Croatia adopted a [new] constitution after the adoption of the Serbian one, and modelled upon it. The following exchange took place between the Serbian representative on the federal Presidency Borisav Jović, the Croatian representative on the Presidency Stjepan Mesić, and the federal premier Ante Marković , at the 125th session of the SFRJ Presidency:

Borisav Jović: Why did you not propose that the Croatian constitution, which endangers the rights of the Serb people, be annulled? You should go one step further.

Ante Marković: We have asked that the implementation of all these decisions should be suspended for three months.

Stjepan Mesić: But what is the problem with the Croatian constitution?

Ante Marković: I don’t know. I don’t want to speak about it right now.

Stjepan Mesić: Croatia has written down exactly what Serbia has written down. We have deliberately copied it, knowing that they would attack it. I said: ‘Write down what Serbia has written down and don’t worry – Bora Jović will attack it.’ But it’s not his fault. I know whose fault it is.

Borisav Jović: It’s the person you were quoting. What I was just reading – you’re referring to him.

Stjepan Mesić: I don’t know, if you dare to say so.

(Stenographic records of the 125th session of the Presidency of 12 July 1991.)

Implementation of the constitution (legislature)

In perfect accordance with its status as an independent state, the Republic of Serbia makes its own laws, with which it regulates the relations that were once the prerogative of the federation: it introduces new taxes on goods from abroad (i.e. the Yugoslav republics), decides on its own credit policy, collects taxes on the new state borders which it pays into its own account, determines its own price policy , etc. All this would not be possible under the provision of Article 281 para 1, points 1, 4, 5, 6, 7 and 10 of the SFRJ constitution.

Alteration of the national structure of the JNA/Unconstitutional command over the JNA/Unconstitutional use of the JNA

The army’s multinational composition represented the next obstacle to effective command over and use of the JNA, for the aims of destroying and remaking Yugoslavia – aims that were wholly in opposition to its constitutional function. This is why they tried, by abusing their positions, unconstitutionally to change the JNA’s make-up.

According to Jović:

At their meeting on 30 July 1991, Kadijević reports to Milošević and Jović: ‘The JNA is being transformed into an army of those who wish to remain in Yugoslavia, which at least means: Serbia, the Serb people, plus Montenegro. It is withdrawing to territories and changing commanders in accordance with this principle … Sloba warns him that he is being slow in implementing what he says. He should be more diligent. He protests, defends himself, appears uncomfortable, yet he knows he is guilty.’ (BJ, 367)

During the meeting between Milošević, Jović and Kadijević, according to Jović:

‘Veljko appears very confused, almost lost. He talks about the army’s defeat, about desertion, about the lack of morale, about the danger of treachery by the still large number of Croats in the army…. Says that he should immediately dismiss two thousand officers to avoid the worst. Slobodan tells him to dismiss them, that he should have done so before. Veljko can hardly restrain himself. He tells him: “it’s easy to talk”. Veljko then concludes: “the army will lose the war against Croatia, unless motivation and successful mobilisation can be ensured. This cannot be accomplished with Yugoslavia’s semi-legality. Serbia and Montenegro should proclaim the army its own, and take over command, financing, the war and everything else.” … We spent a long time disputing, resisting… we cannot accept the demand that the army should lose its Yugoslav name. Serbia and Montenegro would lose practically all advantages, military and political, in such an event…’ (BJ, 387)

The same topic, another meeting involving Slobodan Milošević, Momir Bulatović, Branko Kostić, Veljko Kadijević, Blagoje Adzić and Borisav Jović:

‘In our view this [that the JNA be taken over by Serbia and Montenegro] is bad from the international point of view… it does not suit us politically to “leave” Yugoslavia… this would place … the Serbian-Montenegrin army in the position of an “aggressor” in the Serb areas outside Serbia.’ (BJ, 388-9).

‘[Kadijević] asks why Slobodan Milošević has never publicly defended the army and its mobilisation.’ (BJ, 389)

As president of Serbia, Slobodan Milošević has no constitutional say over the army, of course, but Kadijević accepts his authority. Milošević and Jović need an army that obeys them and implements the Serbian leadership’s political aims, but one that will be called Yugoslav. Kadijević accepts this instrumentalisation.

