', at least according to the Gene­ral Comment of the Human Rights Committe on Article 14 of the ICCPR.

However, there is no identity between the Covenant and the law.

This specific point will be elaborated later on.

502. The first question here is, whether this speci­fic Yugo­slavia tribunal, which is only prosecuting crimes against humanita­rian law in the former Yugoslavia, is of the type of courts as meant in the comment of the Human Rights Committee on Article 14 ICCPR.

503. Moreover, this comment, taken for what it is worth, is reproduced unfairly by the tribunal in the body of the 'Deci­si­on on preliminary motions'.

The full text of the relevant footnote 13 reads:

"See, e.g., paragraph 4 of the General Comment of the Human Rights Committee on Article 14 of the ICCPR where it is stated: "[T]he Covenant does not prohibit [military or special courts which try civilians], nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very excepti­onal (emphasis added) and take place under conditions which genuinely afford the full guarantees stipulated in Article 14."

504. So the first condition, stressed in the General Comment, for any 'special court' is clearly stated: the trying of civilians by such courts 'should be very exceptional'.

505. This prominent element of the general Comment is totally completely hidden by the so-called tribunal in the body of the 'Decision on preli­minary motions' !

506. So it is even not tenable that the General Comment backs any 'special court' whatsoever, more than that the trying of civilians by such 'special court' has to remain 'very excepti­onal' !

507. Which is a complete different outcome than what is false­ly suggested in the 'Decision'.

508. And this still apart from the question, whether the Yugoslavia tribunal is to be seen truly  as a 'special court' according to the lines suggested by this General Comment.

509. But even so a so-called court like the Yugoslavia tribu­nal is to be regarded as a 'special court' according tot the lines of the General Comment - and this General Comment would form indeed a correct interpretation of the con­tent of the ICCPR -, then this only means that the Covenant does not prohibit such a so-called court like the Yugoslavia tribunal, en this still under the strict condition that 'the trying of civilians should be very exceptional'.

510. And also in these circumstances that the Covenant does not prohibit such tribunal, it cannot be reasonably concluded that the law therefore positively allows such type of tribu­nal.

This because, of course, the Covenant is not the whole law, nor is it the only source of law.

511. The point is: criminal offences of the same nature as those only prose­cuted within the territory of the former Yugo­slavia - and some other particularly assigned relatively small areas, like Rwan­da - are going to be committed in many war-torn areas all over the world.

And dealing with such crimes only in a particular space, and subjecting to punishment for such crimes only people within this specific area, is nothing less than the establishment of a highly selective justice.

But selective justice cannot be considered true justice.

512. As stated by Mr. Milosevic in his 'Presentation':

"2.A One Time, One Episode Court Targeting One Country, Created By International Political Power To Serve Its Geo-Political Interests Is Incapable of Equality And Conducive to Division and Violence

The illegitimate Criminal Tribunal for Former Yugoslavia corrupts justice and law because it is incapable of acting equally among nations, or within the politically targeted nation. It will increase violence, division and the risk of war with neighboring nations and peoples and within Yugoslavia among the segments of the society the U.S. policy of balkanization of the Former Yugoslavia has set against each other and against the new government the U.S. has installed for its own purposes.

If the United Nations Charter had authorized the Security Council to create criminal courts, it could not create a court for one nation, or episode for political purposes, to persecu­te selected groups, or persons and such a court is incapable of equal justice under law.

An ad hoc court viola­tes the most basic principles of all law. Equality is the mother of justi­ce. An international court established to prosecu­te acts in a single nation and primarily, if not entirely, one limited group is pre-programmed to persecute incapable of equality.

If the Security Council can create a criminal court to prosecute conduct in a single country like Yugoslavia, it can appoint a court for any country, selecting enemies or political and economic opportunities for targeting one at a time, while never exposing itself, or those who comply with its wishes to such selective prosecution.

If the U.S., or any ally or client state it chose to pro­tect, was the subject of a serious effort by the Security Council to be honored with a criminal tribunal in its own name, the U.S. would veto the threatening action.

A Court created only for crimes in one country is by definition discriminatory, incapable of equal justice, a weapon against chosen ennemies, or antagonistic interests and war by other means. If there is to be any internatio­nal criminal court, it must act equally as to all nations with none above the law. The ad hoc tribunal for a single nation corrupts international law.

