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At The Hague,

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By Barbara Crossette

New York Times
February 17, 2002

Slobodan Milosevic, the former Yugoslav leader on trial for war crimes in the Balkans, turned on his international prosecutors Thursday and heaped scorn on them for "accusing a whole nation" — the Serbs — of atrocity and murder.


But that is not the issue in his indictment. Nor is it what this landmark trial is about. Much has been made of the fact that this is the first trial of a head of state for war crimes. But Mr. Milosevic is not in the dock as a symbol of a nation or its ideology. He is not even on trial before the world because he was president of the former Yugoslavia during a decade when Serbs were attacking, killing, raping and evicting first Bosnian Muslims and Croats, then Kosovar Albanians.

He is on trial as an individual, accused of personally fomenting or ordering those war crimes. For half a century, since the Nuremberg trials of Nazis and the Tokyo war crimes cases against Japan, international law had moved slowly but surely in search of a new standard of personal accountability for the leaders, as well as the foot soldiers, who are directly responsible for criminal behavior in time of conflict.

In recent years, the process has taken off with unexpected speed, not only in two international criminal tribunals, for the Balkans and Rwanda, but also in courts planned to settle accounts for Sierra Leone's brutal civil war and maybe one day for Cambodia's Khmer Rouge. And in the next year or two a permanent International Criminal Court is expected to be setting up operations to deal with all cases like these.

The trend is toward both the globalization of justice and the narrowing of culpability. An emerging body of international law is constructing an ever more solid base for impartial trials in a world arena by a multinational panel of justices. In this new field of law, the Milosevic trial will have established major precedents.

Only eight years ago, the late Telford Taylor, who had been an American prosecutor at the Nuremberg international tribunal, said in an interview that he was pessimistic that courtroom justice would ever come to the Balkans. He argued that the laws of war are largely enforced — or not — by people in power and that governments were usually left with the responsibility of punishing their own war criminals. The record was not stellar, he said, citing among others the case of Lt. William Calley, who was given a life sentence for the My Lai massacre in Vietnam, but then paroled. "The laws of war unfortunately do not have any police, any judges. Nothing is given that says, `Look, if you do that, someone is going to hit you in the head.' "

That courtroom in The Hague has the judges now, and they are establishing exactly what can bring down punishment on an errant head. This is, of course, a time quite different from that of Nuremberg, where the basic accusation against individuals was complicity in the overarching guilt of a totalitarian system that had started a global war.

Today, in an age of nasty civil wars, trials that focus on individual guilt can have the side effect of revealing how often such conflicts are not, as advertised, fought out of old ethnic, linguistic, cultural or religious hatreds, but because a political leader has deliberately inflamed such tensions for political gain. The phenomenon is not confined to the Balkans, but has been seen in Rwanda's Hutu-Tutsi genocide and in Sri Lanka, where a post-independence leader looking for a political platform stirred up Sinhala-Tamil animosity, leading to civil war.

The trend toward universal jurisdiction is not welcome news everywhere, however, particularly in the United States. The Clinton and Bush administrations have broken with most of America's allies in opting out of the International Criminal Court, out of concern that any act of war could lead to indictments of American leaders. A few years ago, for example, an effort was made by some human rights organizations to charge the United States with war crimes in the bombing of Belgrade to drive Serb troops out of Kosovo. And while the Balkans tribunal did not agree that these actions were indictable, it is not inconceivable that similar allegations could grow out of American military action in Afghanistan or Vietnam.

"I do not find it surprising that the Americans are concerned, since they are now technologically unilateral," said Ruth Wedgwood, an expert in international law at the Council on Foreign Relations and the Yale Law School. "It's because the technology is so advanced that no one else can be interoperable with us any more, that we're concerned about a lack of sympathy, even among our NATO allies."

But, she said, the kind of accusations the Americans worry about — based on distinction between military and civilian targets, for example — differ from the bulk of crimes tried at The Hague, which "are based on rules of war that are bright-line rules: Don't slaughter P.O.W.'s, don't ravish women, don't put P.O.W.'s in the front line to de- mine no man's land." And that, she said, means that it should be easier to convict a Milosevic than to prosecute the kinds of charges that might be aimed at an American.

DESPITE the American objections, Reed Brody, advocacy director of Human Rights Watch in New York, said there has been a huge change in the willingness of officials to seek prosecution in the last five years, not only in international tribunals, but also in national courts like Belgium's, where cases can now be brought against foreigners for events that took place in other countries. Augusto Pinochet, the former Chilean dictator, narrowly escaped extradition from Britain to Spain, where a judge had brought charges against him, and campaigns are being conducted to try Hissan Habre, the former Chadian leader, and Alberto Fujimori of Peru, now in exile in Japan.

There have been obstacles, however. Last week, also in The Hague, the World Court, which hears cases between nations, granted the Democratic Republic of the Congo immunity from prosecution of its former foreign minister, Abdoulaye Yerodia Ndombasi, in a Belgian court, on grounds that serving ministers were protected from prosecution. The decision is thought likely to derail a more prominent case also being brought in Belgium, in which Ariel Sharon, the current Israeli prime minister, is accused of accountability in the 1982 massacre of Palestinians at the Sabra and Chatila refugee camps in Lebanon. The killings were carried out by Lebanese Christian allies of invading Israeli forces.

In addition, the Cambodian government of Prime Minister Hun Sen has rebuffed United Nations demands that its own criminal tribunal meet international standards. Still, advocates of international jurisdiction and international norms remain confident that the trend is in their favor. Mr. Brody, for example, noted that less than two years ago there were still calls to give Mr. Milosevic immunity against prosecution for the Balkan wars in order to remove him from Serbian politics.

"Norms and expectations have changed," he said. "Now every transition is accompanied by a debate over accountability." Will Mr. Milosevic get a fair trial? No one denies that the indictments against him came at a very opportune time for the United States and NATO in their war against the Serbs in Kosovo, or that Serbia was threatened with a refusal of crucial rebuilding aid if it did not cooperate with the tribunal. Supporters of the Serbs and Mr. Milosevic have called that unacceptable political pressure.

But Ms. Wedgwood, who is a visiting professor at Johns Hopkins University this year, said that the critical factor was whether the Balkans tribunal, without any investigative service of its own, could muster the necessary evidence. "One test of the trial," she said, "is to what degree we can present proof of actual direct involvement versus how much it will revolve around theories of command responsibility. For credibility in the region, it's important that there be more specific evidence because the command responsibility theory is often just seen as criminalized negligence — failure to control."

In other words, the big question is whether it can be proved that this one individual "knew exactly what was happening in Kosovo and endorsed it."


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FAIR USE NOTICE: This page contains copyrighted material the use of which has not been specifically authorized by the copyright owner. Global Policy Forum distributes this material without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. We believe this constitutes a fair use of any such copyrighted material as provided for in 17 U.S.C § 107. If you wish to use copyrighted material from this site for purposes of your own that go beyond fair use, you must obtain permission from the copyright owner.