We pretend to resist their pretended secession

The Serbs do not prize the truth. It is believed here that to rely on
the truth, and to depend on it, is to be naive, stupid and weak.

Sreten Ugričić

 
‘The wars of the 1990s on the territory of the former Yugoslavia were caused by separatist efforts on the part of Slovenia, Croatia and Bosnia-Herzegovina unconstitutionally to separate from Yugoslavia, which the SFRJ Presidency tried to prevent by use of the JNA’s military power , in order to protect the country’s constitutional order and territorial integrity.’ This more or less is the basic argument of Milošević’s propaganda, which he used from time to time to justify his actions. This argument also formed the basis of his defence before the Hague tribunal. Lastly, this argument is a monumental falsity, the parapet behind which Serb nationalism hides to this very day: hailing Karadžić and Mladić as heroes, because they were only defending the Serb people, which the separatists were attempting to wrench from the Serbian motherland; and insisting on the assertion that Serbia was not involved in the war, and that the conflict was in the nature of a spontaneously created civil war in which the JNA was merely trying to separate the warring parties and protect the people.

The falsity of this thesis can best be proved by a thought experiment in which we assume that the SFRJ managed to survive (let’s say through an outside military intervention, something that according to his own testimony in the BBC programme The Death of Yugoslavia Karadžić greatly feared). In the context of such an experiment, the role and activities of Slobodan Milošević, Borisav Jović and Veljko Kadijević (as well as many others who implemented their orders) would have qualified according to the laws of that very same SFRJ as high treason punishable by death.

The thought experiment that we propose is to formulate the elements of the indictment according to which Milošević, Jović and Kadijević would have been tried in a Yugoslav court, in accordance with the Yugoslav laws then valid, had they not succeeded in destroying the SFRJ.

The charge against them would have included the following:

Slobodan Milošević, in his capacity as President of the Presidency of the Central Committee of the League of Communists of Serbia (before 16 July 1990) , President of the Socialist Party of Serbia (from 16 July 1990), and President of the Republic of Serbia (from 9 December 1990),

Borisav Jović, in his capacity as President of the Presidency of SFRJ (from 15 May 1989) and Vice-President of the Socialist Party of Serbia (from 16 July 1990), and

Veljko Kadijević, in his capacity as Federal Secretary for National Defence in the period from 15 May 1989 to 8 October 1992

formed a conspiracy in order, by abusing their political authority,

1. unconstitutionally and illegally to alter the national composition of the JNA, place the JNA under their effective control, and use it in the pursuit of the following aims:

2. forcibly to overthrow the governments of Slovenia and Croatia;

3. forcibly to overthrow by a military coup the highest federal governmental bodies – the Federal Executive Council (SIV) and the Presidency;

4. forcibly or by unconstitutional means to alter the borders of SFRJ, by excluding the Republic of Slovenia and the Republic of Croatia from SFRJ by an unconstitutional order of the Presidency;

5. forcibly or by unconstitutional means to change the borders of the Republic of Croatia, by instigating, and politically and militarily organising, an armed rebellion in Croatia;

which caused the death of a large number of people, placed human lives in danger, and was accompanied by great acts of violence and extensive destruction;

and by so doing they each individually, and collectively together, committed an extended criminal act on the basis of Article 136, para. 1, and of Article 116, paras.1. and.2,. in the most serious forms, punishable by Article 139 of the Criminal Code (Official SFRJ Journal, no. 44/76).

The criminal acts cited contain the following dispositions:

Article 136 says:

1. Whoever creates a conspiracy, circle, group or other association of persons for the purpose of perpetrating criminal acts as defined by articles 114 to 119, para 2., Articles 120 to 123, Articles 125 to 127 and Articles 131 to 132 of this law, or who creates a group for the purpose of moving or directing the citizens of SFRJ abroad to commit hostile activities against SFRJ, will be punished by imprisonment for no less than five years.

Article 116 says:

1. Whoever commits an act designed forcibly or unconstitutionally to separate part of the SFRJ’s territory, or to add part of this territory to another state, will be punished by imprisonment of not less than five years.

2. Whoever commits and act designed forcibly or unconstitutionally to alter the borders between the republics and the autonomous provinces will be punished by imprisonment of no less than one year.

Article 139 says:

For committing a criminal act – according to Article 114, Article 115 para 1, Articles 116 to 121, Articles 123 to 128, Article 132, and Article 136 para 1. of this law – that causes the death of some person, or places human life in danger, or is accompanied by great violence and extensive destruction, or has endangered the security, economic and military capacity of the country – or in other exceptionally grave cases – the perpetrator will be punished by imprisonment of no less than ten years or by death,

Article 116 incriminates as an autonomous action preparatory activity and attempting to change borders. Article 118 para 3. determines what is considered preparatory activity in the case of such actions.

