inserito in Diritto&Diritti nel novembre 2000



The new Yugoslavia dawn, the victory of the opposition leader Vojislav Kostunica at last presidential election in September 2000 and the night of jubilation of the 5th of October can’t let the world forget one crucial aspect of the Balkans crisis: what will be of the International Criminal Tribunal for the former Yugoslavia (ICTY) indictment of Slobodan Milosevic?


Who’s the "Butcher of the Balkans"?


Slobodan Milosevic was born in August, 29th, 1941 in Pozarevac, Serbia. His political career begun in 1959, when he joined the Communist Party. He also graduated with a law degree in 1964 and became a successful businessman and banker.

Milosevic served as the director of Belgrade's leading bank from 1978 to 1983. In 1984 he became head of the party's Belgrade organization: adopting a populist style, he successfully took over as head of the Serbian Communist party in 1987. In May 1989 Milosevic became president of Serbia.

Reelected in December 1990, he increased tensions and led to the breakup of the Yugoslav Republic. The Declarations of independence by all Yugoslavia's republics led to the civil war in 1991. In April 1992 Serbia and Montenegro proclaimed themselves the successor state to Yugoslavia, taking the name of Federal Republic of Yugoslavia (FRY).

While Milosevic received international criticism for the brutal atrocities committed by Serbs, trade sanctions imposed by the United Nations (UN) in 1992 had a devastating impact on Serbia's economy and put pressure on him to support a peace plan. In November 1995 he represented the Bosnian Serbs in peace talks, and in December he signed the Dayton peace accord, bringing the war to an end.

The UN suspended the sanctions against the FRY in October 1996. In November Milosevic annulled the results of the Serbian municipal elections won by the opposition. The nullification produced widespread protests, so Serbia's parliament reinstated the elections’ results: meanwhile Milosevic regained power. He was elected president of the FRY in July.

In early 1998 Milosevic ordered Yugoslav military forces into Kosovo to suppress growing unrest among the province's ethnic Albanian population: hundreds of people were killed and more than 200.000 left homeless. Facing a threat of air strikes by NATO, Milosevic's government and ethnic Albanian representatives participated in internationally negotiations in February and March 1999, but Milosevic rejected a plan that called for placing a NATO security force in Kosovo. In late March NATO began air strikes against FRY military targets. On June 3 Milosevic finally agreed to an international peace plan for Kosovo. After FRY troops began withdrawing from Kosovo on June 10, NATO suspended its bombing and the UN Security Council authorized an international peacekeeping force to enter the province. The peacekeepers were to help ensure the safe return of Kosovo refugees.

Demonstrations in the latter half of 1999 failed to force Milosevic’s resignation, but Montenegro increased autonomy: during the summer of 2000, Milosevic called for early elections, hoping to beef up his democratic fade. His plan backfired, and voters elected Vojislav Kostunica. Milosevic refused to concede defeat, but resigned after several hundred thousand Serbs took the streets in non-violent protest to demand the end of his 13 years of rule.


The International Criminal Tribunal for the former Yugoslavia (ICTY).


The International Criminal Tribunal for the Former Yugoslavia, established by Security Council resolution 827 on 25 May 1993. Located in The Hague, The Netherlands, the ICTY is mandated to prosecute and try persons responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991.

The Tribunal’s authority is to prosecute and try four clusters of offence:

Grave breaches of the 1949 Geneva Conventions (Article 2);

Violations of the laws or customs of war (Article 3);

Genocide (Article 4);

Crimes against humanity (Article 5).

As of 13th of october 2000, eighty-five suspects have previously been indicted by the Tribunal; charges were dropped against 18 of these, seven persons have been convicted, one has been acquitted, six died before trial and twenty-three are in custody awaiting trial.


The indictment (abstract).


The Hague, The Netherlands, 27 May 1999


Today, Thursday 27 May 1999, the Prosecutor of the ICTY, pursuant to her authority under Article 18 of the Statute of the Tribunal, charges: SLOBODAN MILOSEVIC, MILAN MILUTINOVIC, NIKOLA SAINOVIC, DRAGOLJUB OJDANIC, VLAJKO STOJILJKOVIC with CRIMES AGAINST HUMANITY and VIOLATIONS OF THE LAWS OR CUSTOMS OF WAR.

This follows the confirmation by Judge David Hunt, on Monday 24 May 1999, of an indictment against the five accused submitted on 22 May by the Prosecutor, Justice Louise Arbour. Judge Hunt granted the Prosecutor’s request for delayed disclosure of the indictment and the arrest warrants until today.

