Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal

"This is the first book that really gets inside the workings of the Hague tribunal. Many of the key individuals come alive here, and the reader gets a good sense of the critical role of personal commitments, peculiarities, and ideologies in shaping the work of the court. Some of the sections of the book read like a good thriller, but Hagan is also making a very important argument about how individuals and groups can affect the course of human rights enforcement."—Eric D. Weitz, author of A Century of Genocide: Utopias of Race and Nation

This article was originally published in the Chicago Tribune on December 21, 2003.

Ace in the Hole
John Hagan
author of Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal

When asked recently about the international legal implications of disqualifying countries for Iraqi reconstruction contracts, President Bush mockingly replied, "International law? I better call my lawyer!"

Yet the reaction of this president, with the newly captured international war criminal Saddam Hussein now in custody, was better than the reactions of Roosevelt and Churchill for Nazi war criminals. At first, they easily agreed the Nazis should be shot on the spot by their captors. Roosevelt had to be convinced by Secretary of War Henry Stimson to create the four-nation Nuremberg tribunal that established a threshold of international criminal justice that a future trial of Hussein may or may not surpass. Bush further displayed that he is ahead of the Roosevelt-Churchill learning curve in a recent conversation with the new Canadian prime minister, acknowledging the need for a Hussein trial that would at least recognize international standards of justice.

These days, that standard of justice is set by the International Criminal Tribunal for the Former Yugoslavia in The Hague. There is an irony here because one of Bush's potential challengers, Wesley Clark, played an instrumental role in helping set that standard. Clark, Democratic presidential candidate, former U.S. general and commander of NATO in the Balkans, appeared last week as a star witness for the prosecution of former Yugoslav leader Slobodan Milosevic. Clark was an assistant to Richard Holbrooke in the Dayton peace talks and bore the ultimatum that Milosevic rejected before the NATO bombing.

There is little public awareness of Clark's role in wedding the work of the Yugoslavia tribunal and of NATO to legitimize the use of military force in the Balkans. But this understanding helps demonstrate how Clark in his testimony also bore witness to an important argument underlying his campaign for the Democratic presidential nomination. In response to events of September 11, he says, the U.S. should be less focused on conquering states and more focused on gaining international support and assistance in prosecuting individuals for crimes against humanity and genocide.

Confronting Milosevic from the witness chair, the general-candidate testified to the personal responsibility Milosevic bears for crimes of genocidal proportions. Commenting on his testimony later, Clark emphasized that the process in which he had participated was as important as the punishment that might result. The presidential candidate has the advantage over the sitting president of having been deeply immersed in several important stages of this process in his earlier NATO role. The international experience gives him added insight as he pursues the presidency.

When the Milosevic trial began, prosecutor Geoffrey Nice told the court that a succession of international officials, including Paddy Ashdown and Holbrooke, and NATO generals, Clark among them, had independently met with Milosevic to warn of the seriousness of the Kosovo situation. They also warned him of his liability for unfolding war crimes. Clark testified about the delivery of this warning, providing corroborating evidence of Milosevic's knowing and persistent intent to commit war crimes.

But Clark's involvement in the Balkans obviously preceded this meeting: He was the linchpin in the lead-up to the indictment, which coincided with the NATO military campaign. Clark's support for international criminal law at the tribunal built crucial legitimacy for NATO's use of a multinational military force in the Balkans. The earliest elements of this legal relationship were set soon after Clark assumed his NATO command in the Balkans. The chief prosecutor of the Yugoslavia tribunal, Louise Arbour, came to Clark with a plan in the summer of 1997. Despite having scores of indictments, the tribunal was without arrest powers or police, and as a result it had only a few minor detainees awaiting trial. The tribunal could not continue without Clark's forces making arrests.

Arbour reasoned that, if new indictments were kept under seal, NATO troops under Clark's command could use the element of surprise to make successful arrests. Clark's predecessors at NATO had feared losing troops and jeopardizing the Dayton peace accords with bloody arrest efforts. Clark embraced Arbour's stealth strategy and, with the commitment of British troops authorized by Britain's recently elected Tony Blair, agreed to begin making arrests.