‘Slobodan does not ask Veljko for (General) Negovanović to be immediately dismissed… The army cannot do without us. We could perhaps do without it – we could form our own army – but it is not clear how they could create their own state.’ (BJ, 391)

Jović writes on 6 October 1991: ‘I demand an urgent meeting with Milošević. We must agree among ourselves, in private. We’re not a supermarket, to supply whatever the generals need. The policy must come from us, not from them. He agrees with me.’ (BJ, 392)

‘Slobodan does not quite trust Veljko, who constantly interferes in political issues… This is why he ignores every initiative of Veljko’s that has a political character, and says: “Let him look after his own business. Let him do what he’s supposed to be doing”.’ (BJ, 402)

The extent of the army’s instrumentalisation can be seen also in the extent to which the Serbian political leaders had made it serve them unconstitutionally in Serbia itself too.

Jović notes on 27 January 1990: ‘I call Kadijević to tell him to let his tanks take a turn through the cities of Kosovo, to scare them a little. But he was not at home.’

On the following day: ‘[Slobodan Milošević] calls up to ask me to find Veljko [Kadijević] and ask him to help. I found Adžić, the chief of staff. He says that the SFRJ Presidency’s decision on use of the army has been cancelled. They would need a new decision. Veljko also calls, saying the same thing. He nevertheless agrees to send five helicopters (to demonstrate over Prishtina)…’. (BJ, 96)

The same tanks paraded through the Belgrade streets during the peaceful demonstrations conducted by the opposition on 9 March 1991: ‘I order Veljko to take the army onto the streets and occupy the space in front of all state institutions under threat. Slobodan will send a formal written request, which we shall approve tomorrow at the meeting of the Presidency.’ (BJ, 283)

Jović notes on 7 June 1991: ‘Slobodan and I visit Veljko Kadijević. We demand an answer to the question of whether the army will intervene, if things ‘turn dramatic’ at the meeting that the opposition has called for 9 June. “It will, of course”, replies Kadijević…’ (BJ, 338)

The uses to which the army was put, and by whom, can be seen also in the intervention in Slovenia in July 1991. Jović writes:

‘Slobodan and I have made an appointment with Veljko Kadijević, which we see as decisive.’

‘The Serb people is completely confused and is joining the opposition in large numbers.’

‘We demand the following of Veljko Kadijević: 1. He must respond strongly to the Slovenes with all means, including the air force. … Then withdraw from Slovenia… This will raise the army’s morale, frighten Croatia and pacify the Serb people.’ (BJ, 349)

‘I consult Slobodan Milošević about the army’s plan [to bring down the governments of Slovenia and Croatia – SP]… Asked what is to be done if we fail to win the necessary majority on the Presidency for the required decisions, he thinks that we should decide with the members who are “for” and that the army will “obey”.’ (BJ, 281)

Conspiratorial command over the JNA

The key strategic and tactical decisions, and command over the JNA, were not assumed, however, even by the unqualified ‘group of members’ of the Presidency (‘who are “for”’), but by a completely informal group: the so called ‘group of six’, an informal conspiratorial group led by Milošević, Jović and Kadijević.

At their meeting on 4 July 1990, Vejlko Kadijević informed Jović: ‘The army will do all in its powers to prevent unconstitutional behaviour [proclamation of the declaration on Slovenia’s independence – SP] as legally as is possible, and if the Presidency cannot provide such a decision then one must look for other options … the army will obey the order also of a group of members of the Presidency, even if they are not a qualified majority.’ (BJ, 162)

According to Jović, at the meeting on 14 August 1991, Milošević, Jović and Kadijević form at Kadijević’s suggestion a ‘group of six’ made up of Serbs and Montenegrins, with unconstitutional powers.

‘Meeting at Veljko Kadijević (Kadijević, Adžić, Milošević, Bulatović, B. Kostić, and I).’

