The Indictment of Slobodan Milosevic

Michael P. Scharf
June 05, 1999
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:  
Virginia Morris and Michael P. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia
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).