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UN: Legal Scholar Says Milosevic Trial Could Strengthen International Law

Not only is the upcoming trial of Slobodan Milosevic a big test for the international war crimes tribunal in The Hague, but it could map out new terrain in the realm of international law. Milosevic, the former president of Yugoslavia, is the first head of state to appear before the tribunal. U.S. law professor Terry Bowers says prosecutors will focus on "command" responsibility and ask not only if Milosevic -- as head of state -- ordered the commission of war crimes in Kosovo, but also whether he knew of war crimes and failed to prevent them or to prosecute the perpetrators. RFE/RL correspondent Mark Baker has the story.

Prague, 16 July 2001 (RFE/RL) -- When the trial of former Yugoslav President Slobodan Milosevic begins at the UN tribunal in The Hague sometime next year, prosecutors will be presenting evidence they hope will convince judges that Milosevic was actively involved in ordering mass killings and ethnic cleansing in Kosovo.

In these arguments, prosecutors at the International Criminal Tribunal for the Former Yugoslavia will be relying on theories of genocide and war crimes established in earlier tribunal cases and in international law going back to the Nuremberg trials in Germany at the end of World War II.

But Terry Bowers, a law professor at the University of California at Los Angeles and a former employee of the tribunal, says the Milosevic trial -- the court's first of a former head of state -- may contribute new elements to international law in its own right. He explains:

"I think the area that will be most intriguing will be the area of command responsibility. How that is treated." Bowers was one of the tribunal's first legal advisers, joining The Hague court in 1994 -- its first full year of operation -- and remaining for four years.

He says it's too early to speculate on the arguments the respective sides will make since Milosevic has been at the tribunal less than a month and a trial is months away.

Still, he says that Milosevic -- who was in Belgrade in the period leading up to and during the 1999 NATO air strikes -- could try to claim ignorance of atrocities committed in Kosovo by local or regional authorities:

"For example, [Milosevic] may assert a defense that with regard to certain acts, the involved units or individuals were not under federal authority but were under a more localized control, and that he had no direct responsibility."

According to the tribunal's statutes, such a defense would not likely succeed. Article 7, section 3 of the statutes says that just because a war crime is committed by a subordinate, this does not relieve a superior of criminal responsibility if the superior knew the subordinate was about to commit the crime or had done so and the superior failed to take reasonable measures to prevent the crime or punish the perpetrator. Bowers explains:

"Under a command-responsibility theory, you can be liable not only for failing to prevent some sort of war crime, but also failing to punish it. So if you can show that Milosevic, as the head of the Federal Republic of Yugoslavia, learned of these atrocities, then took no steps to investigate, prosecute, or punish, he might also be liable under that theory."

Former tribunal staff members concede that the command-responsibility theory may prove necessary in the Milosevic case if not enough physical evidence directly linking Milosevic to mass expulsions and killings of ethnic Albanians can be found. If the indictment against Milosevic is expanded to include alleged war crimes in Bosnia and Croatia, then issues of command responsibility will assume even greater significance. For those wars, Milosevic was the Serbian president and not the president of the Yugoslav federation, and evidence linking him to war crimes there is believed to be weaker than for Kosovo.

Bowers says the Yugoslav tribunal, and its sister war crimes tribunal on the Rwandan genocide, are contributing to the body of international law with every case they hear.

"What's so interesting is that -- on a weekly basis -- many of these issues [of international law] are being considered by the court [on] Yugoslavia [and] the court [on] Rwanda. There are rulings by the appellate chamber that presides over both the Rwandan and Yugoslav tribunals."

Bowers says, for example, that a recent decision by a tribunal appeals panel involving the case of Bosnian Serb Goran Jelisic was important with regard to the prosecution of genocide. Jelisic was originally charged with committing genocide for his role in killing Bosnian Muslims. But the tribunal ruled that the murders, while abhorrent, did not constitute genocide. The appeals panel later affirmed that ruling.

"[These types of decisions] are happening on a weekly, monthly basis. Certainly legal scholars are aware of that, even though the general international public probably is not." Tribunal lawyers are already preparing to fend off Milosevic's challenges to the court. Milosevic's lawyers said last week they would ask a Dutch court to declare that his handover to the UN war crimes tribunal was illegal. Milosevic also questions the legitimacy of the tribunal, since it was not approved by the full UN General Assembly.

Milosevic was turned over to the court last month at the decision of the Serbian government, but without a Serbian law in place authorizing such transfers.

Bowers says he does not think Milosevic will get anywhere with this challenge. Bowers says the tribunal, created by the UN Security Council, has unique powers and a primacy over national jurisdictions. He says judges will probably say, "regardless of how he got to the Hague, he's here and we have ultimate jurisdiction."

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    Mark Baker

    Mark Baker is a freelance journalist and travel writer based in Prague. He has written guidebooks and articles for Lonely Planet, Frommer’s, and Fodor’s, and his articles have also appeared in National Geographic Traveler and The Wall Street Journal, among other publications.