- The Washington Times - Thursday, May 10, 2001

Isnt there something rotten in our shouting at Yugoslavias democratically elected President Vojislav Kostunica to deliver the Lucifer-like Slobodan Milosevic to the International Criminal Tribunal for the Former Yugoslavia (ICTY) to prosecute alleged crimes against humanity and war crimes? Isnt our own post-World War II prosecution record regarding Nazis, Japanese militarists, and their collaborators no more reputable than glorifying Jesus at the Last Supper and fraternizing with Pontius Pilate during the following days breakfast?
President Kostunica and his political allies have arrested Mr. Milosevic in anticipation of a domestic criminal prosecution for colossal thievery from government coffers and shocking abuses of power. Mr. Kostunica is a proven poet laureate of the rule of law, and his human-rights credentials are spotless. During his tenure beginning last Oct. 7, hundreds of Kosovar Albanians convicted on trumped-up charges have been released. In addition, the Yugoslav presidents peaceful political challenge to the dictatorship of Mr. Milosevic painted a profile in courage. He risked assassination, torture or sister retaliation, the defining signatures of Mr. Milosevic and his ultranationalist Myrmidons. Further, President Kostunica has agreed to honor any vote for independence by Montenegro, one of the two constituent republics of Yugoslavia, partnered with Serbia.
At present, Mr. Kostunica is balking at a Milosevic trial by the ICTY. The reasons are apparently twofold. The tribunal seems biased against Serbia. That conclusion is indicated by the predominance of prosecutions of Serbs despite the equally villainous Croat crimes orchestrated by former Croat President Franjo Tudjman. In 1995, for instance, Mr. Tudjman launched "Operation Storm," which featured the shelling of Knin and the mass exodus of 150,000 Serbs from Croatia, the largest single movement of refugees in Europe since the expulsion of Sudeten Germans from Czechoslovakia in 1945. Carl Bildt, the former Swedish prime minister and European Union mediator on Yugoslavia, urged an ICTY investigation of Mr. Tudjman without result. He had presciently asked, "If we accept that it is all right for Tudjman to cleanse Croatia of its Serbs, then how on earth can we object if one day Milosevic sends his army to clean out the Albanians from Kosovo?"
Mr. Kostunicas fragile democratic political base might also collapse with an ICTY Milsoevic prosecution. Mr. Milosevics holdovers from the Socialist Party of Serbia continue to wield official and popular clout, akin to Communist Party members in Russia after the dissolution of the Soviet Union. Serbian public opinion is sharply divided on an CITY trial. In sum, the Yugoslav president seems rationally to have concluded that the nations budding democracy which promises human rights not only for the living but those yet to be born might die if Mr. Miles was subjected to an CITY prosecution with conviction and life imprisonment virtually foreordained.
The Bush administration, aping the policy of its predecessor, is threatening to curtail Marshall Plan-type aid to Yugoslavia for non-cooperation with the CITY in its pursuit of Mr. Miles. But who are we sanctimoniously to sing the supremacy of international war crimes prosecutions Uber alles?
Japanese Emperor Hirohitos complicity in war crimes, crimes against humanity, and aggressive war was notorious. Think of the Rape of Nanking, Pearl Harbor, the Bataan Death March, comfort women, slave labor, and the gruesome bacteriological warfare experiments of "Unit 731" conducted on thousands of POWs as human guinea pigs, including Americans. Here is an emblematic description of the Unit by Japanese Lt. Col. Toshihide Nishi: "An experiment in which I participated was performed in infecting 10 Chinese war prisoners with gas gangrene [a type of anaerobic bacterial wound infection]. The object of the experiment was to ascertain whether it was possible to infect people with gas gangrene at a temperature of 20 degrees C below zero.
"This experiment was performed in the following way: 10 Chinese war prisoners were tied to stakes at a distance of 10 to 20 meters from a shrapnel bomb that was charged with gas gangrene.
"To prevent the men from being killed outright, their heads and backs were protected with special metal shields and thick quilted blankets, but their legs and buttocks were left unprotected. The bomb was exploded by means of an electric switch and the shrapnel, bearing gas gangrene germs, scattered over the spot where the experimentees were bound. All the experimentees were wounded in the legs or buttocks, and seven days later they died in great torment."
In other words, Adolf Hitlers Dr. Josef Mengele was outmatched by Hirohitos Unit 731.
The United States, however, was more concerned with national security and a third world war with the Soviet Union after 1945 than a fastidious pursuit of international war criminals. It coveted Japan as an ally in Asia and a democratic addition to the family of nations. Both were thought to be jeopardized by a Tokyo War Crimes Tribunal prosecution of the Emperor, Unit 731 criminals, or more than a token number of the most prominent war villains, such as Hideki Tojo. The fears of the United States invoked to justify an anemic prosecution of Japanese militarists may have been exaggerated, but they were genuine. Josef Stalin did not play by Queensberry rules, as illustrated by his dishonor of the Yalta accords, the Czech communist coup, the Berlin Blockade, and the Korean War. Thus, the national interest trumped international justice.
Ditto for the United States treatment of Nazis and their collaborators. Operation Paperclip and the Ratline implicated America in employing, harboring, or assisting Nazi scientists, spies and thousands of anti-communist war criminals, such as leaders of the Croat Ustashi or Ukranian ultranationalists. The Hitlers chief V-2 rocket scientists working with slave labor and even Klaus Barbie were beneficiaries. But as with the Japanese, the United States fear of a Soviet-dominated world overrode international justice and morality.
Why then are we berating President Kostunicas copy cat worry over the future of democracy and human rights in Yugoslaviato resist, at least at present, an ICTY prosecution of Mr. Milosevic? He is simply following our World War II precedent.

Bruce Fein is general counsel for the Center for Law and Accountability, a public-interest law group headquartered in Virginia.

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