The Politics of International Law and Compliance
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The Politics of International Law and Compliance

Nikolas M. Rajkovic

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The Politics of International Law and Compliance

Nikolas M. Rajkovic

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About This Book

Leading the debate on the domestic effect of the growing influence of international adjudication, this invaluable text examines Serbia and Croatia's erratic record of compliance with the International Criminal Tribunal for the Former Yugoslavia (ICTY).

Since the demise of the Milosevic and Tudjman regimes, Serbian and Croatian governments have been inconsistent in cooperating with the ICTY, despite the conditions of EU membership and US financial incentives. This study reconstructs events before, during and after extradition to build up a picture of the complex politics involved in ICTY relations, and provides a conceptual framework to study compliance in international relations and law. Through this analysis, a historical tracing of varied factors of political influence and a conceptualization of compliance is provided, resulting in a rich interdisciplinary work embracing political science, international relations and social theory. By scrutinizing the social meanings and political practices which become attached to prescribed norms in compliance processes, this book provides a highly-relevant insight into contemporary meanings of 'compliance'.

Politics of International Law and Compliance will be of interest to students and scholars of politics, international relations and international law, and European politics.

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Publisher
Routledge
Year
2012
ISBN
9781136632761
1 Another ‘Balkan Odyssey’1
Introducing a Compliance Puzzle
On 28 June 2001 the government of Serbia extradited former Yugoslav and Serbian President Slobodan Milošević to the International Criminal Tribunal for the Former Yugoslavia (ICTY) after months of intense diplomatic, legal and domestic controversy. The extradition caught many by surprise; the days and months leading to the extradition revealed conflicting indicators as to what would ultimately happen. In Serbia, public support for the extradition was divided;2 which was less an indication of sympathy for the former ruler as it was a representation of popular opinion3 that the ICTY was partial in its justice.4 General opinion, amongst the Serbian public and elites alike, was that all ICTY inductees, including Milošević, should be tried at home5 not only for alleged war crimes committed against other Yugoslav nationalities but also for crimes committed against the Serbian state and citizenry.6 Hence, for both strategic and normative reasons, important currents within Serbian society and the political elite viewed the extradition of the former President as contrary to ‘national interests’. Nevertheless, the United States set a clear deadline of 29 June 2001 as the date by which Milošević had to be in The Hague.7 The deadline was not random: an international donors’ conference for Yugoslavia (Donors’ Conference) was set for that same day, with approximately US$1 billion at stake.8 In the end, Milošević checked into the ICTY prison at 1:16 am on 29 June 2001.9 Did Milošević’s drastic extradition confirm the panacea-like power of international incentives? Time would shortly tell.
On 20 October 2003, the then Chief Prosecutor of the ICTY, Carla Del Ponte, went public with indictments against four Serbian generals for crimes committed during military operations in Kosovo before and during the NATO intervention of 1999: Generals Vladimir Lazarević (Ret.-Army), Nebojša Pavković (Ret. Army), Sreten Lukić (Ministry of the Interior), and Vlastimir Djordjević (Ret. Ministry of the Interior).10 The indictments came as a shock to the Serbian public and, foremost, the ruling Democratic Opposition of Serbia (DOS) coalition, headed by then acting Prime Minister Zoran Živković.11 In fact, despite its previous extradition of Milošević and its decidedly pro-Western stance, the DOS government steadfastly refused to arrest and extradite any of the newly indicted Generals.12 Both the Živković and the later Koštunica government – which followed after the parliamentary elections of December 2003 – warned that possible arrests and extraditions would mobilize the political right, threatening to destabilize and potentially topple the ruling pro-Western parties.13
Beginning in January of 2005, however, the message of electoral doom associated with ICTY compliance rapidly and remarkably dissipated. First, EU Enlargement Commissioner Olli Rehn drew express linkage between the start of EU Stabilization and Association talks and ICTY cooperation. Subsequently, the Koštunica government, contradicting its past admonishments on the political infeasibility of extradition, set out on an active campaign for the ‘voluntary surrender’ and extradition of indicted military and police commanders. In what was a groundbreaking development, in a mere twelve weeks, Belgrade surrendered sixteen inductees to The Hague. Even three Generals, Lazarević, Lukić and Pavković, indicted in October of 2003, which previously the Serbian government refused to extradite, were delivered to the ICTY. The government of Serbia, as exemplified by statements of its then key coalition partner and Foreign Minister, Vuk Drašković, championed an unseen enthusiasm for the push towards full ‘cooperation’, hailing compliance with the ICTY as the last obstacle which, ‘once overcome, would open for Serbia a freeway to Europe of unlimited speed’.14
