Transnational Institute - PressInfo # 100 - October 11, 2000
Why Milosevic won't get to the Hague By Jan Oberg, TFF director
Western politicians insist that Slobodan Milosevic must be brought to the Hague Tribunal and stand trial as a war criminal. Media and commentators raise the issue time and again. But there are reasons to believe that this is make-believe. The indictment of Milosevic leaves much to be explained - for instance, why he is indicted only for crimes committed in 1999 but not before - and certain Western countries would hardly want him to be on record in the Hague with a few things that he may know about them. The West would therefore do wise to drop this issue now and let Yugoslavia deal with Milosevic.
It seems that few have bothered to read the text of the indictment of Milosevic and four other high-level government officials of Thursday May 27, 1999. Among other things it states:
"As pointed out by Justice Arbour in her application to Judge Hunt, "this indictment is the first in the history of this Tribunal to charge a Head of State during an on-going armed conflict with the commission of serious violations of international humanitarian law".
The indictment alleges that, between 1 January and late May 1999, forces under the control of the five accused persecuted the Kosovo Albanian civilian population on political, racial or religious grounds. By the date of the indictment, approximately 740,000 Kosovo Albanians, about one-third of the entire Kosovo Albanian population, had been expelled from Kosovo. Thousands more are believed to be internally displaced. An unknown number of Kosovo Albanians have been killed in the operations by forces of the FRY and Serbia. Specifically, the five indictees are charged with the murder of over 340 persons identified by name in an annex to the indictment.
Each of the accused is charged with three counts of crimes against humanity and one count of violations of the laws or customs of war."
Limited indictment and dubious facts
As will be seen, Milosevic is indicted for activities limited to the period January 1 and late May 1999, i.e. during the local war between Kosovo-Albanian forces (KLA/UCK) and various Serb/Yugoslav forces and for activities during NATO's bombings which started on March 24 and went on for 78 days.
At the time the Tribunal could not know any precise facts or numbers. What we do know today from public, reliable sources is that a considerable part of the information about killings and ethnic cleansing was exaggerated or false. At the time of the indictment, facts could not be verified by independent sources as there were virtually nobody on the ground - except presumably intelligence people. OSCE observers have stated that there was nothing going on as long as the Verifier's mission was present (up to the bombing) that could be defined as a systematic ethnic cleansing campaign. Documents revealing the existence of the much talked-about "Operation Horseshoe" have not been brought to light.
The wording is also doubtful. Sure, some were "expelled" - but how did the Tribunal know at the time who fled because of being expelled, because of rumours, because there was a local war, because NATO's bombs were falling, because Albanian leaders encouraged them, or because of some other reasons. Furthermore, it is extremely unlikely that 740.000 could be equated with "about one-third," meaning there were way over 2 million Kosovo-Albanians alone in Kosovo, or almost 2,4 in total. There are no data on any side supporting such a figure.
Be this as it may, it is conspicuous that the crimes are limited in time to 1999. It is highly likely that Milosevic could be charged with war crimes committed since 1991 when the wars broke out in Slovenia and Croatia and 1992 and onwards in Bosnia-Hercegovina. However, this is NOT what the indictment focuses on. One would also believe that the Hague Tribunal investigators would have been able to collect more and stronger evidence, interview more witnesses and victims, and identify a larger number of bodies concerning the crimes committed earlier - and thus present a more solid indictment - than for crimes committed during the months and weeks when the Tribunals experts must have been writing the indictment and having much less hard evidence.
It looks like the timing of the indictment could have been influenced by the situation and the following consideration: NATO's bombing would be somewhat easier to justify if the head of state at the time, the opponentwhose forces NATO was trying to kill on the ground, would be considered a war criminal in the eyes of the world and, thus, made morally inferior.
But how come the Tribunal did not indict him for what could well be much worse atrocities, including Srebrenica? One guess is that that would have created some difficulties for the West, the United States in particular. Milosevic was the strongman with whom Western diplomats had repeatedly met. They had done deals and made agreements with him. He was the only one in rump-Yugoslavia at the time who could "deliver" and guarantee stability, and his signature was on the Dayton-Paris Agreement of December 1995. His country was recognized as the Federal Republic of Yugoslavia, FRY, by powerful countries in the early months of 1996. He had been helpful by not reacting when the West assisted Croatia in driving out some 250.000 legitimate Croatian citizens of Serb origin from various parts of Croatia in 1995. As late as autumn 1998, Richard Holbrooke negotiated a cease-fire and withdrawal agreement with Milosevic - which he honoured while KLA/UCK moved into the areas from which the FRY Army withdrew. The obscure OSCE Verifiers' Mission was allowed into the country, Milosevic conniving at its heavy CIA element.
In short, the other side of the Milosevic coin was pretty obvious: he was a man useful to the West, if for no other reason than that the West saw no one else with whom to do (better) deals during most of the 1990s.
Who else could be indicted - and what about comparable crimes?
