The New York Times

Friday, May 28, 1999

THE OUTLOOK

Despite Indictment, Politicians and Diplomats Control Milosevic's Future

By RAYMOND BONNER

WASHINGTON -- In handing up an indictment of Yugoslav President Slobodan Milosevic, the prosecutors have spoken. But, as has been the case since the outbreak of the wars in the former Yugoslavia, Milosevic's fate is still in the hands of politicians and diplomats.

"If he asked me what to do, I'd say just ignore the whole thing, at least the legal aspects of it," said Alexandros Lykourezos, a Greek lawyer who has advised Gen. Ratko Mladic, the Bosnian Serb military commander who was indicted by the war crimes tribunal in 1995.

"It's a pure political problem now," Lykourezos added in a telephone interview from Athens.

His assessment is shared by several international human rights lawyers, who can easily list the political problems of trying to enforce an indictment against someone like Milosevic.

"It is legally important, that the head of state responsible for massive human rights violations can be held personally responsible by a criminal court, but it is going to require the political will of the major states in the world to make it meaningful," said Michael Posner, director of the Lawyers Committee for Human Rights in New York.

Like the U.S. Supreme Court, the International Criminal Tribunal for the Former Yugoslavia has no marshals to enforce its rulings. So NATO, or some international police force, will have to muster the political will to arrest Milosevic, and the four other Yugoslav leaders whose indictment was announced Thursday.

It is the political will that has been lacking with respect to others indicted on charges of war crimes, such as Mladic and Radovan Karadzic, political leader of the Bosnian Serbs, who remain at large.

Arrest warrants have been issued for the five, and they will severely circumscribe the defendants' ability to travel. But if a country like Iraq decided to give Milosevic asylum, he would be relatively safe, because there is no body to enforce the order.

The war crimes tribunal Thursday also issued an order to the member countries of the United Nations to freeze assets belonging to Milosevic and the other men. But its effectiveness will also depend on whether countries want to cooperate.

American and European officials have said that Milosevic has hidden assets in Greece, Switzerland, Russia, Lebanon and Cyprus, which asserted this month that it had looked unsuccessfully for any assets that belonged to Milosevic.

One thing the indictment does not do is present any legal bar to negotiating with Milosevic, legal experts said. But the United States and NATO would not be able, as part of any negotiated settlement of the Kosovo conflict, to grant Milosevic immunity from prosecution, experts said. Such an agreement would not be binding on the tribunal, because it is an independent body created by the Security Council of the United Nations.

Lykourezos, the Athens lawyer, said that the only possible way for Milosevic and the other defendants to obtain valid immunity agreements would be for the Security Council to pass a resolution granting the protections.

Other international law experts questioned whether the Security Council could do this, and Lykourezos acknowledged that there was no legal precedent.

The International Criminal Tribunal for the Former Yugoslavia was established in 1993 to prosecute war crimes in the Balkans. All U.N. countries are obligated to comply with tribunal orders, which means that member countries would be required to arrest Milosevic if he traveled inside their borders.

But the Security Council has not taken action against countries that decided to look the other way. For a long time, for instance, Croatia refused to turn over several people who had been indicted by the tribunal, and the Security Council did nothing.

As recently as last week, the Organization for Security and Cooperation in Europe reported that "there has been no notable progress in Croatia's cooperation" with the war crimes tribunal, and that Croatia was still refusing to extradite two people who have been indicted by the tribunal.

Still, it is unlikely that Milosevic would travel to another country where he might risk arrest.

Which leaves Milosevic secure in Belgrade, however uncomfortable that might be, unless NATO or some international force goes after him.

That seems highly unlikely considering that the Clinton administration and other NATO governments have been unwilling to use their forces in Bosnia to arrest Karadzic, who was indicted in 1995 on charges of genocide and other war crimes.

Karadzic has been living in Pale, a mountain village in the Serb region of Bosnia, near Sarajevo. The area is under the control of French forces, and American officials often blame the French for not arresting him.

But, unwilling to risk any casualties, the Pentagon and White House were long opposed to a military operation to seize him.

In her visit to Washington last month, the tribunal's chief prosecutor, Louise Arbour, urged that Karadzic be arrested, a plea that she made in European capitals as well.

If Milosevic and the others are eventually brought before the tribunal, the case against them will be fairly easy to establish, said Aryeh Neier, an expert on international war crimes.

It will not be necessary to show that Milosevic participated in the atrocities, or even ordered them.

"If you have the power, and if you know the crimes are being committed, and you do not do everything that is feasible to prevent and suppress the commission of those crimes, then you are culpable," Neier said.

And Milosevic would certainly not be able to claim that he was not aware of what was happening in Kosovo, Neier said, given widespread public knowledge of the events.