Slobodan Milosevic, the former president of Serbia & Montenegro who was on trial at the ICTY on charges of genocide, war crimes, and crimes against humanity in Bosnia, Croatia, and Kosovo, was found dead in his cell in The Hague this morning. (The brief ICTY press release is here.) The exact cause of death was not immediately released, although Milosevic's attorney told the BBC that he did not believe that the former president would have committed suicide.
Milosevic's death comes less than a week after the suicide of Milan Babic, the former wartime leader of Croatian Serbs. Babic had pleaded guilty to the crime against humanity of persecuting Croat and other non-Serb populations of the Krajina region of Croatia during the Yugoslav wars. Babic testified against Milosevic in 2002, and against Milan Martic last month.
Critics of international criminal justice will certainly note that a verdict against Milosevic could have been possible had his trial moved along more swiftly. The decision by the Prosecutor (upheld by the Tribunal) to join for a single trial all the charges against Milosevic -- concerning crimes committed in Bosnia, Croatia, and Kosovo -- no doubt prevented the ICTY from reaching a verdict on at least one set of charges. Permitting Milosevic to defend himself also added to the trial's duration, and the proceedings were further slowed due to Milosevic's deteriorating health, which combined with his demand for self-representation reduced the number of days per week that the trial could be held. (The negative consequences of these decisions no doubt influenced the decisions by the Iraqi High Tribunal to try Saddam Hussein for the more straightforward Dujail case first, and to restrict his ability to represent himself and thus slow proceedings.) It must be remembered, though, that for a criminal trial to promote transitional justice, it must be perceived of as fair; there is a balance to be struck between expediency and providing defendants some leeway to conduct their own defense.
Even without a final verdict against Milosevic, the ICTY has contributed to transitional justice in Bosnia. The Tribunal already determined that the Bosnian Serbs committed genocide at Srebrenica, in the Krstic case. In addition, the Tribunal was able to secure the transfer of Milosevic and others to its custody for trial, thus piercing these former leaders' aura of invulnerability and permitting positive political change to begin in Serbia & Montenegro.
Efforts at transitional justice certainly must take into account the criminal guilt of those who carried out overt violations of human rights and humanitarian law. The death of Milosevic before a verdict could be rendered is certainly a blow to this campaign, though I do believe as noted above that criminal prosecutions have advanced transitional justice in the Balkans. In this regard, I differ with Helena in that I do see a role for criminal trials in transitional justice, though I lament that too much is often expected of them. Criminal prosecutions are not enough; for a transition to be effective, the citizenry must also hold itself politically and morally accountable for those actions that were committed in their name.
In this regard, last week began the final round of a separate case brought by Bosnia against Serbia & Montenegro at the International Court of Justice, in which Bosnia will attempt to prove Serbia & Montenegro's state responsibility for genocide. As eloquently noted by Professor Thomas Franck, counsel for Bosnia (disclosure: I had a fellowship with Professor Franck at NYU and like to think that I remain close with him), the rise of criminal prosecutions of individuals does not render obsolete the concept of state responsibility for genocide (or by extension, other international crimes). In fact, the Genocide Convention itself provides both for individual criminal prosecutions (Articles 4 & 6) and state responsibility (Article 9), with the latter to be determined by the ICJ where states consent to its jurisdiction. The Bosnia genocide case is perhaps the penultimate chapter in transitional justice in the former Yugoslavia, for it offers the chance to establish an important truth -- that genocide was not only carried out in Bosnia, but that it was carried out as the official policy of Serbia & Montenegro.
Without assigning collective guilt to every citizen of Serbia & Montenegro, an ICJ judgment of state responsibility for genocide in Bosnia forces a moral and metaphysical accountability on all those who failed to stop a murderous policy carried out by their government in their name. With differing degrees of action or inaction come different types of guilt; Jaspers' piece "The Question of German Guilt" provides an excellent framework for thinking about this. Though the overwhelming majority of citizens of Serbia & Montenegro played no active role in their government's policy of genocide in Bosnia, that majority nonetheless tolerated such egregious conduct. As such, the citizens of Serbia & Montenegro must hold themselves morally or politically accountable.
International law cannot bring back those murdered Bosnian men, women, and children; it cannot erase young Bosnia's tragic and appalling history of violence and victimhood. But what international law can do is establish with clarity that the individuals who carry out such heinous acts, as well as the societies that tolerate them, must both be held accountable for their roles. If the ICJ case is the penultimate chapter in the the transition in the former Yugoslavia, societal acceptance of the truth about what crimes were committed, and the establishment in each of the countries of the former Yugoslavia of responsive democratic institutions that ensure the protection of all citizens (including minorities), will signal the completion of a truly effective transition.
Thanks for this broad and well-documented post, Christopher! I was going to write one myself. But I am traveling and only on a slow internet link so pulling together all those hyperlinks would have taken me forever.
