Constitutional Expert Says Serbia Violated Federal Constitution

Cross examining constitutional law expert Dr. Ivan Kristan, Mr. Milosevic opened a door the Trial Chamber had firmly closed in an earlier ruling, though it was not in his interest to do so. In May 2003, the Chamber ruled that Dr. Kristan would not be allowed to testify on issues related to the revocation of Kosovo's autonomy and its right to self-determination because he had earlier expressed his opinion on them when the issues came before the SFRY Constitutional Court. At the time, he was a member of that federal judicial body. The Chamber concluded his expression of an opinion rendered him insufficiently disinterested to comment on the issues as an expert in this trial. The Constitutional Court did not come to a final decision on the Kosovo issue. [See CIJ Report 'Court Finds Former Constitutional Court Judge Not Sufficiently Disinterested,' May 23, 2003]

While lead prosecutor Geoffrey Nice concentrated on eliciting Dr. Kristan's testimony on the structure of military and civilian command under the SFRY, FRY and Serbian constitutions, Mr. Milosevic spent a good deal of time questioning him about his opinions on Kosovo. Though the Court cautioned the Accused against this line of questioning, it allowed him leeway as a self-represented accused, possibly assuming he was pursuing it to attack the witness's credibility.

Mr. Milosevic began by reading from a 1981 article the witness wrote concerning Kosovo Albanian efforts to establish a republic or secede from Yugoslavia and join with neighboring Albania. Dr. Kristan said the article was based on what he understood to be the truth at the time, which he later learned was incorrect. Mr. Milosevic's opening allowed the witness to provide the Court with a summary of the evidence they had prohibited.

According to Dr. Kristan, the 1974 SFRY Constitution provided for the protection of minorities, of which the Albanians and Hungarians were two. Other groups had the status of nationalities and were given republic status within a federal structure. Areas of Albanian (Kosovo) and Hungarian, Slovak, etc. (Vojvodina) concentration, were recognized as autonomous provinces. Under the principle of parity, however, they had equal status with the republics as members of the federal presidency (which consisted of eight members elected by the Assemblies of each republic and autonomous province). Despite the constitutional guarantees, in reality Albanians were subordinated to the Serb minority in Kosovo, Dr. Kristan testified. It was for that reason they sought republic status.

Despite admonitions from the bench (judges), the Accused continued questioning the witness about Kosovo. Dr. Kristan obliged him by explaining that Serbia illegally revoked Kosovo's autonomous status by 1989 amendments to the Serbian constitution and adoption of a new constitution in 1990. As a result, Dr. Kristan said, 'You abolished their [Kosovo's] constitution, assembly . . ., presidency, . . . and constitutional court.' In the witness's expert opinion, Serbia's action violated the SFRY Constitution which had established provincial autonomy and, therefore, retained from the federal government the sole right to revoke it. He went further and said that when Milosevic directed the Serbian Assembly to replace the Kosovo representative on the federal presidency, the act was unconstitutional. These actions by Serbia affected all of Yugoslavia as they changed the power structure at the federal level.

Continuing with his cross examination, Mr. Milosevic opened another subject that might best have been left alone in the service of his interests. He asked the witness why he had 'kept silent' about Article 135 of the 1990 Serbian Constitution in his report. Article 135 has two paragraphs. Milosevic referred to the first one, which provides that the rights and duties established in the Serbian Constitution must be carried out in accordance with the SFRY Constitution. Judge Robinson asked that the second paragraph be read by the interpreters as well. It provides that when enactments of federal agencies or another republic infringe on the equality of the rights of Serbia or in another way jeopardize its interests without compensation, Serbia will adopt measures to protect its interests. In other words, while the items regulated by the Serbian constitution must conform to the federal constitution, federal actions that Serbia deems against its interests will not be tolerated.

The Accused apparently cited Article 135 to show that Serbia had left military matters to the SFRY and did not establish or intend to establish its own armed forces. Dr. Kristan noted that the Serbian Constitution provided for armed forces, but omitted any mention of the territorial defense (TO), which under the SFRY and prior Serbian constitutions was responsible for protecting the territory of individual republics. Milosevic countered that Article 135 showed Serbia never formed a military, but relied on the SFRY military. Dr. Kristan testified that Serbia subsequently passed a Law on Defense, which established the Serbian TO. Since it was not mentioned in the 1990 Serbian Constitution, however, it was not a matter left to the SFRY under Article 135. Serbia's actions resemble a sleight of hand where observers are fooled by looking for a coin in one hand, while the other hides it.

The same might be said of the Prosecution, though the Accused knowingly chose to focus on the 'wrong hand.' While he questioned the witness about issues the Chamber had disallowed and a Constitutional provision that did not favor his position, he left largely unexamined important expert opinions given by Dr. Kristan. On the basis of his expertise, Dr. Kristan concluded that the October 1991 SFRY presidency's declaration of an imminent state of war was illegal since the presidency lacked a quorum. The Serbian Assembly's withdrawal of the Kosovo Representative to the SFRY Presidency was unconstitutional. (Milosevic did question him on this.) The 1992 Constitution of the Federal Republic of Yugoslavia was illegal since its establishment and provision for the FRY being the continuation of the SFRY were not agreed among all members of the federal assembly. Croatian Serb action in asserting independence from Croatia was illegal. The 1991 Serbian Law on Defence gave the President of Serbia decisive powers in all aspects of the defence of the Republic. Under its authority, he commands the armed forces, including the TO. All paramilitary formations are declared illegal. It was illegal for the Serbian President to recruit police to serve in the armed forces absent a declaration of war. If a state of war exists, the President of Serbia is responsible for actions of the police who have been subordinated to the armed forces. It is not lawful for the police to operate outside the Repbulic.

No one can criticize Milosevic for an inability to focus on one topic. His problem is not being able to let it go or judge its overall relevance (though one can argue he chooses his focus for his own purposes, which have little to do with the trial). The Accused's choice of focus also provides unintentional irony at times, such as his focus on Dr. Kristan's failure to address Article 135 of the Serbian Constitution. In 2001, Serbian authorities relied on Article 135 to trump the FRY provision prohibiting extradition of its citizens to other states for trial. This enabled Serbia to send Milosevic to The Hague. [The author thanks Mirko Klarin for this insight.]