It is probably safe to say that the war crimes trial in The Hague of the former Serbian dictator Slobodan Milosevic is not going well. At least so far. No credible witnesses have come forward to testify against the man who is credited with starting four Balkan wars. No documentary evidence has been advanced to prove his “command responsibility” for murderous ethnic conflicts. The prosecution’s bungling has turned what was once touted as a “water-tight case” into a battle of wits, allowing Milosevic to mount a fifth war–legal and psychological–against the court itself.
It is, of course, an uneven battle. The court is supported by the might of the United States and its vast eavesdropping and intelligence-gathering facilities. Behind the scenes, Americans have tried to induce some of Milosevic’s former henchmen to testify against him. (That includes the notorious paramilitary leader known as Arkan, who was gunned down inside the Belgrade Intercontinental two weeks after he lunched there with an American intermediary for the CIA.) Publicly, the United States has linked all financial assistance to Serbia to the extradition of suspected war criminals; the hope is that some of them may provide the needed information about Milosevic’s “command responsibility.”
The former dictator, on the other hand, has to rely mainly on himself, his wife and a few supporters. The image of a solitary individual standing up against the world not only appeals to his vanity but also seems to energize him. His defense strategy is brilliantly cunning, designed to play on Serbia’s psychological vulnerabilities and continued Serb resentment of the 1999 NATO bombing. From the outset he has said that the court is illegal, that it is NATO’s victors’ justice and that he would not accept its judgment. Yet, acting as his own defense attorney, he has used the tribunal as a stage for his antics, playing the role of a defiant David to NATO’s Goliath, the victim of powerful foreign enemies, and in the process doing all he can to make his a trial of the whole Serbian nation.
Opinion polls suggest that his strategy is working in Serbia. Even though four out of five Serbs want to see Milosevic tried in a Serbian court for crimes committed against his people, a majority applaud his stand at The Hague.
This is unfortunate. This public perception is likely to discourage potential witnesses from coming forward. In the absence of compelling evidence against him in court, Milosevic’s political rehabilitation becomes a distinct possibility. More significant will be the impact on the world’s first permanent court–which is to be established also in The Hague–to replace ad hoc courts like the one sitting in judgment of Milosevic. But it is up to the ad hoc tribunal to come up with the precedent-setting legal standard of “command responsibility” (the conditions under which a tyrant, even if not directly involved, can be held responsible for crimes committed by his subordinates).
This raises several broader questions: What sort of justice, exactly, is being served in The Hague? Why is it that the prosecution, having claimed to have a water-tight case, appears to be flailing in the dark? Was the court manipulated by the Clinton Administration? What exactly was the secret intelligence that the United States and British governments supplied during the 1999 Kosovo war to prompt the court to indict Milosevic?
Louis Sell is one of those rare anonymous State Department officials who venture to write books in their retirement. He was highly regarded by his superiors and held the rank of political counselor in two major embassies: Belgrade and Moscow. His tour in Belgrade, from 1987 to 1991, coincided with Milosevic’s rise to power and the outbreak of war in Yugoslavia. This has placed him in the middle of things. Scores of secret cables, sensitive intelligence reports, raw National Security Agency telephone intercepts and even satellite photos landed on his desk each day. He not only had access to everything the analysts and spooks produced on the Yugoslav crisis but was one of the few people capable of placing such material in the proper context. (He had served in Yugoslavia in the 1970s and is fluent in Serbo-Croatian.) He returned to the region in 1995 as political deputy to former Swedish Prime Minister Carl Bildt, then the European Union’s chief negotiator for the former Yugoslavia. After the Kosovo war, Sell served as director of the International Crisis Group in Kosovo.
By background and experience, Sell is a bureaucratic insider. Unlike the more senior officials–Richard Holbrooke or Gen. Wesley Clark–he has no need to defend his reputation. Nor is he a man prone to self-glorification. His twenty-eight years in the State Department conditioned him to shun the limelight. This may be why he could apparently not bring himself to give the reader his own take on events. Instead he has chosen a journalistic format, relying mainly on published sources–news dispatches, opinion columns and books. This was a poor choice. He knows far more than most authors he quotes in his Slobodan Milosevic and the Destruction of Yugoslavia.
Indiscriminate reliance on Western press reports is risky. For example, Sell reproduces a German tabloid story about Milosevic’s alleged involvement in drug trafficking. Far too often he resorts to “Western journalists” as the only source of this or that information; far too often the phrase “everybody knew that…” crops up in the narrative as the sole source for a given Serbian crime. Although he tries to write dispassionately, his anti-Serb bias gets in the way from time to time. In one instance, he writes that the high command in Belgrade sanctioned the July 1995 attack on Srebrenica; the source for the assertion is a book published in 1994. Is this sloppy writing? Careless editing?
Sell does offer a shrewd assessment of the former dictator. He sees him as someone “without any core beliefs or values other than his own political survival.” Milosevic, he writes, “was not very good at using power for anything other than keeping it.” He was an enormously destructive figure. Obsessed with power, he deliberately impoverished not only Serbia’s economy but also its intellectual and social fabric “in order to eliminate the very capacity for independent alternatives to emerge.”
The book follows familiar lines; I doubt whether it contains anything that has not been said before. One does come across interesting tidbits: Washington took an almost instant dislike to Carl Bildt, because he “had not developed the habit of deference to Washington” and was unwilling “to take direction.” Needless to say, Bildt did not last long in the job.
