arch/ive/ief (2000 - 2005)

Summary

The International Criminal Tribunal for the former Yugoslavia now awaits Slobodan Milosevic for alleged war crimes in Kosovo. But in the two years since the Kosovo conflict, it appears that the former president did not commit the genocide he was accused of by NATO, including the deaths of some 10,000 people. Ironically, the charges he faces would make it easy for international courts to try a variety of foreign leaders and military officers, including Americans.

Analysis

Former Yugoslav president Slobodan Milosevic will likely be extradited to face charges at the International Criminal Tribunal for the former Yugoslavia (ICTY).
Milosevic is charged with crimes against humanity and war crimes for his role in the 1999 Kosovo conflict. An indictment for Milosevic's role in the Bosnian war, from 1992 to 1995, has not yet been released, according to an
ICTY spokeswoman.

The Kosovo indictment includes persecution and seven instances of murder, totaling 340 victims. These murders are classified both as alleged war crimes - violations of the codes and practices of war - and as crimes against humanity, defined as severe crimes conducted against innocents, often outside the context of war. Milosevic also stands accused of crimes against humanity for the forcible deportation of ethnic Albanians from Kosovo.

But noticeably absent are charges of genocide. This is striking because Milosevic's government was blamed for as many as 10,000 killings of ethnic Albanians during the opening weeks of the 1999 war for Kosovo. It now appears that these mass killings have not been borne out by two years of excavations and investigations.

As a result, the prosecution in The Hague appears to have settled on lesser charges that will more easily result in a guilty verdict. But this development may set a new precedent, making it easier for international courts to bring charges against other democratically elected heads of state as well as military officers. This precedent poses a risk both to American political leaders and U.S. military officers who command missions overseas that kill local civilians.

The Yugoslav cabinet agreed at a meeting in Belgrade June 23 that it was prepared to extradite war crimes suspects to a United Nations tribunal, opening the door to sending Milosevic to trial. A cabinet decree handed authority for all extraditions to Yugoslavia's republics, Serbia and
Montenegro. In Serbia, where Milosevic has been imprisoned for corruption, Prime Minister Zoran Djindjic said he expected Milosevic's extradition within three weeks, after he exhausts appeals.

But the charges Milosevic must answer to in The Hague are significantly different from the charges of genocide leveled by London and Washington just two years ago. During the initial weeks of the war, NATO governments claimed that the numbers of ethnic Albanian dead and missing ranged in the tens of thousands. Eventually, the accepted number of Albanian dead settled around 10,000. And the ICTY stated that it would leave itself the option of adding genocide charges.

But the tribunal has not added these charges because Kosovo has not yet yielded the killing fields the West expected two years ago. The ICTY has exhumed about 4,000 bodies to date, according to a spokeswoman. However, many of these bodies have not been definitively identified, either as
non-combatant ethnic Albanians or otherwise. They may be casualties of battle, collateral damage or ethnic infighting. More Albanian bodies have recently been discovered in Serbia.

The international search for Kosovo's killing fields has yielded a significant share of critics - among the very people who have gone to Kosovo to uncover the truth. A Spanish team returned from Kosovo in 1999; its leader told the El Pais newspaper that the limited individual
gravesites were the result of fighting between ethnic Albanian guerrillas and Yugoslav forces, in stark contrast to the piles of corpses at genocide sites in Rwanda.

As a result, the ICTY appears to have shifted strategy. In April 2000, the tribunal announced an ambitious schedule to uncover 300 suspected burial sites. In August, London-based Guardian newspaper reported that ICTY spokesman Paul Risley said that the number of victims was far less than 10,000 and closer to 2,000 to 3,000 - only slightly more than the number uncovered in the summer of 1999, immediately after the war. In the summer or 2000, the tribunal found only 680 bodies, The Guardian reported.

Late in 2000, the ICTY changed its tactic: It shifted from conducting a mass search for the killing fields to putting together a case, based on available evidence that would convict Milosevic. As a result, the charges are certainly somber but of lesser magnitude.

In the Hague, for example, Rwandans have recently stood trial for genocide.
A number of Serbs are under indictment for genocide in Bosnia. In contrast, Milosevic would stand trial for war crimes - violations of the Geneva Conventions that are comparatively common in conflict - as well as certain crimes against humanity, but not genocide.

But the tribunal is helping to set an important and ironic precedent. By dropping the genocide charge, the court has set a relatively undemanding hurdle for trying heads of state or military leaders. And the ICTY's most serious charges - crimes against humanity - are not iron-clad in the sense that the crimes are not on the scale of, say, Nazi Germany or Imperial Japan.

As a result, the threshold for crimes against humanity - and their ferocity - have been signficantly lowered. If an unpopular but democratically elected former leader like Milosevic can be indicted, extradited and tried for these crimes, so can many other political leaders in a variety of
governments around the world.

Every leader who has sent troops into conflict is liable for civilian deaths or excessive force. The potential list ranges from influential figures like Russian President Vladimir Putin, for Chechnya, to lesser-known leaders like Mozambique's Joaquim Chissano, who presided over his own country's civil war and remains in power.

On this front, Americans may have some of the greatest legal exposure. Former President Clinton ordered U.S. operations in Kosovo, Somalia, Afghanistan and Sudan - all of which resulted in civilian deaths. U.S. military officers may face additional legal exposure abroad, as would
officers in the Canadian, British and Nordic militaries who contribute forces to peacekeeping operations.

The one significant trouble international courts will have in enforcing this precedent is the lack of an executive arm with which to reach out and grab suspects. No court in the world has the ability to coerce China, Russia or the United States to hand over a current or former leader. They enjoy much more political power than does a country like Chile, unable to gain the release of former President Augusto Pinochet.

But the indictment process is likely to become more institutionalized. A permanent international war crimes tribunal, sponsored by the United Nations, is likely to begin operations within a few years. The United States has attempted to hinder the creation of this tribunal, but half the necessary signatories have ratified the treaty.

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