‘Veljko Kadijević says that we must have a permanent system of coordination of this composition. The others are working more systematically than us. This approach is dangerous for the army, but it cannot be avoided. It would be good to form an expert staff of 5-6 people ( Serbia, Montenegro, JNA) whose task would be to assess the situation and suggest decisions.’ (BJ, 371)

‘The idea of a systematic consultation of the six was accepted, but not the formation of a “staff” as well.’ (BJ, 372)

As was decided, ‘The Six’ continued to meet regularly. Jović records the following meetings of ‘The Six’:

14 August 1991 (BJ, 371)

05 September 1991 (BJ, 382-3)

12 September 1991 (BJ, 385)

20 September 1991 (BJ, 386)

24 September 1991 (BJ, 387)

28 September 1991 (BJ, 387)

02 October 1991 (BJ, 391)

05 October 1991 (BJ, 391-2)

06 October 1991 (BJ, 392)

09 October 1991 (BJ, 394)

25 October 1991 (BJ, 402-3)

These meetings discussed and decided all aspects of the war, strategic and tactical, even operational:

– on ‘preparation of the army for war’, on how ‘the war must be offensive and of high intensity’, on the need to ‘harmonise politics and propaganda, especially in regard to the people going to war’, on ‘the further management of events’ (BJ, 383);

– on whether ‘we’ (the six) have ‘the aim of using the army to defend the new frontiers of the people who wish to remain in Yugoslavia, or to bring down the Croatian government’, on the ‘absolute necessity for mobilisation’ (BJ, 385);

– on the failure of the plan (due to the failure of mobilisation) to ‘cut off Slavonia’, ‘to cut Zagreb off from the south’, to ‘cut off Herzegovina’, to ‘push to the Adriatic’, which should have brought Croatia ‘to capitulation’, and of the need to ‘devise a reduced plan’ (BJ, 386);

– on the fact that ‘there are still a large number of Croats in the army’, on the need for ‘ Serbia and Montenegro to proclaim the army their own’, ‘that the army cannot lose the Yugoslav name’ (BJ, 387);

– on ‘staff changes in the army’, on the need to ‘fortify the lines reached’ and to ‘strengthen the units with volunteers’, ‘that the units of Serb insurgents must be organised, and positions for defence of the established lines fortified’, that ‘ Slavonia must have an infantry that will control the liberated territory’ (BJ, 390-1);

– that it was necessary to ‘work out the concept of a peace initiative combined with the concept of force’ (BJ, 392), etc.

The Six assumed full control of the Army.

Unconstitutionality

Alteration of the JNA’s national structure and the use of the army described above, as well as the assumption of command over the army, are unconstitutional, of course (and at times constituted also criminal acts).

According to Article 240 para 2 of the SFRJ constitution:

‘The armed forces of SFRJ form a single whole, and are composed of the JNA – as the joint army of all nations and nationalities, all working people and citizens – and of the territorial defence, as the widest form of organised general resistance.’

According to Article 242 of the SFRJ constitution:

‘In regard to the composition of the officer cadre, and appointment to higher command and leadership positions in the JNA, the principle is followed of the republics and autonomous provinces being represented as equally as possible.’

According to Art. 186 of the SFRJ criminal code:

‘Any official who, on the basis of difference in nationality, race, religion, ethnicity, gender, language, education or social position, refuses or limits the rights of citizens as established by the constitution, law or other provision or general act, or who on the basis of such a difference provides citizens with privileges or favours, will be punished by imprisonment of between three months and five years.’

According to Article 330 para. 1 of the SFRJ constitution:

‘The Presidency of SFRJ works on the basis of compromise among its members.’

According to Article 313 para. 3 of the SFRJ constitution:

‘The Presidency of SFRJ is the highest organ of leadership and command over the armed forces of SFRJ in both war and peace.’

According to Article 328, paras. 1 and 2 of the SFRJ constitution:

‘The president of the Presidency of the SFRJ in the name of the Presidency of the SFRJ represents the Socialist Federative Republic of Yugoslavia, represents the Presidency of SFRJ, convenes meetings of the Presidency of SFRJ, chairs the meetings, signs acts that the Presidency introduces, ensures implementation of the acts and decisions of the Presidency of SFRJ, issues documents on the ratification of international agreements, and receives the accreditation and departure letters of diplomatic representatives accredited to the Presidency of SFRJ.’

‘The president of the Presidency of SFRJ, in the name of the Presidency of SFRJ, exercises command over the armed forces of SFRJ in accordance with the constitution and federal law.’