The initial NATO effort was led by a British SWAT team under Clark's NATO command in the Prijedor area of Bosnia. It resulted in the arrest of the secretly-indicted Milan Kovacevic for his role in administering the infamous Omarska and Keraterm death camps, which the world had seen earlier on television and in newspapers. Simo Drljaca, the former police chief and brother-in-law of Kovacevic who was named in the same sealed indictment, was shot dead after pulling a gun and shooting a British soldier in the leg during the raid. U.S. soldiers under NATO command later arrested Gen. Radovan Krstic, who subsequently was convicted for his leadership role in the Srebrenica genocide.

Despite being warned by Milosevic that "trying to seize these 'war criminals' is like holding a lighted match over a bucket of gasoline," Clark persisted with his policy and helped Arbour fill her detention cells. Milosevic nonetheless pressed ahead with new assaults, deportations and massacres in Kosovo. Early in 1999, Arbour responded to a massacre in the Kosovo town of Racak by trying to enter Kosovo from Macedonia with tribunal lawyers and investigators. When she was turned away at the border crossing, Arbour held an impromptu news conference in a nearby clearing that was reported by a swarm of international print and television reporters. Clark soon began several days of phone negotiations between Arbour, who stood by in a neighboring Macedonian border city, and Milosevic, from the latter's office in Belgrade.

Clark's role in these negotiations flushed out Milosevic's political position, making it abundantly clear to the news media and its audience that Milosevic was clinging to the principle of sovereign immunity in an implicit admission that his troops were committing war crimes in Kosovo. This incriminating dialogue filled the airwaves for several days and set the foundation for Arbour's development of the Milosevic indictment and for the bombing that ultimately forced Milosevic to abandon his Kosovo war.

In spring 1999, as the NATO bombing was ending, Arbour issued the Milosevic indictment. Clark writes in his book Waging Modern War that some in the Pentagon and the White House were unhappy about the timing of the indictment and wanted to hold off as a bargaining chip in negotiations with Milosevic. But Clark supported the indictment, having long since concluded that Milosevic, and authoritarian tyrants like him, respond only to the meaningful prospect of force, not its idle threat, and that their signatures on peace agreements are empty gestures.

As the bombing ended, tribunal legal advisers and investigators entered Kosovo with the protection of Clark's NATO troops. There they continued collecting evidence to build on what they had found in the refugee camps of Macedonia and Albania. As a result, the Kosovo indictment was strengthened even as investigators pursued the case in Bosnia, leading Arbour's tenacious successor, Carla Del Ponte, to indict Milosevic on genocide charges.

An important aspect of the Yugoslavia tribunal's work is that the majority of prosecutions for the deaths and deportations in the Balkans involve Muslim victims. The criminal trials at the tribunal have resulted in findings of guilt against the individuals who terrorized these victims as part of efforts to achieve an "ethnic cleansing," with the purported purpose of establishing a Greater Serbia.

However, despite the frequent claims of Milosevic, it is not Serbia or Serbians on trial. It is individuals, like Milosevic, who are indicted and tried. Clark's testimony at The Hague tribunal helps make this point and further buttresses the principle on which he has campaigned: that the war against terror and atrocity should aim at winning international support for holding individuals accountable, thereby deterring future leaders and their followers from these criminal acts. Because of his experience, Clark appreciates and recognizes the force and legitimizing power of international criminal law as a supplement and an alternative to military strategies.

There is a crucial place for international law, even when military force must follow. Under such circumstances, the use of military force gains international legitimacy and moral authority. Clark's testimony in The Hague is an important reminder of this still recent and too little appreciated lesson. The goal is to march forward rather than backward into history. Clark has the advantage of having lived a part of the history of international criminal justice that stretches from Nuremberg to The Hague. He has already embraced lessons President Bush may still be learning.

This article was originally published in the Chicago Tribune on December 21, 2003.

Copyright notice: ©2003 by John Hagan. All rights reserved. This text may be used and shared in accordance with the fair-use provisions of U.S. copyright law, and it may be archived and redistributed in electronic form, provided that this entire notice, including copyright information, is carried and provided that the University of Chicago Press is notified and no fee is charged for access. Archiving, redistribution, or republication of this text on other terms, in any medium, requires the consent of the author.

John Hagan
Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal
©2003, 304 pages, 7 line drawings
Cloth $29.00 ISBN: 0-226-31228-3

For information on purchasing the book—from bookstores or here online—please go to the webpage for Justice in the Balkans.

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