Had Milosevic been indicted for crimes committed all through the 1990s, it would become impossible to not also indict Croatia's Franjo Tudjman (who everybody knew was seriously ill at the time but still running Croatia) and Bosnia's president Alija Izetbegovic, both of whom were commanders-in-chief of their respective countries' forces and from time to time appeared in uniform, something Milosevic did not. The point is not whether they can be judged as "equally big" or "smaller" war criminals than Milosevic; the point is that atrocities were committed by their side too, for which they should also be on indicted due to their military rank.
If all the three guarantors of the Dayton deal would have been indicted, the legitimacy of that deal and the Dayton process would have evaporated. It looks like a politically tainted indictment produced on short notice. How could the West have indicted an ally who had "delivered" time and again.
In addition, the mentioned 340 people killed is 340 too many, for sure. But make a comparison: NATO decided to give priority to saving NATO pilots' lives and conducted its raids from a height of 5-10 kilometers which - unavoidably - would cause "collateral damage". This was a deliberate choice: Yugoslav lives were considered less valuable than NATO lives and many more than 340 innocent Yugoslav citizens lost their lives due to this deliberately chosen and completely irresponsible policy of the alliance.
Furthermore, 340 dead people during what was also a regular war between regular forces in the Kosovo provinceis, for an international comparison, quite a small figure. An estimated 100,000 had been killed in Algeria's internal conflicts while the same moral West turned a blind eye. Many more were killed in e.g. the Ethiopian/Eritrean conflict at the time. And one hardly wants to mention the at least 1000 times higher figure of innocent Iraqi civilians who are the victims of a UN decision and the policies of the United States and Great Britain in particular.
Karadzic and Mladic also unlikely to end up in the Hague
As recent as October 8, Secretary of State Madeleine Albright, repeated on CNN that she will continue to insist on Milosevic being extradited. On October 10, NATO's Secretary-General, The Rt. Hon. Lord Robertson of Port Ellen, stated that "we look forward to new policies being enacted by the new government to strengthen democracy in Yugoslavia and build cooperation with the international community, including on the issues of war criminals."
This should be seen as part of a game. Why have Mr. Radovan Karadzic and General Ratko Mladic not been arrested and brought to the Hague? It is inconceivable that forces of the world's strongest alliance (an alliance that set out to quite systematically destroy a European state) should be physically unable, over the last five years, to arrest them.
One can only speculate, but I believe it is likely that many in the West would feel very uneasy about a situation in which people like Karadzic and Milosevic would stand trial in the Hague and - cameras running - speak into a microphone about their deal(ings) with various Western diplomats, governments and envoys. They could probably offer spicy details as to what suggestions were made to them for accepting certain policies and playing certain roles at various points since 1991. They could probably also tell a few stories about how they cooperated with other ex-Yugoslav leaders, including friends of the West in the region, using double and triple standards, to fool the West and organizations such as the EU, OSCE and NATO.
The issue begs another obvious question seldom asked by media: why have no high-.level Kosovo-Albanian military or political leaders been indicted? One must hypothesize that the answer is: because the West intervened on their side and because the UN and NATO/KFOR work intimately with them every day now.
We have also conveniently forgotten that the War Crimes Tribunal statutes make clear that an indicted person shall be presumed innocent until proven guilty. While there are certainly very good reasons to believe that Slobodan Milosevic can be found guilty of a series of crimes, it is the Tribunal's norm that no one shall be treated as guilty before the Tribunal so judges. This point is repeatedly ignored by the press and by politicians who participate in the Hague Tribunal game. Also, why is the Hague Tribunal, financed and run as it is predominantly by the US, seldom seen in the light of the fact that the United States itself consistently refuses to sign the draft treaty on a new truly international criminal court?
There are enough questions to be asked. One wonders why so few journalists - and law experts - do?
Milosevic should be handled by Yugoslavia
With the new leadership under Vojeslav Kostunica in Belgrade, Yugoslavia hopefully will move step-by-step towards democracy, accountability and a status as a state governed by law. As such, there are no reason to demand of it what neither EU governments, the US nor any NATO member would accept: namely that it should not be able to handle its own criminals the way they ought to be handled. There is, in summary, many reasons why Kostunica has said long ago and repeated now that Milosevic will not be extradited to the Hague. It's entirely understandable and does not mean that Milosevic will not be charged with crimes in his country.
As Milosevic' actions probably makes a very good example of war crimes, it is a pity that the Tribunal made such a bad case out of it to the extent that the Tribunal has lost credibility. Somebody responsible for the Tribunal should come out with some good answers to the perfectly legitimate questions and issues raised here and elsewhere.
The West would do wise to drop this untrustworthy "conditionality" now. It will only poison its relations with Yugoslavia. Milosevic was a dream bully who could conveniently be blamed for anything. That too presents the West with a considerable problem.
Equality of all who are subject to a legal system is central to its integrity and legitimacy. There must not be one law for the powerful and another law for the rest. If the US doesn't see that point, the EU should. But one must fear that this issue will be just one among many around which new Yugoslavia and the West will clash in the future. More about that in the next PressInfo.