June 28 2002 was undoubtedly a “historic” moment, with the transfer to The Hague of Slobodon Milosevic, the deposed Serbian dictator, facing judges for crimes against humanity. One can only rejoice at the idea that for once, human rights will triumph over barbarity with the help of a little “realpolitik” (i.e. granting loans to Serbian in exchange for its ex-tyrant,) and not the other way round.
These are certainly benchmark events. The Pinochet case opened the door to judicial prosecution of former dictators, although without providing adequate follow-up for the victims. In this case, Milosevic does not seem to be able to escape his judges. He is a leader of the first rank, and not a subordinate like those previously prosecuted at The Hague. This transfer opens up new prospects for international criminal justice and will doubtless contribute to reinforcing the worldwide movement against impunity. The sanctions that await Milosevic remain unknown, but the remarkable work of the International Criminal Tribunal for the former Yugoslavia should conclusively prove his culpability, not only for instigating crimes committed in Kosovo, but also soon for those committed in Bosnia and Croatia with his support. His transfer establishes the increase in power of the ICTY, based on reinforced authority and greater credibility. It is a great day for international justice, as well as for the direct and indirect victims of Serbia's tyrant.
A paradoxical justice
It is a paradoxical justice that the west has established in the former Yugoslavia: indeed the figure accused of crimes against humanity today was yesterday’s indispensable partner for peace in Bosnia and Croatia. From 1991 to 1995, Milosevic was the key figure in the negotiations for peace between the republics, right up to the signing of Dayton-Paris Accords in December 1995. Western diplomats systematically courted him to ensure the acceptance of successive peace plans being proposed in Bosnia and Croatia, thanks to his pressure on Bosnian Serbs. At the same time, civilian populations suffered atrocities and deprivation supported and perhaps initiated by Milosevic himself, as the prosecution will demonstrate. Nevertheless, western powers were content to feign ignorance of his nationalist tendencies, his calls for a Greater Serbia, his half-veiled support for Serb nationalists in Croatia and Bosnia, and ultimately his overwhelming responsibility in the ethnic flare-ups that took place in the former Yugoslavia. This almost begs the question of who is at trial – and are western powers at fault for preferring to negotiate with the tyrant rather than getting their hands dirty themselves?
Another paradox is that in the key period 1991-1995, western powers approached the necessary initiatives and political projects by substituting toothless institutions without the power or legitimacy to restore or maintain peace, and without the identifiable means or resources to do so: i.e. international conferences on the former Yugoslavia, UNPROFOR, contact groups…Much like Chinese shadow puppets, Milosevic was the star puppet, animated by western puppet-masters. The ICTY itself had to wait for NATO to punish the great ogre of Serbia in Kosovo before launching a prosecution, which did not initially deal with crimes committed in Bosnia and Croatia. An astonishing justice, then, which suddenly responds to vengeful appeals from populations the tribunal’s promoters allowed to be massacred.
An uncertain future for international justice
This is why the transfer of Milosevic to The Hague is a victory for international justice but still leaves a bitter taste in the mouths of the victims. The international justice system is progressing but still leaves significant gaps which the trial of Milosevic can barely conceal.
The ICTY confines itself for the moment to addressing the individual responsibility of the accused, thus limiting its ability to dissect and pass judgement on the system in which he or she acted. The Nuremberg tribunal was mandated to judge the entire Nazi regime as a whole through the prosecution of individuals for their adhesion to this system and associated structures, thanks to the chief prosecutor for crimes against the peace.* Nevertheless, this kind of process will be essential to helping the Serbian people and their leaders do the necessary soul-searching to turn the page on the Milosevic era, of which they are the primary victims.
Furthermore, the dependence of the ICTY on particular states cannot be ignored. If the tribunal has succeeded in affirming its independence, this remains limited in the absence of physical means to constrain the accused. This explains why certain high-ranking accused, such as Karadjic or Mladic, are still on the loose. Less symbolic than that of Milosevic, their trials at The Hague would still be highly instructive regarding the conflict in the former Yugoslavia and would doubtless have a liberating effect for the survivors and next of kin of the victims of their atrocities. Their arrest is still not on the agenda, however, even though they are probably locatable...Western diplomats once again have to make a greater priority of ensuring these criminals do not escape justice.
Finally, international justice should not be surprised to find a spanner or two in the works of those who want to teach Serbia a lesson in justice, as witnessed by the difficulty in obtaining the necessary ratifications to establish the International Criminal Court. The rhetoric is there, but the political will is not. This double game does not primarily benefit the victims of massive human rights violations, and the case of Milosevic, although a major benchmark, remains for the moment unique.
A sign for the future?
The transfer of Milosevic, if it marks a major success for the International Criminal Tribunal for the former Yugoslavia, should not be used to undermine the responsibility of western powers. Would it not be hypocritical for the international community to congratulate itself on the conviction of a criminal and celebrate the victory of the rule of law, while it knowingly closed its eyes to his abuses in order to better negotiate a libellous peace for his victims? Does it not flatter the universal conscience to demand an anaemic country to deliver its former despot, while he was allowed to wreak destruction with impunity for five years? What kind of justice is the west really offering? Like all jurisdictional systems, the ICTY intervenes after the fact. It is charged to bring justice to victims of war crimes, crimes against humanity, and genocide. Meanwhile, if western powers had had the courage of their convictions before the fact, they might have intervened more convincingly to stop these abuses, as they tried to do, though imperfectly, in Kosovo. Instead, western diplomats between 1991 and 1995 played the new "appeasers" and chose to dance with the devil for lack of political will. Western heads of state inevitably govern to please the poles, instead of making more responsible and less popular decisions. Too bad for the victims...
Without these compromises, the justice of the ICTY would be much more meaningful. The western authorities negotiating in Macedonia should keep this in mind, on pain of being obliged one again, after the fact, to extend the jurisdiction of an International Criminal Tribunal to another former Yugoslav Republic...