bosnia report
New Series No. 3 March - May 1998
 
The Case Against Milosevic
by Paul Williams and Michael Scharf

The recent killing of more than 80 civilians, including women and children, in Kosovo raises yet again the question of why the International Criminal Tribunal for the Former Yugoslavia has not indicted Slobodan Milosevic for crimes against humanity.

Despite ordering and supervising the slaughter of more than 200,000 civilians in Bosnia-Herzegovina, Mr Milosevic was granted de facto immunity as the war crimes tribunal accepted the Clinton administration argument that he represented the keystone to any lasting peace in Bosnia.

The administration contended that although Mr Milosevic could be perceived as having aided and abetted war crimes and of being complicit in the commission of genocide, there was no 'smoking gun' or direct order bearing his signature.

Yet now that peace has begun to take hold in Bosnia, Mr Milosevic has lost any shield of political utility. This, coupled with the fact that he has now orchestrated crimes against humanity in his own country, by forces under his direct command, exposes him to immediate indictment by the war crimes tribunal.

As an acknowledgment of Mr Milosevic's prima facie culpability, the tribunal recently issued a press release indicating that it exercised jurisdiction over events in Kosovo. Although they occurred as a result of an internal conflict, individuals ordering or participating in atrocities could be found liable for crimes against humanity, the release said.

The tribunal's immediate next step should be to issue a public indictment of Mr Milosevic based on his responsibility for the systematic attacks on Kosovo's ethnic Albanian population. Civilians have been hanged, shot, burned and tortured. Mothers have seen their children murdered and children have seen their fathers hunted and shot, according to several reports.

As president of the Federal Republic of Yugoslavia, Mr Milosevic is directly responsible for the crimes against humanity committed in Kosovo.

He exercises power, influence and control over the Serbian military, over the police forces of the Interior Ministry and over many of the Serbian paramilitary forces that committed the atrocities.

Without Mr Milosevic's direct order, it would not have been possible for the helicopter gun-ships, light tanks and armoured personnel carriers of the military and police forces to have carried out the co-ordinated, well-executed attacks on the homes of Kosovo's Albanian villagers.

Mr Milosevic is also criminally responsible for the Kosovo atrocities under the doctrine of 'command responsibility'. As the civilian commander of the military and police forces, he has a legal obligation to prevent his forces from committing, encouraging or enabling others to commit crimes against humanity.

Rather than directing his forces to protect civilians, it appears ÌÌÌÌÌÌÌÌÌÌÌÌÔ from the systematic nature of the Kosovo slaughter that Mr Milosevic intended the attacks to serve as a warning to Kosovo Albanians that any further moves towards self-determination would result in an ethnic cleansing of the region.

The way toward peace in the former Yugoslavia lies in bringing about an end to Mr Milosevic's illegitimate and immoral regime. The war crimes tribunal must summon the political will to act on the evidence of Mr Milosevic's most recent crimes against humanity and bring him to justice.

If the tribunal fails to act now, it will undoubtedly soon be overwhelmed with all the evidence it could desire as Mr Milosevic's programme of ethnic cleansing and genocide in Kosovo unfolds.

Paul Williams, a senior associate with the Carnegie Endowment for International Peace, is the co-author (with Norman Cigar) of War Crimes and Individual Responsibility: a prima facie case for the indictment of Slobodan Milosevic, London 1996.

Michael Scharf, a professor at the New England School of Law and former Attorney-Advisor for UN Affairs at the US Department of State, is the author of Balkan Justice: the story behind the first international war crimes tribunal since Nuremberg, Durham N.C. 1997

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