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The Milosevic Precedent Is One We Are Bound to Regret

Authors: Alton Frye, Presidential Senior Fellow Emeritus, and Peter Rosenblatt
July 16, 2001
Los Angeles Times

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The multiple indictments of Slobodan Milosevic testify to the evils he has fostered. Milosevic bears grave responsibility for the calamities visited upon the Balkans. He should be held accountable.

Yet the demand that he can be held accountable only at the international war crimes tribunal in The Hague is misguided. The imperative stance adopted by the tribunal's prosecutor, Carla del Ponte, reflects understandable outrage over the horrors perpetrated under Milosevic.

Outrage, however, is no guide to sound policy. The international community and the United States need to rethink the options for prosecuting Milosevic and their implications. Democratic processes have dislodged Milosevic from power and installed new leadership committed to a just constitutional order. Both Milosevic's successor, Vojislav Kostunica, and the new prime minister, Zoran Djindjic, argued that the former president should be tried in Belgrade, though Djindjic grudgingly yielded to international pressure and supported a decree authorizing Milosevic's extradition.

Their contention need not be considered an expression of national pride alone; the health of Serbian democracy depends fundamentally on the community purging its own demons. That means enabling Serbs to confront the crimes done in their name through a proceeding that unveils the full evidence of Milosevic's abuses, including those that inflicted so much bloodshed in Bosnia, Kosovo and elsewhere.

The untold suffering of his own people reinforces the claim for a Serbian court to address those abuses. As Kostunica put it recently, "In order for the people to realize what justice is, it should be in their hands, not in the hands of foreigners."

Such an elementary truth scarcely needs elaboration. The Serbs' legendary sense of victimization was reinvigorated by the NATO bombing campaign that made the entire country pay for the misdeeds of its leader. Allowing Milosevic to assume the mantle of martyr in a prosecution remote from the homeland and distorted through the prism of Serb nationalism would fortify that psychology.

Which brings us to the double-edged precedent that would be set if The Hague is seen as the only appropriate venue for trying Milosevic. That proposition amounts to a verdict, a priori, that the people and government of Serbia are incapable of rendering justice in this case.

Such a judgment, absent definitive evidence that Belgrade has not made a good-faith effort to prosecute the alleged crimes, flatly contradicts a central provision of the statute governing the planned International Criminal Court, or ICC.

Although a signatory to the ICC treaty, the United States is not likely to ratify the agreement any time soon, if ever, largely because of concern that U.S. soldiers or other citizens would be subject to its jurisdiction. The U.S. position is that it alone will try its own citizens who are charged with war crimes or comparable offenses.

In the ICC negotiations, the U.S. won approval of the principle of "complementarity"— a provision that the court will rule any case inadmissible if a state has undertaken appropriate action.

That principle would be vitiated if, as has come to pass, the current Hague tribunal forced Belgrade to hand over Milosevic before observing how the Serbs would deal with the war crimes charges against him. Such a precedent mocks the concept of complementarity.

The ICC will come into existence with or without U.S. participation. There is no avoiding the possibility that some day an American may be taken into custody in another country and come under

ICC jurisdiction. That American's right to a U.S. trial will hinge on the complementarity principle. Pressing Belgrade to deliver Milosevic to The Hague did not serve the U.S. interest in protecting that crucial principle.

The My Lai case is relevant here. The prosecution of Army Lt. William Calley for crimes committed in that woeful Vietnamese village was triggered by a single American soldier, whose report of hearsay prompted three members of Congress to demand an investigation. Would the American public have given credence to the My Lai proceedings if they had arisen from allegations, prosecution and verdicts by foreigners?

More important, would the American people have absorbed the terrible lessons of that episode if they had been imposed from abroad? One doubts it. In that self-awareness lies a proper appreciation of the dilemma surrounding prosecution of Milosevic.

The Serbs need and deserve the chance to try Milosevic themselves. If they botch it, there will be time enough, added justification and a sound legal basis for international prosecution. On crimes of this magnitude, there is no statute of limitations.

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