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an essay by Gordon L. Bowen, Ph.D.
Professor of Political Science
Mary Baldwin College
Staunton VA, USA 24401
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INTRODUCTION
The 1990s repeatedly showed that states that practice widespread gross violation of human rights at home often extend these odious practices into neighboring states. In light of the series of ethnic wars in the Balkans during the 1990s, how better can we understand the relationship between the central mandate of international organizations (I.O.s) to prevent war and their apparently separate authority to promote the protection of human rights within sovereign states? Specifically, how well have international judicial processes to punish war criminals been integrated into an overall strategy to prevent the recurrence of war and to discourage ethnically motivated violence by states? Inasmuch as the community of nations has both war-preventing interests and humanitarian interests here, how is the advancement of the national interest of the United States affected by the measures I.O.s have been taking to address these problems? Are contemporary I.O. efforts regarding war criminals in the former Yugoslavia part of a trend that threatens, or part of a trend that is compatible with, the realization of U.S. national interests? This paper explores these fundamental questions as it measures the consequences of the practices engaged in by the Belgrade-based Government of Yugoslavia and other successor states of the former Yugoslavia in the 1990s. Modern limits of state sovereignty are in the process of being redefined in the wake of this experience; describing and evaluating the role of the International Criminal Tribunal for the Former Yugoslavia (hereafter, The Tribunal or ICTY) in this process is the central aim of this paper.
a. The setting. Against the backdrop of the end of the Cold War, 1989-91, and amid the democratic revolution throughout the East-Central European region, communist Yugoslavia disintegrated. In 1991, two of its constituent republics, Slovenia and Croatia, followed the programs of recently elected nationalist governments, and declared independence. A brief international war between Slovenia and Federal Yugoslavia ended with international recognition of Slovenian sovereignty, but in neighboring Croatia a longer and more bitter international conflict between Croatia and Federal Yugoslavia ensued, 1991-95. In April 1992, during a hiatus in the Croatian fighting, Bosnia's elected government also declared independence, and from 1992-95 warring nationalities within Bosnia and within Croatia fought bitter civil wars. International peacekeeping missions sent to these former Yugoslav republics were lightly armed and followed closely established U.N. doctrines of assuming a strictly neutral posture toward the belligerents. An international arms embargo was imposed on all the states of the former Yugoslavia. In this context, local Serb militias in Croatia and Bosnia received substantial material and intelligence support from Federal Yugoslavia with which to conduct ethnic war against the other nationalities. Moreover, within Serbia (the chief component of Federal Yugoslavia), extant policies of state discrimination --begun in the 1980s-- policies which targeted the Kosovar Albanians, a primarily Muslim minority, intensified.
Gross violation of human rights formed a common denominator in each of these situations. First in Croatia, and then most acutely in Bosnia, the international community witnessed the most hideous atrocities inflicted upon a civilian population of this region since the Holocaust. By 1995, a quarter million would be killed, and two million plus would be driven from their homes in Bosnia and Croatia as the result of “ethnic cleansing” policies and conditions of war. Then, in 1998-99, Federal Yugoslavia intensified its ethnic purification campaign against the Kosovar Albanians. Over eight hundred thousand more non-Serbs from the Kosovo region were driven out, fleeing into neighboring Albania, Macedonia and (to a lesser extent) the Federal Yugoslav Republic of Montenegro. A strategy which had at its center the gross violation of the human rights of civilian non-combatants on the basis of their ethnicity had been a central element in three of these four international and civil wars (i.e., not in Slovenia). All originated in policies of the Government of Federal Yugoslavia; the policies were substantial and continued throughout eight years; and these policies might be ongoing if it were not for the fact that Federal Yugoslavia ultimately was compelled to relent and withdraw from Kosovo by the force of eleven weeks of bombing by the N.A.T.O. alliance (March 24-June 12, 1999).
b. The evolution of the international response. It took some time after the first reports of crimes against civilians began filtering out of the former Yugoslavia before the United Nations took action. In April 1992 in Croatia, and later in 1992 in Bosnia, lightly armed U.N. peacekeepers arrived to help keep civilian non-combatants safe by interposing the authority of the world's states between civilians and the armed combatants. In Croatia, an uneasy ceasefire separated armies, 1993-95, but did little to end the abuse and expulsion of civilians, especially Croats from Serb-held areas. The Bosnian U.N. strategy also relied more on moral force than military power, and in an immediate sense it did little to bring the ethnic killing to an end, either in the small number of U.N. protected urban “safe areas” or in the rest of Bosnia, where fighting continued.
On February 22, 1993, the Security Council in Resolution 808 declared that “an international tribunal shall be established for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991” (U.S. D.o.S.:167). Later that Spring, via Security Council Resolution 827, the Tribunal formally was constituted pursuant to Chapter VII of the United Nations Charter, “as an enforcement measure which the Council is authorized to take when it determines that a particular situation constitutes a threat to peace, a breach of peace or an act of aggression... The legal significance of this method of establishment is that it imposed on all United Nations (U.N.) member states the obligation of cooperating with the Tribunal” (Pejic:843). Even as a Tribunal threatened future accountability, diplomatic initiatives swirled: the U.N. Secretary General implored; Western emissaries David Owen and Cyrus Vance cajoled; U.S. former President Jimmy Carter persuaded. But the killing continued. Cities were ethnically “purified” (e.g., Banja Luka) or laid to siege by Serbs: Sarajevo, Gorazde, Bihac, and by Croats (Mostar); refugees were attacked; concentration camps were discovered. The U.N. forces not only were powerless to stop the killing; they lacked a mandate to do so. And so the killing continued, often in a manner calculated to rebuff the already limited authority of the U.N. forces, as in the case of the murder of the Vice President of Bosnia, Hakija Turaljic, who was seized by Serbs from French U.N. Protection Force (UNPROFOR) troops on January 8, 1993, and shot dead. Years of further humiliation of the U.N. and its UNPROFOR “peacekeepers,” years of widespread state terrorism targeting civilian non-combatants would be required before the U.N. in 1995 finally would ask for the North Atlantic Treaty Organization (N.A.T.O.) to intervene to stop the killing.
N.A.T.O.'s authority to intervene in Bosnia had resulted from the frustration of the U.N. Security Council over Serb non-compliance with the international norm of respect for the neutrality of civilian non-combatants in war zones, and with outrage over the Serbs' repudiation of the authority of the U.N.. Though these problems were acute throughout the Bosnian war, especially important was the over-running of the U.N. protected enclave at Srebrenica, Bosnia in summer 1995, and the attendant humiliation of Dutch U.N. Peacekeepers there. The grave humanitarian violations at Srebrenica --7800 or more were massacred by Bosnian Serb militias--, and renewed sieges at Sarajevo by Bosnian Serb militia, and similar sieges elsewhere in Bosnia, convinced the U.N. representatives in Bosnia to request that N.A.T.O. put into effect arrangements made earlier that had anticipated the possibility of the U.N. needing to ask for N.A.T.O.'s armed intervention.
c. Power Mattered. The peace settlement inked at Dayton, Ohio on November 21, 1995 was forged in the wake of three new military facts: N.A.T.O.'s intervention, the defeat of the Serbs of Croatia by Croatia's Army, and improved military performance by the armed forces of the Bosnian Government. Not U.N. authority, but force joined to authority, had forged these new conditions. Recognizing that respect for human rights was of “vital importance in achieving lasting peace” (Article VII), the Dayton Accords mandated all signatories to cooperate with the Tribunal as part of the peace process, and required all governments to arrest and turn over to the Tribunal indicted war criminals (Article IX). U.S. policy, U.S. diplomacy, and U.S. values were central to these changes.
With minor exceptions, Federal Yugoslavia, and their allies in the Serbian part of Bosnia, refused to comply with these terms, 1996-99. Accordingly, on May 13, 1998, the Security Council reiterated its authorization of the Tribunal by passing Resolution 1166, which reminded all that states of the region had assumed obligations to cooperate with the Tribunal; a second resolution of that year, 1207 on November 17 specifically condemned Yugoslav non-cooperation with the Tribunal (U.N. 1998). When widespread gross violations of human rights took the form of a new Serb ethnic-cleansing campaign in Kosovo (i.e., inside Federal Yugoslavia alone, and not as part of a clearly international war, unlike the situation in Croatia and Bosnia), N.A.T.O. intervened without specific U.N. authorization, conducting an air war which forced Federal Yugoslavia completely to withdraw from Kosovo and to surrender administration of the province to the U.N.
Clearly, the Tribunal has been but one element in a series of steps by I.O.s, states, and regional security organizations that have produced, in net, a very substantial reduction in Federal Yugoslav sovereignty. The Tribunal, nonetheless, has been viewed by some as a autonomous actor “detached from real international relations and actually dangerous” to the U.S. (Bolton: 158), an “Orwellian” step toward “forfeiture of national sovereignty” of all states (Brock:57). Thus, a clear view of the strong relationship between larger international forces and the extent of the success of the Tribunal regarding the more limited issue of ending gross violation of human rights is much in need.
The Tribunal was the first of its kind since the Nuremberg trials following World War II. In a narrow sense, this was an important new step toward both establishing justice in the Balkan region and in laying foundation stones for a viable peace in the region. But its larger ramifications extend beyond the former Yugoslavia and the Balkan region, as the precedents being set there point to the heavy consequences that now attend political leaders' choices to adopt practices of gross violation of human rights as their mode of rule, both within their own nation (e.g., in Kosovo) and as a tactic in conducting (e.g., Federal Yugoslavia in Croatia) or fomenting (e.g., Federal Yugoslavia in Bosnia) international wars against neighboring states. President Slobodan Milosevic of Federal Yugoslavia, on May 24, 1999, became the first sitting head of state in world history to be indicted by an international court for war crimes, in his case specifically for crimes against humanity committed in Kosovo after January 1, 1999. His trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) Hague continues in 2004. Indeed, should this trend mature further, rather than be viewed as an efficacious, if odious, mode of rule, rule via gross violation of human rights in the new millennium may come to be known as a direct route to the abridgement of a state's claim to sovereignty.
d. Structure of this essay. This paper first examines the philosophical and legal basis for establishing any such Tribunal, demonstrating that historical precedent and customary international law now join with statutory law concerning human rights. With the Tribunal's roots established, its jurisdiction and structure next are considered. A discussion of specific crimes and the Tribunal's response is made, with consideration given to the successes and failures of the Tribunal from its inception to early 2000. The paper then assesses the relationship of these trends to the critical ingredient of power so often disconnected from international organizations as it weighs the U.S. interest in this process, and in the further step of establishing a permanent judicial body for international war crimes.