By its very nature, the ad hoc Tribunal can be created only after the conduct the Security Council decides that justifies creation of the Court, since there is no other excuse for its creation. It is in every case ex post facto. This violates an ancient principle of law.

It also requires the Security Council, if there is to be a rational basis for its action, to make some preliminary claim to finding of facts. A task such a political body is not designed for, that inherently incriminates a country, or faction by placing the imprimatur of the Security Council of the United Nations on a political decision of fact necessesary to justify creation of the Tribunal. The very charge of the security Council - genocide, crimes against peace, war crimes, or crimes against humanity, demonized any person thereafter accused.

The Selection Of A Nation For Prosecution On Political Findings Of genocide, War Crimes And Crimes Against Humanity Creates A Compulsion To Convict

Investigators, prosecutors and administrative personnel who join a temporary Tribunal to pursue allegations of humanities' greates crimes against a people and leaders already demonized will feel they have failed if thre are not convinctions.

The very psychology of the enterprise is persecutorial. Few judges appointed to serve on a Tribunal created under such circumstances will feel free to acquit any but the most marginal, or clearly mistaken, accused, or to create an appearance of objectivity.

Powers That Create Ad Hoc International Criminal Tribu­nals Divert Attention From Their Own Offenses, Or Fail­ures, Or Those Of Allies And Their Political Surrogates While Continuing To Inflect and Threaten Mass Destructi­on With Impunity

The ad hoc Tribunal which targets a country is incapable of prosecuting what may be greater crimes committed in the same conflict, by a power, coalition ally or political agents that was and remains a much greater source of violence and threat to peace.

Most often the power which forced the creation of the target tribunal to further damage and demonize thier enemy is shielded from criticism by the avalanche of propaganda against the accused supported by the appearance of United Nations neutrality and peace making efforts.

What court will consider the criminality of the aerial bom­bardment by U.S. aircraft of defenseless civilians, their housing, water systems, power plants, factories, office buildings, schools, hospitals, wich take thousands of lives directly and causes billions of dollars of pro­perty damages in Belgrade, Nis, Novi Sad and scores of other cities, tows and villages ? What threat to peace continues from the U.S. bombing of the Chinese Embassy ?

Who will be held accountable for the devastation of Pris­tina by NATO planes, or the attacks on refugee columns in Kosovo ? Is the U.S. use of cluster bombs exploding razor sharp metal fragments over an area as large as a soccer field in the courtyard at the hospital in Nis no crime ? Will the Security Council act to prevent and punish the use of depleted uranium by the U.S. which is as indiscri­minate in its radiation as the air, the water, the soil and food chain it touches and contaminates for millions of years ?"

513. What was further already pointed out in chapter V of this application, on the speci­fic issue of the present parap­raph, must alsobe be repeated and inserted here.

VI.3.b.Conclusion

514. The set up of the so-called tribunal in itself already in creates a grave violation of the sovereign equality of states, and this violation is further aggravated by the determinati­on that the so-called tribunal is limited in space and time.

515. These violations of the sovereign equality inevitably generate a discriminate prosecution policy, charging only people of the States whose sovereignty is afflicted with crimes against humani­tarian law, but keeping well out of view people, suspected of the same crimes, but orginating from States with a sovereignty not equally affected.

516. This inherent discriminatory persecution is a violation of Article 6 of the Convention.

VI.4.a.Violation of the Article 6-right to a fair trail by the fact that the tribunal is also unlawfull and consequently not an independent and impartial insti­tution, since this so-called tribunal lacks democra­tic legitimation as deemed to be essen­tial for any penal court in the world

517. Formally, the so-called tribunal is a product of the Security Council, but actually, as the whole world knows very well, it is forced into existence by only one power, the United States of Ameri­ca.

518. But even in view of only this formal side - its being a product of the Security Council as such -, there were only a few countries involved in the establishment of this tribunal.

Namely the mere handful of States, that constituted the Secu­rity Council at that time.

519. And nothing was asked of the sovereign States who were subjected to this humiliating operati­on.

In fact, they have all firmly and consistently opposed this abuse of power.

520. But the Security Council, under the decisive influence of the United States, did not care at all about this resistence, which must nevertheless be regarded as a matter of great legal impor­tance.

521. Instead of being worried about this resistence, the Security Council raised threats as well as measures of enfor­ce­ment against this general defiance by the duped States.

In actuality, of course, harsh enforcement measures against Yugoslavia and only threats against the other defiant States on the territory of the former Yugoslavia.