I guess what I wanted to add is that Milosevic's death underlines one important difference between criminal trials and truth commissions if the goal is one of "truth establishment": namely, that a criminal trial is always necessarily tied to the continued physical existence (and continued "fitness to be tried") of the accused person or persons in question. And should that person die or pass into a state of "unfit to be tried", then the whole proceeding ends.
A truth commission is not similarly dependent on the continued phsyical existence, in a good state, of any individual or group thereof.
In this piece in today's New York Times, the writers quote Human Rights Watch's Richard Dicker as describing the four years of this trial to date as "a loss". But he added that M's death "does not undo more than a decade of work in establishing reference points and responsibilities."
I guess that until an autopsy is done it will be hard to establish a precise cause of death, though the reporting indicates that officials at the UN detention facility believe it was from natural causes. He had been in poor health for years, and the court recently turned down a request he had made to be allowed to go to Moscow for medical treatment. That NYT report states, "One of Mr. Milosevic's legal advisers, Zdenko Tomanovic, said Saturday that in recent days, Mr. Milosevic said that someone was trying to poison him." Tomanovic had requested the court to send M's body to Mosciw for an autopsy, but the request was denied.
Actually, the question of who gets to designate the institution doing the autopsy is also an interesting one. To whom does this unconvicted suspect's physical remains "belong"?
The NYT piece also quotes Richard Holbrooke as saying, "The trial was too long, but the trial was the verdict." This is surely not true at all. Milosevic did not get the chance to finish presenting his defense case, so neither the judges nor the general public are in a position render any judgment, however informal, on the merits of the totality of the cae against him.
... Beyond the purview of the strictly technical-legal, meanwhile, now that Milosevic has passed away many people must be thinking that he is meeting his maker and facing some form of more existential judgment. I guess such theological issues are a hard topic to have a multi-cultural discussion on-- either you believe he's "meeting his maker" or you don't; either you believe that God is wrathful and judgmental, or you don't. But still, I note that the belief in some form of an after-death judgment of those who commit terrible acts does provide real comfort to many of the survivors of such acts.
... One last note: I am not totally opposed to using criminal trials for transitional-justice purposes. I am just extremely skeptical that, in most cases, they achieve the broader sociopolitcal outcomes at which they aim. In ICTY's case, this included, as per the UN resolution, "to contribute to peace and reconciliation."
Posted by: Helena Cobban at March 12, 2006 06:37 AMIMHO, the natural reference point for this trial is Nuremberg. From this prospective, it was pretty much of a disaster. Unlike with Geramny, there is no conviction and there no particular prospects for Serbia and Kosovo both politically and economically.
[one important difference between criminal trials and truth commissions if the goal is one of "truth establishment": namely, that a criminal trial is always necessarily tied to the continued physical existence (and continued "fitness to be tried") of the accused person or persons in question.]
Unfortuntaely, this reminds change of objectives on Iraq: from IWMD to stable democracy to ... civil war? The point is, once the trial has begun, one cannot pretend that nothing happened!
[But what international law can do is establish with clarity that the individuals who carry out such heinous acts, as well as the societies that tolerate them, must both be held accountable for their roles.]
Individuals - yes, but societies - most certainly no! This is collective guit.
Situation gets especially ugly considering severe medical mistreatement which is very likely. In fact, giving a person (any person) wrong drugs is equivalent to torture :-(
This is what wiki says on the death of Milosevic, and it does not look good.
Posted by: Henry James at March 12, 2006 10:37 PMAs life left Milosevic, so, too, might it now leave the Yugoslav Tribunal? Trials of major war criminals by definition are theatrical. When the antagonist dies before the protagonist's pursuit is complete, the script becomes frustrated.
There is nothing particularly surprising about Milosevic's death. His prosecution, which had begun in 2002, frequently was delayed by his complaints of a weak heart. By playing games with taking his medicine, he brought even more attention to himself by threatening to die on the process.
When prosecuting frail old men, there is a race against time. The sooner justice is delivered the better. Wily defendants can cheat justice by dithering, piddling, and delaying the prosecution. This is what Milosevic so ably did. The Saddam defense team may be taking lessons from this playbook.
The Nuremberg Tribunal intoned that crimes against humanity are the crimes of men. It said so to ensure that individuals should be held responsible for these crimes. There was a great fear about holding the German nation collectively responsible. This fear of collective responsibility continues. So, the practice of today’s international tribunals is only to hold a handful of individuals responsible for crimes that involved hundreds of thousands of individuals, both as perpetrators and victims, and often millions more as bystanders – acquiescent, complicit, or coerced. Here lies the greatest danger in the penchant of international criminal justice to locate responsibility for mass atrocity only in a small number of notorious leaders. The trial becomes about the individual, not about the crimes. When the antagonist defendant dies, then the process of justice grinds to a halt. When one person becomes the symbol for great evil, the judicialized pursuit of that evil becomes contingent on the person.
Of course, Milosevic is responsible for the deaths of over 200,000 people in the former Yugoslavia. But he is among many (and even then many more) who are responsible, to varying degrees. Were international criminal justice to focus more broadly on the reality that massive crimes could not become truly massive without involvement of massive numbers of participants, then perhaps the picture of justice could become more complete. Justice would be less fragile and less dependant on the man with the weak heart surviving through to the reading of the verdict.
