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Dateline: Milosevic And The Hague Tribunal - 2002-02-22

Former Yugoslav president Slobodan Milosevic launched his defense last week against war crimes charges at the U.N. tribunal in The Hague. His trial represents the first time a head of state has been brought before the international tribunal on "charges of genocide and war crimes." In today's Dateline, Judith Latham explores the impact of the case on international law.

The impact of the war crimes trial of Serbian leader Slobodan Milosevic is a subject of debate among Washington policy specialists. They are exploring how the trial will affect developments in international law and U.S. policy, and whether the U.N. tribunal can "deter the future commission of such atrocities." For his part, Mr. Milosevic regards the court and its indictment as illegal and false. He has refused to enter a plea of guilty or not guilty and he has rejected his trial as being "politically motivated". He also has not hired an attorney and instead is acting as his down counsel.

Speaking at a U.S. Institute of Peace conference in Washington on the topic, Professor Michael Matheson of the Johns Hopkins School of Advanced International Studies describes the Milosevic trial as the "culmination of a long and arduous process" since the U.N. Security Council first created the International Criminal Tribunal for the Former Yugoslavia in 1993.

"The Council was trying to contribute in some way to ending or deterring the commission of atrocities, which by that point had reached alarming proportions. Was the creation and operation of the Tribunal effective in helping to end such atrocities in the former Yugoslavia? I think the record is not entirely clear," says the professor. "The second objective relating to the former Yugoslavia was to discourage the use of violence as the means of revenge and justice by the victims of atrocities and to promote reconciliation and peaceful resolution of the conflict in the long run. The third specific objective relating to Yugoslavia was to de-legitimize those individuals who were primarily responsible for the atrocities that is, to remove them from public positions. And, in this regard, I think the existence of the Tribunal and its operation was quite successful. The Milosevic trial will be in some ways an acid test of the effectiveness of the Tribunal as a means of achieving these objectives."

International law professor Michael Matheson was a legal adviser to the State Department for nearly 30 years. Professor Ruth Wedgwood of Yale Law School says the Milosevic trial raises some important legal issues that may serve as a precedent for international criminal tribunals in the future.

"The question of the trial I think is to what extent the prosecution will be able to show that Milosevic directly ordered events to happen," she says. " Or will we have to rely on the theory of 'command responsibility,' which is that the acts were so widespread and so notorious that he must have known that they were happening? And that he had a duty to inquire if they were happening, and he failed to take any action to control them. The second big issue in the trial is that of 'head-of-state immunity.' When Milosevic was indicted, he was actually still in office."

Professor Wedgwood says that it is "incumbent on the Tribunal" to make the proceedings of the Milosevic trial "intelligible" to people in the region as well as to the international community and to the community of legal scholars.

"I do think that the confidence of the Serb community in the Tribunal will be increased to the extent that the Tribunal can also look critically at acts that may have been carried out by Croatian leadership and by Muslim leadership," she says. " I think the other effect of the Milosevic trial will probably be a long and difficult self-examination by Serbian intellectuals as to what their role was in the last 20 years. The famous Serbian Academy of Sciences document of 1986 on the threats to Serb nationalism was something that Milosevic was able to make use of."

Professor Ruth Wedgwood, a senior fellow at the Council on Foreign Relations, has also served as an independent expert with the International Criminal Tribunal for the Former Yugoslavia. Balkan analyst Obrad Kesic says he has had serious doubts about the Tribunal since its inception nearly a decade ago. And he questions whether trying Milosevic in The Hague rather than in Belgrade can yield a judgment that people in the region will perceive as just.

"Ideally, Milosevic's trial and all of the trials in The Hague should punish some of those responsible for war crimes and in this way bring closure to victims and their families. Ideally, this process should contribute to the overall peace process by establishing truth, by providing justice to the victims, and by laying the foundation for reconciliation," she notes. " My fear is that it does very little of this, and it may in fact be destabilizing to the overall peace process and to the region as a whole. Carla del Ponte went out of her way to say that this would solve the issue of collective guilt and collective responsibility that by holding individuals accountable for their actions that it would basically remove collective guilt from the Serbian nation. She also went out of her way to mention that the Serbs were also victims of Milosevic's crimes. She went out of her way to make a statement geared to the Serbian people namely, that this trial should in no way be interpreted as their being put on trial. This is more about us than it is about them. And we care more about the success of this tribunal because it sets an important precedent for the international community. We believe that the fate of this precedent hinges on whether or not Milosevic is convicted, whether or not The Hague is perceived to be successful."

Obrad Kesic says that, contrary to the objectives of the trial, people in the region have merely learned that "might makes right."

"And I believe the Tribunal re-enforces that lesson. Secondly, local people need to have ownership of this process. There has to be a place for local courts and local institutions," he says. "The third reason I'm skeptical and feel this trial will not succeed in contributing to the overall peace process, is that it simply serves to deepen the feelings of victim-hood among peoples in the region. Serbs and Croats feel that the West is buying favor with the Islamic world at their expense and that they are victims of this process. And what happened to them and their people during the war is not being given the same weight, the same validity. For the Bosnian Muslims and the Albanian Muslims, it is a certification that they were righteous victims that is, their cause was just. Because people in the region are mostly preoccupied with the crimes committed against their own people and because there are suspicions and an outright rejection of the Tribunal itself, most people reject whatever is decided by the Tribunal. Except for the versions that are being written by their own historians and their own politicians. And, finally, within Serbia itself, you have another layer of this problem. The reason that Milosevic is in The Hague is not because of international pressure or because of U.S. pressure. The reason he is in The Hague is because it fit in with the way the struggle was going in Serbia. The Serbian government in particular the Prime Minister wanted to prove who has power and who doesn't have power in the country and who has the power to arrest and extradite and who can only sit by passively and watch it happen [i.e. Yugoslav President Vojislav Kostunica]. One of the things I want to remind people is that history does not begin in 1991 or in 1989. There are many Serbs who would say: 'How can you judge the actions of the Serbian nation in the '90's period when there has never been an accounting of what happened to the Serbs in World War II?' I think the test for the significance of this tribunal is will we ever see this repeated again? "

Obrad Kesic, director of government affairs at ICN Pharmaceuticals in Washington. But nothing in the war crimes trials in The Hague "precludes a thoughtful re-examination" of Yugoslav history 60 years ago says Professor Ruth Wedgwood of Yale Law School.

"In no way does this kind of war crimes trial preclude re-examination of the problems of the Jasenovac concentration camp [in Croatia], which was a notorious event during World War II. Nothing in this trial precludes that re-examination," she says. " And frankly, I think it will strengthen it and give each community the courage to look into its own past. In the immediate aftermath of the war, action by local authorities would not be credible, either to the victims or to the communities from which the defendants have come, and therefore the international forum can be seen as more neutral than having trials by one's former adversaries."

Regional experts at this point are divided as to whether The Hague tribunal can render impartial justice and whether its proceedings will deter future atrocities and war crimes.