(…)The U.N. Member States were ordered to make inquiries to discover whether any of the accused had assets located in their territory and, if so, to freeze such assets until the accused are taken into custody.

(…) The indictment alleges that, between 1 January and late May 1999, forces under the control of the five accused persecuted the Kosovo Albanian civilian population on political, racial or religious grounds. By the date of the indictment, approximately 740,000 Kosovo Albanians, had been expelled from Kosovo, thousands more are believed to be internally displaced and an unknown number of them have been killed in the operations by forces of the FRY and Serbia. Specifically, the five indictees are charged with the murder of over 340 persons identified by name in an annex to the indictment. (…)


(…) the five accused planned, instigated, ordered, committed or otherwise aided and abetted the planning, preparation or execution of:

Count 1: Deportation, a CRIME AGAINST HUMANITY, punishable under Article 5(d) of the Statute of the Tribunal.

Count 2: Murder, a CRIME AGAINST HUMANITY, punishable under Article 5 (a) of the Statute of the Tribunal.

Count 3: Murder, a VIOLATION OF THE LAWS OR CUSTOMS OF WAR, punishable under Article 3 of the Statute of the Tribunal and recognised by Article 3(1)(a) of the Geneva Conventions.

Count 4: Persecutions on political, racial and religious grounds, a CRIME AGAINST HUMANITY, punishable under Article 5(h) of the Statute of the Tribunal.

All accused are charged with individual criminal responsibility pursuant to Article 7(1) of the Statute. By virtue of their high positions of power, the accused are also, or alternatively, charged with superior criminal responsibility under Article 7(3) of the Statute. The case against each of these four accused is based on both their legal and de facto relationship with the military and police forces mentioned above. (…)

Louise Arbour, ICTY’s Prosecutor


Different reactions to the indictment.


The reactions to the indictment of Slobodan Milosevic were swift around the world: here there are the most significant.

United States: U.S. President Bill Clinton applauded the indictment and said "the indictment will reassure the victims of Belgrade's atrocities in Kosovo and it will deter future war crimes by establishing that those who give the orders will be held accountable".

State Department spokesman James P. Rubin said "U.S. has long held Milosevic personally and politically responsible for the crimes considered by the indictment. He’s got to surrender".

NATO: Spokesman Jamie Shea said "The alliance is ready to help bring indicted war crimes suspects to trial. The NATO countries will also help provide the U.N. war crimes tribunal with evidence to support its indictments".

Britain: Foreign Secretary Robin Cook told reporters "there would be no reasons that would allow Milosevic to escape prosecution. Britain will work to see that those indicted would stand trial".

France: France’s interior minister, Jean-Pierre Chevenement, didn’t approve the ICTY’s initiative. For J.P. Chevenement "the court had a "pseudo-moral vision" instead of a political one".

Yugoslavia: "This court for us does not exist" said Branko Brankovic, Yugoslavia’s chief envoy to the U.N.’s European headquarters. "This indictment is a political ploy, a farce to justify NATO airstrikes". Yugoslav government officials called the war crimes tribunal "an instrument of U.S. and NATO interests, an international inquisitorial court used by the U.S. to obliterate enemies. We refuse to recognize its jurisdiction". Yugoslavia's Foreign Ministry also said " Not our Officials but President Clinton and Gen. Wesley Clark, should be cited for their criminal bombing".

Russia: Russia’s Foreign Ministry called the charges "politically motivated", but officials in the Bosnian capital of Sarajevo told the indictment would "end the tragedy in the region".

China: An official said China was "concerned about the effect such an action may have on efforts to advance a political resolution for the Kosovo question".

Amnesty International welcomes decision that an Head of State may be held responsible for crimes against humanity and war crimes. Emma Bonino, European Commissioner for Humanitarian Aid, celebrated the event saying "We have been waiting for a long time for this decision"; in Tetovo, Macedonia and Montenegro, ethnic Albanian refugees from Kosovo mostly welcomed the indictment.


About the indictment.


Enormous publicity was given some months ago to the official charge of Milosevic and four other Serbian leaders which, as pointed out by Justice Arbour, "is the first in the history of this Tribunal to charge a Head of State during an on-going armed conflict with the commission of serious violations of international humanitarian law".

Presented for confirmation on May 22nd, this indictment charges the five accused with crimes against humanity, specifically murder, deportation and persecutions, and with violations of the laws and customs of war. The charges are based on two theories of liability: the first is command responsibility of a superior for actions committed by his subordinates, the second one is personal responsibility for committing, planning, instigating, ordering or aiding and abetting war crimes and crimes against humanity.