Article 118, para. 3 says:

When the law prescribes punishment for the preparation of a certain criminal act, the preparation may consist of acquisition or activation of the means for execution of the criminal act, removal of obstacles to the execution of the criminal act, negotiations, planning and organising with others to commit the criminal act, as well as other activities serving to create the conditions for immediate execution of the criminal act, but which do not represent the act of execution.

The facts pointing to the execution of this act are based almost exclusively on Borisav Jović’s diary, published under the title Poslednji dani SFRJ [The Last Days of SFRJ, (Belgrade: Politika 1995), and Veljko Kadijević’s memoirs Moje viđenje raspada – vojska bez države [My View of the Break-Up – an army without a state] (Belgrade: Politika 1993).

The credibility of the facts which these contain, and which relate to the creation of a conspiracy, derives (a) from the essential concordance of their testimonies; (b) from the fact that they testify to their own acts; as well as (c) from the fact that one cannot conceive of a credible motive for them to incriminate themselves falsely.

In addition, not only did Milošević never deny the claims by Jović and Kadijević, but their books were also published by the Politika publishing company over which Milošević had full control.

It is true that, at his trial in The Hague, Milošević denied during the hearing of the witness Stjepan Mesić that he had ever read Jović’s book. This assertion is contested, however, by Miodrag Marović in his book ‘Politika’ i politika [Politika and Politics] ( Belgrade: Helsinški

Committee for Human Rights 2002, p.331): ‘Mihajlo Marković said – and the media published – that Milošević had handled Jović’s manuscript.’

Finally, the plans and intentions of the conspirators, as they themselves describe them, were concretely realised during the subsequent political and military events.

Let us now turn to the activities by means of which they accomplished certain essential elements of these criminal acts.

The Conspiracy

Independently of the criminal aims of the conspiracy, the trio’s very modus operandi points to the conspiratorial-subversive nature of their activity. This took place through overstepping of their authority; execution of criminal acts in abuse of their office; acting outside the legal institutions or bodies to which they belonged and unbeknownst to such institutions. The fact that Milošević, Jović and Kadijević acted in this manner can be seen from the following notes made by B. Jović:

In the first paragraph of his book, Jović describes his becoming President of the Presidemcy of SFRJ on 15 May 1989:

‘Slobodan Milošević is sitting behind me. He tells me loudly: “Boro, I am behind you”. I replied equally emphatically: “I am counting on it”.’ (B. Jović, p.7).

A year later, in April 1990, Jović writes:

‘It turns out that the manner in which we timed our further work was good, because the main things will occur in the [military] Council while I am its president, and in the Presidency when I become its president. It is clear that it could not be done otherwise.’ (BJ,139)

During this same meeting Kadijević tells Jović of his plans that ‘SIV [the federal government] must be placed under the control of the [federal state] Presidency’; that the JNA had made plans ‘that in all crucial parts of the country, above all in Slovenia and Croatia, they have ensured that they can assume full control in the shortest time possible’; and that he was aware that they ‘can not win the whole Presidency for this, but can have the majority’ (BJ, 142).

This is how Kadijević describes the nature of this meeting: ‘He insists that our meeting and talk are more important than any other meetings or talks one could have today in our country, nor are there bodies where we could discuss this.’ (BJ, 139).

Jović notes in another place: ‘Veljko is in the habit of giving me these analyses, which for understandable reasons he cannot put before the whole Presidency’ (BJ, 68).

During a conversation between Kadijević and Jović on 10 August 1990, the two agreed:

‘We believe that the resolution of the Yugoslav crisis should happen while I am at the head of the SFRJ Presidency. We would be totally powerless after that. This is why me must make the moves that lead towards it. (BJ, 176)

On another occasion, on 26 January 1991, Jović describes his telephone conversation with Milošević:

‘He is very disappointed with the results of the meeting of the Presidency. It does not fit into his plan (schema), “about which we cannot talk on the phone”. Because, he says, once the army has finally covered the Serb territories in Croatia, we [who? – SP] shall no longer dread the resolution of the Yugoslav crisis. This is the only way. Slobodan still clings onto what might have been possible until recently, but which the army refused – that we “cut them off” from Yugoslavia.’ (BJ, 262)

It is clear from this that the conversations held between Milošević, Jović and Kadijević are of a conspiratorial nature. These conversations

– are conducted outside and hidden from the institutions to which they belong (the federal Presidency, the federal government);

– cannot be conducted by telephone;

– deal with matters that cannot be discussed in the institutions;

– are more important to the interlocutors than those they can conduct in any other

institution of the state;

– use systematically the pronoun ‘we’ in an undefinable manner which the interlocutors nevertheless understand.

