Williams is a Senior Associate, Carnegie Endowment for International Peace. Scharf is a Professor of International Law,
New England School of Law and the author of Balkan Justice (1997).
The killing of over 70 civilians, including many women and
children, in Kosovo in early March 1998 raises yet again the question of why the Yugoslav War Crimes Tribunal has not indicted Mr. Slobodan Milosevic for his continuing role in orchestrating the massacre in the territory of the former Yugoslavia.
Despite ordering and supervising the slaughter of over 200,000
civilians in Bosnia and Herzegovina, Mr. Milosevic was granted de facto
immunity as the War Crimes Tribunal accepted the Clinton Administration's argument that Mr. Milosevic represented the keystone to
any lasting peace in Bosnia. To justify this inaction, the Clinton
Administration contended that although Mr. Milosevic could reasonably be
perceived as aiding and abetting war crimes and acting complicit in the commission of genocide, there was no 'smoking gun' direct order bearing his signature.
Yet, now that peace has begun to take hold in Bosnia, Mr.
Milosevic has lost any shield of political utility. This development,
coupled with the fact that Mr. Milosevic has now orchestrated the commission of crimes against humanity in his own country and by forces under his direct command, expose him to immediate indictment by the War Crimes Tribunal.
As an acknowledgment of the prima facie culpability of Mr.
Milosevic, the War Crimes Tribunal recently issued a press release
indicating that it exercised jurisdiction over the events in Kosovo, and
that although they occurred as a result of an internal conflict,
individuals ordering or participating in the commission of atrocities could be found liable for crimes against humanity. Notably, crimes against humanity include killing and torturing civilians; unjustified military attacks against civilian populations; depriving civilians of their right to a fair trial; the wanton destruction of civilian property; and persecution based on political, racial, and religious grounds.
The immediate next step of the War Crimes Tribunal should be to
issue a public indictment of Mr. Milosevic based on his responsibility for
the heavily armed, systematic attacks on Kosovo's ethnic Albanian
civilians, which have led to their being hung, summarily executed, burned
and tortured. In many reported instances, mothers have seen their
children murdered, and children have seen their fathers hunted and shot. As President of the Federal Republic of Yugoslavia (FRY), Mr. Milosevic is directly responsible for the crimes against humanity committed in Kosovo as he exercises power, influence and control over the Serb military, the police forces of the Ministry of the Interior, and many Serb paramilitary forces who committed those atrocities.
By virtue of the FRY's political and military command structure, which designates the President of the FRY as the chair of the Supreme Defense Council, Mr. Milosevic is guaranteed a formal and active role in military and police planning, strategy, and the execution of their activities. Without Mr. Milosevic's direct order, it would not have been possible for the helicopter gunships, light tanks, and armored personnel carriers of the military and police forces to carry out coordinated and well-executed attacks on the homes of Albanian villagers in Kosovo.
Mr. Milosevic is also criminally responsible for the Kosovo
atrocities under the doctrine of command responsibility. As the civilian
commander of the military and police forces, Mr. Milosevic holds an
affirmative legal obligation to prevent his forces from committing,
encouraging, or enabling others to commit crimes against humanity in
Kosovo. Rather than directing his forces to protect the human rights of
innocent civilians, it appears from the systematic nature of the slaughter
that Mr. Milosevic intended for his forces to commit these atrocities in order to serve as a warning to other Kosovo-Albanians that any further moves to assert their rights for internal self-determination would result in an ethnic cleansing of the region.
Moreover, Mr. Milosevic is criminally responsible for aiding and
abetting the commission of atrocities by Serb paramilitary forces. Mr.
Milosevic's nationalist and xenophobic rhetoric calling for an ethnically
pure Serbia along with his material and political support for Serb
paramilitary units operating in Kosovo, incited and enabled them to carry
out gruesome atrocities, including the murder of at least one pregnant
woman and a number of children.
The way toward peace in the former Yugoslavia is to bring about
an end to Mr. Milosevic+s illegitimate and immoral regime. To expedite
this task, the War Crimes Tribunal must summon the political will to act upon the evidence of Mr. Milosevic's most recent crimes against humanity and bring him to justice. If the Tribunal fails to act now, it will
undoubtedly soon be overwhelmed with all the evidence it could desire as Mr. Milosevic's program of ethnic cleansing and genocide in Kosovo