VIEWPOINT: The 'Politicised' Tribunal

Balkan propaganda portrays the war crimes tribunal in The Hague as a political tool of the Western powers. Most Serbs believe that NATO governments control the court and that the US manipulates the judges. Croatian views are similar.

People in both countries feel their governments are forced to comply because of conditions on aid and other pressures which amount to blackmail. Russian Ambassador to the UN Sergei Lavrov demanded in February that the tribunal be closed because it is "anti-Serbian". Yet even Moscow rarely raises the issue, in order to preserve relations with the West.

Paranoia aside, political control does exist - though not in the blunt and direct way presumed. In fact, since the tribunal does not have its own police force, its indictments rely in part on evidence gathered by the US and other NATO intelligence services.

Intelligence services give evidence only when their governments tell them to, and they provide only so much information as is considered politically useful. Needless to say, the CIA would never send evidence that in any way incriminated US politicians, diplomats, generals or the CIA itself.

The tribunal cannot change this state of affairs. In a democratic country, a court can try those who conceal evidence for political reasons and sentence them to long prison terms. But the tribunal has limited powers to interrogate officers in the Western intelligence agencies, or compel them to testify as witnesses if they decline to appear. Same with the defence.

Indeed, no leader, diplomat or general serving a Western state is likely to appear in court at The Hague. The tribunal cannot even subpoena them, let alone charge them with perjury. Judges have mechanisms to try to compel governments to produce evidence, as well as the capacity to dismiss charges where crucial evidence is unobtainable. The prosecution too faces evidentiary difficulties. In the Todorovic case, judges indeed ordered NATO officials to appear and provide evidence, but the matter was settled when Todorovic made a plea bargain and no subpoena was served. But in practice, the system is weighted against the defence.

This fundamental flaw in the tribunal undermines the right of defendants to a fair trial, and calls into question its overall balance. The problem is evident both in the timing and selection of indictments, and in the preparation and presentation of cases. The matter of Slobodan Milosevic is the best example of both.

At the height of NATO's bombing campaign against Serbia, Judge Louise Arbour of Canada, then Hague chief prosecutor, issued a warrant for the arrest of Slobodan Milosevic and four other Serbian leaders in connection with the killing and expulsion of Albanians in Kosovo.

I had no doubt that Milosevic was guilty. With over 100,000 men under his command in and around Kosovo, he could easily have stopped the Serbian paramilitaries had he wished to. There is also evidence that the units of the interior ministry armed and supported them.

But I remain concerned by the timing of the indictment, and what it says about the West's politicised approach to the court.

While I did not find Arbour's warrant unjust, it raised troubling questions. First, why was Milosevic indicted for crimes in Kosovo, but not for his misdeeds in the 1991 war in Croatia or the Bosnian war that broke out one year later? It was common knowledge that Milosevic had armed the Bosnian Serbs, which implicated him in their crimes. He was even more accountable for the ethnic cleansing of Muslims in eastern Bosnia since the Serbian ministry of interior armed and equipped the paramilitaries from Serbia who participated in these expulsions. The explanation is not hard to find. The US and other NATO countries followed a simple rule during the Yugoslav wars, "If we need you, you are not a war criminal; if we don't need you, you are."

Milosevic was indispensable to NATO's efforts to bring peace to Bosnia, since he was the only Serbian politician who could rein in the Bosnian Serbs. So NATO absolved him and promised to end the international sanctions imposed on Serbia.

NATO not only exonerated Milosevic, it treated him as a friend and hero. As recounted in Richard Holbrooke's book, "To End a War", Secretary of State Warren Christopher even suggested that Milosevic would make a successful democratic politician.

And in Paris, where the Dayton Peace Accords were formally signed by Milosevic, then Croatian President Franjo Tudjman and then Bosnian President Alija Izetbegovic on December 14, 1995, then US President Bill Clinton acknowledged in a one-to-one meeting with Milosevic that, as recounted in Gary Jonathan Bass's "Stay the Hand of Vengeance", peace in Bosnia would have been impossible without him.

But once the West was directly at war with Milosevic, the situation changed. It was clear that the West could no longer consider him a "factor of stability" or a man to do business with. And forthwith came Arbour's indictment. Now he is vilified as evil - Senator Joseph Biden, the new chair of the US Senate Foreign Affairs Committee, called Milosevic the most "maniacal" leader in Europe since Hitler. And following his extradition to The Hague June 28, Chief Prosecutor Carla del Ponte repeated her promise that he will soon be charged with war crimes in Croatia and Bosnia.

What about other Balkan leaders with blood on their hands? Del Ponte claims that she would have charged Tudjman, the late Croatian president, if he were still alive. But previous prosecutors had five long years in which to indict Tudjman before he died peacefully in his bed in December 1999.

Since he came to power in 1990, Croatian paramilitaries together with the military expelled almost half a million Serbs from Croatia. The Croatian army also invaded Bosnia to help Bosnian Croats in their secessionist struggle.

All this was well known, but Tudjman was NATO's ally, first against Milosevic and subsequently against the Bosnian Serbs. No one cared then about the thousands of Serbian and Muslim civilians killed by Croatians and - although the tribunal has recently sent two sealed indictments to Zagreb, presumably regarding Croatian citizens - as yet no Croatian citizen has been brought before the court for crimes against Serbs in Croatia.

I believe that Kosovo Liberation Army leader Hashim Thaci and his commanders should also be indicted for imposing a reign of terror and expelling almost all non-Albanians in Kosovo after NATO moved in. But NATO leaders, especially then US Secretary of State Madeleine Albright, have praised Thaci as a responsible and democratic leader.

Now the Albanian-Macedonian conflict in Macedonia is turning into a real shooting war, with the Kosovo Liberation Army bearing heavy responsibility for it. The Hague may yet move to indict Thaci. More likely he will remain in Kosovo, and be helped to serve as part of the emerging political structures there, despite the repression still meted out against the minority populations.

The failure to indict one leader (so far) cannot diminish the criminal responsibility of another. Yet these anomalies affect public opinion and are a large reason why people in the region reject the court.

Moreover, the perceived politicised nature of the court may provide direct and insurmountable obstacles to the right of the accused to mount a full defence.

When Milosevic first appeared before the tribunal on July 3, he claimed that it was not a legitimate international court because it had been founded by the UN Security Council, not the UN General Assembly. Most international law scholars disagree with Milosevic on this point and most ambassadors in the General Assembly have no problem with seeing him in The Hague. He refused to accept the services of a lawyer, or to defend himself.

But if he changes his mind and attempts to mount a proper legal defence, it is difficult to see how he could have a fair trial. To do that, he would need access to the data banks of NATO intelligence agencies and he would have to call to the stand the Western leaders and diplomats with whom he made secret political deals.

It is possible to believe that Slobodan Milosevic is guilty of war crimes yet to have grave concerns about the process and about the possibility for the world's most famous defendant to get a fair trial. The West, and the tribunal, would do better to attend to these problems - and expedite proceedings in other cases - rather than beat its chest in self-satisfaction that, with Milosevic in The Hague, it has finally achieved justice.

Aleksa Djilas is a sociologist, historian and political commentator living in Belgrade.