DePaul University*
The idea that Slobodan Milošević might be responsible for crimes in the violent dissolution of Yugoslavia was not an unusual notion. So the fact that Milošević was not indicted until 2001 for crimes committed in Croatia and Bosnia as early as 1991—crimes whose scope and violence were shocking and notorious—is, to say the least, perplexing. This chapter examines that delay, which developed in three phases: the effective impunity during the early war years when peace plans were being repeatedly negotiated; the withdrawal of implicit protection from the Bosnian Serb leadership with the consolidation of a “Milošević strategy” in 1995; and finally the abandonment of that strategy in the Kosovo crisis, which made indictment seem desirable. The delay thus resulted from a pervasive but misplaced logic of Realpolitik, which—believing that it is precisely the most dangerous and violent offenders who are most critical to the peacemaking process—posited a false dichotomy between the pursuit of peace and the pursuit of justice. The effect of this approach was to starve judicial mechanisms of funding, information, and critical support, pressures to which the ICTY Prosecution inevitably responded.
A trial is the culmination of many events: the discovery of facts, channeled through a formal legal process; an investigation to gather evidence; ultimately, the issuance of criminal charges. This process is commonplace in domestic systems, but is more complex and difficult to understand in international trials, which historically have been ad hoc, conditioned by political considerations and contingent factors that are seldom part of the public record. This was certainly true of the convoluted chain of events that led to the indictment of Milošević—or rather, that did not lead to his indictment. Given that he was ultimately charged with crimes committed as early as 1991—crimes whose scope and violence were shocking and notorious—why no indictment was issued against Milošević between the ICTY’s establishment in 1994 and the Kosovo war in 1999—nor even, apparently, an investigatory file opened*—is, to say the least, perplexing.
The idea that Milošević might be responsible for crimes in the violent dissolution of Yugoslavia was not an unavailable or even unusual notion; in fact, it had occurred to a great many people. In late 1992, for example—in the waning days of the Bush administration, but still early in the war in Bosnia—Lawrence Eagleburger gave his famous “naming names” speech, in which he announced that the United States had identified Milošević, among others, as a suspected war criminal who should be tried for his actions.† Other actors likewise made the case that Milošević could, and should, be charged with crimes for his actions in Croatia and Bosnia.1
There was also an institutional framework that made an indictment thinkable. In 1992, a few months before Eagleburger’s speech, the Security Council had established a Commission of Experts, which investigated and first reported on war crimes in the former Yugoslavia in 1993, as well as issuing a Final Report in 1994;2 before the Bosnian and Croatian wars were over, a functioning Tribunal was in place, with jurisdiction that clearly allowed for prosecution of senior political figures such as Milošević. These institutions constituted a breakthrough in international criminal law—the missing link, in a sense, between Nuremburg and Tokyo and the post–Cold War world, in which tribunals have proliferated. ICL had reappeared on the scene of international relations.
But this revivified pursuit of ICL was not without political limitations. As the story of Milošević’s much-delayed indictment shows, Realpolitik remained paramount: The pursuit of ICL had to be subjected to the perceived imperatives of international diplomacy.3 The journey to indictment was long because of divisions between the major powers—divisions based on a misplaced belief that peace and justice are incompatible and that the only possible avenue to peace requires a moral equivalency between the warring parties—and the concomitant unwillingness of those powers to support a judicial process as part of peace negotiations. A study of that journey shows us that when peace is pursued at the expense of justice, the world is left without either. Those responsible for committing atrocities will continue to commit them, perceiving—accurately—that it is precisely their capacity for atrocity that makes them valuable peace partners, in a perverse cycle of abuse and accommodation. Offers of impunity and bluffs of prosecution—the tactical legal tools of Realpolitik—can create a veneer of peace and justice, but not the real thing.