According to Article 315 para 1, point 6 of the SFRJ constitution:

‘The Presidency of SFRJ, within the framework of its rights and duties:

appoints, promotes and retires generals, admirals and other officers as specified by federal law;

appoints and retires presidents, judges and lay judges of military courts, and military prosecutors.’

The constitution nowhere suggests that the federal defence minister should report to the president of the Republic of Serbia, nor that the latter is empowered to ‘warn’ the federal secretary, ‘demand’ something of him, remind him of his duty, or order him to replace generals or other officers (and certainly not on the basic of ethic or national affiliation).

Nor does the constitution anywhere envisage that the president of the Presidency should exercise command over the armed forces without – let alone against – the views of the Presidency (in whose name he acts), and still less that he should seek the opinion of the president of the Republic of Serbia on how to do that.

It is also nowhere to be found in the constitution that the army should be used, without the permission of the Presidency, with the aim of ‘frightening’ the population at permitted meetings of the opposition (‘if things turn dramatic’), nor with the aim of ‘raising the army’s morale’, ‘frightening the Croats’ or ‘pacifying the Serb people’.

One may say that the conspirators destroyed the JNA both as an institution acting in accordance with decisions of the Presidency and as an army of all nations and nationalities (Art. 240 para 2 of the SFRJ constitution). On 16 October 1992 the JNA removed the insignia of the SFRJ state, and on 8 January 1992 Kadijević resigned.

Aims of the Conspiracy

Planning the violent overthrow of the governments in Croatia and Slovenia

On 25 February 1991 Jović notes under the heading ‘The army’s plans for overthrowing the governments in Slovenia and Croatia and for resolving the crisis’:

– ‘The army’s basic idea consists in strongly relying upon the forces which are for Yugoslavia.’ (BJ, 277)

– ‘ Serbia, Montenegro, the army and the Serb parties in Bosnia-Herzegovina and Croatia are for Yugoslavia.’ (BJ, 276)

– ‘to bring down, by a combination of political and military measures, the government first in Croatia and then in Slovenia’ (BJ, 277)

– ‘in the hesitant republics ( Macedonia and Bosnia-Herzegovina) to bring down the leadership by combined political measures – demonstrations and rebellions – or to change their direction. These activities are to be combined also with military activities.’ (BJ, 277)

– ‘The whole action to be led by those members of the SFRJ Presidency which opt for this course, with reliance on the army.’ (BJ, 277).

– ‘In Croatia and subsequently in Slovenia, as a first variant, it might be military rule followed by the formation of institutions with non-compromised individuals.’ (BJ, 278)

‘I consult Slobodan Milošević about the army’s plan. I read him all my notes, verbatim. He thinks it is all good, but that Slovenia should be left in peace. It should be applied only to Croatia.’

‘Asked what we should do if we do not achieve a sufficient majority on the Presidency for the necessary decisions, he thinks that we should decide with the members who are “for” and that the army will “obey”. He thinks it logical that we “remove” all those who resist this action by the Presidency.’ (BJ, 281)

In itself, the planning of these activities represents a criminal act on the basis of Article 114 of the SFRJ criminal code, which says:

‘Whoever commits an act designed to: limit or overthrow the government of the working class and the working people; undermine the constitutionally established socio-economic order, the socio-political system or the system of self-management; unconstitutionally overthrow the organs of self-management and government, their executive organs or the representatives of the highest state organs; destroy brotherhood and unity or violate the equality of the nations and nationalities; or anti-constitutionally change the federal order of the state, will be punished with imprisonment for at least a year.’

This is a criminal act of so-called ‘abstract threat’ (committed when something merely ‘could endanger a protected object’, even when that did not actually materialise); it incriminates the very preparations (Decision of the Supreme Court of Croatia I Kž-1878-72) as well as the actual attempt. Whether there was a possibility of danger resulting or not is estimated on the basis of the circumstances (Commentary on the SFRJ Criminal Code by a group of authors, Savremena administracija, Belgrade 1986, p.421).

According to Article 18 para 3 of the SFRJ criminal code:

‘when the law prescribes punishment for the preparation of a certain criminal act, the preparation may consist of acquisition or preparation of the means for execution of the criminal act; removing obstacles to execution of the criminal act; collusion, planning or organising with others execution of the criminal act; as well as other activities creating the conditions for direct execution of the criminal act that do not represent the activity of execution.

