The International Criminal Tribunal
for the Former Yugoslavia, which on May 24,
1999 indicted Slobodan Milosevic along with
four top aides, was established by the United
Nations Security Council in May 1993. Eighty-five
suspects have previously been indicted by
the Tribunal; charges were dropped against
18 of these, seven persons have been convicted,
one has been acquitted, six died before trial,
and twenty-three are in custody awaiting trial.
The Tribunal's Statute gives the court jurisdiction
to prosecute individuals who, in the territory
of the former Yugoslavia, commit grave breaches
of the Geneva Conventions (Article 2), violations
of the laws or customs of war (Article 3),
genocide (Article 4), and crimes against humanity
(Article 5). The most serious penalty the
Tribunal may impose is life imprisonment.
The indictment, which was confirmed by a
trial chamber judge on May 24 and transmitted
to the Federal Republic of Yugoslavia on May
27, charges Slobodan Milosevic (President
of the Federal Republic of Yugoslavia), Milan
Milutinovic (President of Serbia), Dragoljub
Ojdanic (Chief of Staff of the Yugoslav army),
Nikola Sainovic (Deputy Prime Minister), and
Vlajko Stojiljkovic (Minister of Internal
Affairs) with responsibility for deporting
740,000 Kosovo Albanians and for the murder
of 340 others. The indictment is broken down
into four counts: Count 1: Deportation (a
crime against humanity), Count 2: Murder (a
crime against humanity), Count 3: Murder (a
violation of the customs of war), and Count
4: Persecution (a crime against humanity).
The charges are based on two theories of
liability. The first is command responsibility:
the responsibility of a superior for actions
committed by his subordinates. As the civilian
commander of the Yugoslav military and police
forces, Milosevic holds an affirmative legal
obligation to prevent his forces from committing,
encouraging, or enabling others to commit
atrocities in Kosovo. The second is personal
responsibility for committing, planning, instigating,
ordering or aiding and abetting war crimes
and crimes against humanity.
The murder charges may present difficulties
for the Prosecutor in two respects. First,
as to Count 2, to constitute a crime against
humanity, murder must be committed on a widespread
and systematic basis, which may be hard to
prove given the relatively small number of
documented killings in Kosovo. Second, as
to Count 3, while murder is expressly listed
under the category of grave breaches under
Article 2 of the Tribunal's Statute, it is
not included in the list of violations of
the laws or customs of war enumerated in Article
3 of the Statute.
Notably absent from the indictment is the
charge of genocide-the most serious charge
within the Tribunal's jurisdiction. Such a
charge would have strengthened the case for
characterizing Milosevic as a modern-day Adolf
Hitler and would have gone a long way toward
making the case that the NATO intervention
was a just war. But genocide is the most difficult
international crime to prove, requiring evidence
of specific intent to destroy an ethnic group,
in whole or in part, by (a) killing members
of the group, (b) causing serious bodily or
mental harm to members of the group, (c) deliberately
inflicting on the group conditions of life
calculated to bring about its physical destruction
in whole or in part, (d) imposing measures
intended to prevent births within the group
or (e) forcibly transferring children of the
group to another group. Mass deportations
of members of an ethnic group fall within
the definition of crimes against humanity
but not genocide, since the group is relocated
rather than destroyed. Moreover, it is doubtful
that under the Tribunal's precedent the killing
of 340 Kosovo Albanians out of a population
of 1.8 million would be considered genocide.
However, depending on the evolving circumstances
in Kosovo, the International Prosecutor could,
with the approval of the Trial Chamber, amend
the indictment to include the charge of genocide.
Also conspicuously missing from the indictment
are any charges relating to atrocities in
Bosnia, where from 1992-1995 Bosnian Serbs
with the aid of the Yugoslav National army
reportedly killed 250,000 Muslims and "ethnically
cleansed" 2 million others from Serb-controlled
areas. The absence of charges relating to
Bosnia was likely due to the Yugoslavia Tribunal's
holdings in the Tadic judgment (May
7, 1997) and in the Celebici judgment
(November 16, 1998). In a 2-1 opinion in the
Tadic case (Judge Gabrielle Kirk McDonald
of the U.S. dissenting), the Trial Chamber
determined that the situation in Bosnia did
not constitute an international armed conflict
as required for conviction of the charge of
grave breaches of the Geneva Conventions because
the Bosnian Serbs were not the agents of the
Government of Serbia, despite evidence that
they received financing, material support,
and strategic guidance from Belgrade.