The journey to Milošević’s indictment started with Resolution 780, creating the Commission of Experts,4 but even the Resolution had its own political history that affected what followed. The graphic, well-publicized incidents of concentration camps and ethnic cleansing—so redolent of the Second World War and coming so soon after the end of the Cold War, with the renewed florescence of interest in internationalism and the UN5—provided an impetus to treat the violence not only as a political or diplomatic problem, but as a problem of law. During the summer of 1992, British and French media released reports of detention camps, provoking public outrage and resulting in the London Conference, at which representatives of 20 states and leaders of the former Yugoslav republics met to resolve the violence.6 In September, Germany’s foreign minister, Klaus Kinkel, first proposed before the UN General Assembly that a tribunal be established;7 although this was not done for another year, the Security Council—which had already characterized its concerns about the conflict in terms of international humanitarian law8—created the Commission in October.9
In negotiations, the United States pressed for an active Commission capable of investigating the ongoing atrocities, but the United Kingdom and France had no intention of actually creating an effective Commission: These countries insisted that the Commission be funded only from existing UN resources, instead of providing funds in the Resolution.10 This effectively reduced the possibilities for independent investigation and made difficult the collection and preservation of information that could have been used as evidence in indictments.11
Why were two of the Commission’s putative supporters so opposed to it in practice? The U.K. and France resisted an active Commission for fear it would adversely affect peace negotiations.12 At the London Conference, Lord David Owen, the former British Foreign Secretary representing the European Union, and Cyrus Vance, the former U.S. Secretary of State representing the UN, had been given responsibility for negotiations. Lord Owen was eager to obtain a political settlement, even at the cost of justice for the victims; an activist Commission might reveal information embarrassing to the leaders with whom he was negotiating, preventing the kind of political horse trading that had achieved peace in the past.13 Owen’s thoroughgoing realism—and, implicitly, his accomodationist assumptions about the power of local actors—is evident in a notorious moment of rhetorical deflation when, in his capacity as European Community negotiator, he cautioned the populations whose future he was negotiating, “Don’t, don’t, don’t live under this dream that the west is going to come and sort this problem out. Don’t dream dreams.”14
Further motivating the British and the French to minimize any potential provocation of Belgrade were the two countries’ large contingents in the United Nations Protection Force (UNPROFOR).15 With its peacekeeping mandate, UNPROFOR lacked adequate artillery, armor, and air cover; forces were broken into small units, making them vulnerable to local forces. They were, for all practical purposes, held hostage to the war.* But the troops were nonetheless there, allowing the U.K. and France to exert influence over the UN operation, which they did both to affect the debate over the Commission, and later to persuade other members of the Security Council to vote in accord with their draft resolutions regarding UN involvement in the former Yugoslavia.†
Beyond their most immediate concerns about force protection and a negotiated peace, the British and French had larger geostrategic interests that affected the pursuit of judicial investigations. Both wanted to gain influence in the post–Cold War world in which the United States was the dominant power and unified Germany newly resurgent. A positional logic therefore encouraged them to oppose what Germany and the United States supported, and their military commitments gave them the political capital to counterbalance the German and American role.16 This is not to say the French and British were unconcerned by the reports of ethnic cleansing or unaware of Milošević’s role—indeed, their peace negotiations were implicitly premised on recognition that leaders such as Milošević were in a position to control the violence on the ground. But their strategic interests provided them further reasons to oppose an active Commission that might have focused blame on the senior Serb leadership, whom they considered essential to negotiations that, they believed, would both bring peace and further those interests.
For their part, the United States and Germany had their own reasons to support the Commission’s work. President Clinton had not fulfilled (admittedly ambiguous) campaign promises concerning U.S. intervention in the former Yugoslavia, which Secretary of State Warren Christopher opposed.17 Supporting the Commission was a way of showing that the United States was doing something and had moved beyond the position enunciated by former Secretary of State James Baker, who had summarized American policy in his oft-cited statement: “[W]e don’t have a dog in this fight.”18 In addition, UN Ambassador Madeleine Albright was personally invested in perpetuating the legacy of Nuremberg.19 German support, similarly, was in part a function of its domestic political culture and foreign policy goals; Germany’s eagerness to recognize Croatian and Slovenian independence and resist Serbian aggression likely relates to its own image after World War II.20 More generally, to the degree the Commission was likely to reveal large-scale Serb criminality, it served the interests of states seeking to counter Serb hegemony and support their own newly independent clients in the region. *
Serbia had a powerful supporter in Russia, a traditional ally but also one with economic interests, including being the primary arms suppliers to the Serbs.21 Russia opposed any interventionist precedent as it was engaged in its own conflict in Chechnya and was concerned about the fragility of its own federation.22 Thus although Russia did not oppose the creation of the Commission, it had little enthusiasm for it. Other European states had strategic and parochial interests that hampered the formation of consensus around active investigation.23
All of these external actors had a stake in the final outcome, and none wanted an expansion of the war; all were therefore sympathetic to, or at least acquiescent in, peace negotiations as a preferable option. Peace between Serbia and Croatia was possible, but Bosnia was a more difficult problem, and the negotiators’ proposals to divide control reflected the seemingly incompatible agendas of the warring parties.24 In this context, a robust criminal investigation was inconvenient for those parties most invested in finding a negotiated solution: Bosnia could not appear to be the victim of ethnic cleansing, systematic rape, and crimes against humanity, because a victimized nation could hardly be sacrificed to the aggressors.25
Still, although the Commission of Experts had little support, it had a mandate. With grants from foundations, the Commission was able to begin its work with a volunteer staff of attorneys and law students; later, a number of states established a UN trust fund to pay for exhumations and interviewing.† Equally critically, by the time the Commission was established, the wars had begun to settle into clear, in some areas even static patterns. The fronts in Croatia had largely stabilized. In Bosnia, the situation was still quite fluid, but many of the fronts were delineated early on and remained relatively fixed. This meant that investigation was marginally more possible.