These are the formal forms of a conspiracy, especially bearing in mind the importance of the interlocutors’ positions – President of the Presidency, President of the Republic of Serbia, minister of defence – irrespective of whether we know anything about the subject of their conversations.

The structure of the conspiracy

The trio Milošević-Jović-Kadijević formed the core of the conspiracy. Milošević brought to the conspiracy his enormous popularity among the Serbs (in Serbia, Bosnia-Herzegovina and Croatia), and in particular his power over the street (rallies at which legal governments were brought down); Jović his position as President of the Presidency and supreme military commander; Kadijević his office as federal secretary of National Defence (which together with the Presidency forms the supreme command ). Their motivations, aims and chosen means for realising these aims did not always and in everything coincide.

Kadijević saw his aim as the preservation of socialism and a centralised Yugoslavia – as an aim in its own right, but also as protection against anti-Communist revanchism. Jović quotes Kadijević:

‘The [Communist] bloc has collapsed. In a word, everything is uncertain. Veljko is worried even about our own safety, should retrograde processes occur in the USSR.’ (BJ, 49).

‘… what is worse for us is that he [Gorbachev – SP] has damaged the balance of power in Europe and indicted all Communists. We must defend ourselves now.’ (BJ, 108).

‘The army must be clear about what will happen in our region in the long run, but we must survive as a state of socialist orientation.’ (BJ, 68)

‘Veljko is totally disappointed. He says that many Communists are frightened by the anti-Communist offensive. They do not fight back, do not react, as if they did not care about what is happening.’ (BJ, 94)

‘He believes that the advancing anti-Communist forces threaten retribution, and that if we do not do anything substantial to prevent their advance, there will follow a revanchism of the worst kind – we shall be hanged from the lamp posts just like that.’ (BJ, 91-2)

‘Veljko himself believes that if the right-wing and revanchist forces win [the elections – SP], then we shall be in a position (because everything is unconstitutional) to remove them by force. Force remains as a possibility.’ (BJ, 138)

Jović shared with Kadijević the aim of preserving socialism, but gave up the idea of preserving Yugoslavia sooner than he did (something that he and Milošević hid from Kadijević, the better to make use of him).

Jović thus notes on 6 April 1990: ‘Veljko Kadijević … suggests that the SFRJ Presidency ask the Constitutional Court to declare unconstitutional the multiparty elections in Slovenia and Croatia. As if this could be done!’ (BJ, 136)

‘Veljko Kadijević is confused and disappointed by the decision of the Serbian leadership to go for a Socialist Party … He thinks that the Serbs should have kept the Communist name.’ (BJ, 152) (Milošević’s wife subsequently formed the Communists for Yugoslavia party.)

29 January 1991: ‘[Kadijević] has not as yet swallowed the fact that he should defend the Serb territories in Croatia. He still believes in defending Yugoslavia.’ (BJ, 264)

27 June 1991: ‘Slobodan and I are with Kadijević… Slobodan repeats several times (correcting yesterday’s mistake) that the army should defend Yugoslavia’s future borders. “Why should we defend Slovenia’s border, which can only be temporary. We should defend what will last”.’ (BJ, 343)

Milošević, for his part, had the aim of consolidating and enlarging his power; with that aim in mind, he temporarily adopted various programmes, various partners and various aims (a centralised Yugoslavia dominated by Serbia, a truncated Yugoslavia without Slovenia and Croatia, a Great Serbia). He defended socialism (a) to the extent it secured him the support of the party and state apparatus and the army (whose own interests were threatened by the change); (b) insofar as it allowed him control over the economy and the state media (the state was practically the sole employer under socialism).

Of the three, Milošević was the first to decide to solve relations in Yugoslavia by force. Jović and Kadijević believed for a long time that a threat of force would be enough.

Once they had agreed to use force (the coup d’état planned for mid March 1991), they tried to outmaneuvre each other over who would take the blame. Milošević and Jović tried to make Kadijević responsible for it. Kadijević hesitated, and in the end did not dare to go for a pure military coup.

Jović notes on 13 March 1991: ‘Having listened to Veljko, I told him that I would resign tomorrow after the meeting… I’ll give the army space to act.’ (BJ, 296)

When Kadijević’s nerve failed, Jović wrote: ‘They were not true either to me or to Slobodan, and wanted us to give them political cover.’ (BJ, 310)

Kadijević in time would agree to use the army without a legal decision by the Presidency, i.e. to follow the orders of at least ‘a group of members of the Presidency, though they do not form a qualified majority’. (BJ, 162)

It took Jović, on the other hand, a long time to grasp the fact that, by adopting a constitution that made Serbia an independent state (‘which is not at war’), Milošević had formally placed the main responsibility for use of the army on the [rump] Presidency and Jović (even though Milošević, as the most important member of the ‘group of six’, did play a decisive role in the making of military decisions.)