However, this pattern of cooperation did not prove lasting. In the spring of 2006, the Serbian government was again at an impasse regarding the intransigent case of General Ratko Mladić. The previous year the EU rewarded Serbia with the commencement of EU Stabilization and Association talks. Yet, continuation of the talks was made conditional upon further ‘cooperation’ with ICTY. In particular, the surrender of General Mladić was made a benchmark. However, Mladić’s location, not to mention his arrest, appeared far from certain. The prior policy of ‘voluntary surrender’ and extradition, which had proven so effective a year earlier, seemed to have no sway over the (in)famous indictee. The Serbian government, faced with the suspension of valued EU association talks, seemed both powerless and hesitant to launch an all-out manhunt for the impugned General – an action which would have satisfied the European Commission. As a result, the Koštunica government failed to find and extradite Mladić; and consequently the EU suspended Stabilization and Association negotiations in May of 2006, stipulating that talks would resume with Mladić’s apprehension.
A similar story can also be noted regarding Croatia’s history of compliance with the ICTY. At various points in time between 2001 and 2005, the ICTY produced indictments against Croatian military officials for war crimes allegedly committed against Croatian Serbs, with the Tribunal seeking full ‘cooperation’ from Zagreb in the form of prompt arrests and extraditions. In some cases, the Croatian government responded with haste and earnest, such as in the case of the Generals Norac and Ademi in 2001. However, at other instances, such as with the indictments of Generals Gotovina and Bobetko, successive Croatian governments (the Račan and later Sanader government) displayed resistance toward the Tribunal. Zagreb officials voiced various justifications ranging from fear of popular revolt to law enforcement incapacity, and this despite considerable incentives and sanctions exerted by the EU and the US.
Over time, and after considerable political wrangling, resistance gave way to ‘cooperation’, as was demonstrated with the location and arrest of General Gotovina in Spain in late 2005; an apprehension which formally concluded Croatia’s arrest obligations toward the Tribunal and cleared Zagreb’s path for continued EU membership negotiations. Yet, this was not the case with General Bobetko, who the Croatian government had shielded from arrest in 2003, followed by the timely passing of the elderly Bobetko months after the Tribunal’s indictment.
Are Conventional Intuitions Deceiving?
This book seeks to explain the erratic pattern of ICTY compliance demonstrated by Serbia and Croatia since 2000, the year in which the regimes of Slobodan Milošević (Serbia) and Franjo Tudjman (Croatia) came to an end. For many, the rise of pro-Western leaders in Belgrade and Zagreb was expected to translate into smooth compliance with the ICTY, producing quick and steady ‘cooperation’ with The Hague Tribunal. Yet, the relationship with the ICTY remained uneasy and developed with limited good will, despite sizeable Western incentives (e.g. US and EU) which encouraged full ‘cooperation’ with ICTY demands.
How do we explain this erratic and oscillating record of compliance regarding ICTY cooperation and compliance? Why in general have governments in Serbia and Croatia sometimes complied, while at other times resisted conditions for cooperation with the ICTY? Moreover, why has the compliance record of these governments been so erratic with respect to similar conditions and incentives? The irregularities are so pronounced in fact, that compliance patterns were often characterized by frequent policy reversals: sometimes noncompliance stances, earlier claimed as immutable, were reversed in short order; while at other times, seemingly complaint governments reverted to intransigent positions. How do we explain such discrepancies?
The task of explanation is approached by examining the Serbian and Croatian compliance cases through an in-depth and cross-comparative analysis. Such a manner of inquiry seeks a thorough investigation of each country case regarding ICTY conditionality, while at the same time providing a comparative perspective through the provision of two country studies. This allows for an analysis which is case-specific while at the same time relative, because its compares the historical experience of two similar cases.
However, some may argue that such an in-depth and comparative examination may not be necessary, as Serbia’s case can be used to illustrate. At various stages, most notably in June 2001 and April 2005, Serbia appears to have made a rational decision for full compliance with ICTY conditions so as to secure either financial assistance (June 2001) or fulfil preconditions for the opening of talks with the EU on a coveted Stabilization and Association Agreement (April 2005).15 Even the pull-back to noncompliance in the fall of 2003 and spring of 2006 can be explained in rational choice terms: the domestic political costs of compliance outweighed the international incentives. This line of analysis is entirely consistent with the rationalist mainstream of conditionality theory, which holds that faced with the proper incentives and/or punishment, national agents are suppose to engage in cost/ benefit calculations that lead them to align domestic policy with political conditions as set by the international community.16
