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Anthony D'Amato
Leighton Professor of Law
Northwestern University

[Special to JURIST] As the Milosevic trial slowly plays itself out, I think that two central issues will rise to the surface as the pivotal evidentiary determinants of guilt or innocence. They can be labeled (1) the Yamashita precedent, and (2) ethnic cleansing.

(1) The Yamashita Precedent. It is in the prosecution's interest to construe the Yamashita Case as literally as possible. The prosecution will first argue that a commander's "reason to know" about the commission of war crimes is sufficient to prove criminal intent. This is of course a broad standard, one that is arguably contrary to the universal conception of criminal law that the prosecution must prove actual intent. However, actual intent can be inferred ("circumstantial evidence"). In my opinion, the clear evidence that Milosevic kept up with the international press (the Herald-Tribune, for example) is sufficient to rebut his rather unbelievable opening statement that he did not know whether war crimes were occurring and that he had to rely on the reports of his subordinates who (falsely) informed him that no war crimes were being committed. The prosecutor might well add that sophisticated leaders like Milosevic have long ago learned not always to trust what their advisers tell themwhich is why they read newspapers!

Since mere knowledge of war crimes (whether attributed or actual) is itself insufficient for a finding of guilt, the prosecutor must also prove that Milosevic was in a position to do something about it. Here, again, the prosecutor will take the literal approach of the Yamashita Case. The prosecutor will argue that since Milosevic was the commander-in-chief of the Yugoslav army, it follows that he was in a position to do something about preventing war crimes. My opinion on this line of argumentation is that it effectively shifts the burden of explanation to Milosevic. Unless he can show either that (a) he was not in a position to reduce or extirpate the war crimes, or (b) he in fact did everything he could possibly do to reduce or extirpate them, he will be convicted.

He could argue the first alternative. He could say, as Yamashita's lawyers argued, that he was only one player in a situation that was running amuk. Again, I venture to essay my opinion that this strategy will not work for Milosevic.

What about alternative (b)? I've previously written on this point, and I venture to say it again, that Milosevic's best strategy will be to take the bull by the hornsto argue that he in fact did everything he could possibly do to reduce or eliminate the commission of war crimes. He would have to argue that, first, he took direct steps, such as issuing orders and directives to all persons under his authority to refrain from the commission of war crimes. He could buttress this showing by producing orders that any persons subject to his control would be prosecuted in Serbia for war crimes. (Evidence of such orders exists abundantly in Karadzic's case, and by extrapolation, I suspect it exists in Milosevic's case, although I don't know for sure.)

Secondly, Milosevic would argue that indirectly he did everything he could possibly do to prevent the commission of war crimes by strengthening the internal lines of command and control within the Yugoslav Army. For it is generally recognized that the greater the internal degree of control within an army (the more "spit and polish" reflexive obedience), the easier it is to control one's troops when temptations arise such as looting and ravishing women. This, as I've written before and reiterate now, would have been Yamashita's best defenseeven a winning defensehad his attorneys thought of it. Whether Milosevic or his attorneys will think of it is something I can't predict (I doubt whether they will come across any of my comments).

(2) Ethnic Cleansing The phrase "ethnic cleansing" that has so dominated the public conception of the events in former Yugoslavia is itself, of course, not the label for a war crime. Although it has taken on negative (and even criminal) connotations, in the past it would have been considered quite benign. For example, after World War I, a huge program of population transfers occurred in the former Ottoman Empire, creating many of the states and boundaries that constitute the present Middle East. This "ethnic cleansing" was supervised by the League of Nations, it involved cleverly designed plebiscites suitable to the local context, and almost entirely succeeded in creating a generation of peace in the area. By contrast, the "ethnic cleansing" associated in the media with former Yugoslavia has a distinctly malignant connotation.

Milosevic's best strategy would be to admit ethnic cleansing but argue that he did his best to make sure it was of the benign variety. Here is where he can effectively bring in famous witnesses. He can (or will try to) show that the Vance-Owen plan for dividing Yugoslavia was totally absurd, that Vance-Owen was ignorant of the League of Nations precedent and instead wanted to draw it own complicated map for no other reason than to attain a Nobel Peace Prize, and that Clinton's espousal of this absurd plan at Dayton was the most important cause of atrocities in former Yugoslavia. Milosevic can argue that he did his best to resist these multi-ethnic schemes for the very practical reason that, by 1994 at the latest, the Serbs, Croats, and Muslims could no longer live together or even near one another and certainly not under a single central government. Rather, the groups must be geographically separated by a thoroughgoing process of benign ethnic cleansing: good fences make good neighbors.

In short, Milosevic can indeed attempt to shift the blame to the Allies, who in his view failed to understand Balkan complexity. Forcible population transfers coupled with vouchers for the displaced persons to cover their cost of equivalent housing in the relocated area, might have averted 99% of the bloodshed and war crimes. For what it's worth, this has been my expressed opinion for the last half-dozen years, and I think it is sustainable as a matter of historical fact.

However, I don't think that Milosevic and his legal team is psychologically equipped to adopt the "benign ethnic cleansing" kind of defense. Admittedly this is an intuitive reaction on my part, but it is based on the experience I had in defending Dr. Milan Kovacevic, the first Serb accused of genocide at the ICTY (who died in the detention center two weeks into his trial). On my defense team were Yugoslav lawyers and an American lawyer born in Yugoslavia and more rabidly nationalistic than any of the others. We engaged in protracted, often heated, arguments on the "ethnic cleansing" issue. My position was that our client, as Deputy Mayor of Pridedor (who was then the most important Serb brought to the tribunal so far), assisted in benign ethnic cleansing for the proper reason of avoiding bloodshed. But my colleagues, to a man, wanted to deny flatly that our client had anything to do with "ethnic cleansing," which they accepted (I think unnecessarily) as inherently malignant.

I suspect that the Milosevic will similarly want to deny that he ever engaged in or promoted ethnic cleansing. If that is the approach he takes, and if the judges on the tribunal find it to be unpersuasive, it may turn out to be Milosevic's biggest strategic error.

Anthony D'Amato is Leighton Professor of Law at Northwestern University School of Law, where he teaches courses in international law, international human rights, analytic jurisprudence, and justice. In 1998, he was lead counsel for the defendant in Prosecutor v. Kovacevic, the first case before the International Criminal Tribunal for the Former Yugoslavia charging a Serb with genocide.

February 18, 2002


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