Milošević’s main contribution to the conspiracy’s activity consisted in his rejection of political means, his readiness to use force to realise the conspiracy’s aims, and his complete contempt for any legal order.

Jović was more diffident in this regard, and at first made mild objections to some of Milošević’s violent acts that provoked or fostered conflicts in the SFRJ. Thus, for example, he criticised the suspension of economic relations with Slovenia (BJ, 78), the holding of the Truth Rally in Ljubljana (BJ, 78), the undermining of Ante Marković’s anti-inflation plan (BJ, 85), the attack on the monetary system (BJ, 241). But when faced with a fait accompli, he would in the end comply.

The conspiracy was subsequently joined by others (let us say ‘the group of six’, which in addition to Milošević, Jović and Kadijević included also Blagoje Adžić, Momir Bulatović and Branko Kostić, followed by Babić, Martić, Karadžić, Koljević, Krajišnik, Mladić – BJ 371, 382-7, 391-2). But during the most important period of the start of the wars in the former Yugoslavia, the decisive role was played by the trio Milošević-Jović-Kadijević.

A plea for lawlessness

Nevertheless, the motor of the conspiracy was Slobodan Milošević, who advocated violent methods as early as the start of 1989, at the 20th session of the Central Committee of the League of Communists of Yugoslavia, when he publicly made his ‘plea for lawlessness’.

On that occasion, carried along by the eruption of militant nationalism among the Serbs, he motivated before his colleagues – the representatives of the other republics – his readiness to abuse his position and act illegally and to use all available means in this way:

‘In places [meaning, according to the contemporary jargon, ‘in republics’ – SP] and with respect to problems where the absence of sentiment for change has been greatest, and where it has not been possible to do anything in the normal way, through the institutions, yet things have to be changed because the people find them intolerable and they have gone on too long, they must be changed extra-institutionally.’

Further: ‘But the solution will not be found through procedure, its small and large snares, its small and large craftiness, intrigues and tricks. It will be arrived at through a policy endorsed by the majority of the people of this land, institutionally and extra-institutionally, through the statutes and outside of them, in the streets and off them, in a populist and an elitist manner, through argument and without argument, but in any case in such a way that it becomes clear that it is a policy for Yugoslavia, in which people will live as one, as equals, in a richer and more cultured fashion.’ (Dragoš Ivanović, Bolest vladanja [The Sickness of Rule], Belgrade: Republika 2000, p. 39)

In an interview with NIN on 12 April 1991, he went on to explain what his ‘extra-institutional solutions’ would be like:

‘We must achieve unity, if as the largest and most populous republic we wish to dictate the course of events in the future. It is a question of frontiers – essential matters of state. And as you know frontiers are always drawn by the strong, never by the weak…. I have ordered mobilisation of the police reserve. We are further engaged in the creation of additional police forces, while the government has been entrusted with the task of preparing the relevant formations which will make us secure in any event: i.e. enable us to defend the interests of our republic, and of the Serb people outside Serbia… If we have to fight, then by God we will fight. I hope, however, that they will not be so crazy as to fight us. For if we are not good at working and producing, at least we shall be good at fighting.’

Continuity of the conspiratorial mode of government

As may also be relevant here, this conspiratorial system of government (outside institutions, outside regular lines of decision-making, by way of the streets, by violence) remained the dominant feature of Slobodan Milošević’s regime until the end of his rule. Here are some striking examples:

1. ‘In the autumn of 1992, during a rainy night, members of the pro-Milošević republican police seized in a surprise attack the building of the federal police, which was then outside their control (this was at the time when Dobrica Ćosić was federal [FRY] president and Milan Panić federal prime minister). Neither the parliament nor any other state body made any protest against this unprecedented transgression.’ (Dragoš Ivanović, pp. 41-2).

2. ‘The government conducted what was undoubtedly its greatest plundering offensive against its own people in 1993 with a planned stoking of inflation. This was designed to finance a continuation of the war, i.e. state expenditure outside public control. The value of the dinar fell day by day. In the second half of the year, the inflation acquired a galloping tempo, turning everything into a desert … At the end of 1993, one German mark was worth one billion dinars on the black market… In January 1994, when it suited it, the state arrested this inflational typhoon, which had reached a fantastic 313 million per cent, through a monetary reform.’ (Dragoš Ivanović, p. 47) In January 1994, ‘prices rose on average 62 per cent per day, 2 per cent per hour and 0.029 per minute’ (Mlađan Dinkić, Ekonomija destrukcije [The Economy of Destruction], Belgrade 1995, p.43).

3. The next example might be the proven electoral fraud in 1996, which led to three months of protest by Serbian citizens and ended with the adoption of the so-called lex specialis, that recognised the electoral fraud de facto but without calling anyone to account. (Lex, whistles and lies’, Helsinški odbor za ljudska prava, Belgrade 1997, p.322).