Planning the violent overthrow of SIV and the Presidency

The planned overthrow of the governments in Croatia and Slovenia did not happen, because in Jović’s view:

‘[Milošević’s] idea that the minority on the Presidency should decide [see above, BJ 281 – SP] is suspect. It is a situation where the army decides, and this cannot be hidden.’ (BJ, 281)

And also because:

‘the army is in a terrible plight because it has no political “cover” for what it wants to do. It fears to act without a “cover”. But a decision of the Presidency without sufficient votes is not constitutional and does not provide such “cover”.’ (BJ, 281)

‘It would be best in my view to create empty space for the Army to decide on its own.’ (BJ, 281).

But another step was taken to draw the army into the political showdown, by the introduction of emergency measures, which Kadijević proposed – in the name of the armed forces and the general staff – to the Presidency on 12 March 1991. This meeting was held three days after the opposition’s great demonstration on 9 March 1991, when Milošević sought the army’s protection (BJ, 283). The Croatian representative opposed this, stating that ‘a state of emergency is being proposed in order to save the Serbian leadership from the opposition’s pressure’ (BJ, 289). Apart from Jović, only the Vojvodina representative voted for the introduction of a state of emergency. The only thing left now was to ‘create empty space’ (BJ, 281) for a military coup.

On the following day, 13 March 1991 (at the time when a new mass meeting of the opposition was taking place), Jović records:

‘Veljko told us [Milošević and Jović] openly in the presence of General Adžić: “We have opted for a military coup.” … I asked him what he meant by a military coup. He replied: dismissal of the [federal] government and Presidency. They will not interfere with the assembly, but will not permit it to meet. They will not interfere with the republican governments or anything else, provided they support the coup. If not, they too will be forced out. Slobodan said nothing and made no comment. … Having heard Veljko out, I told him that I shall resign tomorrow, after the meeting … I shall give the army the space to act. I shall speak to Nenad Bućin [of Montenegro – SP] and Jugoslav Kostić [of Vojvodina – SP] about them doing the same.’ (BJ, 296)

Two days later, on 15 March 1991, Jović via Belgrade TV ‘leaves empty space’ for a military coup – he resigns from the Presidency, on the grounds that he cannot remain in a Presidency which: ‘seeks to tie the hands of the Yugoslav People’s Army’ and ‘has displayed open distrust in the armed forces of the country’ (BJ, 306), although ‘the Yugoslav People’s Army, i.e. the armed forces of the country, has neither the task nor the intention of interfering in political life or influencing the making of political decisions concerning the country’s future’ (BJ, 305).

‘Bućin and Kostić also resigned. Slobodan Milošević made a statement that in these circumstances he no longer recognised the decisions of the Presidency of SFRJ and would not participate in its work [in his role as deputy member of the Presidency for Serbia]’. (BJ, 306)

The army, however, ‘having made its own analyses’ (BJ, 308-9) did not carry out a coup without ‘political cover’. Jović made the following comment on this:

‘They have made themselves look very strange. If they had all these analyses in place when they told us that they had decided on a military coup, then it is not clear how they reached that decision. If they did not have this all in mind, then they are unserious.’ (BJ, 310)

There is no doubt that a definite plan had existed – made by Kadijević, Jović and Milošević – for unconstitutional overthrow of the governmental organs, SIV and the Presidency, and if necessary the organs of government in the republics. Jović and Milošević had delivered the activities that the plan allotted to them – ‘creation of empty space’ – Jović with his resignation from the Presidency and Milošević with his refusal to replace him there. They had done all they could to permit realisation of the forbidden outcome, which did not occur because the army was ‘unserious’.

Taken in themselves, the planning of these activities represents a criminal act according to Article 114 and Article 18 para 3. of the SFRJ criminal code [see the relevant passages cited above].

Unconstitutional alteration of the SFRJ borders (through unconstitutional exclusion from SFRJ of the Republic of Slovenia and the Republic of Croatia)

Jović notes on 12 June 1990:

‘Session of the SFRJ Presidency with the participation of the presidents of the republics and autonomous provinces. Tuđman and Kučan present for the first time.’