Such an unbalanced way of reacting also specificly instigated by the so-called tribunal.

522. So all that was concerned and involved in this process of giving birth to this tribunal, its implan­tation into the international legal order, and its interference with the sovereignty of the rele­vant States on the territory of the former Yugoslavia, was, to be honest, actually only influenced decisively by one state.

Or, formally viewed, this birth was given by, at most, only a handful of States, united in the Security Council.

523. It is in this context that the demands for whatever court in the sphere of legality and legitimacy must be viewed, made by the most important human rights in­struments.

May such a type of court be considered democratically accepta­ble.

524. The first sentence of Article 6, par. 1 ECHR reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is enti-

t­led to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

And the last part of the second sentence of Article 14, par. 1 par. 3 ICCPR reads:

"...everyone shall be entitled to a fair and public hea­   ring by a competent, independent and impartial tribu­   nal esta­blished by law."

525. So, according to two of the most important human rights provisi­ons, the element 'established by law' forms a integral and consti­tu­ent element for any court, if it is to lay claim to legitimacy and legality.

526. The background is clear: an essential and indispensable condi­ti­on for any court will be that it shall be democrati­cally legalized and founded.

527. The element 'establish by law' first of all means that it should be guaranteed that any court that is to be esta­blished, must be based upon and supported by a broad and solid back­ing.

Providing the court concerned, by this way of establisment, with the element 'democratic legalization'.

528. But there is more.

The democratic process, presupposed by the human rights condi­tion 'established by law', not only guarantees a broad and democratic backing, but also guarantees that there shall be a deep discussion in the phase of the creation of the court about all aspects of the bill, and an in-depth investigation on all issues of legality and legitimacy throughout the diffe­rent stages of the law-making process.

529. These are not just safeguards against the unli­kely event that an occasional court might suddenly arise as an instru­ment of power and oppression by undemocratic ele­ments, but also against the origin of any court that may not be in accor­dance with the basic requirements of legality and legitimacy.

530. Both safeguards were totally absent when the Security Council gave birth to this so-called tribunal.

There was no 'democratic legitimation' at all.

531. And any controll about the the so-called tribunal's future compliance, as far as possible, with basic require­ments of lega­lity and legiti­macy, as guaranteed by any democratic process, was likewise complete­ly absent.

This means: any control was absent about its compliance with basic requi­rements of legality and legitimacy, not only with regard to the realiza­tion of the tribunal itself, but also with regard to the creation of the so-called tribunal's rules, fabricated after­wards by the tribu­nal's judges and the judici­ary appara­tus itself.

532. All the business about the creation of the tribunal and the creation of its rules was over and done with by, at the most, a handful of States and the tribunal's own in­crowd.  

533. Even the United Nations as such was not given a chance to get involved in this process.

This because such an involvement obviously didn't suit the purposes of the most power­ful ele­ments within the Security Council and of the so-called tribu­nal itself as well.

534.The participation of the United Nations would still have provided at least a tendency towards democratic legitima­tion.

But even that was asking too much.

It was all done by the Security Council and the tribunal it­self, based upon their pretended discretion.

535. In spite of the fact that, as it is stressed by Mr. Milose­vic in his 'Presention':

"... absolute discretion is the very definition of law-

­les­sness and has been called 'more destructive of freedom than any other of man's inventions' by U.S. Supreme Court Justice William O. Douglas."

536. In Prosecutor v. Tadic, Case, Case no IT-94-I-T, T.Ch.II, 1o August 1995 I ICTY JR 63, ALC-I, p. 13 etc., confirmed by Appeals Chamber, Case No. IT-94-I-AR72, 2 October 1995, I ICTY JR 353, ACL-I, p.33, etc., the so-called tribunal itself admits, under 43, that the element of 'establishment by law' is absent as far as the tribunal is concerned.

537. Nevertheless the tribunal calls this absence of that condition, which is to be considered a part of basic human rights, in the Tadic sentence nevertheless inevitable, in case of an interna­tional embodiment like the Yugoslavia tribu­nal. This since an international organisation, like the the United Nati­ons, would be not capable to accomodate the element of the sepa­ra­tion of powers. Such in conformity with the demand of Article 14 ICCPR that a judicial organ must be 'established by law'.

538. That this argument of, accordingly, 'having clean hands' is also com­pletely unjustified as a fact, and therefore is a false argu­ment, will be elaborated later on.