13/3/2006 - Death of Milosevic and the justice circus
So, Milosevic died (or most likely was killed by the wrong medication. That was foreseeble: the case against him was collapsing, Del Ponte and her team had clearlty demonstrated their professional incompetence, the court had waisted 167 million euros (according to the BBC 13-3-2006) and, in the end, proved nothing... And I also wonder how come not a single BBC or CNN journalist mentioned that thw Nobel Prize for Literature winner Harold Pinter was an active member of the Slobodan Milosevic Defense Committee. What a circus, this Christian Amanpour and her like, what a shame...
Unfortunately, it gets worse and worse. Whatever international justice is, it simply can't work like Abu Ghraib / Gitmo "justice" - prisoner abuse and black PR to support the most incredible claims.
But this is exactly what is going on with Milosevic's death. We are supposed to believe that an inmate can medicate himself to death with wrong drugs!
Posted by: Henry James at March 14, 2006 07:44 PMThe trial of Milosevic was billed as the most important exercise of international jurisprudence since the days of Nuremberg, had become something of a joke unto iteself. The prosecution failed to demonstrate Milosevic direct responsibility for the crimes committed in Kosovo or Bosnia between 1992-99. No smoking gun was produced, no skeletons found in the former Yugoslavia leader's closet. Milosevic's case resembles the case of Segei Mikhailov, alias Mikhas, the alleged head of Russian mob, prosecuted by Carla Del Ponte back in 1996-98. At the time the Swiss Federal Prosecutor Carla del Ponte claimed Mikhas was the leader of one of Russia's most powerful criminal gangs - the Solntsevo gang. So dangerous was Mikhailov that had to be driven around Zurich in an armored personnel carrier, escorted by the heavily armed SWAT team. Once in court, however, Mikhailov's case collapsed due to the lack of evidence. Not only Mikhas was acquitted, but he in turn sued the Swiss government and, in 2000, and won almost half a million dollars in damages. The point is not so much the innocence of Sergei Mikhailov, as the incompetence of Carla Del Ponte and her team. After keeping Mikhailov for two years in jail, spending thousands of tax-payers dollars investigating his business activities, and failing in the end to prove his guilt, Del Ponte blamed Moscow - (of course, whom else) - for her professional fiasco. But then again, in the arcane world of international bureaucracy, incompetance may easily become a virtue - Del Ponte was soon promoted to become Chief Prosecutor in the Hague.
The trial of Milosevic presented a pattern similar to the trial of Mikhas. But there is a difference: wheras Del Ponte's failure to prosecute Mikhas was the victory of the Swiss legal system as it clearly demonstrated its impartiality, it is very unlikely that the International Criminal Tribunal for the former Yugoslavia (or the ICTY ) will be able to follow the same path. Milosevic is most likely to be found guilty regardless of the evidence presented in court. International bureaucracy is guided by the sense of political opportunism and self-preservation, rather than the quest for justice or professional integrity. This seems to be more and more the case of the ICTY. Truly independent court requires transparency and impartiality and in the case of the ICTY both are lacking. Not only the way the court functions, including the criteria used for its personnel selection, and the gathering of evidence, remain obscure, but its impartiality is dubious. So far, the ICTY failed to bring to justice those who, in violation of the UN embargo, supplied weapons to the warring sides in the Yugoslav conflict, who financed human rights violations in Croatia and Bosnia, who ordered one of the biggest ethnic cleansing in the history of Balkan wars - the expulsion of 150 000 Krajna Serbs, who incited the war in Kosovo by financing, arming and training the so-called Kosovo Liberation Army, who allowed to use the territory of the former Yugoslavia as the training ground for the Al-Quada militants. A few Croatian generals, and one high-ranking Albanian drug-trafficker (Ramush Haradinaj), but that is about all the tribunal could achieve in terms of persecuting the non-Serbian war criminal suspects. To this day Milosevic is the only top politician from the former Yugoslavia to stand trial for the atrocities, committed by all sides, and not the least - by the US and European allies and pending members of the enlarged European Union. The information is in abundance, but the action is nil.
The ICTY was supposed to be the first step towards creating the permanent International Court of Justice. It was meant to define the logic upon which this new international institution ought be built. It should have affirmed the principle of justice for all, not for the handful of rich and powerful nations. Alas, it did not happen and it will not happen. As long as Carla Del Ponte remains chief prosecutor of the ICTY, incompetence and cynicism will prevail, condemning international jurisprudence to take on the function of the day time TV sitcom for the culturally disadventaged.
P.S. I am not a legal expert, and may be Milosevic was a real S.O.B. Nevertheless, I believe our democratic jurisprudence is based on the principle of the presumption of innocence. Was this principle ever applied to Milosevic?
Posted by: lee mayr at March 18, 2006 07:02 PMmost kriminal person
Posted by: halil at September 11, 2009 05:25 AM
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