‘Kučan and Tuđman posed identical questions: do we recognise them as the legal and legitimate representatives of Slovenia and Croatia … I replied that we do recognise them…’ (BJ, 153)

Two weeks later, on 27 June 1990, Jović writes:

‘Conversation with Veljko Kadijević. … I tell Veljko that I would most gladly drive them [Croatia and Slovenia – SP] forcibly from Yugoslavia by simply redrawing the borders and announcing that by their own decisions they have placed themselves in that situation, but that I don’t know what to do with the Serbs in Croatia. I do not favour the use of force, but we should place them before a fait accompli. The action should be worked out along these lines, with a variant of holding a referendum prior to their expulsion, on the basis of which it would be decided how to redraw the borders. Veljko agrees.’ (BJ, 160)

On the following day, Jović notes:

‘Conversation with Slobodan Milošević. … He agrees with the idea of “expelling” Slovenia and Croatia, but asks me whether the army will obey such an order? I tell him that it must carry out the order, and that I do not doubt it, but my problem is what to do about the Serbs in Croatia and how to secure a majority on the Presidency for such a decision.’

‘Sloba gave me two ideas: first, that the “chopping off” of Croatia be done in such a way that the Lika-Banija and Kordun municipalities, which have formed an association, would remain on our side, with the proviso that the people there would later declare through a referendum whether they wish to stay or leave, and secondly that the representatives of Slovenia and Croatia on the Presidency would be excluded from voting on the decision, because they do not represent that part of Yugoslavia which is taking this decision. If the Bosnian agrees, we’ve got a two-thirds majority.’ (BJ, 161)

Unconstitutionality

According to Article 283 of the SFRJ constitution:

‘The assembly of SFRJ: 1. decides on changes to the SFRJ constitution… 4. decides on changes to the borders of the Socialist Federative Republic of Yugoslavia.

Instigation and organisation of armed rebellion of the population of ‘Krajina’/arming of the insurgents/violent and unconstitutional alteration of the borders of the Republic of Croatia.

Jović, on 17 May 1990:

‘We are taking measures to remove from Slovenia and Croatia the weapons in civilian depots of the TO [Territorial Defence] and to transfer them to army depots. We shall not permit the TO weapons to be misused in conflicts that may arise, or for forcible secession. We have practically disarmed them. Formally, this was done by the chief of the general staff, but in practice by our order. The Slovenes and Croats have reacted sharply, but there is nothing they can do.’ (BJ, 146)

Jović records on 3 August 1990:

‘The Slovenes have firmly decided to go all the way, at the price of incidents, conflict and war.’

‘Veljko is all aglow. He is terribly happy. He said that he has never been happier, because they have ‘played their cards’ so stupidly that he will ‘send them packing’ and not just them…’. (BJ, 174)

Jović, on 4 September 1990:

‘Veljko Kadijević gives me the latest assessment of the military-political situation.’

‘We must be ready for use of the army in Slovenia as early as September, and in Croatia maybe in October, and in Kosovo at all times. It is no longer necessary to act preventively in relation to unrest provoked by these events, we should let disturbances erupt and use them to remove those responsible for the situation.’ (BJ, 190)

In his book Moje viđenje raspada [My View of the Break-Up, Politika, Belgrade 1993], Kadijević explains the reasons behind this tactic:

‘…deliberately to let the enemy attack first, so that the whole world can see who is the aggressor and what he wants… to do the opposite, as some were suggesting, in addition to serious political losses in the given international circumstances, we should have fallen right into the trap of a swift and destructive military retaliation, which in the first instance would have struck at Serbia.’ (VK, 93-4).

Jović’s note of 26 January 1991:

‘I talk to Slobodan [Milošević] on the telephone. … Slobodan is still sticking to what might have been possible until recently, but the army would not do it – to ‘chop them off’ from Yugoslavia, but this is now no longer possible… It would be best now to use the force that we have at our disposal (the army), and the democracy that we wish to impose (referenda), in order to ensure a peaceful exit from the crisis and favourable solutions for the Serb people, and for all others too if possible… Let the Croats impose war…’. (BJ, 263)

Jović notes on 25 February 1991:

‘Veljko talks next about his idea for the concept of the action.’

