Milosevic’s moral responsibility is beyond dispute. The brutal and bloody Serb campaign to “cleanse” Kosovo of ethnic Albanians has been so pervasive and prolonged that it is impossible to view the man in charge as a bystander. Establishing criminal guilt, though, requires rigorous proof. The indictment, prepared by prosecutors of the International Criminal Tribunal for the Former Yugoslavia, in The Hague, outlines two ways of making the case.
The harder way is to establish the defendants’ “individual responsibility” for particular war crimes. This would require specific proof–witnesses, intelligence intercepts or strong circumstantial evidence–that Milosevic ordered or “instigated” some or all of the war crimes alleged in the indictment: the murders of more than 340 named ethnic Albanians, the persecution of many more and the forcible deportation of about 740,000 people. Such evidence might be hard to come by. Milosevic has been careful to cover his tracks, avoiding damning paper trails and unguarded phone conversations. No direct subordinate seems likely to turn state’s evidence. While prosecutors can probably produce at least circumstantial proof that the Serb leader ordered “ethnic cleansing,” the worst Serb crimes–the massacres of Kosovar civilians–may well have been blessed only by winks and nods from Belgrade.
A more promising prosecution theory is what’s called command responsibility. It is derived primarily from precedents set by the convictions of Japanese and German war criminals after World War II. Under the Hague tribunal’s founding statute, a military commander can be convicted of war crimes carried out by subordinates if the commander failed to take “reasonable measures” to prevent or punish crimes that he “knew or had reason to know” were being planned or had already been committed.
This is Milosevic’s greatest vulnerability. As president and supreme commander of the Serb troops and some Serb police units in Kosovo, he could be convicted of multiple crimes: the murders of hundreds of ethnic Albanians and the mass expulsions of thousands of others. A conviction could be based on the wealth of evidence that he must have known about such crimes for many weeks and let them continue, and did nothing to punish the perpetrators.
Milosevic and his codefendants have not been charged with genocide, a word much in vogue on all sides of the various Balkan conflicts. Chief war-crimes prosecutor Louise Arbour has suggested that the indictment would be updated and broadened as more evidence becomes available; a genocide charge apparently has not been ruled out. Under the tribunal’s statute, a genocide prosecution requires “intent to destroy, in whole or in part, a national, ethnical, racial or religious group”–tougher to prove than, say, mass murder. And the maximum penalty is the same: life imprisonment.
Before trying to put Milosevic in prison, of course, prosecutors would have to get their hands on him. There’s little chance NATO troops will try to capture him. And it’s hard to imagine any Serb government turning him over any time soon. But 5, 10 or 15 years from now, who knows? Maybe by then there will be a new Serb leadership eager to end the nation’s pariah status. Milosevic may feel safe now. But he’d better not count on a tranquil old age.
Taylor is a senior writer at National Journal and a NEWSWEEK contributing editor.