There is, of course, nothing surprising nowadays in high-level American officials expecting deference from little nations or their representatives. But this is only a part of America’s post-cold war attitude toward the rest of the world. It also permeates US policy in the Balkans. Despite the rhetoric about justice and eagerness to help the people of Serbia, the book suggests that the United States was interested in the Hague court as a political tool rather than a mechanism that would add another dimension to international law by holding individual leaders responsible for war crimes and crimes against humanity. Everything that would detract from Washington’s policy–whatever that policy is at any given moment–must be dismissed out of hand or ignored. With a sleight of hand, Sell dismisses British and French experts who found conclusive proof that Muslim snipers had fired on their own people in order to stimulate sympathetic media coverage for their plight. He ignored Canadian Gen. Lewis MacKenzie, who said he had personally seen a similar incident. Sell also ignores the fact that Secretary of State Lawrence Eagleburger accused Milosevic of war crimes in Bosnia and Croatia in December 1992; Eagleburger’s speech in Geneva no longer fits the official narrative.
Within a year, Milosevic had reinvented himself as a born-again peacemaker. By 1995 he was the “guarantor” of peace in Bosnia. (He was, indeed, most responsible for the successful outcome of the peace talks at Dayton, Ohio.) He shared the stage with Bill Clinton during the signing ceremonies in Paris. Clinton flattered him. “It’s nice to hear your voice,” Clinton told the dictator. The American President, aboard Air Force One to visit US troops in Bosnia, chitchatted with the Serbian dictator about the Dayton agreement. “I know it cannot go ahead without you,” Clinton said, according to a recently published transcript of the conversations monitored by Croatian intelligence.
So, even though “it had long been clear that Milosevic was responsible for ethnic cleansing and other crimes…in Croatia and Bosnia,” Sell tells us, he was not indicted, because the Clinton Administration was unable to find a “smoking gun” that would directly link him to the misdeeds. We are led to conclude that the Administration did not assign high priority to the task.
On the eve of the Kosovo war, however, the US government became active in seeking to tie Milosevic to war crimes in Kosovo in early 1999. The State Department’s war crimes intelligence review unit was given a boost: The number of its analysts and the urgency of its task were increased. Having no diplomats or spies in Serbia, Sell reports, analysts used satellite photos to study troop movements inside Kosovo. The outcome was “precisely the kind of evidence needed to indict Milosevic on the basis of ‘imputed command responsibility'” for ordering ethnic cleansing or failing to stop it. Canadian jurist Louise Arbour, the chief prosecutor at the time, must have known that the intelligence she was given did not meet the standards of proof required in a court of law. She traveled to Washington, London and Bonn apparently seeking a policy context for the tribunal’s action against Milosevic; but she got “totally ambiguous” responses. As NATO planes continued to bomb Yugoslavia, the flow of intelligence material reaching the tribunal increased, but most of it was part of NATO’s massive propaganda campaign against Milosevic. This must have preyed on the minds of the prosecutors, leading them to believe that they had a substantial case that would hold up in court. Indeed, the initial indictment was confined to war crimes committed in Kosovo in 1999.
The tribunal may indeed have been manipulated by outside forces, as some of its officers feared. As is frequently the case in the Balkans, a story always seems clear at a distance, but the closer you get to the scene of events the murkier it becomes. The drafters of the indictment–somewhat to their surprise later–had not taken into account the fact that Kosovo was a secessionist province that had declared independence in 1991, as a result of which it was placed under Serbian police rule. The province remained quiet as long as the Albanian struggle was confined to peaceful means. However horrific the Serbian repression, it did not include ethnic cleansing. But by 1997, the Albanians had taken up arms. Milosevic had an armed insurrection on his hands. Moreover, when the Kosovo war ended, the liberated Albanians had lost their moral high ground; they embarked on a killing spree of the defeated Serbs under the noses of NATO peacekeepers.
Once Milosevic was deposed, the legal weaknesses of the Kosovo indictment became painfully obvious, and the prosecutors moved to include Croatia and Bosnia, the latter being the prime stage for the charges of genocide and crimes against humanity. Like Sell, I too have no doubt that Milosevic is guilty as charged, at least with respect to most counts dealing with Bosnia. I witnessed a good deal while covering his wars from 1990 to 1996. But it is crucial that this be established in a court of law. Although the pool of Milosevic’s partners in crime has been shrinking (most recently with the suicide of his former police minister), a number of them are still at large. The tribunal needs these former Serbian officials; some should be offered immunity from prosecution in exchange for their testimony. The prosecutors should work with local Serbian authorities and hire local private investigators rather than depend on the might of the United States to force the extradition of suspected criminals. Without such witnesses and in the absence of spectacular documentary evidence, the tribunal is heading for disaster.
On late-night television the other day I watched Spencer Tracy and Marlene Dietrich in the 1961 movie Judgment at Nuremberg, about the trials of Nazi war criminals. It was a riveting courtroom drama. The evidence against the accused was overwhelming. By comparison, the Hague tribunal is more like the trial of Al Capone, the Chicago mobster who was responsible for a series of gangland murders. Although everybody knew Capone was guilty, police could not prove it. Eventually he was sent to jail for tax evasion. One way or another, I suspect, Milosevic will end up spending many years in jail. Let’s hope this will be done for the right reasons.