THE TRIBUNAL AND ITS STRUCTURE
Careful study of the circumstances surrounding the extent of the success of this seminal Tribunal will underline the importance of coordinated international action. Without strong support of powerful states such a Tribunal may be unable to realize its potential. As much as to mete out punishment of the aggressors and to establish justice for the victims and survivors, the international community has an interest in promoting lasting peace. Without an effective Tribunal in our times, other actors in the international system of the future may treat lightly the choice to engage in the war crimes which are central features of regimes which practice state terrorism. At the close of humanity's most violent century, further disintegration of international humanitarian norms in the modern international system, and a reversion to fully Hobbesian laws of the jungle, cannot be in the interest of peace loving states, or of humanity.
a. War Crimes Prosecutions Prior to the Tribunal. Though there has long been extensive philosophic and legal discussion of what constitutes impermissible behavior in war (McCormack 1997b:681-732), until the 20th century only sporadic attempts were made to design courts actually to try war criminals. These usually have fallen into two categories. In the first instance, a court in the victim state has tried a captured member of the enemy state, with an early example occurring under Henry V of England trying Frenchmen under his 1419 ordinances of war. A second form of war crimes trials is that of a state punishing its own soldiers for crimes committed under its flag. First noted in the 1474 trial of Peter von Hagenbach for abuses committed in Breisach, Austria, this form of trial was exemplified more recently with the United States' prosecution of William Calley and other soldiers involved in the My Lai (Vietnam) massacre under the U.S. Code of Military Justice (Meron 1993:123). Both methods of prosecution largely were ineffective at either establishing justice or in supporting reconciliation among states. Few Vietnamese were satisfied by Calley's trial, and Vietnamese-U.S. reconciliation took more than two decades after the trial's conclusion. Indeed, state trials of their own war criminals can actually make inter-state reconciliation more difficult, as the post World War I record shows. While some efforts were made to internationalize the prosecution of hundreds of German war criminals for crimes committed during World War I, consistent with Article 228 of the Versailles Treaty, Germany instead opted for domestic trials of a mere twelve defendants before its Supreme Court at Leipzig, much to the consternation of the peoples and governments of the victimized Belgians and French. None of the German WWI defendants received sentences exceeding four years. Thus, the first truly international effort to prosecute war criminals occurred following World War II in the precedent-setting Nuremberg and Tokyo trials.
b. Justification for Prosecutions. Until the post-World War II Nuremberg trials, perpetrators of war crimes had never been prosecuted by an international community. After World War II, there was consensus among the four principal victorious Allies that the atrocities performed by their enemies needed to be confronted in a court of law, which led to the establishment of an international military tribunal (Meron 1993:124). Three areas of justification were set forth to validate the prosecution of war criminals, and they resonate both then and now. One reason is to deter others who would engage in war crimes in the future. Though this was a primary justification at Nuremberg, whether this goal was achieved can be questioned, especially when we take into consideration the subsequent crimes of gross violating regimes all over the world, most visibly in post 1975 Cambodia, in post 1976 Ethiopia, in East Timor, in Haiti, in various states of East Africa (notably, Rwanda, Burundi and Uganda), in Guatemala and El Salvador during their civil wars (1960-96, and 1978-92, respectively), and in Iraq, in spite of the fact that twelve Nazi war criminals were sentenced to death after being found guilty of war crimes.
Beyond deterring imitators, a second reason to try war criminals is narrower and argued most fiercely by victims: war criminals must be punished. Balkan peace negotiator (British Lord) David Owen asserted, “I believe the moral order of this world is marred if those who are guilty of war crimes are not brought to justice” (Lewis 1994a:25). It is an essential tenet of civilized society that heinous crimes not go unpunished. Therefore, the punishment of individuals --soldiers who perpetrated, or commanders who ordered specific crimes-- is a potent rationale for their prosecution.
However, the most critical reason for the prosecution of war criminals is a practical one: justice is essential for any lasting peace. Guilt for crimes of war must be “individualized” in order for the peoples involved to allow their wounds to begin to heal and in order for diverse peoples to live together again as neighbors in peace. The Tribunal's first chief prosecutor Richard Goldstone (Weschler:64) elaborated:
Specific individuals bear the major share of the responsibility, and it is they, not the group as a whole, who need to be held to account through a fair and meticulously detailed presentation and evaluation of evidence, precisely so that the next time around no one will be able to claim that all Serbs did this, or all Croats... so that people are able to see how it is specific individuals in their communities who are continually endeavoring to manipulate them in this fashion. I believe this is the only way the cycle can be broken.
To deter others elsewhere, to punish those responsible, and to clean the proverbial slate so to heal wounds constitute the main arguments why contemporary war criminals should be prosecuted.
Two further factors seem to have compelled the United Nations Security Council to act in the case of the former Yugoslavia, since it had failed to do so many times in the past. The first factor is the media coverage of the atrocities. By the summer of 1992, the evening news had introduced the world to tens of thousands of emaciated Croatian and Bosnian survivors of Serb-run concentration camps, to stories of the systematic and repeated rape of as many as 20,000 Bosnian Muslim women, and to the destruction of more than one thousand major historical, cultural, and religious monuments throughout Bosnia and Croatia (Morris and Scharf:22). Unable to ignore the graphic images presented by the media and international human rights groups, the world's governments, and subsequently the United Nations, were goaded to take action to stop these images of atrocities from becoming a steady diet, even as the atrocities continued.
A second reason why U.N. could act in the 1990s is related to the changed structure of the international system: creative action could be contemplated where in the past it had not been possible due to the Cold War. With the political depolarization of the international community, a consensus finally could be reached on the impermissibility of war crimes. Major powers, freed of the necessity to protect allies and side against one another, recognized a common interest in punishing individual criminals. By the end of 1992, international leaders including U.S. Secretary of State Lawrence Eagleburger had called for the establishment of an international judicial body similar to Nuremberg to prosecute war criminals, and had even named up to seventy suspected Croats and Serbs to be arrested (Morris and Scharf:37). Yet, within the structure of the United Nations, there must be legal justification for such prosecutions. To legally justify the Tribunal, several sources were sought.
LEGAL ASPECTS OF THE TRIBUNAL'S WORK
The Charter for the Tribunal cited three sources which establish that states may choose to bring war criminals before an international tribunal rather than one of their own courts: Article VI of the Genocide Convention (1948), commentary to the 1949 Geneva Conventions, and the Nuremberg Judgment (Morris and Scharf:37). All these statutory sources derive jurisdiction from the consent of the sovereign nations which are parties to them. Further, in Security Council Resolution 808 which established the Tribunal, it was noted that “persons who commit or order the commission of grave breaches of the (Geneva) Conventions are individually responsible in respect of such breaches” (DOS Dispatch 1993:166). However, these legal statutes are only part of the rationale.
The most essential justification for the Tribunal is the so-called Nuremberg principles, summarized and articulated in 1950 by the International Law Commission of the United Nations (Rosenbaum:22), and derived from various sources of statutory and customary international law, as well as precedents created by the Nuremberg Tribunal's Charter and proceedings. The Nuremberg principles declare the following as international crimes for which individuals may be prosecuted: crimes against peace, war crimes, and crimes against humanity. In the case of the former Yugoslavia, by early 2000 only the latter two had been determined to be applicable. These categories, war crimes and crimes against humanity, were enumerated in the Charter of the newly created Tribunal and as such they entered the body of statutory international law.
Subject-Matter Jurisdiction. The Charter of the Tribunal attributes to various sources those actions which will be considered as war crimes and crimes against humanity in this case. For war crimes, the Charter (Morris and Scharf:64) first cites the 1949 Geneva Convention which details the following:
willful killing; torture or inhuman treatment, including biological experiments; willfully causing great suffering or serious injury to body or health; extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; compelling a prisoner of war or a civilian to serve in the forces of a hostile power; willfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; unlawful deportation or transfer or unlawful confinement of a civilian; taking civilians as hostages.
For any of these activities, an individual may be tried in the Tribunal. The Statute also lists several violations of customary law to fall under jurisdiction of the Tribunal. These were derived largely from the Nuremberg Charter's definition of war crimes and include (Morris and Scharf:69):
employment of poisonous weapons or other weapons calculated to cause unnecessary suffering; wanton destruction of cities towns or villages, or devastation not justified by military necessity; attack or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings; seizure of, destruction or willful damage done to institutions devoted to religion, charity, and education, the arts and sciences, historic monuments and works of science and art; plunder of public or private property.
In addition to being prosecuted for war crimes, an individual may be tried for crimes against humanity. These are defined as “murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; other inhumane acts” (Morris and Scharf:77). These activities are so designated as crimes against humanity when “committed in armed conflict, whether international or internal in character, and directed against any civilian population” (Morris and Scharf:77, emphasis added). While an argument can be made that Federal Yugoslav officials committed these crimes indirectly during the Bosnian war, 1992-95, an international conflict, it is obvious prima facie that Yugoslav leader Slobodan Milosevic was eligible for indictment in 1999 for the mass forced deportation of the Kosovars. Importantly, these violations would constitute a legal basis for Milosevic's indictment (May 24, 1999) even though the alleged crimes were perpetrated entirely within the domestic jurisdiction of Federal Yugoslavia.
The final crime against humanity so designated in the Charter is genocide. Though the term was not explicitly used in the Nuremberg trials, it later was codified as a crime against humanity in the Genocide Convention of 1948, forming a third basis for indictment and trial by the Tribunal. The Charter defines genocide as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group. (Morris and Scharf:84-85)
Legal and Procedural Standards Employed by the Tribunal. Once charged with these crimes, it is imperative that those accused receive fair trials. Issues of violation of due process which were evident in the Nuremberg trials had to be addressed in the design of the Tribunal. An essential difference between the two tribunals lies in their purpose. The sole purpose of the Nuremberg trials was to punish the perpetrators of the atrocities: as a result, some legal norms were slighted if not fully ignored. In the former Yugoslav case, however, broader purposes than solely punishment attend the effort. Accordingly, international legal standards consciously have guided the design of the Tribunal which is intended to contribute to the restoration of a lasting peace, not merely to punish (Morris and Scharf:332). Lasting peace requires non-partisan neutrality in the Tribunal's operations, even if it is widely regarded by Serbians and their sympathizers as an anti-Serb court. Thus, while the great majority of those accused of war crimes have been Serb, the Tribunal has undertaken prosecutions where warranted of war criminals on all sides (e.g., Croats, Bosnians). Beyond setting a foundation for lasting peace, the neutral administration of justice for the victims, not mere punishment of one group of the aggressors, has been a chief aim of this Tribunal.
One example of this effort to maintain international legal standards is that while the Nuremberg trials defined legal violations as they went, the Tribunal follows those norms of justice clearly established: there can be no ex post facto laws this time. The U.N. Security Council affirmed in several resolutions these standards outlawing war crimes which were in place long before the start of the war in Yugoslavia. Related is the issue of in absentia trials, one of the chief flaws in the 1998 treaty that would establish an International Criminal Court (Casey:58). Nuremberg permitted these and one led to the conviction of Nazi Martin Bormann. While in absentia trials might seem to make the Tribunal's efforts much easier (as a major problem has been the detainment of the accused for trial), the Charter prohibits such trials as violations of the rights of the accused. Though accused war criminals may not be tried in absentia, a rule has been established by the Tribunal which has allowed for proceedings to move forward even when the country where the accused is located will not cooperate with an extradition; this is known as Rule 61. Under Rule 61, evidence under the indictment may be entered in court without the presence of the defendant (Home and Kessler); the Tribunal then is authorized to issue a “superindictment.” “Should that happen,” said head prosecutor Richard Goldstone (Knight:53), “the individuals concerned will become international fugitives and prisoners in their own country.” This status, attached to Slobodan Milosevic, (now former) President of Federal Yugoslavia and three others of his regime in 1999, isolated that state as a state in violation of enforcement measures taken by the Security Council under Chapter VII of the U.N. Charter, the basic element of the U.N. Charter dealing with threats to the peace, breaches of the peace, and international aggression.
