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 fter
three weeks of verbal sparring, the battle lines in the war-crimes
trial of former Yugoslav president Slobodan Milosevic have been
drawn. Prosecutors in The Hague will try to prove Milosevic's personal
culpability in the violent break-up of Yugoslavia and various wartime
atrocities. Milosevic will try to prove that the tribunal is incapable
of rendering a fair verdict, regardless of what happened while he
was in power.
Supporters
of the proceedings say that Milosevic's legal strategy aims to put
NATO and other leaders on trial instead of himself. But like so
much analysis relating to the Balkans, that's only half the story.
Milosevic will surely challenge the actions and motives of other
governments to deflect attention from himself, but he will do it
to try to prove a larger point: That his prosecution is selective
and therefore his trial intrinsically unfair.
But is Milosevic's
prosecution selective? Vojislav Kostunica, the reformist president
of Yugoslavia who replaced Milosevic after a democratic uprising
in October 2000, certainly thinks so. "What we have seen so
far indicates many elements of selectivity," he says. Prosecutors
paint a simplified picture of the Balkan wars based on "a lot
of shallow, superficial, and often false pseudo-history," and
they characterize Milosevic as the only major villain in those conflicts.
The Balkan wars, however, were far more complicated than prosecutors
have been willing to show in the courtroom, says Kostunica, and
he worries that their prosecutorial and historical selectivity will
lead to a permanent miswriting of the historical record.
For Yugoslavia-watchers,
Kostunica's criticism of the trial highlights an important distinction
that is often lost on the tribunal's more rabid defenders in the
Western media: Criticizing the tribunal is not the same as defending
Milosevic. In fact, one can, like Kostunica, despise Milosevic and
what he did, and still think the tribunal is a flawed institution.
According to recent opinion polls, most Serbs fall into that category.
They overwhelmingly voted Milosevic out of power a year and a half
ago, but more than 75 percent of them believe that The Hague tribunal
is essentially unfair. More interesting, a recent survey found that
two-thirds of Serbs said they would own-up to the wartime atrocities
committed by their side if other ethnic groups would do the same.
But given the widespread sense of selectivity surrounding the Milosevic
trial, don't expect much owning-up by any side.
Many Serbs
are also skeptical of the trial for practical reasons. Indeed, by
singling out Milosevic as the only major villain in the Balkan wars
and putting him on trial, Serbs could end up being the only participants
in the wars forced to pay costly reparations — a prospect they
consider inequitable considering that atrocities were committed
by all sides.
Serbian Prime
Minister Zoran Djindjic, moreover, says the trial has undercut his
ability to convince his countrymen to further cooperate with the
court: "I am speechless when I see how much money has gone
up in smoke to allow the court to take five years to unearth such
insignificant witnesses [as have been called to the stand so far].
This circus has left both myself and my government facing an awkward
dilemma. . . . What arguments can I now use to convince other people
to push for greater cooperation with the court?"
For most Serbs
though, the Milosevic trial is a monument to double standards. If
Milosevic should be held accountable, they ask, then why not Croatian
leaders for the ethnic cleansing of the Krajina, the Kosovo Liberation
Army for depopulating Kosovo of 250,000 non-Albanians, or, more
generally, the Russians for Chechnya or the Chinese for Tibet?
Proponents
of the trial answer back, So what? It's better to convict one villain
than none at all. Princeton University professor Gary Bass, for
example, says, "No international tribunal will ever hold Russia
to account for Chechnya, or China for . . . Tibet, let alone the
U.S. This is an international implement that's going to be used
by stronger powers against weaker powers. So why are we [in the
United States] afraid of it?" What Bass and others miss is
the basic contradiction: Selectivity undermines the legitimacy of
war-crimes trials in the very eyes of those we would most want to
come to terms with what was done in their name. For that reason,
domestic alternatives should be promoted as the preferred model.
Not arbitrary tribunals in foreign countries.
As the Bush
administration's ambassador at large for war-crimes issues Pierre-Richard
Prosper rightly observes: "We don't want to create an environment
where there is a dependency on international institutions. . . .
We want to bring ownership of the process back to the people, because
that is the only way the rule of law will become truly ingrained
in a society."
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