4. On the eve of the presidential elections in 2000, elections that Milošević would lose, there were three assassination attempts against two potential anti-Milošević candidates (Vuk Drašković, Ivan Stambolić), during which four people died. It was established that the political police had kept both under strict observation until immediately prior to the attacks (Dragoljub Todorović, ‘Razlozi za konstituisanje’ [Reasons for constitution-making], Srpska reč, no. 297, 5 June 2002).

5. The next example might be Milošević’s refusal to recognise the results of the 2000 presidential elections, and his readiness to use the army to prevent a legal change of government. ‘Did the former Yugoslav [FRY] president call you during the evening [of 5 October 2000 – SP]?’, a journalist from Glas asked the chief of staff of the Yugoslav [FRY] army (VJ), Nebojša Pavković, who replied: ‘Yes. He called me at around 23 hours, in connection with the events at Studio B [radio station]. Obviously the Studio B programme was very provocative. I told him that there were people there, and that it was not the duty of the VJ to fire at its own people, and that it was not a military but a police problem.’ (Glas, 13 December 2000, p.13).

6. The testimony of [state security service chief] Rade Marković before the Hague tribunal shows that Milošević treated money belonging to the state budget (i.e. customs revenue) as his own, which allowed him to pay in cash anyone he wanted and the sums he wanted ( Tribunal archives concerning Milošević’s case). This was made possible only by the conspiratorial nature of government and complete contempt for any legal order.

Undermining the Federal Government – taking control of the Federal Presidency

In order to realise their aims, the plotters had to destroy or take control of the federal institutions of government that stood between them and the JNA. Kadijević, for example, was responsible both to the federal presidency as supreme commander and to the federal government of which he was a member.

The plotters acquired a majority on the SFRJ presidency by relatively simple means. First, through Milošević’s agreement with Slovenia’s president, Milan Kučan, on 24 January 1991 that Slovenia could leave Yugoslavia unhindered; and secondly through the anti-constitutional election on 10 May 1991 of the Kosovo representative on the presidency (he was elected by the Serbian assembly, rather than – as Article 321 of the SFRJ constitution prescribed – by the Kosovo assembly).

However, for Kadijević to have a free hand to act in line with the plotters’ aims, it was necessary to liberate him also from another politically superior institution: the federal government (SIV). Only by achieving this would they be able to ‘dictate the future course of events’ (Milošević).

Accordingly they not only acted behind the back of the legitimate government, but also tried to sabotage that government, to bring it down or place it under their control.

This is what Jović says about it:

‘”Coordination” in the Serbian presidency [office]. Conference on what should be done… [Serbian prime minister] Stanko Radmilović gives initial information… Sloba [Milošević] remains silent, waiting. Only [chairman of the central committee of the Serbian League of Communists] Bogdan [Trifunović] says that we are being left in the lurch, because everyone else supports SIV.’ (BJ, 87).

A conversation between Kadijević and Jović on 26 April 1990. Kadijević says: ‘SIV must be placed under the control of the [federal] presidency.’ (BJ, 142)

Milošević tells Jović: ‘We must bring him ([federal premier] Ante Marković) down. If he were to survive now, he would remain another four years, and we don’t have confidence in him(Ante)’. (BJ, 82)

‘We spend the whole day on the boat and the sea (on Mljet) – the excursion party: Veljko, Sloba, Bogdan (Trifunović) and I with our families. … We all agree that Ante Marković is no longer acceptable to us and that we don’t trust him. We are all convinced now that he is simply a US agent, instructed to bring down the system and remove from power all those who think of socialism… Veljko calls him a “son of a whore”.’ (BJ, 176)

‘I have written a series of three articles “The Truth about Ante Marković” and sent them to Slobodan. He sent them for publication to Politika. They will serialise it on 5, 6 and 7 under a pseudonym. We must expose him, because the people are deeply mistaken about who and what he is. Many view him as a saviour.’ (BJ, 173)

‘Veljko Kadijević informs me about the preparations for the arrests in Croatia… asks whether they should formally inform me and Ante Marković before or after the arrests … we agreed that Ante need not be formally informed, because he could make trouble.’ (BJ, 227-8)

‘SIV has today announced a meeting [in response to Jović’s resignation from the presidency and Milošević’s declaration that ” Yugoslavia no longer exists” – SP] with the SSNO [Federal Secretariat for National Defence] collegium, which the army rejected. No one will attend the meeting.’ (BJ, 308)

‘Kadijević tells me about his talk with [Soviet defence minister] Yazov. A few days ago (by telephone) he put clear questions to Yazov about whether the USSR could protect us in the event of a Western military intervention, and whether it could sell us certain matériel that we lack (bombs and kerosene). The answer was negative on both accounts. More precisely, they could not protect us, and as for the matériel – only through regular channels, by way of the SFRJ government (but we are seeking to bypass the government, because Ante Marković is preventing the government from acting).’ (BJ, 360)

The Serbian constitution

The decisive blow against the [federal] government (and the SFRJ state, which Milošević ‘is only formally supporting’) (BJ, 159) was delivered, however, by Milošević with the new Serbian constitution adopted on 28 September 1990.

