The Milošević Trial

26

Milošević and the Justice of Peace

ALEXANDER K.A. GREENAWALT

Pace University^*

The indictment and prosecution of Milošević are a microcosm for studying the complex relationship between the ICTY’s status as a judicial body and its mandate to promote peace in the Balkans. Although the ICTY can persuasively claim to have promoted the cause of peace, its experience provides at best ambivalent support for a universalized regime of criminal justice rooted in the neutral application of impartial legal norms by legal professionals. Instead, the Tribunal presents a study in contingency, highlighting both the importance of external events in giving life to the institution’s mission and, more problematically, the critical role of prosecutorial discretion rooted in extralegal considerations.

The ICTY is a judicial body. It is also an instrument of peace, established by the Security Council to safeguard international peace and security. What does it mean to occupy this dual role, and how should the broader goal of peace inform the Court’s day-to-day execution of its judicial function? The question points to a tension in the ICTY’s mandate that has defined the history of both that institution and the evolution of international criminal justice. It is a question that also stands at the center of Prelec’s chapter.

For Prelec, the Milošević trial is evidence of an institution that has lost its way. With events on the ground having eclipsed its original mission to create and maintain peace, the Tribunal embarked upon a more elusive mission of “individualizing guilt [to] break[] cycles of collective recrimination and pave[] the way for reconciliation.”¹ Ironically, argues Prelec, the pursuit of these goals has led to their perversion, as the Milošević trial reveals the Prosecution’s commitment to a preconceived image of the “butcher of the Balkans” who masterminded the worst atrocities in the conflicts that accompanied the breakup of Yugoslavia in the 1990s. This preconceived Milošević has lingered in the public imagination of the trial notwithstanding the emergence of a detailed, if largely ignored, evidentiary record that paints a far more nuanced view of Serbia’s late president. The actual Milošević of Prelec’s narrative bears deep moral responsibility for the perpetration of great evils, but—at least with respect to atrocities committed during the wars in Croatia and Bosnia—his responsibility was neither as direct nor as readily translatable into the language of criminal guilt as is commonly thought.

Whether or not one endorses this account of Milošević’s responsibility, it is worth considering that, for Prelec, what originally drives the Tribunal’s turn toward narrative is the seemingly successful completion of the court’s original mission to facilitate peace.* The years during which the ICTY has operated have seen dramatic and positive developments in the states of the former Yugoslavia. When the Tribunal was established, the region was at war; today, 18 years after Dayton ended the war in Bosnia, and more than a decade since the resolution of the conflicts in Kosovo and Macedonia, those states are at peace, despite intermittent turmoil. In Croatia and Serbia, the politics of aggressive, ethnic nationalism have given way to moderate governments focused on integration into European institutions rather than stoking ethnic tensions; Serbia, in particular, has managed to maintain this course notwithstanding Kosovo’s 2008 declaration of independence.^† Despite ongoing constitutional crisis, Bosnia does not seem likely to revert to war. The prospect that the states of the former Yugoslavia may once again share a common border—that of the European Union—is a real one.

What role, if any, has the ICTY had in these developments? Prelec’s account of the evidentiary record starts with the establishment of peace in the Balkans: It was the realization of the Tribunal’s original goal that, in his view, complicated its future work by forcing it to pursue other, more elusive rationales. Prelec thus takes the fact of peace as a given, without making assumptions about its causal relationship to the Tribunal, but the ICTY’s relationship to peace is in fact a complicated one that deserves attention in its own right. On the one hand, the ICTY would appear to be a dramatic success story for those who argue that justice is necessary to peace. The Tribunal, of course, is not wholly or even principally responsible for the improved states of affairs in the former Yugoslavia, but it can credibly claim to have played a positive role in those developments.

At the same time, however, the Tribunal’s success—such as it is—was, whether by accident or design, achieved in ways that are in tension with values many international lawyers hold dear. In particular, the Tribunal’s history provides at best ambivalent support for the sort of institutional model that has figured prominently in the rhetoric of supporters and practitioners of ICL—namely, that of a universalized regime of criminal justice rooted in the neutral application of impartial legal norms by legal professionals.^‡ Instead, the ICTY’s apparent contribution to peace presents a study in contingency, highlighting both the importance of external events in giving life to the institution’s mission and, more problematically, the critical role of prosecutorial discretion rooted in extralegal considerations.