A final improvement of this Tribunal over Nuremberg was that in the post-World War II trials, those convicted had no right to appeal. The modern Tribunal is structured so that not only is an appeal route open to those convicted, but also bars the same judges from sitting on both the trial and the appeal of any defendant. In establishing the Tribunal, the framers of the Charter took great care to ensure that extensive fair trial rules were in place for the accused. The Charter does not allow for the Tribunal to sentence those convicted to the death penalty (Schabas). The maximum sentence is life imprisonment, to be served in one of several countries which volunteered to house Tribunal prisoners, among them Bosnia, Denmark, Finland, Germany, Iran, Italy, the Netherlands, Norway, Pakistan, Spain, and Sweden. In its philosophical justification, in its legal framework and in its careful consideration of international legal standards, the Tribunal adheres to international legal norms consistent with American principles.
Structure of Tribunal. After the Security Council had established the legal basis and standards for the Tribunal in its Charter, it faced the task of structuring the Court. Three organs compose the Tribunal: the registry, the chambers, and the prosecutor. The Registry is essentially the administrative and support staff of the Tribunal (see Appendix I).
The establishment of the chambers and the selection of the chief prosecutor were complicated tasks. Three chambers were established for the Tribunal, two for trials and one for appeals. This differs from the Nuremberg Tribunal which gave war criminals no right to appeal; judgments made at trial there were final. Though it would clearly be more expedient to structure the chambers as such, Article 14 (5) of the International Covenant on Civil and Political Rights has since deemed the right to appeal criminal conviction to a higher court an internationally recognized human right (Morris and Scharf:141). Initially, the Tribunal Charter called for eleven judges, no more than two of whom were nationals of the same country, to sit on the Tribunal, three for each trial chamber and five for the appeals chamber. Later, the number of judges was expanded to fourteen. Judgments of both chambers would be those unanimously decided by the justices hearing the case. The weight of the international community broadly defined lies behind these jurists: judges are elected by the General Assembly from a list submitted by the Security Council. Italy's Antonio Cassese first was elected by his fellow judges to serve as the tribunal's president, or chief judge, with duties to include heading the appeals chamber and assigning judges to cases.
The selection of a prosecutor for the Tribunal was a difficult political process, which would not be completed until the selection of South African Richard Goldstone nearly six months after the judges were seated. Goldstone met what U.S. U.N. ambassador Madeleine Albright referred to as the “principle qualification” for the post: “he doesn't come from a Western country” (Morris and Scharf:162-163). Subsequent lack of continuity of personnel in the top prosecutorial role may have slowed some Tribunal work. In 1996, Goldstone resigned to resume his place on the South African Constitutional Court (Neier 1996:20) and Judge Louise Arbour of Ontario, Canada-- hand-picked by Goldstone-- was confirmed to fulfill the Prosecutor's role, 1996- September 1999, when Carla Del Ponte of Switzerland replaced her ( Appendix I).
Dedicated chief prosecutors, a well-organized, impartial panel of internationally representative judges, and a registry designed to administer matters effectively all have materialized from the structure set forth by the Security Council in the Charter for the Tribunal. The Charter also specified the criminal jurisdiction that the Tribunal has come to assert.
EVIDENCE OF WAR CRIMES
A potential problem in other modern atrocities, the Tribunal certainly did not face an absence of evidence, for it was plentiful: individual witnesses' testimony to U.N. investigators, interviews given to journalists, and personal memoirs each painted a gruesome landscape littered with specific war crimes. U.N. Resolution 780 called for the establishment of a Commission of Experts to investigate war crimes in the former Yugoslavia. This five-person Commission, headed by Cherif Bassiouni, published a tome of a report in May of 1994, covering atrocities from November 1992 through April 1994. Though the report detailed crimes committed throughout the former Yugoslavia, from Sarajevo to rural Bosnia into Croatia, the most extensive documentation was of crimes occurring in northwestern Bosnia in the Opstina Prijedor region. Between 1991 and 1993, the Muslim population in the area decreased from 49,454 to 6,124 and the Croat population decreased from 6300 to 3169, a direct result of the Serb policy of “ethnic cleansing” (UN 1994:37). The Commission named the two major concentration camps to which Muslim men were taken: Keraterm and Omarska. Between May and August of 1992, 6000 Muslim men were taken to these camps; just 1503 of those survived (UN 1994:41). In fact, though these camps were the most notorious, they were not unique. The Commission located hundreds of camps throughout the former Yugoslavia, 237 of which were run by Bosnian Serbs, 89 of which belonged to Bosnian Muslims, and 77 of which were Bosnian Croat. The Serb camps were detailed most precisely in the Commission of Experts' report.
Torture, abuse, and murder were common at the camps for men. The camps for women used an additional means of torture: rape, though Serb apologists in the mid-90s (Brock:58-59) dismissed this damning record as that of “so-called evidence,” suspiciously found since the Commission had been financed by George Soros. Those slurs notwithstanding, the Commission presented substantial and compelling evidence of females as young as 5 and as old as 81 who were raped while in Serb captivity (UN 1994:51); and later, ex-prosecutor Goldstone (1997a:5) affirmed the Serb policy of “systematic rape of tens of thousands of women in Yugoslavia...” occurred. The primary target group was women aged 13 to 35; eight hundred women were listed by name in the report, and an additional 1673 victims were referred to, but not named (UN 1994:56). The report (58) makes grim reading: one Croat woman testified that she was “gang-raped by eight soldiers in front of her six-year-old sister and her five-month-old daughter. Incidents like this were administered in a manner which “instilled terror in the women prisoner population” (55). Though no war crime should be labeled worse than any other, the systematic use of rape as a weapon in Bosnia was one terrifying tactic of rule that clearly had mutated into a method of waging ethnic war; and it would be employed again as Serbian state policy in Kosovo, 1998-99 (OSCE: Chapters 7, 16).
International journalists also brought the stories of the victims to light. Tesma Elezovic, a Muslim woman from the Prijedor region, having since escaped to Germany, told of her experience with the Serb “cleansers” in her hometown of Kozarac:
The men, women and children, and old people were separated. A man pushing a stroller with his one-year-old son in it was pulled to the side. They (Serb soldiers) put a vicious dog up to his throat. We could see his insides spilling out. Then he was taken to a garage and shot... (At the Omarska concentration camp) I was raped. I was beaten. The worst was that we had to watch everything. One night they built an enormous bonfire outside and pushed men into it. I was forced to watch from the terrace of the building. I had a gun in my back and was told, `Look how they're all singing and dancing' as the men hopped around, burning alive. (Jackson:50)
A Bosnian Muslim poet, 46 year-old Rezak Hukanovic, described the Serb concentration camp at Omarska. Hukanovic had lived in the village of Prijedor in northwestern Bosnia for many years; in May 1992, Serb policemen took over the city and began “cleansing” it of the non-Serb populations by taking Muslims to Omarska:
One big man, over six feet tall, refused to strip... One of the guards came up to him, put the barrel of his rifle to the man's neck and said something to him. The man just stood there, without moving a single part of his body. "The poor guy's going to get it; they'll kill him," said someone from behind... the guard struck the clothed man in the middle of the head with the rifle butt, once and then again, until the man fell. Then the guard handed his rifle to another guard and moved his hand to his belt. A knife flashed in his hand, a long army knife. He bent down, grabbing hold of the poor guy's hair with his free hand. Another guard joined in, continuously cursing. He, too, had a flashing knife in his hand. The two remaining guards backed off a little and trained their rifles on the group of inmates, observing their every move. The guards with the knives started using them to tear away the man's clothes. The whole thing lasted several seconds. And when they stood up, their clothes were covered with blood, while the air resounded with a long, loud and painful wail. It sent shivers through all who heard it.
Never in all his life was [I]... to see a more horrifying sight. The poor man stood up a little, or tried to stand up, continuing to let out the excruciating screams. He had blood all over him. One of the guards took a water hose from a nearby hydrant and directed the strong jet at the poor prisoner. A mixture of blood and water was flowing down his exhausted, gaunt, naked body as he bent down repeatedly, like a wounded Cyclops, raising his arms above his head, then lowering them toward the jet of water to fend it off, while his throat issued forth the sound of someone driven to insanity by pain. And then [I saw]... what had happened clearly, everybody saw it: they had cut off the man's sexual organ and half of his behind.
After that [I]... couldn't remember anything. The shocking sight of that horror momentarily numbed his mind. Only later was he told that the poor man, having just succumbed to the torture, was taken to a garbage container, doused with gasoline and burnt. The others were taken back to the garage. (Hukanovic 1996a:29)
Such eyewitness accounts were horrifyingly reminiscent of the fate of civilian non-combatants, especially Jewish non-combatants, during the Nazis' planned genocide during World War II. Whether they have come from investigators' reports, journalists' interviews, or individuals' memoirs, the voices of the victims have been the driving force behind the Tribunal.
INDICTMENTS
The first indictment (i.e., Bosnian Serb Dragan Nikolic) was issued by the Tribunal in November 1994; in the next eighteen months (i.e., to April 1996), the Tribunal indicted 57 men, including 46 Serbs, 8 Croats, and 3 Muslims; but just four of these accused were taken into custody in the Hague. In the period from April 1996 to February 2000, 36 more individuals publicly were indicted, making a total of 93 individuals publicly indicted; seven of these accused died (four died prior to being transferred to the Tribunal's Detention Unit). Charges were dropped against 18 others, leaving the total number of accused persons pending arrest or pending completion of proceedings at 66. Out of 36 accused persons in February 2000 in proceedings before the Tribunal, 34 were detained at the Detention Unit and two were released pending appeal. Thirty of the publicly indicted accused remained at large. Others are likely to be the targets of sealed (i.e., secret) indictments. (ICTY 2000b; also, see Appendix II).
While the great majority of the Tribunal's indictees have been Serbs, Serbia/Yugoslavia has been the least cooperative state with the Tribunal. The efficacy of the Tribunal directly is affected by the degree of cooperation accorded it by states and by international military missions that exercise power in areas of the former Yugoslavia. Of the 34 individuals in Tribunal custody: 9 had been arrested by governments, 13 had been detained by international armed forces (e.g., the N.A.T.O.-dominated, UN authorized Stabilization Force, hereafter, SFOR), and 12 voluntarily had surrendered. Of the nine individuals detained by states, two were detained by Germany (Tadic, February 13, 1994; and Delalic, later acquitted), two by Austria (Mucic, March 18, 1996; Talic, August 25, 1999); two by Bosnia (Delic and Landzo, May 2, 1996); two by Croatia (Martinovic, February 26, 1997; and Aleksowski, detained August 6, 1996, convicted and released for having completed time in custody in excess of sentence, May 7, 1999); and one by Serbia/Yugoslavia (i.e., Erdemovic, see below). To emphasize: not one of the detainees awaiting trial and held by the Tribunal in 2000 had been detained by Serb or Yugoslav authorities.