539. Here it is only the place to state that this expli­cit admis­si­on in the Tadic-case, that there exists no provisi­on within the regulations of the so-called tribunal to cover this Arti­cle 14 ICCPR, jo. Article 6 par 1 Convention-requirement, is in contra­diction to what the tribunal put forward in the 'Decisi­on on preliminary motions' of 8 November 2001 in the case of Mr. Milosevic.

540. In this 'Decision' it is proclamed under 9 that the Tadic-case indicates that when a 'body is established by law, in the sense that (...) it "should genuinely afford the accu­sed the full guarantees of fair trial set out in Article 14 of the International Covenant on Civil and Political Rights"', eve­rything would be all right, which suggests that this human rights demand to being 'establisment by law' is not absent at all from the frame­work of the tribunal's regula­tions, but is seen as imple­mented within the whole of the 'already gua­ran­teed Arti­cle 14-provi­si­ons'.

541. So it is once again clear that the tribunal, in order to keep Mr. Milosevic in its jail, is prepared to rewrite its own previous jurisprudence. 

542. Not even hesitating to write down statements flatly in contradiction of any inherent logic.

For how is it possible to assure to any person 'the full (emphasis added) guarantees of a fair trial, as set out in Article 14 of the International Covenant on Civil and Politi­cal Right­s', when the Article 14-element of 'establishment by law' is completely absent ?

543. The need to provide such a far-reaching step as the setting up of an international criminal tribunal with democra­tic legitimati­on, as stipulated for any penal court by the most distinguis­hed human rights conventions, leads inevitably to the conclu­sion, as drawn by Mr. Milosevic in his presenta­tion:

"An International Criminal Court Can Be Created Only By A Multinational Treaty, Or Amendment To The Charter Of The United Nations

The national representatives who have served on the Secu­rity Council and in the General Assembly and the scholars, lawyers and experts who have labored for more than thirty years to bring into being an international criminal court have recognized that the only lawful and binding way such a court can be created is by an agreement among nations through a treaty agreed upon for that purpose, or by amending the Charter of the United Nations under its strict provisions regulating amendments to authorize, or establish such a court."

544. The Secretary-General of the United Nations also realized that this should be the procedure that must be follo­wed.

In his 'Report pursuant to paragraph 2 of the Security Council Resolution 808 (1993)', S/25704, dated 3 May 1993, he writes:

"18. Security Council resolution 808 (1993) states that an international tribunal shall be established for the prose­cution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991. It does not, however, indicate how such an international tribunal is to be established or on what legal basis.

19. The approach which, in the normal course of events, would be followed in establishing an international tribu­nal would be the conclusion of a treaty by which the States parties would establish a tribunal and approve its statute.

This treaty would be drawn up and adopted by an appropria­te international body (e.g., the General Assembly or a speci­al convened conference), following which it would be opened for signature and ratification. Such an approach would have the advantage of allowing for a detailed exami­nation and elaboration of all the issues pertaining to the establishment of the international tribunal. It also would allow the States participating in the negotiation and conclusion of the treaty fully to exercise their sovereign will, in particular whether they wish to become parties to the treaty or not."

545. And that's exactly the point !

So the Secretary-General understands quite well what has to be considered the lawfull procedure which must be followed in order to reach such a tribunal.

546. However, with regard to the Balkans - the former Yugosla­vi­a -, such principles suddenly become irrelevant and can be abandonned without any problem.

547. The Secretary-General continues therefore:

"20. As has been pointed out in many of the comments recei­ved, the treaty approach incurs the disadvantage of requi­ring considerable time to establish an instrument and then to achieve the required number of ratifications for entry into force. Even then, there could be no guarantee that ratifications will be received from those States which should be parties to the treaty if it is to be truly effective.

21. A number of suggestions have been put forward to the effect that the General Assembly, as the most representa­tive organ of the United Nations, should have a role in the establishment of the international tribunal in additi­on to its role in the administrative and budgetary aspects of the question."

548. But the United States disagreed with this proposed invol­vement of the UN General Assemby, so the General-Secretary continues:

"The involvement of the General Assembly in the drafting or the review of the statute of the Inter­national Tribunal would not be reconcilable with the urgency expressed by the Security Council in resolution 808 (1993). The Secre­tary-General belie­ves that there are other ways of invol­ving the authority and prestige of the General Assembly in the establishment of the International tribunal.