The indictment and prosecution of Milošević provide a microcosm of sorts for studying the ICTY’s complex relationship to peace in the Balkans. Although the Milošević trial may have eventually served the cause of peace, that result was neither inevitable nor predictable given the trial’s institutional context. A review of the ICTY’s history points to deep tensions between the ideal of criminal justice and the court’s peacemaking function; it also raises difficult questions about the extent to which prosecutors and judges at international tribunals should take account of their institutions’ broader political impact in their decision-making process. Seen from this perspective, the difficulties Prelec examines may be less a departure from the Tribunal’s peacemaking role than a manifestation of the tensions that role has created.

I. A Creature of the Security Council and the Law

The pursuit of peace is a foundational goal of the ICTY. The Security Council resolution establishing the Tribunal placed special importance on this goal, stating the Council’s conviction that “the establishment as an ad hoc measure by the Council of an international tribunal and the prosecution of persons responsible for serious violations international humanitarian law … would contribute to the restoration and maintenance of peace.”2 That determination was, in fact, necessary to the Tribunal’s legality, as the Council had no authority to establish a criminal tribunal except as a measure to “maintain or restore international peace and security” under its Chapter VII powers.³ Thus, from its inception, the ICTY’s legitimacy has hinged to an important degree on a link between criminal justice and the pursuit of peace.

The Council’s assertion of that link was not free from controversy. In the ICTY’s first case, Tadić, defense counsel argued that the Tribunal lacked jurisdiction because the establishment of a court was outside the permissible scope of Chapter VII.⁴ The argument failed, and the court’s Appeals Chamber ruled that it was for the Security Council to determine whether establishing an international criminal tribunal was in fact conducive to peace.⁵ But in reaching that conclusion, the Chamber did assert one important qualification on the Council’s power: It rejected the Prosecution’s (and Trial Chamber’s) position that, as a creation of the Security Council, the Tribunal lacked authority to assess the validity of its own creation.⁶ Instead, the Chamber reasoned that the Council, in deciding how to secure international peace and security, specifically established “a special kind of subsidiary organ: a tribunal.”⁷ As such, the ICTY was possessed of the powers inherent in judicial bodies, including the power of Kompetenz-Kompetenz, allowing it to assess for itself the scope of its own authority.

Although in Tadić the Chamber focused on a specific question of jurisdiction, its reasoning also raises a broader question concerning the nature of the ICTY’s role in promoting peace in the former Yugoslavia: To what extent does the Tribunal’s judicial character allow it take specific cognizance of its peacekeeping mandate? May the Prosecutor and judges consciously consider, on a case-by-case basis, whether their decisions are likely to promote peace in the Balkans? Or must the Tribunal operate according to a more neutral set of context-independent criteria, taking as given the Council’s original determination that a judicial body—this particular judicial body—is in fact conducive to peace? In one form or another, this question has dogged the ICTY’s operations from its establishment.

II. Prosecution without Peace

The Tribunal’s early years proved inauspicious for its pacific aspirations. With war continuing to rage in the Balkans, skeptics labeled the Tribunal a fig leaf, a symbolic effort designed to deliver the appearance of concern and commitment when in fact the world’s powers were not yet prepared to undertake the military intervention that, some two years later, would decisively end hostilities.8 With no way to reach the major perpetrators, most of whom remained in power, the ICTY’s first cases focused on low-level suspects who happened to become entangled in the Tribunal’s nets.^*

Notwithstanding the Security Council’s determination that a tribunal would “contribute to ensuring” that violations of international humanitarian law would be “halted and effectively redressed,” there was always reason to doubt that the ICTY could actually promote peace in the Balkans through direct deterrence.⁹ As Justice Jackson noted in his opening speech as Prosecutor at Nuremberg, deterrence is unlikely to prove significant “where the warmakers feel the chances of defeat to be negligible.”¹⁰ One does not become a Milošević or a Karadžić without being willing to engage in high-risk behavior, and there are, of course, other risks associated with committing mass atrocities compared to which prosecution in The Hague is relatively attractive.¹¹ In any event, hopes of serious deterrence were quickly dashed as atrocities continued unabated: The massacre of some eight thousand Bosnian Muslims at Srebrenica occurred more than two years after the Security Council resolved to establish the Tribunal.¹²

III. Milošević as Peacemaker

In light of these underwhelming beginnings, it is perhaps more appropriate to mark the conclusion of the Dayton Accords as the Tribunal’s true beginnings, for it was then that the ICTY’s contribution to peace became more plausible. But it was then, also, that the ICTY’s relationship to peace became more problematic, raising tensions between the pursuit of peace and the maintenance of the Tribunal’s judicial character highlighted by the Tadić Appeals Chamber.