Jović notes on 29 March 1990: ‘Meeting for “coordination” in the [offices of] SR Serbia. All leading officials are present. Our aim is to avoid bloodshed, and to establish a frontier within which there will be no war. Outside that frontier war cannot be avoided, because Bosnia-Herzegovina cannot survive as a state and it is impossible to conceive a battle over territory without bloodshed.’ (BJ, 131)

Jović further notes on 30 July 1990: ‘I speak on the telephone … with Slobodan Milošević. I make the point that the Serbian constitutional draft does not state clearly that Serbia recognises and respects the SFRJ constitution…. He reassures me that this should be easy, that it will be added immediately, though I have had to tell him three times to do so.’ (BJ, 173)

This shows that Milošević was the true author of the Serbian constitution.

According to Article 135 para 2 of the new Serbian constitution: ‘When acts of the federal organs or acts of the organs of another republic violate the equal status of the Republic of Serbia, in respect of the rights and duties that it enjoys under the SFRJ constitution, or when its interests are threatened in some other way without securing compensation, the [Serbian] republican organs introduce acts to protect the interests of the Republic of Serbia.’

Application of the constitution – the legislature

That these provisions were not adopted only ‘on paper’ is testified to by the busy legislative activity of the Serbian assembly, which derogated federal laws and usurped existing powers of the federation. Here are some examples:

1. On the basis of this provision, the Serbian assembly adopted a law for a special tax on trade in goods and services of specified origin, and for special taxes (Official Gazette of the RS, no. 6/90, p.151) which, in Article 1, envisaged:‘Trade in services of a specified origin is subject to

a special tax on trade in goods and services. The special tax is paid on establishment of a firm, use of business space and building land.’

Goods and services of specified origin, in the sense of this law, refer to ‘goods produced, or services supplied by legal persons and active individuals located or residing on the territory of another republic that fails to implement assumed obligations, or refuses to participate in the establishment or implementation of a policy of even-handed development of an agrarian policy in the interest of the whole country, or places the Republic of Serbia in some other way in a position of inequality.’

Article 2 para. 1 envisaged: ‘The executive council [government] of the Republic of Serbia decides which goods and services, or legal persons and active individuals located or residing on the territory of another republic, are liable to payment of a special tax on trade in services and goods, and to special taxes.’ And, according to Article 8: ‘Revenue realised in accordance with this law is paid into a separate account of the Republic of Serbia.’

2. A law on changes and additions to the law on social control of prices (Official Gazette of RS, no. 6/90, p. 151) was also brought in on 23 October 1990, through application of the same provision of the Serbian constitution; this introduced a new Article 7 saying:

‘In exceptional cases when acts of the federal organs or acts of the organs of other republics infringe in the domain of prices the equality of companies in regard to the conditions of production, or endanger in some other way the economic interest of the Republic without securing compensation, the executive council [government] may prescribe measures of direct control of prices, and other measures for goods and services which are specified by federal law as products and services of interest for the whole country.’

3. Application of the same provision of the Serbian constitution led to the adoption also of a law on trade in goods ((Official Gazette of RS , no. 6/90, p. 153), which introduced a new Article 34a according to which: ‘Companies and other legal subjects may issue purchasing credits to citizens for goods produced on the territory of the Republic of Serbia.’

4. Application of the same constitutional provision led to the adoption also of a law on incurring debts and issuing guarantees and super-guarantees on specified foreign credits on the part of the Republic of Serbia (Official Gazette of RS , no. 6/90, p. 153), Article 1 of which says:

‘The Republic of Serbia may take financial and other credits abroad for the sake of maintaining current liquidity in payments abroad, for productive and property restructuring, for carrying out investment activities abroad, and for other purposes that are in harmony with the policy and developmental plan of the Republic.’

And its Article 4 says: ‘The executive committee of the Serbian assembly decides on the indebtedness of the Republic, and on the issuing of guarantees and super-guarantees up to ten million US dollars.’

And in Article 5: ‘The National Bank of Serbia conducts all business and documentation on incurring debt abroad.’

