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MILOSEVIC IN THE DOCK:
A Review of The New Guidebook For The War Crimes Trial of Slobodan Milosevic


By ADAM FREEDMAN


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Friday, Aug. 16, 2002

Michael P. Scharf and William A. Schabas, Slobodan Milosevic on Trial: A Companion (Continuum 2002)

Slobodan Milosevic's trial before the International Criminal Tribunal for the Former Yugoslavia (ICTY) is the most important war crimes prosecution since the Nazi leaders were tried at Nuremberg. And Milosevic himself is the first head of state ever tried for war crimes. Given the trial's historic significance, the new book - entitled Slobodan Milosevic on Trial: A Companion - promising to offer a guide to observers is a welcome sight.

"Slobodan Milosevic on trial" has a nice ring to it - it promises high legal drama, the World Cup of trials. Indeed, the authors liken their book to "the program guide for a major sporting event." Like a sporting guide, this book provides all the information necessary to follow the play. Unfortunately, however, some of the larger issues get lost among the details.

The Guide Offers Both Historical Context and Trial Context

The authors (both law professors) have condensed an impressive amount of material into a small package. The beginning chapters provide historical context for the trial, including Milosevic's rise to power. The rest of the book describes the players, procedures, and issues before the ICTY

There are three indictments against Milosevic: one for each of Croatia, Bosnia-Herzegovina, and Kosovo. Each indictment charges "crimes against humanity," as well as breaches of the 1949 Hague Conventions.

The Bosnia indictment also charges genocide. At the heart of these charges is the widely reported policy of "ethnic cleansing" - that is, the forcible removal of Croats and Muslims from areas that were to be incorporated into a "Greater Serbia."

A Summary of Probable Strategy For Both Sides

We learn, for example, that prosecutors may have a tough time proving certain parts of their case beyond a reasonable doubt. It may be hard for them to show that ethnic cleansing was systematic, as is necessary to establish the crime of genocide (Serb leaders did not leave a long paper trail). It may also be difficult for them to establish that the conflict in Kosovo was an "armed conflict" subject to international law. Finally, it will be a challenge for them to demonstrate that Milosevic actually controlled Serb paramilitary forces.

These are important issues, and the book does an admirable job of presenting them. But ultimately, the "program guide" approach disappoints as it tends to assume that all the players accept the basic rules of the game. That is not the case in this trial - which is what makes it so interesting.

A "Player" Who Doesn't Go By the Playbook: Challenging the Tribunal

Milosevic flatly refuses to accept the jurisdiction of the ICTY, branding it as a political tool designed to impose "victor's justice." Milosevic's objection cannot be dismissed as the mere ranting of a madman; his arguments have been taken up by a number of well-known lawyers, including former U.S. attorney general Ramsay Clark.

The Hague tribunal does have a somewhat questionable pedigree, for it was created by the UN Security Council, rather than the General Assembly, the body that technically ought to create such courts. This fact becomes more troubling when one considers that the Security Council has imposed sanctions on Serbia, and that three of the Council's permanent members led the bombing campaign against Serbia. It is difficult not to take the "victor's justice" charge seriously. Had the General Assembly created the court, the charge would be less concerning.

The authors recognize that "more than anything else" the fairness of the Milosevic trial - real and perceived - will determine the success of the prosecution. Unfortunately, they do not give these issues the weight they deserve.

In particular, they summarily dismiss Milosevic's principal argument - that the ICTY is not legitimate. They simply note it comes "a bit late in the day" since Milosevic has previously recognized the tribunal's existence - thus treating Milosevic like a garden variety criminal defendant who has waived a jurisdictional objection by failing to raise it.

The authors' haste to find that Milosevic has waived his right to object to the ICTY's jurisdiction seriously undermines their stated concern with procedural fairness. It also amounts to a refusal to consider an issue that is both important and likely to recur in future tribunals, in which the ICTY may be taken as a precedent for bypassing General Assembly approval.

Milosevic's Access to Television and Its Consequences

As the authors point out, Milosevic was under arrest and awaiting trial in Belgrade before being dispatched to the Hague. Now, rather than face punishment from his own people, he has been afforded a televised forum that he can employ to try to recast himself as a Serb martyr. Sure enough, polls show that 70 percent of Serbs feel that the Hague tribunal is biased, not just against Milosevic, but against all Serbs.

The Problem With "Head of State" Prosecutions Like Milosevic's

Prosecuting wayward leaders sounds great, so long as it is somebody else's leader. The book notes in passing that the ICTY has power to prosecute NATO airmen "and their commanders" for crimes committed in the Kosovo campaign (human rights activists have urged the court to do just that).

Presumably an indictment of Bill Clinton or Tony Blair would put the ICTY in a very different light. Indeed, fear of similar indictments is just what has kept the U.S. from joining the International Criminal Court (ICC) or accepting its jurisdiction.

The trial of Slobodan Milosevic will be the test case for prosecuting a head of state. It will also, in effect, be a test run for the future ICC - one that might convince the U.S. to accede or, alternatively, to continue to fight against the Court.

As a result, legitimacy and fairness at the ICTY are paramount issues. Had the authors of this informative book dealt more fully with those concerns, we would all be better prepared to take in this particular "sporting event" - and to see that, in the end, it will be not just an isolated contest, but a crucial precedent for trials to come.


Freedman is a lawyer and columnist for the New York Law Journal. His first collection of short stories, Elated By Details, will be published next year.

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