According to one account—that of the first Prosecutor—the ICTY helped guarantee the success of Dayton. Four months before the presidents of Bosnia, Croatia, and Serbia negotiated a definitive conclusion of the Bosnia conflict, and shortly after the Srebrenica massacre, the then-ICTY prosecutor, Richard Goldstone, obtained indictments against Karadžić and Mladić for crimes against humanity and war crimes.13 The Court then issued an additional indictment during the Dayton negotiations, focused specifically on Srebrenica and charging genocide in addition to the other offenses.¹⁴ Goldstone has written that news of the impending peace talks led him to hasten the Srebrenica indictment,¹⁵ and has assigned a broader political significance to the timing of the charges as a whole, arguing that “without the indictment of Dr. Karadzic and General Mladic, there would have been no Dayton Agreement.”¹⁶ Goldstone’s reasoning emphasizes that the indictment led to the exclusion of Karadžić from the Dayton negotiations.^* This exclusion, according to Goldstone, facilitated the success of those talks because, as confirmed to him by Bosnia’s former foreign minister, “had Dr. Karadzic been free to go to Dayton, the Bosnian government would not, in the aftermath of Srebrenica, have attended the Dayton proceedings.”¹⁷ Thus, by marginalizing the two most notorious Bosnian Serbs, the indictments secured a negotiating environment that was conducive to agreement.

Although it is reasonable to assume that the possibility of prosecution—of Karadžić and Mladić specifically, but also of others—made concessions more palatable to Bosnia’s government, including the recognition of a Bosnian Serb entity on territory ethnically cleansed of Muslims and Croats, there is also reason to be skeptical about Goldstone’s logic. It was in the United States’ interest to marginalize the Bosnian Serb leadership irrespective of any indictment.¹⁸ As Bassiouni also discusses, the United States preferred to deal directly with Milošević, who manifested a greater commitment to the peace process and who, on account of his own enormous leverage over Bosnian Serb affairs, could reliably be held accountable for ensuring Dayton’s enforcement. Even before the indictment of Karadžić and Mladić, U.S. officials had abandoned negotiations with the Bosnian Serb leadership; the late Richard Holbrooke, who served as chief U.S. negotiator at Dayton, believed those talks had proven “dangerously unproductive” and the experience led him to endorse a “strategy of negotiating solely with Milosevic.”¹⁹ “While we did not want to elevate Milosevic to statesman status,” Holbrooke elaborates, “we planned to negotiate only with him and, at the same time, hold him strictly accountable for the behavior of the Bosnian Serbs.”20 For similar reasons, it was Croatia’s President Tuđman, rather than the local Bosnian Croat leadership, who participated as the Croat counterpart to Milošević and Izetbegović.²¹

Goldstone’s account is nevertheless remarkable for what it implies about the relationship between international justice and peace. Taken at face value, the account is troubling for a pure judicial model of international justice that promotes peace simply through the ordinary and neutral application of the law. Instead, it points to a highly contingent success, one dependent upon some combination of prosecutorial strategy and serendipity. The fact that Karadžić and Mladić were widely blamed for systematic atrocities is not unrelated to their being an impediment to peace—surely the Bosnian government would have had less trouble negotiating with leaders who had committed themselves to the politics of tolerance rather than to ethnic cleansing. Yet neither is the claimed utility of their indictment reducible to a question of their guilt or innocence. Although Goldstone does not say it, the very argument he invokes to justify the Karadžić and Mladić indictments also renders it highly convenient that, by the time the Dayton negotiations started, the ICTY had not yet indicted Milošević for participation in the very same crimes of which it accused Karadžić and Mladić—even though, a few years later, the Prosecution did exactly that. By 1995, Milošević had—deservedly or not—long cemented his reputation as the “butcher of the Balkans,” but the logic of Dayton necessitated some rehabilitation of the Serbian leader as a critical guarantor of peace in Bosnia. Goldstone’s argument, in other words, reveals no necessary relationship between criminal guilt and the frustration of peace.^*

