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Monday, Jul. 16, 2001

The recent transfer of Slobodan Milosevic to The Hague abruptly shifted the focus of his criminal prosecution from obtaining his custody to proving his guilt. Assuming that the former Yugoslav leader is willing to contest the case on its legal merits, rather than simply lambasting his prosecution as a political show trial, the opposing sides will address a number of complex legal and factual issues.

Central among these issues is whether Milosevic ordered abuses, whether he was aware that abuses were committed, and whether he took reasonable measures to prevent and punish such abuses.

A Campaign of Terror

The indictment against Milosevic — issued in May 1999, near the end of the Kosovo conflict, and amended two weeks ago to include additional abuses — charges the defendant with three counts of crimes against humanity and one count of violations of the laws of war. All of the alleged crimes were perpetrated against Kosovar Albanians, although the war crimes tribunal's chief prosecutor has said that indictments for crimes committed during the Bosnia and Croatia conflicts are also being prepared.

The current indictment describes a "campaign of terror and violence" conducted by army, police forces, and paramilitary units in Kosovo. As part of this effort, the indictment asserts, Yugoslav and Serb forces committed murder, mass deportation, and persecution on political, racial, and ethnic grounds.

Milosevic does not stand accused of having personally participated in these abuses. Instead, the indictment charges him with having planned, ordered, instigated, or assisted in the perpetration of these crimes.

Proof of Direct Orders?

The prosecution could, therefore, obtain a conviction by showing that Milosevic directly authorized or ordered abuses. It is, of course, highly unlikely that any written orders to this effect will be found, but proof of verbal authorization may be available.

General Wesley Clark, who led NATO's armed forces during the 1999 conflict, has told the press that he is aware of intelligence showing that Milosevic was giving direct orders to Yugoslav military leaders during the conflict — evidence that might implicate Milosevic in war crimes. Yet even if such intelligence exists, it may not necessarily be shared with war crimes prosecutors.

Another possibility is that the tribunal may induce Milosevic's underlings to testify against him. Carla Del Ponte, the tribunal's chief prosecutor, once prosecuted Russian and Italian mafiosi, as well as Swiss banking executives. Her ability to build cases against high-level defendants based on the testimony of their subordinates should serve her well in the present prosecution.

Already, rumors are rife that Serbian President Milan Milutinovic, one of Milosevic's co-indictees, has been negotiating with the tribunal regarding the terms of his surrender. Milutinovic is reportedly ready to testify against Milosevic in return for favorable treatment.

Proving Command Responsibility: The Knowledge Requirement

Even absent the smoking gun of direct orders, Milosevic can still be found responsible for abuses committed by Yugoslav and Serb forces under the doctrine of command responsibility.

Article 7(3) of the statute of the war crimes tribunal sets out the basic outlines of this doctrine. It specifies that a superior official will be held responsible for the acts of a subordinate if the former "knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof."

The first question in assessing command responsibility is thus whether the superior knew of subordinates' crimes. Notice may be direct, as when the superior witnessed the crimes or was informed of them. It may also be constructive, as when the offenses were so numerous or notorious that a reasonable person would necessarily conclude that the superior must have known of their commission. Notably, the abuses committed in Kosovo were widespread and systematic, with thousands of ethnic Albanians killed and hundreds of thousands expelled.

More controversially, a superior may also be deemed to have had constructive notice of abuses if he or she should have known of the offenses, but displayed such serious personal dereliction as to constitute willful and wanton disregard of the possible consequences. In other words, if the superior manages to remain ignorant of abuses only through extreme negligence, he or she will not escape liability.

Justifying this line of reasoning, the war crimes tribunal has ruled that commanders have a crucial responsibility "to be constantly informed of the way in which their subordinates carry out the tasks entrusted them." (This doctrine was, however, elaborated in a case involving military superiors; it may be possible that a civilian official would not be held to the same standard.)

Proving Command Responsibility: Failure to Control Subordinates

The second element of command responsibility is the failure to take reasonable measures to control one's subordinates by preventing atrocities or punishing the perpetrators. On this issue, to date, there has been no evidence to suggest that Milosevic tried to hinder violent military, police, or paramilitary operations. Indeed, rather than prosecuting the perpetrators of abuses, his government promoted or gave awards to hundreds of military and police officials after the war, including most of the top leadership.

In recent weeks, in a development that may be critical to the success of the Milosevic prosecution (and that I discussed, in part, in an earlier column for this site), evidence has surfaced that Yugoslav and Serb forces carried out an extensive effort to destroy or cover up evidence of war crimes in Kosovo. Moreover, Dragan Karleusa, the head of the Serbian police's organized crime unit, has accused Milosevic himself of ordering such an operation.

By Karleusa's account, some 800 ethnic Albanians are buried in mass graves around Belgrade, bodies that are now being discovered during ongoing exhumations. There is also evidence that additional bodies were disposed of in the furnace of a lead refinery in northern Kosovo.

Not only does this effort, if proven, demonstrate Milosevic's acute awareness that abuses were being committed, it also shows his direct involvement in concealing abuses, rather than preventing or punishing them.

Past Precedents

In preparing their arguments, the opposing sides are certain to examine a number of prior cases, both before the U.N. war crimes tribunal and before earlier courts, that have addressed the responsibility of superior officials for crimes committed by their subordinates.

The most notorious such prosecution was the trial before a U.S. military court of General Tomoyuki Yamashita, a commander of the Japanese Army in the Philippines during World War II. The verdict, by which the accused was sentenced to death, was upheld by the U.S. Supreme Court, but the case is now deemed by many to have been a disgraceful example of "victor's justice."

Justice Murphy's eloquent dissent, which focused on Yamashita's lack of actual knowledge and practical inability to prevent abuses, did much to sway later opinion. But the military court's willingness to ignore legal niceties in the interests of a good conviction was obvious even in the timing of its verdict, which it handed down on December 7, 1945, the anniversary of the Japanese attack on Pearl Harbor. The case provides an excellent study of the tension between reason and revenge in situations of this sort.

The U.N. war crimes tribunal has itself examined the issue of command responsibility in several past precedents, including the Blaskic, Celebici, and Aleksovski cases. Probably the most relevant among these is the trial of Croatian General Tihomir Blaskic, found guilty of war crimes committed in the Lasva Valley of central Bosnia. In March 2000, at the close of more than two years of proceedings, Blaskic was sentenced to forty-five years of imprisonment.

None of these verdicts can hold much comfort for Milosevic. Indeed, the tribunal has shown a marked tendency to punish those convicted of commanding abuses more severely than those convicted of carrying them out. But many would say that even a life sentence, which is what Milosevic faces, is not an unduly harsh punishment given the suffering he has caused.

Joanne Mariner is the deputy director of the Americas division of Human Rights Watch. Her previous columns about prosecuting Milosevic can be found in's archive.

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