ARRESTS, TRIALS, CONVICTIONS
International armed forces deployed in the Former Yugoslavia, while slow to prioritize cooperation with the Tribunal in enforcing indictments, more recently have improved in their performance. The first arrest by an international armed force was on June 27, 1997, when the U.N. mission in Eastern Slavonia, Croatia (UNTAES) detained Slavko Dokmanovic; he died in Tribunal custody before trial. All subsequent arrests have been made by SFOR troops in Bosnia, and included two others in 1997 for a total of three arrests by international forces in that year (Slavko Dokmanovic; Anto Furundziga on December 18, 1997 --convicted and sentenced to ten years December 1998; and Vlalko Kupreskic, arrested with Furundziga and for whom trial remains pending). In the following years, seven were arrested by SFOR in 1998, and four in 1999 (1998: Goran Jelisic, January 22, 1998; Miroslav Kvocka and Mladen Radic, April 8, 1998; Milojica Kos, May 28, 1998; Milorad Krnojelac, June 15, 1998; Stevan Todorovic, September 30, 1998; and Radislav Krstic, December 2, 1998; and 1999: Dragan Kolundziga, June 7, 1999; Radoslav Brdjanin, July 6, 1999; Radomir Kovac, August 2, 1999; and Damir Dosen, October 25, 1999). On October 19, 1999, the Tribunal found that Goran Jelisic, who calls himself the "Serbian Adolf," was not guilty of genocide; but the tribunal nonetheless convicted him on 31 counts of torture and murder of Muslim and Croatian inmates of the Luka prison camp near Brcko in 1992, for which a forty year term was handed down in December 1999. All the rest of those who have been arrested in 1998-2000 still are awaiting or are undergoing trials (ICTY 2000b).
As one purpose of the Tribunal has been to individualize responsibility for the war crimes in the former Yugoslavia, let us examine the cases of a few of those individuals who have been pursued by the Tribunal: Bosnian Serb Dusan Tadic; Bosnian Serb soldier Drazen Erdemovic (an ethnic Croat); Bosnian Serb Gen. Djordje Djujic and, perhaps those of greatest political significance: wartime Bosnian Serb leader Radovan Karadzic, his military commander Ratko Mladic, and their patron, Yugoslav (former) President Slobodan Milosevic.
a. The Dusan Tadic case. Bosnian Serb Dusan Tadic, also known as “Dule” and “Dusko”, was the first man brought into the custody of the Tribunal; his long trial and his conviction, May 7, 1996, helped delineate the further course of the work of the Tribunal. On February 13, 1995, indictments were handed down against twenty Bosnian Serb commanders and guards from the Omarska concentration camp in northwestern Bosnia, including Tadic. At the time, Tadic was being held by police in Munich, Germany, since his arrest (February 13, 1994), where he had been hiding out at his brother's apartment. He soon was extradited to the Hague, becoming the first defendant held under the custody of the Tribunal. In Tadic's first Tribunal hearing, he declared “I did not take part in any of the crimes with which I am charged” (Cohen:3).
Evidence undermined that assertion. The indictment against Tadic listed 132 separate counts of crimes against humanity, as well as war crimes under the Geneva Conventions of 1949, all of which related to a rape, several instances of torture, and thirteen murders which occurred between May and August of 1992 at the Omarska concentration camp. Tadic did not hold an official position at the camp, but he was frequently observed by witnesses held there to have worn a military uniform while in the camp. (ICTY 1995; Keegan).
The Tribunal was scrupulous in examining the many sensational charges, some which alleged his role in castrations, tortures and murders. In one incident, witnesses testified to Tadic ordering prisoners to drink water from puddles on the ground like animals, while he jumped on their backs and beat them. When the men were no longer able to move, Tadic put them into a wheelbarrow, discharging the contents of a fire extinguisher into the mouth of one of the victims. Yet another alleged war crime performed by Tadic occurred on May 27, 1992, when Tadic, along with Goran Borovnica, lined up against a wall Bosnian Muslims and Croats Ekrem Karabasic, Ismet Karabasic, Seido Karabasic, and Redo Foric, and shot them dead (ICTY 1995).
The account offered by Enes Hadzic, a 36 year-old Muslim truck driver who spent two months at the Omarska camp, further undermined Tadic's claim that he did not commit these and many other atrocities. Hadzic testified that Tadic, whose nickname was “the Butcher,” came from his home village and stated that it was definitely Tadic who conducted beatings and torture sessions at the camp. One night, Hadzic claimed, six prisoners from a neighboring room were taken out and killed in an hour; Hadzic heard the voices saying, “Please, Dule, don't kill me.” One of his victims that night was Jasmin Hrnic, who also came from the village of Kozarac. Hadzic says, “I personally saw Dule Tadic call Jasmin out of the group. A few hours later, he was dead. Jasmin had money and a motorcycle. Dule always hated him.” (Jackson:1)
At trial, the witnesses told their experiences in detail, though the use of hearsay evidence and the fact that the identity of some of the raped witnesses was shielded engendered some criticism: “...at times, the Tribunal tread dangerously close to denying Tadic a fair trial” (Scharf:1997). His defense attorneys did not seek to deny the fact of some of these crimes, but merely argued that Tadic was misidentified, that he was not present at the Omarska camp. Nevertheless, Tadic received a vigoroous defense: his legal counsel, Michail Wladimiroff, was an experienced Dutch attorney assisted by members of his own law firm, as well as by the head of the Serbian bar association Milan Vujin and Krstan Simic, “a rural country lawyer” from Banja Luka. Assistance also was provided to the team by international NGO's, including the Americans from the Central/Eastern European Legal Initiative. The prosecutors in the case were a formidable unit. Chief prosecutor Richard Goldstone led the team, assisted by Grant Niemann, an Australian who had prosecuted three cases against suspected Nazi war criminals, in addition to two Americans, Brenda Hollis and Michael Keegan, on loan from U.S. military Judge Advocate General's offices; and one American, Alan Tieger, from the Justice Department who headed the prosecution in the federal trial of four Los Angeles police officers accused of beating Rodney King. Presiding over the trial were three of the U.N.-selected judges, headed by U.S. appointee Gabrielle Kirk McDonald, along with Malaysia's Lal Vohrah and Australia's Ninian Stephen. The trial was televised world-wide on Court TV, and was conducted in English, adding a wider public to observe that due process was followed in the Tribunal. On July 14, 1997, Tadic was sentenced to a twenty year term (Current History 1997: 293). Tadic appealed and hearings took place April 19-22, 1999, in the Appeals Chamber. Its final judgment was delivered July 15, 1999, denying Tadic's appeal on all grounds. Thus, the Tribunal completed its first complete trial and appeal, finding Tadic to have committed grave breaches of the 1949 Geneva Conventions, including willful killing, torture or inhuman treatment, and willfully causing great suffering or serious injury to body or health.
b. The Erdemovic Case. The arrival of Bosnian Serb Army soldier Drazen Erdemovic, an ethnic Croat, in the custody of the Tribunal was more politically charged than had been the arrest of Tadic. Along with another, he was arrested by Yugoslav (i.e., Serbian) police after boasting of his participation in war crimes around Srebrenica in July of 1995. The case is significant because not only was the massacre at Srebrenica the largest in the Bosnian war: until after the overthrow of the Milosevic Government by revolution in Serbia (Fall 2000), Erdemovic was the sole Tribunal defendant to have been surrendered by the Serb/Yugoslav Government.
Erdemovic's case also was sensational. He claimed in an interview with the French newspaper Figaro to have taken part in the execution of up to 1200 unarmed Muslim men following the fall of Srebrenica. The massacre allegedly occurred about 60 miles north of Srebrenica in the village of Pilice on the border of Serbia and Bosnia; Muslim men were bused to a farm, lined up against a wall, and shot, according to the soldiers (Pomfret, 1996c: 1). Erdemovic also claimed in an interview with free-lance reporter Vanessa Vasic-Janekovic for ABC News that he had personally killed 70 to 100 Muslims (Dobbs:27): “I would shoot one after the other... After the first 10 were killed, a second group was brought up. They saw the corpses and started begging, `Don't kill us. Our families will send you money.' Others would pray. Others simply cursed us.” After these statements became public, the men were arrested in the Vojvodina city of Novi Sad; the Milosevic government soon announced that Erdemovic would be tried in Yugoslavia. However, Western observers, recognizing this as a possible move to silence underlings who could potentially testify against more powerful Serbs, called for Erdemovic to be extradited to the Hague. Under pressure, Milosevic agreed to deliver him to the Tribunal; he arrived in the Hague on March 30, 1996 (Pomfret, 1996b:21). In May 1996, Erdemovic entered a plea of guilty for murder related to the Srebrenica crimes committed at the Pilica collective farm, and, after an initial ten year sentence was announced, he ultimately was sentenced (March 5, 1998) to five years' imprisonment for committing murder, a violation of laws of war. The Tribunal explained the light sentence by making reference to Erdemovic's consistent cooperation with the Prosecution, especially his supply of key specific information previously unknown, and his testimony against Bosnian Serb commander Gen. Mladic and political leader Karadzic (ICTY 1998). The duress Erdemovic was under at the time of the crimes also was said to mitigate: specifically, he was personally threatened with death if he refused to participate in the mass murders which were underway as an official act of the Bosnian Serb Army. In August 1998, Erdemovic was transferred to a jail in Norway to serve his time, and in 2000, he quietly was released. His cooperation with the Tribunal continued. During the opening stages of the trial of Slobodan Milosevic in 2003, Erdemovic again testified about the events at Srebrenica in which he had participated.
c. Indictments for Crimes Against Serbs. Milosevic's very limited act of cooperation in surrendering Erdemovic was answered generously by the Tribunal, which issued indictments swiftly after his surrender against Bosnian Croat Zdravko Mucic and Muslim fighters Zejnil Delalic, Esad Landzo, and Hazim Delic, the first Muslims to be indicted by the Tribunal (Pomfret, 1996b:21). These men were charged with 49 counts of murder, rape, torture, and other inhumane acts against Serb prisoners from May to November of 1992 (W.P., 1996d:A30.) It was alleged that the men ran a camp for about 500 Serb men near Celibici, Bosnia, where they stole tens of thousands of dollars from prisoners, raped Serb women, poured gasoline over Serb men, lit them afire, and murdered at least fourteen. In one specific incident recounted in the indictment, it was alleged that Delic and Landzo beat an elderly man to death, nailing the badge of Bosnia's largest Muslim political party to his head before he died. Another incident from the indictment described a victim who died after days of torture involving beatings with a bat and torture with pliers, lighted fuses, and nails, again by Delic and Landzo. Mucic was arrested by local police in Vienna, Austria, on March 18, 1996, and was delivered to the Tribunal shortly thereafter (W.P., 1996a:24). Delalic was been taken into custody by German police, tried by the Tribunal, and on November 16, 1998 was acquitted on all charges; Landzo was tried simultaneously (March 1997 to October 1998) and was found individually responsible on 17 counts of grave breaches of the Geneva Conventions and violations of the laws or customs of war. He was sentenced to 15 years' imprisonment by Trial Chamber II on 16 November 16, 1998. Tried concurrently, Hazim Delic was found guilty at that same time on 13 counts of grave breaches of the Geneva Conventions and violations of the laws or customs of war, and sentenced to 20 years (ICTY 2000b).