Concern that Milošević might be exempted from prosecution only deepened as the next four years failed to produce an indictment against the Serbian leader. Perhaps not coincidentally, the years immediately following Dayton were the period in which the ICTY could most plausibly claim a role in facilitating peace. With NATO troops deployed on the ground to buttress a political settlement rooted in power sharing between Bosnia’s ethnic groups, transfer to the ICTY provided a convenient means of incapacitating many of those most hostile to the international effort.²² Some, like Karadzić and Mladić, evaded capture but found themselves driven into hiding and evicted from power as Bosnian Serb politics moved in a more moderate direction.^† For one scholar, these developments evidenced a “new realism” about international justice, one rooted in the realization that “the removal of leaders with criminal dispositions and a vested interest in conflict makes a positive contribution to postconflict peace building,” and that “[i]n concert with other policy measures, resort to international criminal tribunals can play a significant role in discrediting and containing destabilizing political forces.”23

One could tell a similar story about Milošević’s incapacitation a few years later,²⁴ but it’s worth asking if this optimistic narrative would have remained plausible had the Tribunal moved against the Serbian leader in the early years of Bosnian peace, or even during the war, when Milošević was at the height of his power and was thought indispensible to a settlement. In this respect, Prelec’s account suggests an apolitical explanation for the Prosecution’s six-year delay in bringing charges: The evidence tying Milošević to crimes in Bosnia and Croatia was simply not there. At the same time, it remains unclear how committed the ICTY actually was to developing its case and amassing the evidence necessary to support an indictment.^*

In her memoir and her chapter, former chief prosecutor Del Ponte recalls being surprised upon her arrival at the Tribunal by the weakness of the Prosecution’s evidence against Milošević for crimes in Bosnia and Croatia.²⁵ Yet, even though by that time Milošević had already been indicted for crimes in Kosovo, Del Ponte found her senior staff reluctant to invest significant time and resources, preferring instead to focus on those cases that, in their view, had a realistic chance of coming trial.²⁶ If not evidence of overt Realpolitik, this account suggests that the ICTY’s work may have been informed by what we might call a prosecutorial meta-Realpolitik—a pragmatic inclination to focus on suspects whose prosecution is more likely on account of the political priorities of states best situated to effect arrest.

IV. Indictment and Transfer: Calculating the Consequences of Guilt and Innocence

By the time Del Ponte’s predecessor, Louise Arbour, announced the indictment of Milošević for atrocities in Kosovo, NATO powers had already turned against their erstwhile partner-for-peace in Bosnia. There was no question here of coincidental timing, as there had been at Dayton: As NATO aircraft conducted their almost three-month–long bombing campaign over Serbia, Arbour rushed the indictment in an effort to influence ongoing peace efforts.^† In this case, however, the purpose was not to facilitate international efforts but to ensure that NATO’s military operation did not interfere with criminal prosecution of Serbia’s leadership. “I was in a hurry” Arbour explained, “I thought we might miss out as peace was being discussed. I thought [Milošević] might be able to negotiate a deal for his departure.”²⁷

Although, from an internal institutional perspective, one might defend Arbour’s approach simply as an effort to ensure that the Tribunal could do its work, in effect the Prosecution was openly wielding indictment as a means of mobilizing pressure against any peace deal that included immunity, even if immunity was the price of agreement on some other substantive terms, or was the price of securing a deal at all. This might seem in tension with the ICTY’s origins as an instrument of international peace and security, but Arbour directly justified her strategy by reference to that mandate, maintaining in her formal announcement of the indictment that “the product of our work will make a major contribution to a lasting peace, not only in Kosovo, but in the whole region in which we have jurisdiction.”28

Why should this be so? Arbour offered two answers, both involving empirical assessments that transcend evaluations of criminal guilt and innocence. First, she argued as a general matter that “no credible, lasting peace can be built upon impunity and injustice.”²⁹ Second, she made a more specific claim about Milošević himself and his co-indictees: that “the evidence upon which this indictment was confirmed raises serious questions about their suitability to be the guarantors of any deal, let alone a peace agreement.”³⁰ The Tribunal’s job, in other words, was to help secure a more robust, sustainable peace in the Balkans, one rooted on the Prosecutor’s own assessment of the political situation, and one that might defy the judgment of the very Security Council powers who had established the ICTY as a peacemaking instrument, or of the powers currently prosecuting the war or negotiating with Belgrade.

