ASIL Insights

            On June 28, 2001, the Government of Serbia sent Slobodan Milosevic, the former president of Yugoslavia, to The Hague for trial on charges of crimes against humanity and war crimes.  The surrender of Milosevic complied with an international arrest warrant issued by a United Nations judicial body, the International Criminal Tribunal for the former Yugoslavia, headquartered in The Hague. Milosevic, a Serb nationalist leader, was indicted by the tribunal in May 1999 on allegations of murder and ethnic cleansing of ethnic Albanian civilians in Kosovo.

            This is the first time a former head of state will be tried before an international tribunal.  The tribunal was created in 1993 at the urging of the United States, under a resolution of the U.N. Security Council.  Its jurisdiction extends to war crimes, genocide, and crimes against humanity occurring on the territory of the former Yugoslavia, from 1991 onward.

            Earlier indictments issued by the tribunal have addressed war crimes committed during the war in Bosnia from 1991-1995, and the war in Croatia in 1991. Other defendants whose cases are pending before the tribunal include the wartime president of the Bosnian Serb Republic Radovan Karadzic, wartime leader of the Bosnian Serb military forces Ratko Mladic, and the wartime president of the Bosnian Serb Assembly, Momcilo Krajisnik, who was a member of the Bosnian Serb supreme command.  International arrest warrants against Karadzic and Mladic are still outstanding.  Tribunal prosecutor Carla del Ponte recently called upon the government of the Bosnian Serb Republic to cooperate in their surrender, stating that "At any given time, the authorities of the Republika Srpska know, or are in a position to know, the whereabouts" of the two fugitives. Convictions have been obtained by the Tribunal in cases against Croatian General Tihomir Blaskic, Bosnian Serb detention camp guard Dusko Tadic, and a soldier in a Serb firing squad who killed Muslim men near Srebrenica, Drazen Erdemovic.

            The indictment against Milosevic, confirmed in amended form on June 29, charges the former president with criminal responsibility for a "campaign of terror and violence directed at Kosovo Albanian civilians living in Kosovo."  Acts of  murder and forced deportation were allegedly committed by the military and police forces of the Federal Republic of Yugoslavia, from January 1, 1999 through June 20, 1999. The charges include the forced deportation of approximately 740,000 Kosovo Albanian civilians into the neighboring states of Albania and Macedonia, and military and police raids on Kosovo villages accompanied by the murder of "hundreds of Kosovo Albanian civilians" in a "widespread and systematic manner throughout the province of Kosovo."

            Kosovo was formerly an autonomous province within the Republic of Serbia, one of six original republics of the Socialist Federal Republic of Yugoslavia.  In 1989, Milosevic (then president of Serbia) ended Kosovo's traditional autonomy. In 1991 and 1992, four of the six Yugoslav republics declared independence and left the Federal Republic of Yugoslavia, including Slovenia, Croatia, Macedonia, and Bosnia.  The only remaining republics within Yugoslavia are Montenegro and Serbia.  Throughout the 1990's, Albanian Kosovars have sought restored autonomy or independence.

            The charges against Milosevic stem from Serb military and police actions in Kosovo in 1999.  The prior spring, the UN Security Council found, Serbian forces in Kosovo had used "excessive and indiscriminate . force" and caused the internal displacement of over 230,000 Albanian Kosovars from their homes. In the spring and fall of 1998, the Security Council required that Belgrade withdraw most Serb police and military from Kosovo, allow the deployment of "verifiers" from the Organization for Security and Cooperation in Europe, and negotiate concerning the restoration of substantial autonomy to Kosovo.  In March 1999, asserting that Belgrade had declined to negotiate at the international conference at Rambouillet, France, NATO began a military air campaign in Serbia for the stated purpose of stopping the ethnic cleansing of Albanian Kosovars.  Many of the crimes charged against Milosevic were allegedly carried out by Serb forces under the cover of  NATO's air campaign in Serbia.

            Mass killings were allegedly committed by Serbian forces in villages such as Racak, Bela Crkva, Velika Krusa, Dakovica/Gjakove, Crkolez/Padalishte, and Izbica.

            Milosevic is charged with having "planned, instigated, ordered, committed or otherwise aided and abetted" the terror campaign.  The indictment argues that Milosevic exercised de facto control over the Yugoslav armed forces and the Serb police who took part in the campaign.