The government of Croatia also made limited gestures of goodwill and cooperation with the Tribunal, as when it pressured Bosnian Croat Gen. Tihomir Blaskic into surrendering to the Tribunal to face the indictment against him in the "Lasva Valley" case. Blaskic arrived in the Hague on a commercial flight from Zagreb, Croatia, and entered not guilty pleas to the charges against him. His indictment charged him with various atrocities occurring from May 1992 to May 1993, including an alleged massacre at the Muslim village of Ahmici, near Vitez where children appear to have been burned alive (W.P., 1996b:9). Blaskic was released from the Tribunal's custody and kept under house arrest in the Hague until taken again into custody during his trial (June 1997 to July 1999). On April 3, 2000, the Trial Chambers issued its Judgment, finding Blaskic guilty and sentencing him to 45 years imprisonment. the case was noteworthy in that in the course of its prosecution, demands for evidence in the form of subpoenae duces tecum were made by the Tribunal to both the Croatian and and Bosnian Governments. In ruling on Croatia's appeal of the Tribunal's jurisdiction in issuing such subpoenae duces tecum, the Appeals Chamber ruled that such commands to sovereign states exceeded the powers of the Tribunal; and that state refusal to respond to a request from the Tribunal may only lead to a request by the Tribunal to have additional actions taken by the Security Council of the U.N. (ICTY 2000a). Further, on Appeal, Blaskic won a small victory when the Tribunal's Appeals Chamber ruled that the prosecution had not revealed all exculpatory evidence to the defense (September 26, 2000). The larger point relevant to our analysis here is that Croatia's overall record of cooperation, however, has been spotty. For example, in October 1999, Croatia suspended extradition proceedings then underway against Bosnian Croat Mladen Naletilic (NYT, 1999:A10).
d. Other cases. In many cases, alleged war criminals have benefited more from inaction by states than from their direct help; the level of active, voluntary cooperation with the Tribunal by the states of the former Yugoslavia admittedly has been low. Many known war criminals thus have remained at large due in part to the impunity accorded them by states, especially by Serbia/Yugoslavia. Some even have flaunted their notoriety by appearing openly as celebrities. Thus, American viewers were regaled with the insights of Serb paramilitary leader`Arkan' (i.e., Zeljko Raznjatovic) in daily segments aired on ABC News during the Spring 1999 N.A.T.O. War against Yugoslavia over Kosovo, despite his secret 1997 indictment by the Tribunal, the fact of which was made openly known by the Tribunal (March 31, 1999). Fame, however, proved to be a weak shield: on January 15, 2000, Arkan was shot dead in the lobby of the Intercontinental Hotel, Belgrade (Cullen: A2, 12).
The prospect that suspects such as the late Arkan ever would be detained, therefore, may hinge more on the behavior of the international forces who occupy major parts of the former Yugoslavia. Fourteen indicted individuals were arrested by these forces in the first years after Dayton (i.e., 1996-99), due in large measure to the low priority this assignment was given in the eyes of the N.A.T.O. SFOR troops in the field. Representative of this were the remarks of an anonymous American enlisted man in Tuzla, Bosnia interviewed by the author on Nov. 1, 1999: “if they [the indicted war criminals] walk up to us, yes [we arrest them], otherwise `no hunting,' so to speak.”
e. Indictments of Bosnian Serb Commanders and Leaders. One unusual case is that of Bosnian Serb Gen. Djordje Djukic and Col. Aleksa Krsmanovic. These men were arrested on January 30, 1996, after making a wrong turn in Sarajevo (Cody:5). Despite the Tribunal's previously-determined procedural measures, the men were held for nearly two months without any formal charges being filed. The Tribunal released Krsmanovic in early April 1996, citing insufficient evidence to hold him (W.P., 1996a:1); he was returned to Sarajevo and promptly jailed by the Bosnian government. Pressure from the international community led the Bosnian government to release Krsmanovic on April 21, 1996 (Moore, 1996e). Djukic was indicted by the Tribunal on March 1, 1996, for his participation in the Serb siege of Sarajevo, but on April 22 of that year, Djukic's attorney announced that charges against his client would be dropped because of Djukic's advanced pancreatic cancer, although the attorney also remarked that the court was “really freeing the general because it had no sound evidence against him” (Moore, 1996b).
The Djukic case raised interesting issues for the Tribunal, not just because Gen. Djukic, as the Bosnian Serb army's logistics chief, was at the time of indictment the highest ranking soldier from Bosnia brought into custody, but because of the broader implications of proceeding against the Bosnian Serb leaders. There were narrower issues at stake for the Tribunal in the Djukic case which potentially could cloud the deeper issue (i.e., culpability of leaders) due to the procedural messiness of getting that issue before the Tribunal: can an alleged war criminal be arrested prior to his having been indicted? The more significant substantive issue, the conditions under which the actions of a commander may be considered a crime of war, needed to be tendered with considerable delicacy.
In the Djukic indictment, the Tribunal argued that commanders are indictable when they have played a key role in decisions to “deliberately or indiscriminately [shell] civilian targets that were of no military significance in order to kill, injure, terrorize, and demoralize the civilian population of Sarajevo” (Cody:5). The nature of the siege of Sarajevo differentiates it from conventional acts of war which were not in the past labeled as crimes. Heinous acts, such as the February 1994 mortar attack on the Sarajevo market (which killed 68) or the August 1995 shelling of Sarajevo (in which 37 perished), seared the conscience of the world. The U.N. Commission of Experts report of May 27, 1994, had determined that “the Bosnian Serb Army deliberately targeted the civilian population...either as a measure of retaliation or to weaken their political resolve. Attacking a civilian population is a war crime” (Kurspahic:23). The Commission further noted that “civilians have obviously been targeted, but it is impossible to identify the perpetrators. Therefore, the commander of the Bosnian Serb forces surrounding Sarajevo could be charged” (UN:49). The Tribunal therefore established a precedent in the Djukic case that those commanders involved in the planning and execution of criminal activities such as the siege of Sarajevo were just as vulnerable to indictment as the men who actually fired the guns. This logic pointed to prominent figures, Bosnian Serb leader Radovan Karadzic and his military commander Ratko Mladic.
f. Karadzic, Mladic and the Srebrenica Crimes. On July 24, 1995, the Tribunal issued indictments against two top Bosnian Serb leaders. Bosnian Serb leader Radovan Karadzic, a former psychiatrist, and his military commander, Gen. Ratko Mladic, a blunt career military officer in the Yugoslav National Army (J.N.A.), were indicted for their alleged: responsibility for the execution of 8000 men around Srebrenica, for their roles in creating concentration camps such as at Omarska, for seizing U.N. Peacekeepers at Pale, Bosnia, and for the killings during the siege of Sarajevo (Pomfret, 1996a:12; ICTY, 1999). The indictment came down in three parts. Part one included charges of “genocide, crimes against humanity, and crimes that were perpetrated against the civilian population and places of worship throughout Bosnia;” part two involved charges concerning the sniping campaign against civilians in Sarajevo; and part three concerns the taking of UN peacekeepers as hostages from May 26 through June 2, 1995 (ICTY, 1995b).
The original indictment accused these men of directly controlling seven detention facilities throughout Bosnia where “thousands of Bosnian Muslim and Croat civilians...were detained, in large measure, because of their national, religious, and political identity” (ICTY, 1995b). Further, 16 mosques and 11 Catholic churches which were targeted for destruction in Banja Luka were also listed in the indictment. The charges concerned with the siege of Sarajevo listed specific civilians by name, age, and location and date killed, and indicted Karadzic and Mladic, again, as directly responsible for those deaths. It alleged that “from July 1992 to July 1995, Bosnian Serb military forces under the direction and control of Karadzic and Mladic unlawfully fired on civilian gatherings that were of no military significance in order to kill, terrorize, and demoralize the Bosnian Muslim and Croat population,” and lists 12 gatherings, complete with location, date, and number of casualties, for which these men were responsible inasmuch as the offenses were committed on their orders (ICTY, 1995b). But evidence of Karadzic's direct participation in the war crime of attacking civilians also is readily available. Tribunal Prosecutor Mark Harmon described film (shown on American television in May 1998) that forms part of the evidence: “[Karadzic's] utter and complete disdain for the lives of the people of Sarajevo was shown when he, like a proud father showing his son a new toy, invited the [Russian] poet Limonov, to fire a high- powered sniper weapon into the besieged city, and Limonov did so” (Sim). Karadzic publicly has maintained that “any crimes that were committed by Serbian paramilitary forces were no worse than atrocities committed by Muslims against Serbs” (Cohen, 1995b:1). How viable such evasions would be as a defense in court is debatable. The main problem which the Tribunal has faced in this case, however, has not been to answer such blame-shifting. It has been the problem of getting these men into custody.
The international community initially lent cautious support to the Tribunal's action in indicting these leaders, most notably by including a provision in the Dayton Peace Accords that indicted war criminals may not serve in the new Bosnian Federation's government (Spolar:A26). Though State Department spokesman Nicholas Burns claimed that “the U.S. position is that indicted war criminals should not be in command positions” (Pomfret, 1996a:A12), few actions to enforce this position initially were attempted.
A struggle among U.S. foreign policy institutions, and within N.A.T.O., appears initially to have pitted enthusiastic diplomats against unenthusiastic military officials in regard to the ambitious plan to support the Tribunal. N.A.T.O. made clear that, in the view of its officers on the ground in Bosnia, the arrest of Karadzic and Mladic was not their responsibility; it was viewed as the task of these men's former patron, Slobodan Milosevic (Spolar:A26), a curious position since Karadzic continued for some time to live in Pale, Bosnia-- i.e., outside the jurisdiction of Federal Yugoslavia but in close proximity to French troops. The UN International Force in Bosnia (IFOR) and its successor, SFOR, have shown a disturbing reluctance to capture these well-known Bosnian Serbs. For example, on February 27, 1996, IFOR commander U.S. Admiral Leighton Smith was aware that he and Karadzic were in the city of Banja Luka at the same time; however, no action was taken to apprehend Karadzic (Moore, 1996c). While Smith did not rule out a mission to detain Karadzic or Mladic, Gen. John Shalikashvili, then Chairman of the U.S. Joint Chiefs of Staff, took a more definite stand on any hunt for Bosnian war criminals: “Absolutely, I'm against it,” reiterating the duty of Milosevic to bring them into custody (Graham:A16; Moore 1996d).
As peace solidified in Bosnia, however, these attitudes seemed to evolve. In 1996, a U.S. official foreshadowed, saying that “Mladic and Karadzic will become more vulnerable to arrest as peace unfolds” (Williams:21). This official further noted that as peacekeepers would move in throughout 1996 to conduct elections in Bosnia, it would become more difficult for the men to move around without falling into IFOR's / SFOR's hands; at that point, “the Americans might be prepared to make arrests” (Williams:21). Indeed, the then U.S. Secretary of Defense William Perry told reporters that tougher action could be taken by international troops to bring Karadzic and Mladic to the Hague: “I do not expect to see either one of them in a position of authority in [Bosnia] by the end of the year” (Pomfret, 1996b:A21). By mid July 1996, Karadzic and by late November Mladic were out of power. Initially they retained some influence over their successors, but only for a time. As Karadzic and Mladic were “increasingly marginalized” politically, “the chances of arresting them are improving,” Prosecutor Goldstone stated with optimism in 1996 (Moore:1996a). Later, Goldstone would call “shameful” (1997b) the “failure by IFOR to have been given a robust policy with regard to the arrest of indicted war criminals” (1997a:7-8). In this evolving landscape, first British arrested more suspects, and then on January 22, 1998, American troops arrested Goran Jelisic, a Serb, on charges of war crimes and genocide stemming from his role in crimes committed at the Luka camp near Brcko in 1992 (Current History 1998a:139). In October 1999, Jelisic was acquitted of genocide but found guilt of war crimes; ultimately receiving a forty year jail term in December 1999. The circle of protection continued to close, and on December 2, 1998, three years after Dayton, Karadzic and Mladic's chief commander of the massacre at Srebrenica, Gen. Radislav Krstic, was arrested by U.S. commandos and sent into the custody of the Tribunal (Trueheart:1, 33).