In this context, the Commission set about exhuming mass graves (with the help of 35 Dutch soldiers), performing forensic examinations, and interviewing refugees.26 A 40-member all-female team of attorneys, mental health specialists, and interpreters interviewed 223 female rape victims and witnesses.27 One commissioner compiled a report on ethnic cleansing in Prijedor, based on some four hundred interviews with witnesses.28
These investigations began in the fall of 1993, but in December, the Commission was notified by UN Legal Counsel that its mandate would be terminated on 30 April 1994.29 Thus, all the evidence based on on-site investigation was to be completed in about six more months.* This timetable prevented the examination of many rape witnesses and the exhumation of the Vukovar mass grave site due to the Croatian winter.30 It is possible this was done because by then the Tribunal had been established and the UN wished to avoid redundant institutions.31 Still, it was not clear to me at the time why the mandate of the Commission was terminated so quickly—after all, the ICTY, itself barely funded, was also adversely affected when the Commission was arbitrarily cut off while there was still work to be done—and to this day I cannot explain it.32
Still, even those abbreviated investigations indicated that Owen’s concerns were justified. What those investigations revealed—amid details of killing, imprisonment, deportation, rape on all sides—was a predominance of crimes committed by Serb forces, in consistent patterns pointing to the FRY. Milošević’s fingerprints and footprints were all over the wars in Croatia and Bosnia; all of the evidence suggested his role was either as a mastermind of the overall strategy or the one approving specific aspects of it.33
The evidence in the Commission’s Final Report showed that the wars in Croatia and Bosnia involved policies of ethnic cleansing and of systematic rape by Serb forces,34 and that those forces had operated with substantial support from the FRY. Throughout the Bosnian war, the JNA and then VJ had been closely involved, supplying the VRS with weapons and ammunition; the VRS itself was commanded by former officers of the JNA and VJ—including senior officers seconded from Belgrade, where Mladić himself was still listed on the officer rolls.† This was one of the early ploys employed by Milošević as a way to retain plausible deniability for Serbia’s involvement in the Bosnian war, but it would have been impossible for the Chief of Staff of the VJ to supply the VRS and Serb paramilitary groups so extensively without Milošević’s knowledge.
Of particular note is the statistical study the Commission made on the shelling of Sarajevo.35 The Annexes of the Final Report note on a daily basis the number of shells fired, targets hit, and casualties produced. Part of the study tracked the daily shelling as against political negotiations: During the ongoing Vance–Owen negotiations, shelling would go down as negotiations progressed positively; when agreements were reached at Geneva, New York, or Paris, Serb shelling would drop to nothing. Conversely, when negotiations failed, the rate would escalate, sometimes to three thousand shells a day. The correlation between the rate of shelling and political negotiations involving all three sides—often Milošević, Tuđman, and Izetbegović or their representatives—could not have occurred if there was no direct connection between Milošević’s and the Bosnian Serbs’ positions during these negotiations, with the shelling serving as an element of punishment or reward that the Serbs inflicted on the Bosniaks.*
All of this was carefully documented in the Commission’s Final Report—its 3,500 pages of Annexes, 74,000 pages of documents, 300 hours of videotape, and 3,000 photographs—which was made available to the Prosecution of the new ICTY. At the time, the Prosecution claimed that the information may have been unreliable due to chain of custody or witness reliability issues,36 but even if this were true, the information in these documents could have provided the foundation for new investigations. Taken as a whole, it provided a comprehensive picture of Milošević’s responsibility, and could have formed the basis for an indictment—but this did not happen.
