One of the notable achievements of the indictment issued on May 24 by the UN's International Criminal Tribunal for the Former Yugoslavia--beyond fixing individual responsibility for Serbia's brutal campaign against Albanian Kosovars--was to restore the individual identities of its victims. An appendix to the report lists by name 344 Kosovars who were casualties of mass killings in seven towns in March and April. The oldest and youngest were Selim Nebihi, 95, male, and Diona Caka, 2, female. The names of ninety-four Kosovars killed in the town of Izbica on March 25 after Serb forces shelled and burned their village are now permanently recorded.
The indictment of Slobodan Milosevic and four of his military and security officials for murder, deportations and persecutions--the first such indictment of a sitting head of state--is a giant step for human rights, on the order of Gen. Augusto Pinochet's arrest in London this past October, and has the integrity missing from NATO's war. The indictments give human rights the highest priority and make it clear that they must not be subject to diplomatic concerns.
NATO was quick to trumpet the indictments as justification for its air war. But tribunals and truth commissions have validity only as alternatives to war and vengeance, not as adjuncts to bombing campaigns. Milosevic's crimes do not diminish the seriousness of NATO's violations of the Geneva Convention or the immorality of its actions, which have caused dozens of civilian deaths and widespread destruction of nonmilitary targets. The judges of the World Court, even as they rejected Yugoslavia's petitions seeking an end to the bombing on the grounds that they lacked jurisdiction, expressed "profound concern" about the legal basis for NATO's action. How can the alliance applaud Milosevic's indictment under international law when it views itself as above those standards? The tribunal, on one level, is everything this war is not: chartered by and responsible to the United Nations, truly transnational in leadership (its chief prosecutor, Louise Arbour, is Canadian, her predecessor was South African; the judges are from Malaysia, Morocco and a range of other countries) and rooted in a humane vision of international law as a vehicle for defending the victims of state abuses of power. The UN established the Balkans tribunal six years ago not to give NATO a blank check and not to impose victor's justice but in recognition that civil conflicts are self-perpetuating when crimes and grievances go unaddressed.
For all NATO's rhetoric about human rights, the alliance had to be forced into cooperating with the tribunal even in the midst of war. After years of frustration over Washington's refusal to hand over key documents and intelligence, Arbour essentially shamed it into cooperation by airing those grievances as the first bombs fell on Belgrade. (The United States, after all, was one of only seven countries, among them Libya and Iraq, that voted last year against establishing an International Criminal Court.) NATO has reason to be cautious. A May 31 report by UN High Commissioner for Human Rights Mary Robinson, devoted mostly to Serbia's campaign, nonetheless chides NATO for its use of civilian-killing cluster bombs and calls on the alliance "to respect the principles of international law, including the principle of proportionality."
In one respect only can Arbour be faulted, namely, that she exceeded her brief when she declared that the indictment calls into question whether Milosevic should be trusted as the guarantor of a peace deal, which made it appear to its critics that the tribunal was sympathetic to NATO. If the tribunal is to have legitimacy, it must make its independence clear.
As we went to press the pace of the Chernomyrdin-Ahtisaari mission appeared to be quickening, building to a possible agreement based on the G-8 countries' proposals. Whatever happens, the Milosevic indictment represents, in Robinson's words, "a major step in the process of tackling impunity," and it is no contradiction to support the tribunal while condemning NATO's lawless war. The tribunal creates a new moral imperative for making the safety and security of the Kosovars, so ill served by that war, the centerpiece of negotiation.