In the Celebici case, the Trial Chamber
held that command responsibility applies only
to individuals in the direct chain of command
having the power to issue binding orders and
to punish violators of such orders. The test,
according to the judges, is whether a superior
"has effective control over the perpetrator."
Applying this test, the judges convicted the
commander of the Celebici prison camp for
the atrocities committed against inmates by
prison camp guards, but it acquitted the Commander
of the First Tactical Group of the Bosnian
Army despite evidence that he had wielded
wide-ranging authority over the prison. Taken
together, the Tadic and Celebici
precedents would make it difficult to prosecute
Milosevic for atrocities in Bosnia committed
by the Bosnian Serbs against Bosnian Muslims.
If, as is expected, the Federal Republic
of Yugoslavia fails to surrender Milosevic
and the other four indicted Yugoslav officials
to the Tribunal, the Prosecutor will likely
initiate something known as "a Rule 61 hearing."
A Rule 61 hearing is like a televised grand
jury proceeding in that only the prosecution
is permitted to participate and present its
case through witness testimony, documents,
and other evidence. If, at the conclusion
of the hearing, the panel of three judges
are convinced that there are reasonable grounds
for believing the defendants have committed
the crimes charged in the indictment and that
the State where the defendants are located
has failed to cooperate with the Tribunal,
the judges will reconfirm the indictment,
issue an international arrest warrant, and
recommend that the Security Council take measures
to compel the surrender of the accused.
The experience of the Rule 61 hearing in
the case of Bosnian Serb leader Radovan Karadzic
in June of 1997 indicates the usefulness of
this procedure. By beaming the televised proceedings
to Serbia, the Rule 61 hearing may help erode
support for the Milosevic regime and may deter
Serb military personnel from continuing to
commit war crimes in Kosovo. Similar to the
emotional impact of the Diary of Anne Frank,
it may be difficult even for Serbs hardened
by months of propaganda to ignore or dismiss
the first-hand testimony of individuals who
have been victimized in Kosovo. And, moreover,
if Milosevic is killed before he is able to
be brought to trial (for example by NATO bombing
attacks), the Rule 61 judgment will constitute
the only judicial finding of his culpability
for the atrocities in Kosovo since the Dokmanovic
case (October 22, 1997) established the
precedent that the Tribunal will not issue
a final judgment if the defendant dies before
the conclusion of the proceedings.
As the Tribunal does not have a constabulary,
it must rely on the cooperation of states
and the assistance of the Security Council
to enforce its orders. Given Russia and China's
current positions, they would be likely to
veto any action by the Security Council to
induce the surrender of Milosevic to the Tribunal.
But even if Milosevic cannot immediately be
brought to trial in The Hague, the effect
of the indictment will be to make him a prisoner
within the borders of Serbia, since he could
be arrested if he stepped foot in any other
country. Furthermore, because there is no
statute of limitations for war crimes and
crimes against humanity, time is on the Tribunal's
side. Unless Milosevic can stay in power or
obtain the protection of the Yugoslav military
for the rest of his life, it is likely that
he will one day face international justice.
About the Author:
Michael P. Scharf is Professor of Law and
Director of the Center for International Law
and Policy at New England School of Law. He
formerly served as Attorney-Adviser for U.N.
Affairs at the U.S. Department of State, where
he played a key role in the establishment
of the Yugoslavia Tribunal.
Further Reading:
The Indictment of Milosevic, and the text
of the Tadic, Celebici, Karadzic
and Dokmanovic decisions are available
at the Yugoslavia Tribunal's Internet Website:
http://www.un.org/icty.
Virginia Morris and Michael P. Scharf, An
Insider's Guide to the International Criminal
Tribunal for the Former Yugoslavia (Transnational
Publishers, Inc. 1995).
M. Cherif Bassiouni and Peter Manikas, The
Law of the International Criminal Tribunal
for the Former Yugoslavia (Transnational Publishers,
Inc. 1996).
Michael P. Scharf, Balkan Justice: The
Story Behind the First International War Crimes
Trial Since Nuremberg (Carolina Academic
Press, 1997) (nominated for a Pulitzer Prize).
Virginia Morris and Michael P. Scharf, The
International Criminal Tribunal for Rwanda
(Transnational Publishers, Inc. 1998) (awarded
the ASIL's 1999 Certificate of Merit).
John R.W.D. Jones, The Practice of the
International Criminal Tribunals for the Former
Yugoslavia and Rwanda (Transnational Publishers,
Inc. 1998).
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