Yet, upon closer scrutiny, there are reasons to question whether neo-liberal reasoning and rationalist social theory fully explain the dynamics of each compliance outcome. First, if the abovementioned cases were about nothing more than ‘getting the incentives [or punishment] right,’17 then how do we explain the volatile back-and-forth between 2001 and 2006? Were not the international incentives and pressures substantially the same? Second, why was popular opinion such an obstacle in 2003 but less so in 2001 and 2005? A response that electoral politics ‘constrained’ decision-makers only leads to more questions, as it does not explain in profound terms ‘what’ the source of the constraint was. It cannot be overstated: at various times governments all warned of an imminent and destabilizing clash between the state and society in the event of premature compliance with the ICTY, arguing that society’s low regard for the Tribunal made any significant cooperation with the ICTY difficult.18 However, some years earlier, this same level of anxiety over public opinion was notably absent when Slobodan Milošević was extradited on one of the most prominent days on the Serbian national calendar (St Vitus Day; commemorating the battle of Kosovo in 1389).19 Further, in the winter and spring of 2005, the Koštunica government expeditiously dampened its concern over public opinion and began to actively pursue – albeit ‘voluntary’ – extraditions.
In sum, how do we explain this oscillating pattern of compliance? Has the erratic shift in compliance been a reflection of changing international incentives? Does it reflect a struggle over ‘national interests’ and collective identity in relation to the ICTY? Or, does the oscillation suggest a deeper contest over the meaning of ICTY compliance at varying instances? Further, how can a comparative look at the problem, using two country cases, assist us with our analysis? How do we reconcile in profound explanatory20 terms the above-described oscillation from compliance to noncompliance and back? What approach should we take?
Compliance, Norms and the Politics of Normative Meaning
The puzzle of ICTY (non)compliance in Serbia and Croatia is an explanatory challenge for more than its raw empirical twists. What makes this puzzle profound is the strain it places upon the central aspect of any compliance case: our understanding of the prescribed norm and its effective meaning in practice. Since the rise of Institutionalist and Constructivist theorizing, International Relations (IR) and European Union Studies (ES) scholars have attributed growing significance to the force of rules and norms for the direction of international behaviour.21 However, that attribution has relied upon a premise where norms and rules are mostly understood to ‘structure’ political decision-making, and consequently action, by virtue of the code of conduct they allegedly assert. This premise arises from the confluence of two theoretical sources, legal formalism and Neo-Durkheimian thought, which together imply that rules and norms have ‘settled’ meanings which work to ‘regulate’ behaviour.
I argue that the ICTY puzzle leads us to question the adequacy of that ‘structuring’ presumption which is central to normative theorizing in both IR and ES. In particular, doubt arises as to whether the presumed stability of norms and rules undervalues the relevance of practical application and the flexibility of normative meaning in light of social context and interpretation. This assertion contrasts with a typical treatment of ICTY compliance as a bewildering and bizarre outlier – another ‘Balkan’ exception – that is beyond systematic relevance for normative theorizing. Thus, the way in which the ICTY puzzle is grasped here departs from an approach which seeks to study case deviance relative to ‘the norm’, and instead uses the puzzle to refract waywardness on how a ‘structuring’ presumption neglects norm construal and social application. Flowing from these considerations, the puzzle of ICTY compliance in Serbia and Croatia gains significance for its likely illustration of how norms and rules become affected by political processes and social meanings in the context of influence-making and normative compliance.
In this way, I engage the study of norms and rules with implications that do not apply merely to the problem of compliance in IR and ES; they also extend to our understanding of international legal norms and the social complexity of applying international law in attempted regimes of governance.22 Therefore, the puzzle of ICTY compliance is assessed with the assumption that the practical association between international politics and international law is not only close but intimate; and practices and processes of politics profoundly affect the making and construal of normative prescriptions, whether legal or otherwise. This is a premise alien to a formalist tradition of legal thought which asserts the meaningful and separable distinction between law and politics.23 However, I argue, a focus on the political and social sources of normative meaning open our eyes to the contentious and malleable character of normative governance. This view enables an analytical approach sensitive to how dominant ‘rule of law’ projects such as the ICTY still inhabit an intensely social and political world with the capacity to shape normative implications. In a nutshell, the ICTY puzzle represents an occasion when IR, ES and IL scholars can explore how compliance is sometimes less norm ‘diffusion’ and more a contested politico-constitutional project that evolves in response to encounters with political actions, events and social interpretations over time.
The trouble, however, is that such a starting point on the study of compliance, which stresses the politics of normative meaning, bears limited resemblance to the w...

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