Controversial as the Commission’s investigative mandate was, it did not provide any mechanism to prosecute individuals or even recommend prosecutions. Rather, Resolution 780 requested the Secretary General, “to report to the Council on the conclusions of the Commission of Experts and to take account of these conclusions in any recommendations for further appropriate steps[.]”37 By early 1993, the deepening crisis in Bosnia and the Commission’s interim report had paved the way for just such a mechanism. As expectations for Owen’s peace option waned, there was renewed pressure to take what was seen as the logical next step. The establishment of the Tribunal that May was a further victory for the revival of ICL—but one that also shows the continued influence of Realpolitik in prioritizing peace over justice.
States that had combined rhetorical support for the Commission with quiet efforts to limit its effectiveness continued this strategy with the Tribunal. The same financial constraints were evident, and states retained their power to give or withhold information critical to building cases against senior leadership.38 Yet even before this, the year and a half that it took to appoint a Chief Prosecutor provides perhaps the clearest example of indirect constraint. The initial appointee, Ramon Escovar Salom of Venezuela, formally held office from October 1993 to February 1994 but evidently was never in a position to actually begin work—a factor that, far from being a surprise, appears to have been considered a positive qualification for the job.* Richard Goldstone was not appointed until August 1994, and so long as there were no actual investigations or indictments, there was nothing to obstruct.
Moreover, in selecting Goldstone, the major powers chose a particular person with a particular approach. Goldstone was a politically astute individual, and very concerned with ensuring the existential survival of the ICTY as an institution. He recognized that the straightest path lay in having trials, and this necessarily meant going after the kinds of individuals who could be readily acquired. A different logic, of course, might have counseled pursuing those most responsible,† indicting them promptly, and waiting for events, but the first indictments were—the language of the Resolution 827 and the Prosecution’s stated intention of pursuing the most responsible nothwithstanding—mostly aimed at low-level perpetrators.39 There is no evidence of direct interference by the major powers in Goldstone’s prosecution strategy, but neither is there evidence of any effort to encourage him to pursue higher-level cases from the outset. For those interested in pursuing a negotiated peace as the highest priority, Goldstone’s approach posed no contradiction.
The major powers’ continuing priority was a political settlement that would stop the fighting, and to achieve this, they were prepared to negotiate with the same individuals the Commission and Tribunal inevitably needed to investigate. These people—Milošević, Tuđman, Karadžić, Mladić—were being treated by major states and the UN as consequential leaders, and indeed their significance and influence was only increasing; Milošević was even received at the Élysée.40 It was this prioritization of peace over justice that led to so many bureaucratic and financial hurdles being thrown in the Tribunal’s way, preventing it from obtaining evidence of criminality. As a result, although the Commission’s Interim Report had brought the atrocities to light and helped to develop political momentum for establishing the ICTY,41 the Tribunal that resulted was, like the Commission, initially toothless.42
Concerns with protecting peace negotiations had led to restrictions on the Commission at its founding; those concerns continued to affect the Commission’s work, the reception of its findings, and the work of the ICTY. Lord Owen had adopted a negotiating strategy premised on treating all three sides equally and establishing “moral equivalency” among them. Owen feared that war crimes investigations would threaten this effort, because he was concerned—accurately, as it turned out—that investigations would show the Serbs had committed most of the crimes, followed by the Croats, with the Bosniaks being the principal victims.
In my work with the Commission, I had one particularly illustrative meeting with Lord Owen. After being told that the Commission had investigated one mass grave of 200 Croat victims killed by Serbs and one mass grave of 39 Serbs killed by Bosniaks, Lord Owen replied, “Professor, you have to investigate three mass graves of 200 each, do you understand?”43 This was a classic instance of Realpolitik: “equivalency” really meant disregarding the possibility that there were victims and perpetrators, only actors with influence on the possible outcome.
