Ambivalence on the Milosevic extradition
By W. James Antle III
web
posted July 2, 2001
The
international reaction to Yugoslavia's belated decision to extradite former
President Slobodan Milosevic to the International War Crimes Tribunal
in the Hague was all but unanimous. The "Butcher of the Balkans"
who throughout the last decade was compared to Hitler and accused of genocide
was in custody. Justice in the Balkans thus had finally been served.
There is no question in my mind that Milosevic is responsible for many thousands of deaths and the suffering of millions. He was a cruel dictator whose Socialist Party was the successor to Tito's Communists. He exploited both the vestiges of Marxist-Leninism and resurgent Serb nationalism in the Yugoslav civil war at great cost, particularly in Bosnia. Milosevic fed his power base and grew his government as tyrants have done for centuries, through war and rallying the people to fight and die for the state. He was an architect of ethnic cleansing and his self-centered war mongering in the name of a Greater Serbia in fact visited greater misery upon his own people. He repeatedly abused his power and poisoned his relations with his neighbors.
Yet it is not clear to me that handing him over to the war crimes tribunal was the correct thing to do. This is not because Milosevic is above the law or somehow deserving of compassion rather than punishment for his deeds, but rather what this precedent really means.
When Vojislav Kostunica won the Yugoslav presidential election in October, Milosevic was reluctant to concede his defeat. It took popular uprisings to convince him to abide by the internationally recognized results and not force a run-off based on manipulated numbers. (Official government statistics showed Milosevic trailing Kostunica, but with neither having the majority necessary to assume the presidency without a run-off election.) Yet Milosevic did step down, without the uprisings having to take the form of anything greater than vast street demonstrations. The numbers aside, the demonstrations were probably less violent than the Seattle riots against the World Trade Organization. Although there were reports that the military had refused orders to intervene against the pro-democracy protesters, Milosevic retained the loyalty of at least some army units right up until the time Serbian authorities were thwarted in their initial attempt to arrest him this spring.
If Milosevic had known that he would be arrested April 1 and now handed over to the International War Crimes Tribunal, would he have voluntarily stepped down? Or would armed confrontation and his violent overthrow have been necessary? Would he have gone into hiding and attempted to form a government-in-exile? Would he have used whatever vestigial political capital he had left to work against Kostunica's government?
The main dilemma motivating this article is that in our zeal to punish cruel and savage dictators we may be making it less likely that such people will ever give up power on their own. This may in fact prolong dictatorships, extend their tyranny and exacerbate whatever terrorism, warfare and other mischief they are engaged in while further complicating any democratic transition. Even the case of Milosevic, who ultimately had no choice but to lose power, there was a bloodless transition that was certainly not inevitable. If the dictator thought the present turn of events likely, a coup might have been necessitated and those loyal to Milosevic may have committed violent acts against the new government's supporters.
Fidel
Castro is unlikely to ever call for free elections in Cuba. He is even
less likely to do so if he feels that the result would be trials for his
crimes as the island prison's communist dictator. Castro certainly would
not want to end up in the hands of the Cuban-American community to answer
for his deeds. Similarly, Saddam Hussein and other dictators cling to
power at times as much for physical self-preservation as political self-preservation.
Just as Jeanne Kirkpatrick has noted that democracies do not declare war
on other democracies, rulers who find themselves involved in a peaceful
transition of power do not refuse to leave office.
Chile's Gen. Augusto Pinochet is an excellent example. Pinochet is alternately seen as the man who saved Chile from communism or as a dictator who ruled in a reign of terror following a bloody coup. Even those who defend him must concede, if they are honest, that there was some abridgement of civil liberties and loss of life during his tenure. Whatever exculpatory arguments can be made based on the context of his rule, the degree of his knowledge and whether any of the things that happened under him rise to the level of genocide, there were clearly events many would like to see Pinochet and his associates answer for. Yet he also presided over an economic liberalization and democratic transition that culminated in his leaving power voluntarily and being replaced with a democratically elected leader. The political structure he played a role in putting place is now sufficiently lawful as to try him for his alleged crimes. If Pinochet felt he would be prosecuted for his conduct in office or had anticipated the current state of affairs in Chile, it is conceivable that he or his surrogates would have continued a military dictatorship right up to the present.
