President Slobodan Milosevic To Be Tried in The Hague for
Crimes Against Humanity and War Crimes Allegedly Committed
By Ruth Wedgwood
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.
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.
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."
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.
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.
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.
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]."
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").
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
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.
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.
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
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."
indictment and transcript of the arraignment against
Slobodan Milosevic is available on the internet at
ASIL Insights are intended
to identify international law issues in order to provide
a basis for informed discussion of current events. They
are not intended to be definitive, and they do not necessarily
reflect the views of all members of The American Society
of International Law. The Society itself takes no position
on these issues.
ASIL Insights may be found on the ASIL
Educational copying is permitted with due acknowledgement.