            One of the issues at trial may be the nature of the responsibility of a political official for the systematic commission of alleged crimes by the forces at his command.

            Under the law of war, a military commander is criminally responsible for directly ordering crimes to be committed by his troops, or in the alternative, for failing to take any steps to monitor and control his troops when they abuse civilians.   The widespread nature of attacks against civilians is traditionally noted as one method of showing that a commander either knew or should have known about the commission of crimes.

            The latter theory of liability is often called the doctrine of "command responsibility" or, in the terminology of the tribunal, "superior criminal responsibility."   Command responsibility may extend to civilian officials in the chain of command, under the statute of the International Tribunal for the former Yugoslavia.  Article 7(3) of the statute states that "The fact that any of the [alleged criminal acts] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."  As president of the Federal Republic of Yugoslavia, Milosevic also served as president of the "Supreme Defence Council" which the indictment charges "issued decisions concerning the VJ [the armed forces of Yugoslavia]."

            The limited immunity of heads of state and former heads of state is another issue that may arise in the proceedings.  Under customary international law, there are two sorts of possible immunity that may ever be claimed by a head of state - a personal immunity from arrest while in office, and the immunity of official acts themselves (so-called "acts of state").

            However, the statute of the International Criminal Tribunal for the former Yugoslavia provides in Article 7(2) that "The official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment."  War crimes are not generally considered to be immune as acts of state under the law of war.  The crimes against humanity charged against German officials at Nuremberg also were not excused as acts of state.

            As to personal immunity from arrest, it may be noted that the British House of Lords held in 1999 that Chile's former head of state Augusto Pinochet was not immune from arrest for alleged acts of torture. Milosevic was indicted during his term in office as president of Yugoslavia, but he lost reelection to the presidency in October 2000 to Vojislav Kostunica.  Milosevic thus would apparently enjoy only the status of a former head of state.

            Another issue that may arise in pretrial proceedings concerns the method of surrender of Milosevic.  The defendant may attempt to argue that his arrest was irregular under Yugoslav national law.  After the Yugoslav parliament declined to approve legislation providing for the surrender of defendants to the international tribunal, the federal cabinet issued a decree permitting the surrender of Milosevic. This decree was suspended by the Yugoslav constitutional court on June 28, pending further hearing, and President Kostunica of Yugoslavia stated that he would await the outcome of the court's proceeding. Thereafter, Zoran Djindjic, the prime minister of Serbia, asserted that Serbia had power to nullify the Yugoslav decision, and ordered the transport of Milosevic by helicopter to the Bosnia airbase at Tuzla, where the former president was flown to The Hague.  Critics of the decision argued that Serbia was under pressure to act because an international donors' conference was scheduled for June 28 to consider $1.2 billion in aid for the reconstruction of Serbia.                                                                                                        

            One precedent that may be pertinent to the legal issue is the case of Slavko Dokmanovic, the former Serb mayor of Vukovar, who alleged before the tribunal that he had been irregularly arrested during a visit to Eastern Slavonia, a portion of Croatia then under the transitional administration of the United Nations.  The tribunal rejected Dokmanovic's argument that he had been given a guarantee of safe conduct during the visit, found that only the tribunal could give such a guarantee, and found that the arrest did not violate principles of international law. 

            Milosevic was arraigned before British Judge Richard May at the International Tribunal in The Hague on July 3.  He appeared without counsel, and disputed the jurisdiction of the court, charging that it was a "false Tribunal" and "illegal being not appointed by the UN General Assembly."  Milosevic also asserted that the "trial's aim is to produce false justification for the war crimes of NATO committed in Yugoslavia."  Judge May stated to the defendant that "this is not the time for speeches" and entered a plea of not guilty on his behalf.  Judge May also told former president Milosevic that he might wish to exercise his right to have appointed counsel since the "proceedings will be long and complex."  Judge May ordered that a status conference in the case be held during the week of August 27.

            Four other defendants charged in the same indictment, including the former military commander of the Yugoslav armed forces, have not yet been apprehended.  Tribunal prosecutor del Ponte stated that additional indictments against former president Milosevic concerning "crimes committed during the conflict in Bosnia and Herzegovina, and in Croatia" were "in preparation."

            The amended indictment and transcript of the arraignment against Slobodan Milosevic is available on the internet at www.un.org/icty/milosevic/.