The stated justification for the absence of greater priority being given to the arrest of Tribunal suspects by IFOR / SFOR has been that the main responsibility for apprehension of these leaders lies with the law enforcement institutions of states; that is, with their sponsor-in-war in Belgrade: the political leader responsible for the entire series of Balkan wars, Serb chief Slobodan Milosevic, who was ultimately deposed by popular revolution in Belgrade, October 2000. But this expectation demonstrably is untenable. In Spring 1996, Mladic attended a funeral for indicted war criminal, Djordje Djukic in Belgrade, and Serb/Yugoslav authorities then were obligated to detain him, and to surrender him to the Tribunal; they took no such action. Under U.N. Security Council Resolution 827, all states are obligated to cooperate with the Tribunal; and, further, Milosevic specifically and publicly underlined those Yugoslav obligations when he signed the Dayton document that, at Article IX stipulates all signatories' will support the Tribunal and its efforts. Accordingly, Tribunal President Antonio Cassese notified the Security Council on May 22, 1996, that Federal Yugoslavia had failed to live up to this obligation to arrest Mladic. But while the Security Council formally “deplored” this, it took no specific action to renew sanctions on Yugoslavia for this violation of its obligations (Pejic). This inaction produced only contempt from the man who could snap his fingers and send Mladic to court: Serbian President Milosevic, instead, threatened SFOR, saying that Bosnia "could blow up" if top Bosnian Serb indicted war criminals were arrested (Drozdiak 1996c: A25).
Such prevarications did not deter the Tribunal, however. Indeed, it is now clear that, despite luke warm support from the major powers, whether at the Security Council or in the behavior of N.A.T.O. troops within SFOR, the Tribunal would continue to pursue its mandate. A noose tightened nearer to the powerful political figures in Bosnia, such as Karadzic and Mladic, meant the arm of the law was moving closer to indicting Milosevic himself. Thus, after a new round of war, and renewed Serb atrocities in Kosovo (1998-99), Milosevic became the first sitting head of state ever indicted for war crimes. Charges in the May 24, 1999 indictment included: Violations of the laws or customs of war (Article 3 – murder; persecutions on political, racial or religious grounds); and Crimes against humanity (Article 5 – deportation; murder). Status as a top leader would prove no deterrent to the arm of justice that U.N. Tribunals embody, as the May 1998 genocide conviction of the former Rwandan Prime Minister, Jean Kambanda, would demonstrate (Current History 1998b:287). Since Milosevic's indictment, more than four hundred suspicious gravesites in Kosovo --prima facie evidence of ethnic killing by the Serb/Yugoslavian regime-- were reported by the Tribunal (RFE 1999a:2) and by OSCE human rights monitors (OSCE: Introduction).
Crimes without punishment in Bosnia clearly had invited further crimes: Bosnian justice delayed had reinforced a climate of impunity in Belgrade which nourished continuation of policies of systematic state terror. The Serbian leadership of Federal Yugoslavia with cynical premeditation could design future war crimes and implement them in Kosovo. And there is no doubt that grave human rights violations in Kosovo were committed by Milosevic's design: Milosevic himself told German Foreign Minister Joschka Fischer in early March 1999 that, if he chose, the Kosovars could be driven from Kosovo en masse within a week (RFE 1999b); the German Defense Ministry has stated that the human rights violations that led to mass expulsions commenced in January 1999 (RFE 1999c). Three weeks after threatening Fischer, the ugly Yugoslav implementation of the expulsions brought to Yugoslavia war with N.A.T.O.
The West remained divided over how to address Yugoslavia's brutal behavior even after NATO took the decision to go to war in 1999. Prior to the outbreak of hostilities, Greece refused Turkey the use of its airspace to fly relief supplies to refugees in Albania and Macedonia. Also in the days leading up to the 78 day air war, a French officer at the NATO headquarters in Brussels, Maj. Pierre-Henri Bunel, supplied targeting information to be used by NATO pilots to Serbian intelligence agencies. For this he was arrested in November 1999, and was convicted of treason by a military tribunal in France in December 2001. Bunel oddly received the comparatively light sentence of five years (and three years were ultimately suspended), leading some well informed experts (Frum and Perle: 238) to conclude that there may have been substance behind Bunel's defense at trial that he was, in fact, simply carrying out French Government policy (Guardian 2001). (Bunel's questionable military credentials soon were forgotten: he later became a central "authority" cited by 9/11 conspiracy theorists, claiming that the attack on the Pentagon had been fabricated).
g. Power and the efficacy of the Tribunal. Let us be analytically precise: the ultimate indictment, arrest, and trial of Milosevic further emphasizes the fact that while the Tribunal's successes will come from its achievements as an entity, it cannot be judged as an island, independent of the larger forces which shape the international community. Milosevic died prior to (near certain) conviction; Karadzic and Mladic still are free men and have not been tried at all. To insure justice, the international community must lend political -- and in some cases, military-- backing to factions in Serbia willing to cooperate, and to undertake independent actions to detain indicted persons; for “jurisdiction without political will is an ineffectual weapon” (Khan: A23).
Thus, the position of the Security Council, 1996-98, of not imposing further sanctions on Yugoslavia for its failure to arrest those under indictment by the Tribunal illustrates that while some enhancement of international will eventually occurred, more continued to be needed. Alesky has suggested that indictment alone “is a punishment” since the indicted may not continue to lead productive lives. Most supporters of the principles of the Tribunal, however, would join with Scharf (1999: B5) in demanding real punishment, as when he quoted former prosecutor Goldstone: “If this situation [the non-arrest of the major Yugoslav war criminals] is not corrected, the establishment of the Yugoslav tribunal will have caused more harm than good.” Indeed, both American former chief justice of the Tribunal McDonald (Lynch: A26) and Canadian former chief prosecutor Arbour (Bird: 4) in 1999 shared in this assessment. Nor is the work nearly done: as the new millennium dawned, Chief Prosecutor Del Ponte announced that one hundred fifty additional cases were likely to be pursued. Initially she emphasized that she saw progress in SFOR's more aggressive performance on behalf of the Tribunal, 1998-2000, as was illustrated by the arrest of Gen. Galic in December 1999 (Deutsche Presse-Agentur 1999). But her hope for the ultimate detention and trial of Karadzic and Mladic -- which she in 1999 termed the first priority of the Tribunal-- remained unfulfilled by 2006.
Violence has continued to menace the entire process. When indictee 'Arkan' was murdered (January 15, 2000), and yet no progress had been made in detaining Karadzic et.al., Del Ponte again demanded SFOR make the arrests since the Tribunal alone could insure the “safety” of the indictees (Cullen:A2). Lawlessness in post-Milosevic Serbia remained a clear threat to justice, and the threat posed weighs heavily beyond just the indictees. In March 2003, the Serbian Prime Minister who had turned Milosevic over to the Tribunal, Zoran Djindjic, was himself assassinated. The alleged perpetrator that emerged after a year's hiding to face criminal charges, Milorad Lukovic, had strong ties to the Milosevic group, having served in a Red Beret unit close to the former president (BBC: 2004). No top officials ever were held accountable.
OPPOSITION TO THE TRIBUNAL
Madeleine Albright, U.S. Secretary of State during the second Clinton Administration, once implored opponents of the Tribunal to remember that “realism about the tribunal's prospects must not lead to cynicism about its importance” (Lewis 1993:16). Nonetheless, voices against the Tribunal have been heard, even outside Belgrade.
Fears about erosion of state sovereignty guide some to oppose tribunals in general. Some have feared that “if the U.N. takes on the powers to arrest, prosecute, sentence and imprison individuals, it is taking on sovereign powers hitherto reserved to states” (Lummis: 302). This argument conceives the United Nations as a super-governmental entity, one out to transform the extant state system by fully taking away individual nations' sovereignty. But all powers exercised by the U.N. are, in fact, powers granted to it by member states. Should the organization cease to be the representative and cooperative international organization which the foregoing has demonstrated it to be, the great powers, or more pertinently, even a single Great Power (e.g., the United States), simply could withdraw from the organization. No sovereignty would be “lost.”
Others have argued that the world community represented by U.N. is a mirage, that all the world's commonality is but an illusion that conceals antagonistic “civilizations,” irreconcilably resistant to the evolution of common norms (Huntington). The recent, though limited, fraternal bonds of private citizens of Eastern Orthodox faith, Greeks and Russians primarily (and to a much lesser extent, Ukrainians), with the Milosevic regime during the 1999 war over Kosovo do reinforce Huntington's fear. No universal norm proscribing the expulsion of persons on the basis of their nationality (e.g., the Kosovar Albanians) has yet to rise to be viewed by all as a collective, worldwide norm. Russian forces, 1999-2004, appeared to have been able to abuse and force large numbers of Chechnyans to flee Chechnya unperturbed by even so little as a U.N. resolution of condemnation; indeed: Russian and its friends succeeded in May 2001 in preventing reappointment of the U.S. to the U.N. Commission on Human Rights from which such a condemnation of their actions in Chechnya might logically have been made. Brock (60) has argued that such “double standards” drain the Tribunal process of value; whereas, former tribunal prosecutor Goldstone (1997b:108) has rebutted, arguing that these inconsistencies in applying international war crimes norms strengthen the argument for establishing a permanent international war crimes court.
A further criticism of the Tribunal stresses the technical improbability that it could work as effectively as the Nuremberg trials did, because in the case of Nuremberg justice was essentially a byproduct of a “victors' tribunal,” wherein the prosecutors had physical control over all of Germany, had most war criminals in custody, and had access to numerous Nazi documents (Morris and Scharf:334). But, contrarily, the absence of a perfect environment is not a reason to give up on the idea of the tribunal, but precisely the opposite: a reason to support efforts to make more feasible the activities of the Tribunal. Initially, the Tribunal did have trouble obtaining funding, as almost every world power other than the U.S. dragged its feet on contributing an appropriate share of the costs. The Nuremberg Tribunal, on the other hand, began with a staff of 2000, employed 100 prosecutors, and had an army of over a million soldiers tasked in part to gather evidence. The ICTY began with a staff of only 100, including 19 prosecutors, and 22 investigators (Morris and Scharf:335.). By the measure of feasibility, some initial doubt was justified concerning how fully the Tribunal could succeed. But initial funding levels grew incrementally as professionalism and evenhandedness at the Tribunal made for increased political support. By early 2000, a staff of 832, drawn from 68 countries, had been assembled. Inadequate Tribunal budgets had been overcome: from $276,000 (1993), to $10.8 million (1994), to $25.3 million (1995), to $35.4 million (1996), to $48.6 million (1997), to $64.8 million (1998), $94.1 million in 1999, $95.9 million in 2000, $96.4 million (2001), $223.1 million (2002-03), and $271.8 million (2004-05) (ICTY 2004). Inadequate initial resources proved fixable for an effective Tribunal, not grounds for the abandonment of the effort in the Former Yugoslavia, or elsewhere.
