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FindLaw Forum: Why Milosevic should be tried in The Hague

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(FINDLAW) -- As was the October 1998 arrest of Chilean strongman Augusto Pinochet, the imprisonment of former Yugoslav President Slobodan Milosevic is welcome news, opening the discussion as to what will, and should, happen next.

On Friday the international war crimes tribunal gave Yugoslav authorities an arrest warrant for Milosevic, asking them to hand him over for trial in The Hague.

The arrest warrant from the Hague tribunal was personally delivered to the Yugoslav minister of justice. As a member of the United Nations, Yugoslavia is obligated to cooperate with the tribunal.

Yet the Yugoslav authorities have shown little interest to date in executing the tribunal's warrants regarding Milosevic or any other person under indictment, with one exception. Although at least eight other people under indictment are thought to reside in Serbia, only a single Bosnian Serb has been extradited to The Hague.

In the meantime, Milosevic faces only charges of corruption and criminal conspiracy in Serbia. The domestic indictment against Milosevic alleges that he embezzled state customs funds between 1994 and 2000.

It says nothing of the fact that within that same period he led a war of appalling brutality against the ethnic Albanian population of the Kosovo province. Nor does it include charges relating to atrocities committed in Bosnia-Herzegovina and Croatia.

Recent press accounts suggest that the domestic indictment may soon be broadened to include murder charges, but only for the killings of Milosevic's domestic political enemies, not for the mass killings in Bosnia, Croatia and Kosovo.

And, in an ironic but perhaps apt twist for a man who rose to power by exploiting a wave of nationalist sentiment, the indictment may even be expanded to include an allegation of treason.

If Milosevic is convicted of these crimes, he is likely to spend many years behind bars, and he could face the death penalty if convicted of murder.

But would his imprisonment satisfy the demands of justice, regardless of the grounds for it? And should Milosevic be tried in Belgrade, or should he face trial in The Hague?

Kostunica's resistance

On May 22, 1999, Milosevic became the first sitting head of state to be indicted by an international tribunal. The indictment, issued by the International Criminal Tribunal for the former Yugoslavia, the U.N.-created court based in The Hague, charged Milosevic with war crimes and crimes against humanity committed in Kosovo.

The indictment detailed the killings of hundreds of Albanian Kosovar civilians and the forcible deportation of hundreds of thousands, as well as other systematic abuses committed under Milosevic's command.

In a recent interview, moreover, the tribunal's chief prosecutor said that she was preparing a second indictment against Milosevic for atrocities committed during the war in Bosnia. The international arrest warrant delivered on Friday demonstrates the unwavering determination of the U.N. authorities to see Milosevic brought to The Hague.

Under Milosevic's presidency, of course, the Belgrade authorities refused to cooperate with the Hague tribunal. But the accession to power last year of the democratic opposition in Belgrade raised hopes for improved relations with the tribunal.

Indeed, several high officials in the new Serbian government have spoken out in favor of such cooperation. Notably absent from this group, however, is the president of Yugoslavia, Vojislav Kostunica.

President Kostunica questions the legitimacy of the war crimes tribunal and opposes extraditing Milosevic to The Hague. Arguing that Milosevic should face justice at home, he has said that extradition would shame his country's "national state dignity."

The case for domestic justice

Granted, all governments' abstract concerns for justice and accountability tend to wane markedly when their own nationals are at stake. When Pinochet was detained in London, for example, the Chilean government fought vigorously for his return, although it was made up of his political adversaries.

Similarly, the United States is unlikely to ratify the statute of the proposed International Criminal Court anytime soon because of the mere possibility that an American soldier or a U.S. official might someday be called to account before it.

Moreover, as the Pinochet case again exemplifies, the domestic criminal prosecution of an abusive leader can be a cathartic, instructional and empowering experience.

There is no doubt but that Chile has benefited greatly from the public debate surrounding Pinochet's prosecution, the outpouring of information about past abuses, and the prosecution's affirmation of the strength of the country's democratic institutions.

Thus, if a country is genuinely prepared to do so, it may be preferable for it to grapple with the demands of justice itself, rather than hand the task of prosecution over to an international forum.

Indeed, the proposed International Criminal Court codifies this idea in its principle of "subsidiarity," under which an international prosecution is only necessary when national courts fail to handle the task appropriately.

Milosevic, the embezzler?

In Serbia, however, Milosevic's most serious crimes are not even before the courts. Although one consequence of criminal prosecution is the punishment of the guilty, another important goal is the official attribution of criminal responsibility.

The question must be asked: Should one of the main architects of the Balkan wars go down in history as a convicted embezzler or as a convicted war criminal?

Attesting to the incongruity of the current indictment, Milosevic on Monday, April 2, presented the seeds of his defense to corruption charges -- a defense that further incriminates him in war crimes.

In a brief written appeal opposing his detention, he asserted that he never stole government money to enrich himself personally. Instead, he said, he secretly funneled that money to Serb forces in Bosnia and Croatia. The troops he claims to have funded are implicated in genocide.

Even if the domestic case against Milosevic were someday expanded to include war crimes charges -- a possibility that Serbian officials have suggested -- the obstacles to holding a fair and impartial trial in Belgrade would be enormous.

The central question, aside from technical issues such as witness protection, is whether the courts in Serbia are up to the task of prosecuting war crimes trials -- thereby coming to grips with the country's responsibility for the mass killings of ethnic Albanians, Bosnian Muslims and Croats.

The barriers to prosecuting Milosevic for war crimes in Belgrade underscore another key issue.

Milosevic did not come to power through a coup d'etat, as Pinochet did. Instead he was elected, and re-elected -- albeit in a context of a less than full democracy. Notably, his nationalist positions on Kosovo and elsewhere were a basic ingredient of his appeal to voters.

One of the core justifications for the criminal prosecution of individuals involved in serious abuses is to alleviate any sense of collective responsibility for such crimes.

Yet when a popularly elected head of state is indicted for human rights crimes well publicized at the time they were committed, what does it suggest about the people who supported him?

The criminal prosecution of Milosevic in The Hague should be considered an important first step in the necessary effort by the Serbs to acknowledge and understand their role in the systematic abuses in Bosnia, Croatia and Kosovo. The truth commission that has just been established in Serbia should also play an important role in this process.

Although the Serbs seem willing to prosecute and punish Milosevic, they have not yet embraced this larger and far more important effort. It is imperative that they do so -- for what matters is not only that Milosevic is punished, but also why.

Crowds demand Milosevic release
April 7, 2001
U.N. delivers Milosevic warrant
April 6, 2001
West pushes for Milosevic handover
April 4, 2001
Milosevic supporters take to streets
April 4, 2001
Milosevic admits funding conflicts
April 3, 2001
Relief in Serbia at arrest
April 2, 2001

Federal Republic of Yugoslavia
Serbia Ministry of Information
Milosevic indictment
International Criminal Tribunal for the former Yugoslavia

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