Nor was this even true neutrality: Owen in effect adopted the Serbian propaganda narrative that the conflict was based on ancient hatreds and that the warring factions were equally responsible for the violence, because it served his ends to seek peace without having to concern himself with justice for victims.44 This was taking the UN goal of maintaining impartiality too far—attempting, not merely to eschew any one party’s preferred narrative, but to establish an alternative truth and act upon it.45 The effect, of course, was to make even more concrete the role of those most capable of creating violence as partners in negotiating peace.
Although it had supported the Commission and the Tribunal, the United States was actually rather hesitant about aggressively pursuing investigations into crimes and human rights violations in the former Yugoslavia. President Clinton had campaigned on a “lift and strike” strategy of lifting the arms embargo on Bosnia and launching air strikes against the Bosnian Serbs, but in office his administration initially exhibited little appetite for robust military intervention, showing an inclination toward restraint—and equivalency—similar to that experienced by the British and French.
When, from 1994, the United States and its NATO allies increasingly weighed in on the side of Croats and Bosniaks, one might have expected—still following the logic of Realpolitik—calls for the newly established Tribunal to actively investigate the senior Serb leadership. Support by the United States for the Tribunal and other investigatory initiatives in 1994 and 1995 was fairly substantial: three million dollars for a computer system to handle the flow of evidence46 and 22 lawyers and investigators seconded to work in the Prosecution.47 But although the United States supported the Tribunal as an institution, its commitment to the Tribunal was, in significant part, tactical.
The reason, and the reasoning, is familiar: a logic derived from Realpolitik and incentives created by a push for a peace settlement, which combined to push concerns of justice off the negotiating table. In many respects, of course, the U.S. approach was very different from Owen’s: It was robust and militant. The U.S.-brokered Croat–Bosniak alliance and NATO bombardment had dramatically altered the military balance to the Serbs’ detriment—so much so that in effect the stalemate in Croatia was broken and the problem of the RSK effectively, if brutally, nullified. Within Bosnia too, the military balance had shifted, with Serb-held areas in the west falling to Croat and Bosniak forces, but also Bosniak safe areas along the Drina falling to the Serbs, and Sarajevo vulnerable. These situations represented strategic obstacles to consolidated ethnic territories, and to a peace settlement; even if it was allied with one side, a U.S. administration focused on achieving a settlement had to bring all sides to the negotiating table.48
Thus, at Dayton, Richard Holbrooke—despite a very different approach to diplomacy and vastly stronger resources to bear—ended up following a surprisingly similar line to the equivocal Owen. Milošević became the essential guarantor of peace, displacing the RS leadership, which now became expendable to the United States. His cooperation was essential, and more valuable than whatever might have been gained from his prosecution. Karadžić and Mladić had been recently indicted, of course, and the United States declared them personae non gratae at the conference—but this represented less a commitment to justice than a function of the U.S. Milošević-centered strategy.*
Indeed, Washington considered giving up the ICTY entirely at Dayton, as its perceived value—to goad Milošević to the negotiating table—had been achieved.49 Now that negotiations were underway, little was to be gained by actually empowering the Tribunal to pursue the principals upon whom peace depended. The Dayton Accords affirmed an obligation to cooperate with the ICTY,50 but contain no enforcement mechanisms. The United States refused to include clauses establishing a police force to enforce ICTY warrants or aid investigations, despite a plea from Judge Cassese.51 Although NATO had primary authority for security in Bosnia, its forces were not given a clear mandate regarding arrest and transfer of indictees52—something that the United States could have secured if it had wanted to—and it quickly became clear that NATO was not making arrest of indictees a priority.53
There has long been speculation that, at Dayton, Holbrooke offered Milošević a pledge that the United States would discourage investigation of him by the ICTY.† There is no evidence that Holbrooke did this, and it is impossible to prove the negative. My guess—and it is only that—is that just such a message was conveyed, but in any event, an explicit guarantee would hardly have been necessary: The failure to include meaningful enforcement mechanisms would have signaled as much to Milošević.54 So, too, would the evident logic of the U.S. negotiating strategy: It would not behoove the United States to indict the man it was relying on first to maintain peace. As Holbrooke stated before the Dayton negotiations, “you can’t make peace without President Milošević.”55 By the realist-cum-accomodationist logic under which Dayton was agreed, the very fact that U.S. officials knew Milošević was responsible for many of the crimes in Bosnia made him all the more valuable as an interlocutor—and that knowledge, in turn, was incompatible with an assertive policy of supporting justice.
