Accountability or absolution
by Aryeh Neier
Milosevic's transfer is a triumph for justice, but it remains to be seen whether the case will awaken a broader sense of responsibility within Serbia
Any list of the dozen or so men who symbolise the barbarity of the last decades of the twentieth century would probably include Augusto Pinochet and Slobodan Milosevic. That these two former heads of state, who long seemed victorious and therefore untouchable, should be brought low by criminal proceedings for the great crimes they committed while in power is much more than proponents of international justice had a right to expect.
For those who participated in the struggles that led up to Milosevic's transport to The Hague and his arraignment there, it was a sweet moment. Some of us said all along that this day would come, but I suspect I am not alone in having had private doubts.
Yet even if we have progressed further and faster than we anticipated, it is important that we should attend to the battles that lie ahead.
A recent ruling that Pinochet is unfit for trial brings the case to a disappointing conclusion. Yet the case sparked essential fresh debate within Chile, liberated the Chilean courts to hold a number of military officers accountable for their crimes and set an important legal precedent.
So far as Milosevic is concerned, the struggle will take place on two fronts: in The Hague and in Serbia. What happens in The Hague, of course, is largely a matter for Chief Prosecutor Carla del Ponte and her staff. Will they indict Milosevic for a broad range of the crimes he committed? Former Chief Prosecutor Louise Arbour limited her indictment to Kosovo where his command responsibility was easy to establish. She focused on murders - reprisals for Kosovo Liberation Army ambushes, possibly ordered by low-level officials - which he could be held accountable for, because he failed to take measures to prevent them.
But she did not include forced displacement - a crime committed so systematically that it clearly resulted from policy set at the highest level. Arbour also limited the enumeration of victims in the indictment to those killed following NATO's intervention, when the rules of war in an international armed conflict are applicable. The only exception was the massacre at Racak, one of the events that precipitated NATO's involvement.
The timing of Arbour's indictment - which coincided with the end of her term at the tribunal and the NATO bombing campaign - and the focus on crimes that do not represent the scope and extent of Milosevic's criminality, were unfortunate.
Whatever the merits of the charges lodged in 1999, it would be far better if Milosevic could be tried for organising and directing the full range of crimes committed by the forces he controlled in Croatia, Bosnia as well as Kosovo. Proving such charges would, of course, involve significant evidentiary problems in demonstrating Milosevic's command responsibility for crimes committed in Croatia and Bosnia, where he was not ostensibly in charge. I hope Ms Del Ponte and her team are ready.
Within Serbia and other parts of ex-Yugoslavia, the question that now arises is what impact the trial of Milosevic will have on the public sense of responsibility for the crimes of the past decade. Champions of the tribunal often argue that one of its virtues is that it individualises guilt. Just so. But this is a mixed blessing in circumstances where tens of thousands of people - perhaps even hundreds of thousands - share in criminal guilt because they operated unspeakable detention camps, raped, tortured and murdered their neighbours, shelled and sniped at civilians, systematically destroyed the cultural heritage of other nations and forced close to 3 million of their fellow citizens to flee their homes and communities.
Milosevic's greater culpability for these crimes does not diminish the criminal guilt of those who carried them out. Hundreds of thousands or even millions more do not bear criminal guilt but they do share political responsibility, either because they actively supported the commission of these crimes or because they knew of them as they took place and did not lift a finger to stop them. I think of them as guilty bystanders.
Whether the trial of Milosevic will awaken a sense of responsibility that has thus far seemed dormant or, alternatively, it will produce a sense of absolution, is difficult to foretell. It depends in part on the way the trial in The Hague is conducted. Perhaps in equal or even greater measure, the impact will depend on political leaders, the media and the agencies of civil society in Serbia. Up to now, when they have opposed Milosevic, they have predominantly portrayed Serbs as his prime victims. If the prosecution at The Hague is effective, the trial will present many opportunities for opinion leaders in Serbia to communicate a different message. It is hard to say whether they will rise to the occasion.
Is there a way for proponents of international justice outside ex-Yugoslavia to contribute to these battles on either front? One way, of course, is to support the efforts of those like Veran Matic of Radio B-92, who has been attempting to stimulate thought and debate in Serbia about responsibility
for the past.
Perhaps even more important is to maintain and increase the pressure for the surrender to The Hague of all those who have been indicted who are still at large. This could be helpful on both fronts. Their testimony could provide some of the evidence required to establish Milosevic's responsibility for a range of crimes. In addition, putting some of them on trial will fill in the gaps in the narrative the tribunal is constructing, and thereby clarify that Milosevic was aided and abetted by many others.
Broader institutional reform within Serbia thus goes hand-in-hand with a reckoning over war crimes. Real debate will be impeded while key figures in the security forces remain in place. Judicial reform is also essential, to build fresh respect for the rule of law, and to allow reliable war-crimes prosecutions at a national level.
At an earlier stage, much of our attention had to be concerned with whether the Tribunal would be sustained and adequately funded. Though it will need at least another five years to complete its business and the cost during that period will be great, those are no longer overriding concerns. Milosevic's presence in The Hague solves those problems. Now the task is to see to it that justice is done and that the lessons that may be derived from doing justice are learned.
Aryeh Neier, Auschwitz survivor and lifelong campaigner for human rights, is president of the Open Society Institute and author of War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice, New York 1998. This comment appeared in IWPR'S Tribunal Update No. 229, 9-14 July 2001