- The Washington Times - Tuesday, February 19, 2002

Former Yugloslav leader Slobodan Milosevic deserves no pity. His signature, indeed, was pitiless ethnic cleansings and killings to aggrandize himself, Serbs and Serbia at the expense of Croats, Kosovar Albanians, and Bosnian Muslims. But neither does Mr. Milosevic's prosecution by Carla Del Ponte for genocide and crimes against humanity before the International Criminal Tribunal for the Former Yugoslavia deserve international law celebration. To the contrary, the Milosevic trial demonstrates the intrinsic moral chiaroscuro of war crimes prosecutions.

They are not the answer to chronic ethnic or first cousin upheavals in the Balkans or elsewhere.

The prosecution accuses Mr. Milosevic of a "Mein Kampf"-like plot to consecrate a Greater Serbia through ethnic-based wars, massacres and forced deportations. Thus, he allegedly connived with Bosnian Serb co-villains Radovan Karadzic and Ratko Mladic to ignite a Bosnian civil war in hopes of annexing the 50 percent of Bosnian territory occupied predominantly by ethnic Serbs; he warred ferociously but ultimately unsuccessfully to conquer Croatian land for Serbs and Serbia; and, he slaughtered and deported Kosovar Albanians en masse in Kosovo, an overwhelmingly Muslim Yugoslav province, akin to Adolf Hitler's "Lebensraum," but for Serbs.

Tens of thousands of innocent civilians were killed, raped or mutilated by Mr. Milosevic's medieval savagery conducted through military and paramilitary surrogates. Under international law, a superior is accountable for the criminal acts of subordinates if he either knew or had reason to know of the misconduct and neglected reasonable measures of deterrence or punishment.

What makes the Milosevic prosecution morally troublesome is not the loathsomeness of the ethnic evils perpetrated and worthy of condemnation; it is singling out the fallen Yugoslav chief for criminal punishment from a gallery of equal or worse international war criminals or pariahs and the acquiescence of the United Nations Security Council and NATO in ethnic cleansing and atrocities throughout the Balkans.

If Mr. Milosevic's head-of-state war crimes are morally unforgivable under international standards, then why has the United Nations walked away from a genocide prosecution of Pol Pot's Khmer Rouge survivors, such as Ieng Sary, who walk today undisturbed in Cambodia? The Khmer Rouge's extermination of 40 percent of Cambodia's population makes Mr. Milosevic's carnage puny by comparison. Liberia's Charles Taylor's tribal-based atrocities have plunged that country into Dante's ninth level of hell.

Mr. Taylor has further aided and abetted captured Sierra Leone war criminal Foday Sankoh. Russia's Vladimir Putin presides over war crimes in Chechnya with impunity, and Chinese leaders unabashedly seek the genocide of Tibetan Buddhist culture without awakening the international community to criminal indictments. Crimes against international law by famine, disease, and indiscriminate deaths inflicted on civilian populations are the sound tracks of Iraq's Saddam Hussein and North Korea's Kim Il-sung. Yet no international criminal prosecutions are contemplated.

In sum, Mr. Milosevic belongs at the back of the queue of morally degenerate heads of state implicated in genocide or other universal crimes. The United Nations Security Council jumped Mr. Milosevic to the front and championed his singular prosecution more because of the staggering refugee problem he created for Europe and the daily, televised and shocking pictures of his barbarity than because of any unique Milosevic or Serbian depravity.

Mrs. Del Ponte's insistence that the Milosevic trial heralds a new and morally elevated era in which heads of state will customarily, not by fluke, be held accountable to international criminal law seems discredited by the Realpolitik that permits current state leaders to avoid prosecution despite having bettered Mr. Milosevic's instruction in barbarity.

Moreover, if Mr. Milosevic's ethnic cleansings were as morally repugnant as Mrs. Del Ponte charges, then why has the United Nations and NATO displayed but featherweight opposition to its pandemic Balkan spread?

Serbs have virtually disappeared from Kosovo because of Kosovar Albanian ethnic-based hatreds and killings. Ditto for Muslims and Croats in Serb-dominated Bosnia, and Serbs in Bosnia's Muslim-Croat territory.

Serbs have been de facto evicted from their homes and businesses in Croatia. Macedonia stands at the abyss of separate Albanian and Macedonian enclaves. If ethnic cleansing is a moral and international abomination, then the entire Balkan population seems a perfect fit for central casting.

Mr. Milosevic's trial also but marginally advances criminal punishment objectives: deterrence, rehabilitation, and retribution. Imprisonment to forestall future Milosevic war crimes or ethnic cleansing recidivism would be gratuitous because he is generally despised by the people of Serbia, who voted his ouster from office in the face of violence, coercion and threats. Punishment to deter would-be Milosevic imitators seems problematic because of the unusual constellation of political circumstances that fueled his prosecution. Nonprosecution of the likes of Pol Pot, Saddam Hussein, and Kim Jong-il will more than offset the Milosevic lesson for satanically-inclined rulers. Rehabilitation is not an aim of the life imprisonment sought by Prosecutor Del Ponte.

Although retribution for Mr. Milosevic's nauseating baseness would be achieved by a life term, its moral symbolism would be largely lost amidst the unpunished millions in the Balkans whether in Yugoslavia, Bosnia, Croatia, Kosovo Macedonia whose ethnic hatreds and retail crimes collectively represent little better than Slobodan Milosevic on the installment plan. Does anyone seriously believe that his punishment will lessen ethnic wretchedness and chronic violence in the Balkans?

In sum, whatever the outcome of Mr. Milosevic's trial, an international law millennium will remain chimerical. Mrs. Del Ponte vastly exaggerates its modest criminal justice benefits.


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


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