Although the killings, rapes, ethnic cleansing, and other crimes in Bosnia and Croatia were well documented—even as they were ongoing—they did not lead to Milošević’s indictment.56 That, as Williamson discusses, occurred only much later, and the reasons the indictment came when it did further illuminate our understanding of why it did not come earlier.
In responding so brutally to the challenge of the KLA from 1997 on, Milošević implicitly relied on the same congeries of factors that had governed events, and protected him, in the early 1990s: the divisions within Europe, the wariness of major Western powers to get militarily involved in the Balkans again—perhaps, too, those speculative assurances—and Russian protection at the Security Council. This proved a miscalculation, however: This time the United States acted forcefully and effectively, through NATO, to confront Milošević.57 Russia’s veto power proved no brake on NATO, which simply acted without Security Council authorization.
The Western world had seen what happened to Bosnia and was not going to stand idly by as Milošević did the same thing in Kosovo.58 In part, the shift in U.S. and British attitudes was a function of changing personnel: Albright, who became the U.S. secretary of state in 1997, adopted a more confrontational approach than her predecessor, Warren Christopher, and was also more passionate about pursuing ICL; in May 1997, the Labour Party came to power in the U.K., likewise infusing a new will to prosecute war crimes.59 But viewed from a realist perspective, this explanation simply begs the question of why these voices now proved persuasive, why the West—which had, after all, known about the atrocities in Bosnia and Croatia long before it acted—took a different path now.
The shift was a function of the Dayton logic running its course. Milošević had been essential to a peace deal, and, at the start, to its maintenance; but two years on, Croatia’s security were assured, as was NATO’s control of Bosnia. There was no longer any need for policy makers to ignore what they knew about his responsibility—knowledge that, earlier, had been the very basis for their belief in Milošević’s essential role. Milošević simply was not needed anymore.
Once Milošević ceased to be useful, his ability to cause trouble now was simply that: a threat to be dealt with. When Milošević began to crack down on the KLA and the ethnic Albanian population of Kosovo through increasingly harsh police and military measures, the Clinton administration and leading states in NATO now perceived those actions as potential threats to the broader regional stability they had so recently secured. Their response, compared with their inaction during the Bosnian war, was rapid, reaching to the brink of military intervention by the fall of 1998, and to actual war in March 1999.60
Along with military action came a new readiness to see justice be done; with the shift in U.S. and British attitudes at the beginning of the Kosovo crisis, the Prosecution began to receive more support for the possibility of investigating Milošević. During the bombing campaign, prosecutors received extensive intelligence from the United States, including satellite imagery. Even more important than the material support, however, was the implicit greenlighting, the signal that the formerly divided states of the West were willing to see an investigation proceed and, by the time of the actual conflict, increasingly eager to assist it.61
The result was the period of forthright and purposeful activity, under Arbour’s direction, leading to a speedy indictment that Williamson describes.* The very speed and efficiency of that process, however, simply returns us to the question of why indictments for Milošević’s other actions, in other wars, had not been pursued in the same way.
The puzzle with which we began thus has contours that we can understand as phases in which Realpolitik interacted with and influenced the work of the Prosecution: first, a period in which the Bosnian Serb leadership and Milošević were considered necessary partners, during which the idea of indicting any of them was problematic; then, from 1995, withdrawal of this implicit protection from the Bosnian Serb leadership as the war wound down, leaving Milošević in an even more important—and untouchable—position; and finally the abandonment of a now-unnecessary Milošević with the rising crisis in Kosovo. This sequence describes not only the foreign policy perspectives of the United States and its NATO allies, which are clear enough, but also explains the puzzle of non-indictment, once one accepts the influence of those foreign policy interests on the decisional processes of the Prosecution.