‘To strengthen institutionally and politically the Serb Krajina and support its secession from Croatia, not publicly but de facto.’ (BJ, 277)

In his book Moje viđenje raspada, Kadijević writes:

‘Bearing all this in mind, the aim of the JNA in Croatia was: to protect the Serb people in Croatia from attack by the Croatian armed formations, and to enable them to consolidate military self-organisation for defence; at the same time to prepare the JNA for war with Croatia, once Croatia had started it against the JNA. Then to execute the task within the framework of ‘preventing inter-national conflicts.’ (VK, 127)

‘The JNA has fully realised the aims of this phase of the conflict – it has protected the Serb people in Krajina and helped it prepare itself militarily and politically too for the events that were to follow, which is what the Serb people in Croatia actually did.’ (VK, 128)

‘ Croatia’s aim in the first phase was to establish its authority in the Serb areas of Croatia by using the police and the army…’. (VK, 126)

‘The Croatian leaders’ judgement is that the main reason why Croatia … has failed in its aim of breaking the resistance of the Serb people in Croatia, and establishing full authority over the whole territory lying within the framework of the existing administrative borders, is because of the role played by the JNA. Not only this – they are now fully aware that they will never achieve this aim so long as the JNA remains there.’ (VK, 128)

‘The strategy and tactics for achieving this aim was based on the following ideas: to avoid armed confrontation with the JNA, and to neutralise the JNA through political and propaganda instruments and activities.’ (VK, 126)

It is clear from this (a) that having fully disarmed Croatia, the conspirators sought war; (b) that they did not dare attack Croatia, for fear of outside intervention; (c) that they instead aided militarily and politically the insurgents in Krajina, encouraging them to secede (Jović says not publicly but de facto); (d) that they prevented, by use of military force, the Croatian government from re-establishing itself on territory belonging to its own republic, and placed their hopes in ‘incidents’ that they would ‘exploit’; and (e), that they did all this under the umbrella of ‘preventing inter-national conflicts’.

Such behaviour represents criminal participation in armed rebellion, as defined by Article 124 para 1 (dealing with very serious cases) of the SFRJ criminal code.

Armed rebellion

Article 124:

‘Whoever participates in the preparation of an armed rebellion, or in an armed rebellion, will be punished by imprisonment of at least a year.’

‘Whoever organises an armed rebellion, or participates in an armed rebellion as organiser or leader, will be punished by imprisonment of at least five years.’

Article 139:

‘For a criminal act under Article 114; Article 115 para. 5; Articles 116 to 121; Articles 123 to 128; Article 132, and Article 136 para. 1 of this law, which has caused the death of a person or has caused a threat to human life or was accompanied by serious violence or great destruction, or has endangered the country’s security, or its economic and military forces, or in other especially serious cases, the perpetrator will be sentenced to imprisonment of at least ten years or to death.

Conclusion

There is no doubt that under the conditions of our proposed thought experiment, and according to the laws of the SFRJ at the time of their activity, Milošević, Jović and Kadijević

would have been sentenced by a Yugoslav court for serious criminal acts against the security and constitutional order of the SFRJ, acts punishable by a death sentence.

The three faced the typical dilemma of all plotters and subversives: if we fail, we shall be criminals; if we succeed, there will be no one to punish our crimes. They succeeded. This is why they were never tried for their basic crimes in a domestic court, in accordance with laws valid tempore crimini (at the time those crimes were perpetrated). They were tried only for secondary consequences of their treason, genocide, war crimes, etc., and then only by an international tribunal.

The political consequences of this situation are enormous. The unpunished crime of treason, and the ‘presumption of innocence’, allows Serb nationalism to perpetuate to this day the colossal lie of Milošević’s propaganda; to ensure ideological continuity with the regime of Slobodan Milošević; and to prevent Serbian society from confronting the difficult truth and creating for itself a new identity on that basis.

Appendix: The Constitutional Question

The starting point of this text is the assumption that the SFRJ existed up to 8 October 1991, because on that day Slovenia and Croatia proclaimed their independence (after a three-month moratorium).

In his book Prestanak Jugoslavije [The End of Yugoslavia], Professor Vladimir Vodinelić argues that in the domain of civil law, the date after which the statutes of the other republics and the federation should be treated as ‘foreign law’ in the new state should be 8 October 1991.