This indictment does not represent the totality of the charges that may result from continuing investigations of these accused, nor it represents final determination of the responsibility: it is based exclusively on crimes committed since the beginning of 1999 in Kosovo. The indictment can prove - from the 100.000 asserted by US Secretary of Defense William Cohen, to the 4,600 claimed in the US State Department reports - only 340 civilian deaths, also some cases of "ethnic cleansing" remain in dispute: not considered by the court is the charge of genocide, the most difficult international crime to prove, requiring evidence of specific intent to destroy, in whole or in part, an ethnic group.


The legal basis of the charge.


An unprecedented case, the one of Milosevic: the indictment is historical, and not just because it’s the first time a sitting head of state has been charged with war crimes. The message is clear: the concept of sovereignty as private property is surpassed, any dictator, who intends to resort to crime for reaching his goals and to impunity for staying in power, is nomore secured.

Notwithstanding its importance, the most striking feature of the 36-page indictment is what is not in it: the ICTY’s charge doesn’t seem to be supported by probative evidence: its biased character is indicated by the fact, that much of the evidence was supplied by two NATO countries, the US and Britain.

But what is most astonishing and discrediting is the failure of the charge to place the mass exodus of Kosovan Albanians and the killings of civilians within its actual context, a civil war between the separatist Kosovo Liberation Army (KLA) and the Yugoslav government. Actually, paragraph 91 says Milosevic's objective has been "to ensure continued Serbian control over the province of Kosovo": a significant admission, because it underscores the shaky legal basis of the indictment. Kosovo is recognized internationally as part of Serbia and every government maintains the right to use force to defend its sovereignty against a secessionist movement. What the ICTY claims is that "war crimes" took place in the context of a civil war between a central government and a separatist insurgency

So the indictment ignores the fundamental difference between a war between two independent states, and a civil war: were the Serbs legally prohibited from using force to oppose secession? The death of hundreds of civilians is a tragedy, and criminal acts may well be involved. But these deaths took place within the context of a civil war, exacerbated by foreign military intervention.

There are numbers of contemporary examples of governments that have carried out violent repression of secessionist or insurgent movements. To cite only a few: Spain against the Basque ETA, France in Algeria, Britain in Northern Ireland and Turkey against its Kurdish minority and the separatist PKK.

As for the United States, the list of such wars is endless. For more than three centuries U.S. capitalism grew largely from the accumulation of wealth from slave labor: is the slavery a crime against humanity? Of course it is. The forced removal of the Indian tribes in the 19th century, the "low intensity warfare" in the Philippines, Mexico, Guatemala, El Salvador, Nicaragua, South America and Vietnam. By that standard, Abraham Lincoln's policy in the American Civil War was a war crime!

A political rather than a judicial signal.


The indictment appears more a political diatribe against the Serbian leadership than a legal document: it raises serious issue about the independence and objectivity of the ICTY.

In the indictment there is not any reference to the role of external forces - the United States, the European powers, NATO, the International Monetary Fund - in crippling the economy of Yugoslavia with sanctions, promoting the country's dissolution between the various ethnic groups, so that it seems to be a rehash of the US-NATO version of the history of the breakup of Yugoslavia: it demonizes the Serbs sanitizing the role of the KLA and ignores the atrocities committed by other ethnic chauvinist forces - Croat, Muslim and Albanian, taking the Yugoslavia’s civil war as the pretext for outside military intervention.

The illegality of North Atlantic Alliance's actions is beyond doubt: Mrs. Mary Robinson, the UN Human Rights Commissioner, also raised similar concerns about NATO's slaughter of innocent civilians. She has made it abundantly clear that the Alliance cannot hide behind the alibi of "collateral damage". The manner with which NATO has carried out its actions is nothing short of criminal, its bombs in just two months killed thousands people of all nationalities, more than the number of civilian deaths attributed to the Serbs.

The tendentious character of the indictment poses an obvious question: is there an objective standard of guilt? Nearly all the actions described would be considered crimes by any truly civilized society, but many of these violations have been committed by the US-NATO forces too in the course of their war against Yugoslavia. Are there actions in war that must be considered criminal? And are these standards applied equally to all sides in a conflict?

Milosevic and the other four indicted: the only responsibles?


This indictment is directed against the five named accused, not directed against the State of the Federal Republic of Yugoslavia, nor against its people, but the entire Serb population, "infected" by an evil leader, is complicit in war crimes and must be punished.

Secondly, passive complicity by so many countries - European countries above all - that for at least ten years have permitted Milosevic to increase his strenght and its capacity to massacre first of all freedom and rights of the citizens of his own countries, this passivity is a defeat of those governments that have managed that policy, but it is also a defeat of all the citizens, of all of us. The fact that today it is possible only to choose between complicity with the authors of massacres and violent reaction to stop massacres, it is a defeat in itself.

