MILOSEVIC, NATO AND THE SERBS:
Whose Trial, Whose Crimes?

By JOANNE MARINER

Monday, Feb. 18, 2002

The trial of former Yugoslav President Slobodan Milosevic began last week in The Hague, with opening statements by both the prosecution and the accused. Milosevic, who has been in the custody of the international war crimes tribunal since last June, is on trial for war crimes and other offenses committed during the conflicts in Croatia, Bosnia and Kosovo.

Milosevic will finish his opening statement today. Yet he succeeded in laying out the essential course of his defense during his two-day oral presentation last week. Consistent with his prior appearances before the court, Milosevic showed less interest in building a convincing factual and legal case than he did in mounting a political offensive against his captors. Rather than seeking to sway the three-judge panel adjudicating the trial, he seemed more intent on influencing public opinion, both in Serbia and elsewhere.

The political dimensions of Milosevic's arguments do not mean that the former Yugoslav president concedes the prosecution's version of the facts of the case; clearly, he does not. On Thursday, for example, discussing the flight of refugees from Kosovo, he vigorously disputed the prosecution's claim that Serb forces committed systematic abuses in the province. Rather than harming civilians, he asserted, "the army and the police defended their own country with honor and chivalry."

Yet such factual disputes, which will be directly relevant to the trial's outcome, are in Milosevic's view secondary to his broader political arguments. Indeed, were the trial to follow the path he has traced, its focus would shift radically. What is meant to be a criminal trial pitting a prosecutor against a defendant, Milosevic characterizes as a political proceeding pitting NATO (and the prosecutor as its representative) against the Yugoslav people.

The only crimes, in his view, are NATO's, while the citizens of Yugoslavia stand accused.

The Debate over Collective Guilt

The chief prosecutor, in her opening statement, took care to emphasize that only Milosevic is on trial, not the Serb people. "The accused in this case, as in all cases before the tribunal, is charged as an individual," she explained. "Collective guilt forms no part of the prosecution's case. It is not the law of this tribunal, and I make it clear that I reject the very notion."

Yet aspects of the prosecution's case were in tension with this perspective. The portrait of Milosevic painted by the prosecution was not that of a genuine Serb nationalist, but rather of an opportunistic, power-hungry politician who pandered to nationalist sentiment as a means of gaining mass support.

Describing the prelude to the Yugoslav conflicts, the prosecution traced Milosevic's rise to power, emphasizing critical moments in which his nationalist rhetoric garnered him a popular following. Prosecutor Geoffrey Nice described mass rallies in which "pictures of the accused were everywhere," suggesting that Milosevic was quick to recognize that the manipulation of nationalism could be the key to making a successful transition from communist bureaucrat to post-communist leader.

Two days later, in his own opening statement, Milosevic seized on this aspect of the prosecution's case. He argued that despite the prosecution's claim to be trying him as an individual, in fact "they are accusing the whole nation." In support of this claim, he emphasized popular support for his policies, stating that his conduct was "the expression of the will of the people." Summing up this position, he proclaimed that "the citizens stand accused, citizens who lent their massive support and elected their representatives at free party elections."

While Milosevic's claim of free elections is certainly subject to challenge, it is clear that at one time his nationalist policies were backed by a significant segment of the Serb populace. Unfortunately for Milosevic, the relevance of this point, in the context of a criminal trial, is not obvious. From a narrow legal perspective, the existence of political support for war crimes has no meaningful implications. In other words, voting in favor of crimes is not itself a crime, and a popular war criminal is no less of a criminal.

Still, the existence of popular support for government atrocities does, to some extent, challenge the relevance of the criminal law paradigm. Although it leaves open the question of how much the Serb people knew about the crimes committed in their name - and, moreover, how much they were interested in knowing - the idea of broad popular support suggests a degree of collective responsibility, if not guilt in the narrow legal sense of the term.

NATO's War Crimes

Milosevic dedicated the larger part of his oratory to arguing that NATO is responsible for "killing" Yugoslavia, a claim closely tied to his oft-repeated assertion that the war crimes tribunal is NATO's illegitimate political tool. Where the prosecutors spoke of Milosevic's "grand plan" of an "essentially Serbian state," he accused NATO -- and Germany and the U.S. in particular -- of the "neo-Nazi idea" of dismembering Yugoslavia.

Naming places, dates, numbers killed, and weapons used, Milosevic accused NATO of committing a host of war crimes during the 78-day bombing campaign of the 1999 Kosovo conflict. He accused NATO of intentionally targeting civilians, of using indiscriminate weapons, of destroying Yugoslavia's civilian infrastructure, and of poisoning its environment.

Yet again, even if Milosevic's allegations were correct, they would have little legal relevance, except to the extent that it can be shown that the Albanian Kosovars fled NATO bombs, not Serb abuses. (On this point, Milosevic will certainly lose on the facts: ethnic Albanians have uniformly stated that they fled abuses. They too can cite dates and places, and can do so with eyewitness specificity.) NATO's responsibility for its war crimes would not negate Milosevic's responsibility for his.

A primary reason for focusing on NATO crimes is, of course, to undermine the credibility of the tribunal itself: to raise the question of why Milosevic, and not others, has been singled out for prosecution.

Relevant Evidence, not Political Argument

Much to Milosevic's dismay, the tenor of the trial is likely to change significantly beginning tomorrow, when the opening statements will give way to the evidentiary portion of the proceedings. From now on, Milosevic will find himself constrained by the court to present only relevant evidence. Accordingly, the judges are likely to bar much of the sort of evidence and argument that Milosevic seems most anxious to present.

Yet some of the most revealing parts of trial may be both politically important and legally relevant. Milosevic has promised to call a number of past and present world leaders to testify in the proceedings, including former President Bill Clinton, former Secretary of State Madeleine Albright, and diplomat Richard Holbrooke, the architect of the Dayton peace agreements. If these witnesses appear - something that is, unfortunately, not at all assured - they will be asked to describe what they knew about Milosevic's connection to war crimes, and when.

In other words, did Milosevic only become a war criminal retrospectively, when it was politically convenient, or was he thought to be a war criminal all along?


Joanne Mariner is a human rights attorney practicing in New York. In 1999 and 2000, she spent time in Bosnia, Croatia, and Kosovo. Her previous columns about Kosovo and Milosevic can be found in FindLaw.com's archive. The views expressed in her columns are her own.

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