The larger fact to maintain focus upon is that the Tribunal did not initially, has not throughout its operation, and does not now, lack evidence of grave crimes. Abundant physical evidence unearthed in Bosnia, Croatia and Kosovo, augmented with refugees' testimonials gathered throughout Europe, deeply has informed the Tribunal's work. The pace of its assembly, moreover, has been quickening. After Dayton, support for Tribunal personnel and their field investigations and excavations in Bosnia could not be the primary task performed by IFOR / SFOR troops, because IFOR / SFOR had other responsibilities related to the implementation of the Accords. Further, in 1996-97, it was necessary to give Federal Yugoslavia, Croatia, and Bosnia a clear chance to exercise their peacetime responsibilities under the Dayton Accords to arrest and turn over to the Tribunal those accused in their midst. But, once the security aspects of the immediate post-war environment had stabilized, and once the will of the states in the region regarding Dayton's terms became clear, political decisions to re-task the IFOR / SFOR troops so to have some among them play a more active role in fulfilling the mandate of the Tribunal could occur. The feasibility problem thus has been able, to a great degree, to be overcome.
At its founding, the final and perhaps most serious objection to the Tribunal was that it would be detrimental to the peace process underway in Bosnia, and the entire region. Initially, there appeared a persuasive case to be made in favor of this argument, particularly in the early months of 1996 when peace was fragile, when IFOR's authority was uncertain, and when disarmament negotiations with armed groups implied negotiating indirectly with indicted war criminals. When Bosnian Serb leaders Radovan Karadzic and Ratko Mladic were indicted, world leaders were forced to confront this issue (Pomfret 1996a:12), an issue that now has been widened by the May 24, 1999 indictment and trial of (now former) Federal Yugoslav President Slobodan Milosevic for Crimes Against Humanity in Kosovo (Scharf 1999:B1, 5). To detain these Bosnian men may still risk potential adverse local reaction in Bosnia (by elements in the Bosnian Serbs' entity) and elsewhere. But the anti-Tribunal element among the Bosnian Serbs has seen its influence greatly ebb and, for the most part, those inclined to resist the Tribunal seem significantly to have been disarmed. The new post-war leadership of Bosnia has needed to demonstrate its bona fides in order to contend for scarce foreign aid dollars needed for their recovery efforts. This goal stands at odds with remaining loyal to the nationalist agenda of protecting fellow-ethnics who are indicted war criminals. The successful December 1998 arrest of Gen. Krstic clearly demonstrated that fears that the Tribunal's work will undermine regional peace efforts always were overdone: the Bosnian Serbian entity could mount no effective countering actions. Its interests lie in normalizing relations that can help with reconstruction. Thus, in October 1999, the Bosnian Serb Prime Minister Milorad Dodik flatly stated that Karadzic and other indicted war criminals must go to the Hague-based war crimes tribunal "whether they like it or not" (RFE 1999d). The requirements of an era of peace have prodded Bosnian Serb officials to support the Tribunal process. Thus, the fear of those who saw the Tribunal to impede the peace process had it exactly backwards: the cause of justice has reinforced, not undermined, the Dayton Peace Accords.
If Bosnian Serb “Republika Srpska” state officials thus continue to be constrained from using available power to assist war criminals to resist accountability, this logic has larger meaning. It was usefully applied to Serbia/Yugoslavia, and may continue to need reapplications in regard to those who aspire to lead the post-Milosevic Serbia in an entirely new direction. There, too, the practical objectives of obtaining an end to crippling sanctions and of obtaining external aid for restoring the ruined Serb/Yugoslav economy created leverage. By continuing sanctions against the post-Milosevic Kostunica Government until complete cooperation with the Tribunal is demonstrated, states retained leverage that reinforced the logic of further cooperation with the Tribunal. The indicted Milosevic long remained outside of the reach of the Tribunal, but ultimately was brought to its detention center. First, he was incarcerated in Belgrade on unrelated national charges of corruption. The great powers continued to make a clear linkage between his transfer for trial in the Hague on the one hand, and aid that was sought by the Kostunica Government on the other. This leverage fully was appreciated by the U.S. Congress when, in Fall 2000, it passed a U.S. law demanding three conditions be met for any U.S. aid to the Kostunica Government to be continued after March 31, 2001 (Sipress: 21). Included in this act were both direct U.S. bilateral aid and restrictions on U.S. actions in multilateral agencies to which Yugoslavia had applied for other aid, including especially the International Monetary Fund. First, Belgrade was required to demonstrate improved protection of minorities and improved respect for the rule of law by, for example, releasing all Albanians abducted during the 1998-99 reign of terror in Kosovo and during NATO's 1999 war to liberate the province. Second, Federal Yugoslavia was required to completely sever support for separatist Serb institutions in the portion of Bosnia ruled by Serbs (i.e., in “Republika Srpska” ).
Milosevic to the Hague. But third, and most fundamentally, the Kostunica Government was required to demonstrate cooperation with the Tribunal by delivering Milosevic to it. In arresting Milosevic on the very day that the U.S. Congress had set as its deadline, March 31, 2001, Kostunica's Government took a measured step toward meeting part of these conditions. It was rewarded by early release of a small U.S. aid package. These carrots continued to be connected to the stick: Milosevic's arrest warrant from the Tribunal was served to him (May 2001) at his Belgrade jail cell. Under continuing pressure from the U.S. and others, Milosevic ultimately was transferred to the Hague, apparently on orders of Serbian Prime Minister Zoran Djindjic. On July 3, 2001, Milosevic appeared for the first time before the Tribunal and entered a "not guilty" plea on all charges related to Kosovo, and entered the same pleas regarding crimes in Croatia (on October 29, 2001), and in Bosnia (on December 11, 2001). Trial commenced on February 12, 2002 continued for five years without conclusion until Milosevic natural death in his jail cell on March 11, 2006. Prime Minister Zoran Djindjic met a still more troubling fate: he was assassinated outside his residence in Belgrade in March 2003.
Despite a revolution to remove the nationalist regime of Slobodan Milosevic from power, and despite Milosevic's surrender to the Tribunal, Federal Yugoslavia remains a key obstacle in the effort to ground peace in the Balkans in justice. In 1998-2004, some practical international support for the Tribunal has made greater the Tribunal's impact. Key to this has been both greater diplomatic pressure and more robust military back-up by NATO in the region. As the Tribunal's work itself has become more transparent with the completion of cases, half measures of cooperation have become less tenable. What can we learn from the pattern?
Early delivery of "carrots" may have established a pattern that itself became the part of the problem: Milosevic played the Western powers well by displaying diplomatic savvy in signing the Dayton accords in fall 1995, an act that was rewarded. It led to immediate suspension of the trade embargo against it. To win the formal lifting of U.N. sanctions against Yugoslavia on June 18, 1996 (Current History 1996:293), Milosevic then committed his state to adhere to international norms by taking required action against war criminals in its jurisdiction. In seeking renewed status as the legitimate ruler of a lawful state, even prior to Dayton, Milosevic had found it necessary in interviews to claim that it was his belief that “it is the duty of any civilized country in our international community to punish war criminals” (Maass: C1). It is telling that lip service to the goals of the Tribunal had come to be felt necessary by a Serbia/Yugoslavia desperate for trade and other benefits of being regarded a normal state. Despite all these inducements, Milosevic's Government never fulfilled any of its basic pledges: e.g., in the years since Dayton, the author of the 1995 massacre at Srebrenica, Gen. Ratko Mladic himself, has been sheltered in Serbia by Milosevic's regime, and remains free from incarceration in Kostunica's Yugoslavia. Inducements extended in the form of restored trade, 1996-99, thus proved to be inadequate: “carrots” such as the lifting of economic sanctions on Yugoslavia did not reshape basic Yugoslav policy. The “stick” of sanctions had to be re-imposed after new Yugoslav atrocities in Kosovo began in 1998: the UN Security Council imposed a new arms embargo on Yugoslavia under Resolution 1160 (March 30, 1998); and the “Contact Group” of leading states in April 1998 activated trade sanctions threatened earlier. When Serb repressions continued, on September 23, 1998, the Security Council, acting under the potent Chapter VII of the UN Charter, adopted Resolution 1199 with its demand that security forces cease and withdraw.
Force ultimately proved to be necessary in order to bring Serb war crimes to an end. Accordingly, mere Serb/Yugoslav promises of cooperation with the Tribunal made by the post-Milosevic Kostunica Government must be viewed in light of this record-- despite its democratic credentials. The turning over of Milosevic to the Tribunal cannot be not enough. Other war criminals (Mladic; Karadzic and more) remain free men, sheltered by factions within Serbian state bureaucracies, and by inaction borne of incomplete consolidation of democracy within the Yugoslav Government.
Unfortunately, genuine Western solidarity has been a weak link in response to the long pattern of Yugoslav non-compliance with agreements it has signed. Whatever loose promise has usually been enough for some in the West. And some, e.g. France, gave so much encouragement to Serbia that even treasonous acts that undermined the unity of the West were hardly punished (Frum and Perle: 238). Continuation of sanctions against Milosevic's rump Yugoslavia after the 1999 war divided a firm U.S. and U.K. from more distractible voices among European opinion. Yet that pressure, dissipated as it was by defections of ostensible allies, did help to fuel the social crisis that produced a revolutionary end to ten years of Milosevic's rule. After the revolution that removed Milosevic from power, the political will to coerce compliance with the mandate of the Tribunal waned further. Division of interests may be in play. Disruption of the Danube River trade due to 1999 war damage to Yugoslavia has far greater impact on regional states' economies than on that of the U.S. Careful management of the distribution of these burdens within the local members of the N.A.T.O. alliance (e.g., Hungary, and to a lesser extent, Turkey, Greece and Italy), and among the deeply affected but cooperative (then) non-N.A.T.O. members (e.g., Bulgaria, Romania, Croatia, Slovakia) will assist the cause of maintaining a solid front in the enforcement of trade sanctions and the diplomatic isolation of Yugoslavia. (Slovakia, Bulgaria and Romania joined NATO in 2004). Targeted and generous Western aid to compensate for the financial losses of the most vulnerable among these economies may prove of prime significance if the mandate of the Tribunal fully is to joined with the additional coercive measures needed. Ironically, the states which are in a position to be menaced by future Serbian aggressions may more readily be susceptible to be induced to support the logic of an American policy of firmness than can prestige-seeking, but less menaced states such as France.
If it is joined to such a thoughtful strategy by the U.S. and N.A.T.O., U.N. policies of holding accountable the region's unpunished war criminals support the maintenance of peace in the volatile Balkan region far more than they undermine that peace. Not the work of the Tribunal, but the truculent nature of Federal Yugoslavia produced war but three and a half years after Dayton. The Milosevic team that guided that state now is out of power, and some are in jail in Yugoslav and Tribunal prisons. But some of the most wanted among those indicted by the Tribunal's still walk free in Belgrade. Half-measures of cooperation with the peace process -- of which the Tribunal's work is a central part -- no longer can suffice even if the Kostunica Government seems outwardly to represent a positive step in the region. After the resumption of ethnic violence by Yugoslavia in Kosovo in 1998-99, no Yugoslav promise of cooperation can be an acceptable substitute for the delivery of the indicted persons they shelter to the custody of the Tribunal. A fast public relations embrace of rhetorical “cooperation” with the Tribunal on the part of Yugoslavia in response to U.S. unilateral pressure cannot substitute for genuine cooperation: the delivery of all the indicted to the Tribunal.