In hindsight, the historical record reflects favorably on Arbour’s decision. At the time, some NATO governments feared that an indictment would prove an impediment to peace.^* That did not happen, but any direct impact on the Kosovo conflict is hard to assess: The most that can be said is that the Milošević indictment did not prevent a negotiated end to the war, nor did it obstruct the subsequent settlement placing Kosovo under international protection and governance without resolving the territory’s ultimate political status.³¹ Yet the fact that Milošević agreed to these terms without insisting on a formal amnesty is surely a reflection of the indictment’s weakness rather than its strength. At the time the agreement was made, NATO powers were unlikely to secure his arrest by force, and the domestic Yugoslav authorities would not enforce the indictment so long as Milošević maintained power.

The true utility of the indictment revealed itself in the following years, after mass protests in September and October 2000 frustrated Milošević’s attempt to steal the presidential election won by Vojislav Koštunica. Against the backdrop of Milošević’s political ouster, his transfer to the Tribunal the following June can credibly be said to have served a similar incapacitating function as the Karadžić and Mladić indictments had done at Dayton. As Serbian politics embarked on a path of relative moderation—one that in recent years has peacefully survived the assassination of a prime minister and Kosovo’s secession—the leader who had presided over 10 years of ethnic extremism, war, and international isolation was safely locked away, his influence limited to the public forum of his televised courtroom.^†

V. Milošević and the Pitfalls of Pursuing Peace through International Trials

We return now to Prelec’s penetrating analysis of prosecutorial overreach in Milošević. Although, as Prelec sees it, the trial may have lost its way in pursuit of such elusive goals as documenting the truth, channeling victims’ voices, and individualizing guilt, these shortcomings are perhaps best viewed not as a departure from the Tribunal’s mission but as yet another manifestation of the ICTY’s troubled relationship to peace. Historically, advocates of international justice as an instrument of peace have not aimed solely or even primarily at the immediate cessation of hostilities. Their aspirations have focused more broadly on fostering the “credible, lasting peace” identified by Arbour.32 Seen from this perspective, an international criminal trial is focused as much on catalyzing social transformation outside the courtroom as it is on establishing the criminal guilt or innocence of the accused. Can we credibly expect that these trials will provoke a broader coming to terms with past criminality, foster social reconciliation, and even—as Justice Jackson put it at Nuremburg—“stay the hand of vengeance[?]”³³

As the contributions to this volume attest, the jury is very much out with respect to the ICTY’s ultimate impact on the peoples of the former Yugoslavia. The more salient question, however, focuses on what sort of commitments these sweeping aspirations entail. It is a question of institutional design: Can social transformation result from the neutral application of legal rules according to a forensic judicial conception of the ICTY’s functions, or must the Tribunal in its day-to-day decision making actively seek to produce whatever narrative or political impact is best calculated to serve its broader goals?

The ICTY has faced a number of choices whose outcomes bear on the reception of the Tribunal’s work outside the courtroom: the selection of individual suspects, the balance of ethnic and political affiliations represented by the accused, the specific charges pursued, and the sentences imposed, to name but a few. To take one example discussed elsewhere in this book, public opinion polls taken in the states of the former Yugoslavia have repeatedly reported perceptions that the ICTY is biased against the members of the respondents’ respective national groups.^* Although some respondents may believe that the Court has convicted innocent individuals, such sentiments are no doubt also motivated by broader historical concerns: Many Serbs believe that the Tribunal has targeted too high a portion of Serb suspects; by the same token, many Croats and Bosniaks object to what they see as excessive prosecutions of their co-nationals that risks equating victim and aggressor.³⁴ Seen from this perspective and to the degree the Tribunal’s goals include some effect on peace and stability, the Tribunal’s success hinges not merely on establishing individual guilt or innocence, but on doing so in way that supports a broader political and historical narrative conducive to the sort of political transformation the ICTY hopes to achieve.^† This implies an unavoidably dualistic project of institutional design that attends both to forensic judicial values and to their impact, which is social and political.