5. The same provision of the Serbian constitution led to adoption of a law on the measures that may be taken in order to prevent distortions in production, trade and development in the Republic of Serbia (Official Gazette of RS , no. 6/90, p. 155), whose Article 2 envisaged:

‘The executive council of the Republic of Serbia may provisionally: prescribe the obligation that part of the revenue derived from the basic tax on trade in goods and services that belongs to the federation, as well as part of the outstanding customs duties and other import taxes, should be paid into a separate account of the Republic of Serbia during a period in which organs of the federation are not implementing assumed obligations towards the Republic of Serbia, and when there is a failure to establish or implement an economic policy for which the federation is responsible, thereby threatening the economic interests of the Republic of Serbia.’

6. Predrag Tašić, the spokesman for SIV [the federal government], describes in the chapter ‘The Serbian pillage of the decade’ of his book Kako sam branio Antu Markovića (Defending Ante Marković, NIP Mugri 21, Skopje 1993) the ‘attack on the monetary system’ when Serbia ‘borrowed’ illegally $1.4 billion from the primary emission:

‘On 28 December, at the time when Ante Marković was speaking in the Yugoslav assembly about next year’s economic policy, the Council of Associated Labour of the Serbian assembly adopted two legal acts that attacked the Yugoslav monetary system. Both these acts were adopted in secret. They were marked “strictly confidential” and “official secret”. They were distributed to delegates on the very day of the session, thrust into the hands of each in an envelope. Following their adoption (and they were adopted unanimously and without discussion), the delegates had to place them back into the envelope and return them. These provisions of the Republic of Serbia gave it the right to an additional 18.243 billion dinars (or $1.4 billion).’ (P. Tašić, p. 57).

‘To make it possible this time to take more money in one go, his [Milošević’s – SP] man at the National Bank of Yugoslavia proposed that it be “legalised” by the Republic of Serbia borrowing from the National Bank of Serbia, with appropriate provisions being adopted by the Serbian assembly! The money would not be taken, of course, from the National Bank of Serbia, but from the National Bank of Yugoslavia!’ (P. Tašić, p.58)

‘On 4 January 1991 Ante Marković was anonymously informed of the Serbian attack on the monetary system’ (P. Tašić, p.59) According to Tašić, at an emergency meeting of the [federal] government Ante Marković called this act ‘the act of liquidation of Yugoslavia’. (P. Tašić, p.59)

This is how Jović describes these events: 5 January 1991: ‘ Serbia has borrowed (decided to borrow) from the National Bank of Serbia [see Tašić, p.58 above] 18.2 billion dinars from the primary emission for the payment of pensions… Marendić, a Croatian member of SIV, asked that those responsible in Serbia be arrested, and was supported by Aca Mitrović and by Ante (Marković), of course, but SIV was divided. It was decided that the matter be investigated and the money returned. … I called Slobodan and told him. Ante Marković had already called him. Sloba knows everything, but minimises the problem.’ (BJ, 239)

He continues on 8 January 1991: ‘Conversation with [Serbian premier – SP] Stanko Radmilović…. I criticised him a little on account of what they did in regard to the emission, and with revenues belonging to the federation. He tells me that they would certainly have lost the elections without it, because half of the republic would have been left without salaries or pensions. Ante (Marković) was wondering aloud how we were managing to avoid “bankruptcy”, and we got the better of him. That’s the point.’ (BJ, 241)

Unconstitutionality

The activity of the plotters as described above – 1. sabotaging and undermining SIV; 2. adopting the Republic of Serbia’s constitution; and 3. using Republic of Serbia laws to derogate federal law – was against the SFRJ constitution (and led politically to the federation’s break-up).

1. ‘Placing SIV under the [federal] presidency’s control’

According to Article 347 para. 9 of the SFRJ constitution:

‘The Federal Executive Council … harmonises and directs the work of the federal administrative organs for the purpose of securing the policy and implementation of the laws, other provisions and general acts of the SFRJ assembly; supervises the work of the federal administrative organs, and suspends provisions of federal administrative organs that contradict federal law, other provisions or general acts of the SFRJ assembly, or any provision it has itself adopted for the purpose of implementation of federal law, other provisions or general acts; and may annul the provisions of those organs, under conditions established by federal law.’

Kadijević, therefore, found himself constitutionally under the supervision of the federal government and the federal prime minister, Ante Marković, who directed his work.

As for the president of the federal presidency, Jović, in the event of his disagreeing with the federal prime minister, as a member of the presidency he had the right and the obligation to bring the contested issues to arbitration by the federal assembly. According to Article 329 paras 3 and 4 of the SFRJ constitution: ‘The SFRJ presidency has the right to delay the execution of SIV regulations of a general political nature before their announcement.’ ‘If the SFRJ presidency delays the execution of a SIV regulation, it will bring the contested issue before the appropriate council of the SFRJ assembly for a decision.’

The idea of placing the [federal] government under the control of the [federal] presidency is also unconstitutional: ‘The SFRJ presidency does not have a hierarchical but a constitutionally determined and restricted relationship vis-à -vis the federal executive council.’ (According to Prof. Jovan Đorđević, Constitutional Law, Savremena administracija, Belgrade 1982).