By the mid-1990s, the norms of international discourse had come to require war criminal wolves sheepishly to pose in order to improve their stature in the international community. That pose by Milosevic we now know to have been an utter fraud. In the new millennium real cooperation by the post Milosevic rulers of rump Yugoslavia, not more empty promises, must be demanded.
A candid assessment now is needed of that additional belief which also has limited the extent of the success of the Tribunal thus far: the widespread conceit that an amoral, “realistic” geopolitics is a more efficacious way to advance states' national interests than is an emphasis on instruments of justice (e.g., the Tribunal) as part of the basis from which to achieve lasting reconciliation, and peace. The realist misperception led the West to try to deal even with Milosevic to untie other knots of Balkan conflict, e.g. Kosovo. Round after round of ineffectual talk throughout the Bosnian War and again in 1998-99 should reorient us. Under standard protocol, states must deal diplomatically with the individuals that other states appoint to positions of leadership. Thus, diplomatic norms and the requirements of statecraft as seen from the “realistic” vantage point of the major powers in the mid to late 1990s seemed to dictate that some war criminals might escape punishment. Just days before N.A.T.O. rained bombs on Yugoslavia, U.S. diplomat Richard Holbrooke sat with Milosevic to talk an end to ethnic bullying of the Kosovars, ineffectually.
There was no actual chance of mere talk advancing Western values or Western interests with Milosevic for he understood only power. But power alone also is not the form power must take to achieve what is needed for to establish lasting peace. Power connected to justice is what is needed for peace. Misunderstanding that linkage led large elements of the West-- though not the U.S. Secretary of State-- to misread Milosevic's actions in Kosovo all through 1998, and to downplay Milosevic's openly expressed threats to the German foreign minister in 1999 (RFE 1999b).
Seselj. With Milosevic out of the Yugoslav political picture, flawed policies of “realism” again tempted some Americans during the Bush Administration to consider reining in the Tribunal, and ignoring further effort to redress the horrific crimes still unpunished. Kosovo, Macedonia and Albania were undeniably settings in which international terrorists had gained headway in finding some recruits among disgruntled Muslims; and an element of chaos in these places had provided opportunity for internationalist jihadists to find sanctuary. To stymie these trends, a temptation to favor the historic enemies of the Balkan Muslims, the Serbs, loomed large. But principle prevailed: the vile acts Serbs committed in Croatia and Bosnia in the early 1990s could not be papered over so to follow a new geo-strategic tilt, regardless of the counsel heard from some quarters that it would be a "realistic" move. Pointedly, more than 18 months after the War on Terrorism began (Sept. 11, 2001), Vojislav Seselj, the leader of paramilitary groups a decade earlier who had risen to become a prominent Serb politician and former Serbian Deputy Prime, was indicted by the Tribunal (February 2003). Despite the temptation to "tilt" toward Serb nationalists to curry favoritism in the War on Terrorism, the Bush Administration found that justice required appropriate punishment for all war criminals. Under U.S. and Tribunal pressure, Seselj felt compelled to go the Hague where his "not guilty" plea was entered on March 26, 2003. Under his amended indictment (July 2005), the former college professor and militia organizer faced numerous serious charges: eight counts of crimes against humanity, and six counts of violations of the laws of war.
Yet Mladic, Karadzic and many others long have remained beyond the reach of the Tribunal. It is a flawed logic that has lured some states in the E.U. to to move forward the early end to all sanctions. This is premature.
States which practiced state terrorism, states which pursued a calculated policy of ethnically motivated war crimes, states which were led by war criminals who designed and authorized these policies, must not be coddled. The aid-worthy behavior of these states will be demonstrated by consistency in their pattern of changed policy, not by promises, and not by self-delusion on the part of the West. Thus, cooperation with the Tribunal remains the litmus test for Yugoslav/Serbian democracy, and it is that consistent pattern which the Kostunica regime has yet to demonstrate. Despite the steps forward represented by arresting Seselj and Milosevic and their transfer to the ICTY in the Hague, Mladic and Karadzic remain at large.
Pressure, not coddling has worked. Adherence to diplomatic niceties and sitting with Milosevic, 1996-99, merely to smooth peace negotiations elsewhere interfered with the possibility of genuine peace. Such behavior only slowed the Tribunal's work, delaying the ultimate day of justice for Seselj and finally allowing Milosevic to evade it through his natural death. Indeed, courting Milosevic while he ruled sullied the ethical tone of the whole enterprise. Statesmen confronted by future policies of genocide will have to measure the degree this Tribunal's success was impeded by reliance on patient negotiations, and by apparent hasty compromises made by all the major powers in regard to Karadzic and Mladic, Seselj and Milosevic, and dozens of others.
After the Kosovo crisis of 1999, we know not only that amoral “realism” didn't work. We also know that justice joined with power did work: only relatively minor bumps appeared on the road to a more secure Bosnia once arrests of major war criminals there were undertaken by N.A.T.O. troops stationed there as part of IFOR /SFOR. Earlier, vigorous pursuit of arrests by IFOR / SFOR might not have guaranteed a widening peace that would envelope all of the former Yugoslavia, but neither did a Realpolitik-informed caution. When Serb-run ethnic brutality relocated its focus to Kosovo in March 1998 -- a bare two and a half years after Dayton--, it only ended after resistance to it was joined by the powerful hand of N.A.T.O. Sound arguments long have been heard suggesting that a higher priority on justice would have been worth attempting earlier, if peace is to be attained in the long run. Then U.S. Ambassador to the U.N. Madeleine Albright explained in 1994: “Trials would show that the responsibility for the horrors does not rest with the Serbs or Croats or Muslims as groups: it rests with the people who ordered and committed the crimes” (Lewis 1994b: A17). Indeed, one of the central precipitants of the excesses of the Bosnian war, it widely and persuasively has been argued, was the absence of trials for the Croatian war criminals fifty years ago in the wake of World War II.
The wounds of the survivors of that war, as well as the wounds of the survivors of this Bosnian War of the 1990s, and of Kosovo 1999 fester. Without a fully successful Tribunal, they will continue to fester. Victimizers will continue to believe they did nothing wrong, and in due course their progeny will seek out more victims, much as Milosevic only shifted the targeting from Bosnia to Kosovo. Without accountability for perpetrators, justice will elude the victims, and their heirs will one day demand revenge, as already is apparent in the restiveness of militant Kosovar Albanians for whom the only clear lesson of 1999 is that military power works. Macedonia does not need to become the site of a fifth Balkan war since 1990; the Albanians there and in Kosovo must be convinced that the path of peace is more efficacious. Genuine effort must be made to demonstrate peace means accountability. Unless the fullest possible measure of accountability is brought to the perpetrators of atrocities in Bosnia, Croatia and Kosovo, unless the fullest practical measure of justice is brought to the victims, these cycles will not end.
Appendix I: Personnel of the Tribunal
As of April 26, 2004, personnel included:
President of the Tribunal:
Theodor Meron (United States of America)
Presiding Judges:
Patrick Lipton Robinson (Jamaica)
Carmel A. Agius (Malta)
Liu Daqun (China)Judges:
Mohamed Shahabuddeen (Guyana)
Richard George May (United Kingdom)
Florence Ndepele Mwachande Mumba (Zambia)
Mehmet Güney (Turkey)
Amin El Mahdi (Egypt)
Alphonsus Martinus Maria Orie (Netherlands)
Wolfgang Schomburg (Germany)
O-gon Kwon (South Korea)
Inés Mónica Weinberg de Roca (Argentina)
Jean-Claude Antonetti (France)
Kevin Parker (Australia)Ad Litem Judges:
Ivana Janu (Czech Republic)
Chikako Taya (Japan)
Volodymyr Vassylenko (Ukraine)
Carmen Maria Argibay (Argentina)
Joaquín Martín Canivell (Spain)
Vonimbolana Rasoazanany (Madagascar)
Bert Swart (Netherlands)
Krister Thelin (Sweden)
Christine Van Den Wyngaert (Belgium)Prosecutor: Chief Prosecutor: Justice Carla Del Ponte (Switzerland), since 15 September 1999. Deputy Prosecutor: Graham Blewitt (Australia), since 15 February 1994.
Registrar: Hans Holthuis (Netherlands), since 1 January 2001.
Deputy Registrar: David Tolbert (United States of America), since 20 August 2003
Appendix II: Indictments by the Tribunal (below is information as of 2000)
Accused at large: Arrest warrants issued to particular States have been issued against all accused and are currently outstanding against: Dragan Nikolic, Zeljko Meakic, Dragoljub Prcac, Momcilo Gruban, Dusan Knezevic, Goran Borovnica, Dusko Sikirica, Dragan Fustar, Nenad Banovic, Predrag Banovic, Blagoje Simic, Ranko Cesic, Milan Martic, Radovan Karadzic, Ratko Mladic, Ivica Rajic, Mile Mrksic, Miroslav Radic, Veselin Sljivancanin, Zoran Marinic, Gojko Jankovic, Janko Janjic, Dragan Zelenovic, Radovan Stankovic, Zeljko Raznjatovic, Mladen Naletilic, Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic. International arrest warrants: further to six "Rule 61 proceedings", eight international arrest warrants have been issued, currently outstanding against the following accused: Dragan Nikolic, Milan Marti Mrksic, Miroslav Radic, Veselin Sljivancanin, Ivica Rajic, Radovan Karadzic and Ratko Mladic. Further to Sub-rule 55(D), 5 international arrest warrants have been issued against Slobodan Milosevic, Milan Milutinovic, Nikola Sainovic, Dragoljub Ojdanic and Vlajko Stojiljkovic (see: ICTY 2000b).
Detainees: 34 accused were in custody at the Detention Unit in early 2000:
Dusko Tadic, Tihomir Blaskic, Zdravko Mucic, Hazim Delic, Esad Landzo, Dario Kordic, Mario Cerkez, Zoran Kupreskic, Mirjan Kupreskic, Vladimir Santic, Drago Josipovic, Vlatko Kupreskic, Anto Furundzija, Goran Jelisic, Miroslav Tadic, Simo Zaric, Dragoljub Kunarac, Miroslav Kvocka, Mlado Radic, Zoran Zigic, Milojica Kos, Milorad Krnojelac, Stevan Todorovic, Radislav Krstic, Dragan Kolundzija, Milan Simic, Radoslav Brdanin, Radomir Kovac, Vinko Martinovic, Momir Talic, Damir Dosen, Stanislav Galic, Zoran Vukovic and Mitar Vasiljevic. Two accused have been released pending appeal: Zlatko Aleksovski and Zejnil Delalic (ICTY 2000b). However, in October 1999, Croatia suspended extradition proceedings then underway against Bosnian Croat Mladen Naletilic; see: (NYT 1999, A10).
References
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last updated Thursday, March 08, 2007