The decisions of the Badinter commission point to a similar conclusion, starting above all from the commission’s correct opinion that recognition has only a declaratory character.

Some people take 15 January 1992, the day when these two states were internationally recognised, as the day of the end of SFRJ, but this would appear to be evidently wrong.

(Milošević himself adopts the wholly unsustainable position that SFRJ existed up to 27 April 1992, as is evident from the Decision on the Proclamation of the Constitution of SRJ, according to which this Constitution was enacted by ‘the Federal Council of the Assembly of SFRJ’ (without the participation or agreement of four out of its six republics).)

But the question also arises, however, of whether the SFRJ existed after the proclamation of Serbia’s constitution on 28 September 1990, by virtue of which Serbia constituted itself as an ‘independent and sovereign’ state, and explicitly excluded itself from the legal system of SFRJ – regardless of the fact that it agreed to implement general acts of that other state when that was in its interests, and regardless of the fact that it declared itself (contradictorily) as being still ‘part of SFRJ’. With this last declaration, Serbia was only expressing its will to continue to exercise, without any grounds, rights in another state to which, as itself an independent state, it no longer belonged.

Serbia also behaved as an independent state in making laws of its own that directly contradicted the laws of SFRJ.

If Serbia, by its own constitution and behaviour, was an independent state, then SFRJ no longer existed, because the federation had lost the power to execute its sovereign rights over 41 per cent of its territory and over 29 per cent of its citizens.

In addition, according to Article 2 of the SFRJ constitution, ‘The Socialist Federative Republic of Yugoslavia… is composed …’ – there follows the list of the six republics and the two autonomous provinces, a list that naturally includes the Socialist Republic of Serbia, the Socialist Autonomous Province of Kosovo and the Socialist Autonomous Province of Vojvodina. By virtue of the Serbian constitution, three of the eight constituent members of the federation were constituted as a ‘sovereign and independent’ state.

The question that is logically posed, of course, is how and why the other members of the federation tolerated and agreed that an ‘independent and sovereign’ Serbia should continue to send its representatives to the SFRJ Presidency and take de facto part in its decision-making. The answer lies not on the legal but on the political plane: the other republics feared the alliance of an aggressively nationalistic Serbia with the JNA. Thus, for example, on 24 January 1991 Kučan met with the president of ‘independent and sovereign’ Serbia in order to ask him (which is granted) for permission to leave SFRJ! The power of ‘independent and sovereign’ Serbia to impose itself de facto upon another state in this way was based exclusively on the threat to use force, which the others realistically judged to be real enough. Serbia’s imposed participation de facto in the decision-making of ‘the remainder’ of the SFRJ federal bodies was thus a purely violent act.

If one accepts that SFRJ ceased to exist on 28 September 1990, when Serbia constituted itself as ‘independent and sovereign’, then one must conclude that on the so-called ‘rump’ Presidency (on which the representatives of Croatia, Slovenia, Macedonia and Bosnia-Herzegovina no longer sat), apart from the ‘representative’ of independent and sovereign Serbia there sat only one legitimate member of that ‘Presidency’ – the representative of Montenegro! This ‘Presidency’ had only one member.

This question must be left to be resolved by experts on constitutional law. It remains important, however, for the proper application of law in judging the behaviour of the perpetrators of criminal acts which has been the subject of this essay.

Sources cited:

Borisav Jović, Poslednji dani SFRJ, Politika, Belgrade 1995

Veljko Kadijević, Moje viđenje raspada – vojska bez države, Politika, Belgrade 1993

Miodrag Marović, Politika i politika, Helsinški odbor za ljudska prava, Belgrade 2002

Dragoš Ivanović, Bolest vladanja, zavereničko vladanje, Republika, Belgrade 2000

Mlađan Dinkić, Ekonomija destrukcije, Belgrade 1995

Lex, pištaljke i laži, Helsinški odbor za ljudska prava, Belgrade 1997

Dragoljub Todorović, ‘Razlozi za konstituisanje’, Srpska reč, no. 297, 5 June 2002

Predrag Tašić, Kako sam branio Antu Markovića, NIP Mugri 21, Skopje 1993

Vladimir Vodinelić, Prestanak SFRJ – Pravne posledice, Pravni fakultet, Belgrade 1995.

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.
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