Will Milosevic Outsmart His Tribunal Judges?

Diane F. Orentlicher is professor of international law and faculty advisor to the War Crimes Research Office at American University's Washington College of Law

How would Slobodan Milosevic conduct himself if he ever came before the United Nations war-crimes tribunal? The prospect had seemed beyond imagining for so long that even seasoned Balkans experts were hard-pressed to conjure up an image of Milosevic in court. Would the defiant demagogue now seem humbled?

Not a chance. Last week, Milosevic played to perfection the role of nationalist martyr standing up to the West as court officials gamely acted out the formal rituals of justice. The former Yugoslav president scorned the tribunal as a tool of Western countries. "This trial's aim is to produce false justification for the war crimes NATO committed in Yugoslavia," Milosevic replied when asked to enter a plea.

It was at times difficult to watch the 10-minute hearing at The Hague without worrying whether Milosevic would work the tribunal as skillfully as he had manipulated Western leaders for the better part of a decade. However cynical his motivations, he raised a question that is hard to shake off: Whose court is this?

Milosevic charges that it belongs to the North Atlantic Treaty Organization. The tribunal's chief aim, he says, is to justify NATO's intervention in Kosovo in 1999. But Milosevic's claim rests on shaky ground. If anything, the U.N. Security Council organized the tribunal as a sop to the West's conscience at a time when the U.N. was unwilling to intervene to halt "ethnic cleansing" in Bosnia in the early 1990s.

Still, now that the tribunal has its most-wanted war-crimes suspect, it must be especially careful that it does not give credence to Milosevic's charge. Above all, it must not bolster Milosevic's claim that the tribunal does not have Serb interests at heart.

One of the tribunal's most important goals is among the hardest to grasp. Established on behalf of the international community in 1993, the tribunal aims to reaffirm universal standards of human decency and regard for law. Nowhere is this goal more important than in the former Yugoslavia, where the basic code of humanity was breached wholesale in successive orgies of lawless violence in the Balkans during the 1990s. It was thus unfortunate that Milosevic was surrendered to the tribunal in defiance of a ruling by the Yugoslav constitutional court, an act that probably didn't nurture greater respect for the rule of law in Yugoslavia.

Western countries, to be sure, were right to press Yugoslav and Serbian authorities to honor their legal obligation to surrender Milosevic, though this inevitably bolstered Milosevic's charge that the tribunal is an instrument of Western power. The Bush administration seems to have deftly used the prospect of aid to nudge Serb authorities to arrest Milosevic and then send him to The Hague. And the legitimacy of the Yugoslav constitutional court was disputed in some quarters. Nevertheless, it would have been far better if Yugoslav authorities had found a way to transfer Milosevic without appearing to bypass their own constitutional processes.

Some contend that if the international community really wants to encourage the rule of law in Yugoslavia, it should allow national courts to prosecute Milosevic. After all, in the last year Yugoslavs threw out Milosevic and democratically elected new leaders. The country's new president, Vojislav Kostunica, is among those who want to try Milosevic in Belgrade. One of the most important tasks for Yugoslavia now is to develop a deep culture of respect for human rights, secured through reliable and impartial enforcement of law. Putting Milosevic on trial in Belgrade could foster the emergence of a stable constitutional democracy in Yugoslavia, provided the trial was seen as legitimate.

But there are compelling reasons why it would be better first to prosecute Milosevic at The Hague, though these should not preclude Yugoslav participation in the larger project of confronting crimes committed in the name of Serb nationalism. Metaphorically and literally, the crimes charged to Milosevic transcend Yugoslavia and engage the deepest concerns of the international community. Although the tribunal has, so far, charged him only with crimes committed in Kosovo, the U.N. prosecutor is preparing to expand the indictment to include atrocities in Bosnia and Croatia. And although Kosovo is still formally part of Yugoslavia, atrocities committed there by Serb forces were severe enough to draw NATO into its first-ever war. Thus, it is not just Serbs who have an interest in bringing Milosevic to account. Finally, victims of Milosevic's alleged crimes have far greater confidence in the impartiality of the tribunal than in Yugoslav courts, a factor that may crucially affect their willingness to testify.

But the tribunal would undercut one of its most important goals if its prosecution of Milosevic inadvertently retarded Yugoslavia's progress in constructing a vibrant legal culture. To avoid this outcome, the tribunal should forge a new relationship with Yugoslavia, engaging its nascent democracy in a common project of justice.

Some seeds of a new partnership have already been planted. It was Serb authorities, not U.N. brigades, who arrested Milosevic and then surrendered him to the tribunal. Serb authorities also helped prepare their public for Milosevic's transfer to The Hague by publicizing evidence that the former president orchestrated a cover-up of atrocities in Kosovo. That the lifting of U.S. sanctions provided a powerful incentive for Serbian authorities to hand Milosevic over transfer does not diminish their accomplishments, which reflect Serbia's recognition that restoring its standing internationally means accepting the obligations of international law.

Tribunal officials can contribute to this progress by engaging the Yugoslav public as Milosevic's trial proceeds. If trial participants can be protected, the tribunal might even revisit the question of holding some hearings in Yugoslavia (and, for that matter, elsewhere in the former Yugoslavia). In these and other ways, the tribunal can help create and nurture a culture of respect for law in the former Yugoslavia.

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