Leaving the case that can be made for Pinochet aside, the Chilean people are demonstrably better off in a democratic society with somewhat more expansive personal liberties and less civil strife. Elected civilian rule is in most circumstances preferable to military rule. What Pinochet did by stepping down and allowing himself to be succeeded by a more democratic structure was a good thing. It isn't clear how long Pinochet might have attempted to hold onto power if he knew he would ultimately be prosecuted, but it is certain that it would have prolonged a more authoritarian and less democratic political system.
Taking such considerations into account may seem like making concessions to evil. But in reality, it just demonstrates a pragmatic interest in minimizing tyranny and human suffering. Is justice better served by a swift restoration of the people's freedom, or prolonged tyranny followed by a strong punishment for the tyrant? Some scholars have noted that major wars have been prolonged by excessive terms of surrender, at a cost measured in human life. When the Japanese surrendered at the close of World War II in 1945, the Allies allowed them to keep their emperor. Was that unjust?
The desire to punish evil-doers who have wielded power and conscripted young boys to kill innocents is rooted in justice and fairness. This morally rooted sentiment has been enhanced by the heightened Western preference for democracy, which causes resentment towards forces that are seen as authoritarian. There is also a compulsion to insure that dictators do not escape punishment as Hitler did. Meting out such punishments is right and it is important. But is it more important than getting the Hitlers out of power in the first place?
There are other reasons to be concerned about the precedent this might set. First, consider the power this international tribunal is entrusted with. Contrast this with its accountability. The United States would not submit its troops to be tried in international tribunals, yet it applauds Milosevic's trial. What if the war crimes tribunal one day assumes the character of the UN Human Rights Commission, with the US off but China, Sudan and Libya on? What gives such bodies the authority to judge leaders of sovereign nations? It is also not clear that even in this particular case that the international community and its tribunal has exactly promoted the rule of law in Yugoslavia. Milosevic was surrendered to the UN because the Yugoslav government feared losing foreign aid (which sounds more like blackmail than noble democratic sentiment) and in disregard of constitutional court rulings.
Secondly, "war crimes" are not always impartially defined. These trials often consist of the victor sitting in judgment of the vanquished, relying on the testimony of victor's history. In complicated battles, like the Pinochet matter or El Salvador's internal strife in the 1980s or the Israeli-Palestinian conflict, there were legitimate grievances and genuine crimes on both sides. Who is to name and judge the war criminals? Will they truly be selected from both sides according to their deeds? Or will the winners and their allies simply punish the losers? Some may even criticize the United States, whose military actions like those of all other nations have cost innocent human lives, including women, the elderly and children. Some people in Yugoslavia may consider the 1999 NATO bombings of Belgrade regarding the Kosovo matter, spearheaded by the US, to be a war crime. Others may fault our sanctions against Iraq, which some analysts claim have resulted in the death of thousands of children.
This is not to defend Milosevic or to advocate that he and his associates
go free. Nor is it to suggest that people who commit genocide and acts
of terror should go unpunished because we fear that they may otherwise
be impossible to stop. We must however take into account all aspects that
would entail justice, including national sovereignty, fairness and simple
procedural equity. We must also consider our true objective in fighting
tyranny is freeing the oppressed; the fate of the tyrant is secondary.
Perhaps the War Crimes Tribunal itself can be incorporated into these
considerations. In our zeal to punish butchers, we must take care not
to make butchery more commonplace. 
W. James Antle III is a former researcher for the Rhema Group, an Ohio-based political consulting firm. You can e-mail comments to wjantle@enterstageright.com.