Now that NATO has fought and won the war in Kosovo, will peace be established with justice?
The Yugoslavia war crimes tribunal's indictment of Slobodan Milosevic, a sitting head of state, is part of a revolutionary trend in international law. It builds on precedent established by The Hague's sister court, the United Nations International Criminal Tribunal for Rwanda, sitting in Arusha, Tanzania. In September 1998 the Rwanda tribunal sentenced Jean Kambanda, former prime minister and head of the Rwandan government, to life imprisonment for genocide and crimes against humanity.
Kambanda's conviction marked the first time in history that any individual, in this case a former head of government, had been punished for genocide by an international court. It is against the backdrop of this groundbreaking success that the Milosevic indictment has raised the stakes for the enforcement of international justice for war crimes.
Granted, bringing Milosevic before The Hague court may not be an immediate prospect. But when Kambanda and his fellow criminals rallied extremists to exterminate Rwanda's Tutsi, they could not have imagined that they would one day face justice in the dock. Today, 37 other ranking Rwandan political and military figures, including nine ministers in Kambanda's government in 1994, are in the Arusha tribunal's custody. No statute of limitation applies to crimes against humanity. The status of a head of state confers no immunity from prosecution for genocide, crimes against humanity and war crimes.
If Milosevic is brought to trial, it may not be enough to show the horrors that the Kosovar Albanians experienced. Milosevic could argue that NATO's bombs were to blame. Proof that the Serb leader gave orders for the perpetration of the murders, deportations and persecution of the victims would make this an open and shut case.
Also, if prosecutors can show conclusively that Milosevic knew or should have known that his subordinates committed these crimes and did nothing to stop or punish them, the Serb leader could be convicted. This would be the most problematic issue for a Milosevic defense team. The legal principle of "the superior's command responsibility" is entrenched in the statutes of the two international criminal tribunals and has been invoked in judgments by both courts.
Given the similarity in the status of Milosevic and Rwanda's Kambanda, judges in a Milosevic trial would look closely at the Kambanda case. The former Rwandan leader pleaded guilty, admitting that the 1994 genocide and crimes against humanity in Rwanda were sponsored by his government. Yet his level of responsibility as a head of government was considered by the judges a strong aggravating factor in sentencing him to life in prison (Kambanda has appealed his sentence). As the tribunal judges put it, "Jean Kambanda abused his authority and the trust of the civilian population. . . . He failed to take necessary and reasonable measures to prevent his subordinates from committing crimes against the population."
In a Milosevic trial, the burden on the judges and the prosecution to respect his fundamental rights would have to be transparently discharged. It would be crucial to show that the proceedings are not a kangaroo court with a politically predetermined outcome. Many countries would have a vested interest in the result.
The indictment of Milosevic is an important signal that international justice for crimes in which humanity is the victim is a reality of our time. It also demonstrates that justice and diplomacy are not incompatible, though each may have its own dynamic. Rather than complicating the outcome of the latest Balkan war, the indictment of Milosevic has clarified things in a manner that diplomacy sometimes cannot. The indictment has left Milosevic with no hand to deal and ultimately, perhaps, no place to hide.
The writer is a legal adviser to the International Criminal Tribunal for Rwanda.