Admittedly, getting proof sufficient for an actual trial would have been daunting even with the full cooperation of the major Western powers, and as we have seen, they had been unwilling to cooperate with the Tribunal so long as they viewed Milošević as a necessary negotiating partner for peace.62 Demonstrating Milošević’s role as the principal architect of these crimes would have required access to documents and insider witnesses available only in Belgrade and, to a lesser degree, in the Serbian areas of Croatia and Bosnia. Indeed, as Williamson acknowledges, the actual indictment, when it came, still relied on a strategy of turning Milošević’s former allies against him—a strategy that was never fully successful, but which would have been unthinkable during the early 1990s when Milošević’s power was at its height. *
But even with these limitations, there were theories of liability that could have been explored even during the Croatia and Bosnia wars, or the years between Dayton and Kosovo—command responsibility, complicity, aiding and abetting, and JCE—theories that were ultimately used in the Bosnia and Croatia indictments and in other cases, including some brought at the time.63 These theories allow relaxed evidentiary standards compared to the locus classicus of perpetration.64 Command or superior responsibility, for example, can impose liability on a commander for actions his subordinates undertook, even if he did not order the actions or even know of them at the time.65 Complicity, aiding and abetting, and JCE likewise can allow lowered mens rea—as in the (admittedly controversial) view that JCE type III allows the genocidal intent of some members of the JCE to be imputed to others. So, once indictments were issued against Karadžić and Mladić for genocide at Srebrenica, for example—which happened in 199566—all that would have been required to charge Milošević with, say, complicity in genocide would have been a claim that he was in a position of de facto authority over Karadžić and Mladić or in a JCE with them. Just such a claim was in fact what the Prosecution alleged, five years later.*
As for the difficulty of acquiring insider witnesses, given that, even when the Kosovo indictment was issued—a time when Milošević was still firmly in power67—the Prosecution was counting on insider witnesses to come forward, it is difficult to see why an earlier Chief Prosecutor could not have similarly gambled on the transformative power of an indictment to force events.
But the Prosecution did none of these things. Even the materials the Prosecution did have—such as the work complied by the Commission of Experts—went largely unused. The reasons, as we have seen, have less to do with evidentiary standards, and more—nearly everything—to do with commitment: that is to say, with politics. Although politics play an integral part in bringing international criminals to justice—for without political will, functioning tribunals would never be established—the logic of Realpolitik has operated consistently to undercut the purpose of ICL, which is to bring about both justice and peace. Milošević’s indictment for Bosnia and Croatia was delayed because of misplaced reliance on Realpolitik as the only path to a peaceful resolution of the Yugoslav crisis. When peace was sought at all costs, as in Lord Owen’s negotiations and at Dayton, it became necessary to transform Milošević from war criminal into peacemaker—not because the other peacemakers were ignorant about what Milošević had done and was capable of, but precisely because they knew.68
The essential conceptual move required to undertake such a plan—required, even, to perceive of such a plan as worthwhile, rather than as profoundly misguided—is the assignment of moral equivalency to the parties. Moral equivalency made questions of justice extraneous to, even distracting from, the quest for peace based on a balance of power and nothing more.
The question, then, is if peace can be achieved any other way. To this the answer should be obvious: Of course it can. The choice of peace or justice must be recognized as a false dichotomy that undercuts the attainment of either. The mentality that perceives a necessary choice between the two disregards the lived reality of the populations among whom peace must be made and for whom justice often matters. The logic of Realpolitik purchases, at best, temporary, trucial solutions, but not lasting peace.
Such an attitude fails to recognize the practical, political effect that justice projects can have, and not only in the long term. Milošević miscalculated NATO’s resolve in 1999, but he did so at least in part because he had accurately understood the logic by which those same powers had operated in the earlier wars. Had Milošević thought that he would be called to account for the atrocities committed in Bosnia and Croatia in the early 1990s—had he not been transformed into a peacemaker, but rather faced condemnation and a meaningful threat of prosecution—he and his subordinates might well have been deterred from carrying out their plans in Kosovo.
In theory, the Prosecution could have pursued an investigation against Milošević without the support of the major powers, but this would have been asking a great deal from a weak, fledgling institution.69 Instead, it acquiesced in the political logic that had marked the Tribunal’s creation and its progress, and although this is blameworthy, true responsibility rests with those who championed that logic. The Commission of Experts’ contribution was underutilized, and available theories of liability were not pursued at the ICTY for the same reason: The powers that could have supported the Tribunal were instead pursuing a policy dependent upon a theory of moral equivalency, upon which their hopes for a purely political peace depended, but because of which justice seemed a dangerous luxury. But no peace can last, and no court prosper, under such a theory; ultimately, it must be the aim of the international community not to choose, tragically, between peace and justice, but to pursue both.