How the ICTY could judge an absent defendant?


If, as is expected, the Federal Republic of Yugoslavia fails to surrender Milosevic and the other four indicted Yugoslav officials to the Tribunal? In this case the Prosecutor will likely initiate something known as "Rule 61 hearing", which is like a televised grand jury proceeding in that only the prosecution is permitted to participate and present its case through witness testimony, documents, and other evidence.

If, at the conclusion of the hearing, the panel of three judges are convinced that there are reasonable grounds for believing the defendants have committed the crimes charged in the indictment, and that the State where the defendants are located has failed to cooperate with the Tribunal, the judges will reconfirm the indictment, issue an international arrest warrant and recommend that the Security Council take measures to compel the surrender of the accused.

As the Tribunal does not have a constabulary, it must rely on the cooperation of states and the assistance of the Security Council to enforce its orders. Given Russia and China's current positions, they would be likely to veto any action by the Security Council to induce the surrender of Milosevic to the Tribunal.

Last call for an International Criminal Court.


Recently the UN Security Council set up two specialized war crimes tribunals, one dealing with Yugoslavia (set up in 1993) and one with Rwanda (set up in 1994): by being restricted to violations of humanitarian law in those countries, some of the worst atrocities in the world are ignored (U.S. sanctions against Iraq as well as massacres in Turkey, East Timor and elsewhere). Milosevic's are not the only atrocities that warrant condemnation.

There are many governments that could be cited for precisely the type of crimes against ethnic minorities for which Yugoslavia has been indicted, including Sri Lanka for its war against the Tamils. By any objective standard they are no less guilty of "ethnic cleansing" than Yugoslavia. In recent years there has been an effort to establish an International Criminal Court, a body that could prosecute serious crimes against humanity no matter who committed them.

In multilateral talks the US scuttled a United Nations conference in Rome called to sanction the establishment of a permanent international court on genocide, aggression and other war crimes. The US refused, one of only seven countries, to support the proposal unless the court explicitly exempted American military forces from its jurisdiction.

The United States has explicitly rejected the jurisdiction of international courts and tribunals: the most notorious case is the American mining of Managua harbor in 1984. When the international court in the Hague ruled in favor of Nicaragua the US refused and declared it was not bound by the court's decisions. It is an insidious perversion of the concept of war crimes in the interests of the imperialist powers, first and foremost the United States - a country that has refused to accept the jurisdiction of a World Court over its own actions.



Most of us didn't require the judgment of an international tribunal to convince us that Milosevic is an evil man, guilty of gross violations of humanitarian law. So what's the objective? How will it end? Adding Milosevic's picture to the war criminal hall of infamy it's going to make any difference?

The ICTY announced in the Hague is historic, to be sure; it is an extraordinary achievement having brought to successful confirmation an indictment against the five accused, for crimes of this magnitude. In one respect, this is clearly a good thing: Better to try to stop atrocities when they are happening than to remember them at memorial services. A welcome reaffirmation of the rule of international law that no one, whether a head of state or private soldier, is immune from criminal responsibility for crimes against humanity and war crimes; it is a fundamental rule of law that all persons can be held criminally responsible for crimes under international law. But it becomes clear that the indictment was not really issued in response to war crimes.

In short, the war crimes trial must not represent "victors' justice". So the ICTY must take urgent action to state that it is actively investigating the western, primarily the U.S and British political and military leadership for possible command responsibility for war crimes and crimes against humanity. Maybe there will be no charges on Mr.Clinton, Mrs.Albright, Mr.Cohen or Mr.Clark, but short of this immediate action, the ICTY will suffer an irredeemable loss in credibility and the cause of international justice will be set back a generation.

Let's finish our work, let’s do for our sons: when they will be old enough to ask how and why all these terrible things were possible, they will require an honest answer. Let the tribunal name Mr. Milosevic as the war criminal he is, but the ICTY has got to remember that it is essential to fully respect the right to fair trial, including the presumption of innocence of all persons indicted, no matter how horrifying the crimes, to show that justice and peace are not rivals but partners.

Even if Milosevic cannot immediately be brought to trial, the effect of the indictment will be to make him a prisoner within the borders of Serbia, since he could be arrested if he stepped foot in any other country: there is no statute of limitations for war crimes and crimes against humanity, time is on the Tribunal's side. It is likely that he will one day face international justice: if we do not act now, justice, the rule of law and the international community will be added to the many victims of Milosevic's crimes.


Walter Giacardi