After three weeks of verbal sparring, the battle lines in the war-crimes trial of former Yugoslav president Slobodan Milosevic have been drawn. Prosecutors in The Hague will try to prove Milosevic's personal culpability in the violent break-up of Yugoslavia and various wartime atrocities. Milosevic will try to prove that the tribunal is incapable of rendering a fair verdict, regardless of what happened while he was in power.
Supporters of the proceedings say that Milosevic's legal strategy aims to put NATO and other leaders on trial instead of himself. But like so much analysis relating to the Balkans, that's only half the story. Milosevic will surely challenge the actions and motives of other governments to deflect attention from himself, but he will do it to try to prove a larger point: That his prosecution is selective and therefore his trial intrinsically unfair.
But is Milosevic's prosecution selective? Vojislav Kostunica, the reformist president of Yugoslavia who replaced Milosevic after a democratic uprising in October 2000, certainly thinks so. "What we have seen so far indicates many elements of selectivity," he says. Prosecutors paint a simplified picture of the Balkan wars based on "a lot of shallow, superficial, and often false pseudo-history," and they characterize Milosevic as the only major villain in those conflicts. The Balkan wars, however, were far more complicated than prosecutors have been willing to show in the courtroom, says Kostunica, and he worries that their prosecutorial and historical selectivity will lead to a permanent miswriting of the historical record.
For Yugoslavia-watchers, Kostunica's criticism of the trial highlights an important distinction that is often lost on the tribunal's more rabid defenders in the Western media: Criticizing the tribunal is not the same as defending Milosevic. In fact, one can, like Kostunica, despise Milosevic and what he did, and still think the tribunal is a flawed institution. According to recent opinion polls, most Serbs fall into that category. They overwhelmingly voted Milosevic out of power a year and a half ago, but more than 75 percent of them believe that The Hague tribunal is essentially unfair. More interesting, a recent survey found that two-thirds of Serbs said they would own-up to the wartime atrocities committed by their side if other ethnic groups would do the same. But given the widespread sense of selectivity surrounding the Milosevic trial, don't expect much owning-up by any side.
Many Serbs are also skeptical of the trial for practical reasons. Indeed, by singling out Milosevic as the only major villain in the Balkan wars and putting him on trial, Serbs could end up being the only participants in the wars forced to pay costly reparations--a prospect they consider inequitable considering that atrocities were committed by all sides.
Serbian Prime Minister Zoran Djindjic, moreover, says the trial has undercut his ability to convince his countrymen to further cooperate with the court: "I am speechless when I see how much money has gone up in smoke to allow the court to take five years to unearth such insignificant witnesses [as have been called to the stand so far]. This circus has left both myself and my government facing an awkward dilemma. . . . What arguments can I now use to convince other people to push for greater cooperation with the court?"
For most Serbs though, the Milosevic trial is a monument to double standards. If Milosevic should be held accountable, they ask, then why not Croatian leaders for the ethnic cleansing of the Krajina, the Kosovo Liberation Army for depopulating Kosovo of 250,000 non-Albanians, or, more generally, the Russians for Chechnya or the Chinese for Tibet?
Proponents of the trial answer back, So what? It's better to convict one villain than none at all. Princeton University professor Gary Bass, for example, says, "No international tribunal will ever hold Russia to account for Chechnya, or China for . . . Tibet, let alone the U.S. This is an international implement that's going to be used by stronger powers against weaker powers. So why are we [in the United States] afraid of it?" What Bass and others miss is the basic contradiction: Selectivity undermines the legitimacy of war-crimes trials in the very eyes of those we would most want to come to terms with what was done in their name. For that reason, domestic alternatives should be promoted as the preferred model. Not arbitrary tribunals in foreign countries.
As the Bush administration's ambassador at large for war crimes issues Pierre-Richard Prosper rightly observes: "We don't want to create an environment where there is a dependency on international institutions. . . . We want to bring ownership of the process back to the people, because that is the only way the rule of law will become truly ingrained in a society."