Constitution of the Republic of Serbia

The provisions of the Serbian constitution are contrary, of course, to the provisions of the SFRJ constitution. Thus, for example, it usurps three basic powers of the federation: in international relations (Art. 281 para. 7 of the SFRJ constitution), national defence (Art. 281 para. 6 ) and state security (Art. 281 para. 8). It does so with the provisions contained in articles 72 para 1. (‘The Republic of Serbia determines and ensures … relations with other states and international organisations) and 73 para 3. (‘The Republic of Serbia regulates and ensures … the defence and security of the Republic of Serbia and its citizens.’)

Even more importantly, by virtue of Article 135 para 2. of the republic’s constitution Serbia literally exempted itself from the SFRJ’s legal system, because of the provision that it would ‘respect’ federal laws only when that was in its interest. This clause is known in law as si volam (if I wish), and its effect is wholly to annul every obligation entered into upon this condition. Which is perfectly logical: the function of a legal obligation is to limit the will of the one who accepts it. If the clause envisages that the will of the one bound has primacy over the bond, then the obligation does not exist.

What is most important, however, is that the Serbian constitution of 28 September 1990 is a separatist constitution. (It was adopted over a year before the Slovenian and Croatian proclamations of independence on 8 October 1991.)

Article 72 specifies that Serbia is sovereign and independent:

‘The Republic of Serbia regulates and ensures: 1. The sovereignty, independence and territorial integrity of the Republic of Serbia, and its international position and relations with other states and international bodies.’

With this provision, Serbia ceased to be a member of the federation: it became an independent state, without any obligations towards the federation, a member of which it no longer was.

If this is so, and it is, then one should question the meaning of the provision of Article 135 para 1 of the Serbian constitution, which says:

‘The rights and duties which the Republic of Serbia, which is part of the Socialist Federal Republic of Yugoslavia, has in accordance with this constitution, and which according to the federal constitution are realised in the federation, will be realised in accordance with the federal constitution.’

The meaning of this provision is that the independent Serbia, which has no obligations towards the federation, wishes to retain those rights that the federal constitution gave it when it was a member of the federation. The most important of these rights (which Serbia had in fact legally given up with its independence) are: 1. to participate in the work of the presidency of a state to which it no longer belonged; 2. to use the latter to retain control of the army; 3. to hide behind the Yugoslav name and ‘advocate Yugoslavia’s territorial integrity’; and 4. to claim the ‘right’ to a part of the federal cash box.

The meaning of the expression that the independent Republic of Serbia was ‘part of the SFRJ’ can be understood only as a claim devoid of all legal basis to continue to execute the rights which it used to enjoy as a member of the federation, even after it had constituted itself as an independent state, without having any obligations towards the SFRJ.

(How and why the other republics agreed (while they did agree) to accept this situation, in which Serbia ‘exercised its rights’ in the federation without having any obligations towards it (and to which as an independent state it did not belong), can be understood only in light of the fact that Serbia controlled the army, and persistently threatened with it: i.e. only because of their fear of war, and desire somehow to avoid it.)

At the same time, this independent state, being ‘part of SFRJ’, managed to enter the monetary system of another state (SFRJ) and ‘borrow’ $1.4 billion unilaterally from its primary emission!

Translated by Bosnian Institute

Peščanik.net, 23.09.2008


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Srđa Popović
Srđa Popović (1937-2013), jugoslovenski advokat ljudskih prava. Branio mladog Zorana Đinđića, Brigitte Mohnhaupt (Baader-Meinhof), Vojislava Šešelja, Dušana Makavejeva, Milorada Vučelića, Mihajla Markovića, Miću Popovića, Predraga Čudića, Nebojšu Popova, Vladimira Mijanovića (Vlada Revolucija), Milana Nikolića, Mihajla Mihailova, Dobroslava Paragu, Milana Milišića, Vladimira Šeksa, Andriju Artukovića, Beogradsku šestoricu, profesore izbačene sa Filozofskog fakulteta... Pokretač peticija za ukidanje člana 133 (delikt govora), ukidanje smrtne kazne, uvođenje višestranačja u SFRJ... 1990. pokrenuo prvi privatni medij u Jugoslaviji, nedeljnik Vreme. Posle dolaska Miloševića na vlast iselio se u SAD, vratio se 2001. Poslednji veliki sudski proces: atentat na Zorana Đinđića. Govorio u 60 emisija Peščanika. Knjige: Kosovski čvor 1990, Put u varvarstvo 2000, Tačka razlaza 2002, Poslednja instanca I, II, III 2003, Nezavršeni proces 2007, One gorke suze posle 2010.
Srđa Popović

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