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Slobodan Milosevic, Saddam Hussein, Ariel Sharon, and Henry Kissinger. All four have been accused in recent months of serious war crimes. Why, then, is only Milosevic in a 10 foot by 17 foot cell facing international trial at The Hague? If the international law of war crimes is supposed to epitomize morality in action, shouldn’t it be applied consistently? Instead, without courtroom examinations of their actions, Hussein continues to live in luxury in a Baghdad palace, Sharon shuttles around the world as Israel’s prime minister, and Kissinger makes millions consulting foreign governments and appears on “David Letterman.” International jurists and prosecutors would have us believe that the action against Milosevic was taken “without regard to political considerations or consequences,” as Richard Goldstone, the first prosecutor for the International Criminal Tribunal for the former Yugoslavia, has said. But the real distinctions between these four cases reflect international politics as much as interests of justice. DISTINGUISHING FACTORS The first distinguishing factor concerns the location and timing of the crimes. Hussein’s and Sharon’s actions occurred in the Middle East, while Kissinger is accused of crimes in Indochina and Latin America. Milosevic, on the other hand, is accused of committing genocide and crimes against humanity on the continent of Europe for the first time since World War II. Simply put, the former Yugoslavia’s location in Europe accounted for the intense media interest — and consequently the concern of the American- and European-dominated U.N. Security Council. Moreover, the Yugoslav atrocities occurred just after the collapse of the Soviet Union, at a time when Russia’s cooperation could be bought through promises of badly needed Western aid. In contrast, foreign policy experts freely acknowledge that if the genocide in Rwanda had occurred before the atrocities in the Balkans, the United Nations would never have created an international tribunal for Rwanda. In fact, the members of the Security Council were literally shamed into acting on Rwanda only after the Rwandan prime minister-designate appeared before the council in October 1994 and asked, “Is it because of the color of our skin, is it because we are Africans, that you do not create a tribunal for Rwanda, as you have for Yugoslavia?” The second distinguishing factor is that Milosevic had been toppled from power and imprisoned on charges of corruption in Belgrade when he was extradited to the tribunal. By contrast, Hussein and Sharon are sitting heads of state, and Nobel Peace Prize laureate Kissinger is a darling of America’s political elite and public. It’s no coincidence that, while Milosevic was president of the Federal Republic of Yugoslavia, there was no talk of trying to capture him for international trial. In fact, many experts believe Milosevic was secretly promised immunity from prosecution at the 1995 Dayton negotiations, and immunity from arrest at the 1999 Paris negotiations, in return for his cooperation. The United Nations has endorsed similar amnesty for peace deals with respect to the situations in Cambodia, El Salvador, Haiti, and South Africa, as a means of restoring peace and democratic government. It is worth noting that while Milosevic languished in the Belgrade Central Prison before his extradition to The Hague, President George W. Bush was initially willing to provide Serbia hundreds of millions of dollars in reconstruction aid, as long as Milosevic faced domestic trial. It was only due to a provision unilaterally inserted into the appropriations bill by the then-chairman of the Senate Appropriations Committee, Sen. Mitch McConnell, R-Ky., that the Bush administration ultimately made international aid contingent on Milosevic’s surrender to The Hague. Thus, the inducement for Milosevic’s extradition turned out to be more a product of U.S. domestic politics than considered foreign policy. EVIDENCE AND ATROCITIES The third distinction concerns the strength of the case against Milosevic. In Bosnia, his Serb followers killed 250,000 civilians, raped 20,000 women, and expelled two million Muslims from their homes. In Kosovo, the Serb army killed tens of thousands of Albanian civilians and routed more than half a million from their towns into the mountains where many would have perished come winter had NATO not intervened. These widespread and systematic atrocities could not have occurred without Milosevic’s orders. Even so, Milosevic was not indicted until the United States and the United Kingdom finally provided the international prosecutor in 1999 with detailed evidence of Milosevic’s culpability, including aerial photographs, forensics examinations, and communications intercepts. It is noteworthy that this occurred on Day 70 of the 78-day NATO bombing campaign, at a time when support for the air campaign on the part of some of the NATO countries was waning. The indictment kept the coalition together and convinced Milosevic that he could not outlast the political will of NATO. Of the other three potential war criminals discussed above, only Saddam Hussein’s responsibility for international crimes has been as thoroughly documented as that of Milosevic. In contrast to the strong cases against Milosevic and Hussein, the Israeli commission that initially investigated Ariel Sharon’s culpability for war crimes in Lebanon concluded only that he was “indirectly responsible.” And most experts have concluded that the charges levied against Henry Kissinger would not stand up in a court of law — at least not in a Western country. Is it right that politics have played such a significant role in international justice? The legacy of the post-World War II Nuremberg tribunal was tarnished by the criticism that it was a victor’s tribunal before which only the vanquished were called to account for war crimes — which all sides arguably committed during the war. In this same light, it is most unfortunate for the Yugoslavia tribunal that the judge “randomly” assigned to preside over the Milosevic trial, Richard May, hails from one of the NATO countries (the United Kingdom) that led the intervention against Serbia in 1999. Another of the three judges, Mohamed El Habib Fassi Fihri of Morocco, is of the same religion as Milosevic’s alleged Muslim victims in Bosnia and Kosovo. And the third judge, Patrick Robinson, was formerly prime minister of Trinidad and Tobago, a Caribbean country with very close political and economic ties to the United States and the United Kingdom. Yet, despite the political context in which the Milosevic trial occurs, this does not mean that the former Serb ruler cannot receive a fair trial at The Hague. Notwithstanding the views of their countries of nationality, all three presiding judges are distinguished jurists with reputations for fairness and independence. Milosevic will be represented by defense counsel of the highest caliber. The tribunal’s rules of evidence and procedure are among the most stringent and pro-defense in the world. And many experts believe that the prosecutor will have an uphill time trying to obtain a conviction due to the dearth of evidence directly tying the former Serb leader to atrocities in Bosnia and Kosovo, and the tribunal’s narrow view of the doctrine of command responsibility as announced in its previous rulings. LOCAL JUSTICE As for the others — Hussein, Sharon, and Kissinger — the realities of international politics might dictate that they will never be brought before an international tribunal. But the local courts of an increasing number of countries are now willing to exercise “universal jurisdiction” and bring domestic charges against perpetrators of war crimes and crimes against humanity. Recently, for example, Palestinian survivors of the 1982 massacres at refugee camps perpetrated by Lebanese Christian militia allied to Israel have initiated a criminal case against Sharon in the courts of Belgium. Hussein would likely face similar action if he ever traveled outside Iraq. And Christopher Hitchens claims in his recent book, “The Trial of Henry Kissinger,” that the former U.S. secretary of state has curtailed his foreign travel due to fear that he, too, could be prosecuted by a foreign court. While the ongoing expansion of universal jurisdiction at the domestic level should be generally celebrated, these local criminal proceedings are at least as susceptible to considerations of realpolitik as international trials. At the local level, there is a great possibility that prosecutions of former foreign leaders may be politically motivated, carried out with insufficient due process, or based on novel interpretations of international law. So, while enforcing moralities is the ultimate goal of international criminal law, in reaching it, there’s simply no way around the politics of the real world. Michael P. Scharf is professor of law and director of the Center for International Law and Policy at New England School of Law. From 1989 to 1993, he worked in the State Department’s Office of the Legal Adviser on war crimes issues. He is the author of the Pulitzer Prize-nominated book “Balkan Justice: The Story Behind the First International War Crimes Trial Since Nuremberg” (1997).

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