The trial of Slobodan Milosevic: the demise of head of state immunity and the specter of Victor's justice.

• Author: Grosscup, Scott

The conflict in Yugoslavia during the last decade has culminated in unprecedented events in international law due to circumstances particular to the region. The war exposed a number of the intense ethnic tensions between Bosnian, Croatian, and Serb populations (1) that had lain dormant in the Balkan region for many years under the rule of General Josip Broz Tito. (2) The fall of the Soviet Empire in the late 1980's and early 1990's, and the rise of right to self-determination principles in the region during the same period, (3) brought instability and war to Europe, the likes of which had not been seen since the end of World War II. The resulting ethnic hatred and political instability led an international force to bring peace to the region (4) and has seen the first instance where the leader of an independent state is on trial for crimes that occurred while he was in power. (5)

The events that began in Yugoslavia in the early 1990's are not over. However, the majority of the violence that accompanied the rise and fall of Slobodan Milosevic has subsided. (6) The conflict involved numerous states and international organizations. (7) After ten years, United Nations troops are still deployed in the region, (8) serving to keep the peace, and numerous nongovernmental organizations (NGOs) are on the ground, administering aide, overseeing relocation programs, and ensuring safe transitions to democracy. (9)

The conflict in Yugoslavia has also forged new ground on how the international community deals with a nation's internal conflicts. (10) This includes international intervention by a regional peacekeeping force (11) and, in particular, the first trial of a sitting head of state for state sanctioned criminal activities, and violations of the evolving area of human rights law. (12)

This paper will examine the trial of Slobodan Milosevic, former President of Serbia and the Federal Republic of Yugoslavia. Part I discusses the events that led to the arrest and charges against Milosevic. Part II explores why traditional notions of sovereign immunity have not applied to his trial. Part III examines the reasons why the international community has made an effort to prosecute the former president. Lastly, Part IV looks at the impacts the trial will have on the former Yugoslavian states, (13) and potential ramifications if the prosecution fails to convict the former president.

PART I--TURMOIL IN THE BALKANS: THE RISE AND FALL OF MILOSEVIC

Prior to the eruption of war in 1991, Yugoslavia was the "Darling of the West." (14) During this period, Yugoslavia received most-favored-nation status, technology transfers, and cultural exchanges. (15) However, the Balkan states (16) have complex ethnic and religious characteristics that have fueled conflict between the Bosnian, Serb, and Croatian populations. (17) The assassination of Austrian Archduke Ferdinand by a Bosnian Serb nationalist in 1914 was the spark that sent the modern world into what was at that point the worst war in history. (18) After World War I, the Balkan states formed the state of Yugoslavia in 1929. (19) This union of ethnic Serb, Croat, and Slovene populations was tenuous, and in 1934 a member of the Croatian independence movement assassinated King Alexander of Yugoslavia. (20) Yugoslavia once again saw an invasion, but this time by the Axis powers of Germany and Italy in World War II. (21) During the War, Croatian collaborators worked to rid Croatia of Serbs, mimicking the Nazi concentration camps and exterminating over 500,000 Serbs and displacing another million. (22) Communist partisan forces, led by Josip Broz Tito and assisted by the Allied powers, helped rid the territories of Axis occupation. (23) From 1945 until Tito's death in 1980, ethnic tensions and nationalistic movements were suppressed by the state through relocating Serb minorities in the various republics outside of Serbia. (24) Professor Michael Scharf notes, "Tito's death ... and the collapse of the Soviet threat in the late 1980's unleashed the long-festering centrifugal forces that would soon lead to Yugoslavia's disintegration." (25)

The next section explores the recent history of the conflict in the former Yugoslavia, the creation of the International Criminal Tribunal for the Former Yugoslavia (ICTY), and events leading to the arrest and indictment of Slobodan Milosevic as potential precedent necessary for the international community to respond to conflict and serving as the base line for international law and the demise of heads of state immunity.

1. History of the conflict

   Slobodan Milosevic was born in Pozarevac, Serbia in 1941 to a communist activist mother and absent father. (26) Milosevic excelled at the University Law School in the 1960's. (27) After earning his law degree, Milosevic held several Communist Party positions in city government and was appointed president of the largest state-run bank in 1978. (28) In 1986, Milosevic was appointed Communist Party leader after his friend and close ally, Ivan Stambolic, became President of Serbia. (29) That same year the Serb Academy of Arts and Sciences published a memorandum that became the manifesto of the Serb nationalist movement and led to Milosevic's rise to power. (30) While Communist Party leader, Milosevic was sent to Kosovo to quiet a Serb uprising against the Albanian majority. (31) Milosevic spoke to a crowd of Kosovar Serbs and said:

   No one has the right to beat our people! ... This is your land, these are your homes, these are your fields, your gardens, and your memories ... Would you shame your ancestors and disappoint your children? ... We will win this battle. Yugoslavia does not exist without Kosovo ... Yugoslavia and Serbia will not give it away. (32) Milosevic used these nationalistic emotions, suppressed by the Tito regime for years, to become President of Serbia in 1989 just as anti-Serb nationalism rose in the republics of Croatia and Slovenia. (33)

   In June 1991, at the order of President Milosevic, the Yugoslav National Army invaded Slovenia and Croatia under the guise of "protecting" Serbs living in those republics from anti-Serb sentiments. (34) In a brutal military campaign, the Serbs quickly gained control over nearly one-third of the Republic of Croatia. (35) United Nations investigators later found mass graves in numerous places including outside the city of Vukovar, where Serb forces massacred over 200 Croatian hospital patients. (36)

   Citing the rising tide of war in the region, the United Nations Security Council adopted Resolution 713 in September 1991, which imposed an embargo on the sale of arms to areas within the territory of Yugoslavia and called for the parties to abide by the ceasefire agreement they had signed just a few days earlier in Igalo. (37) By February 1992, satisfied that the conditions had been met for the deployment of peace-keeping operation to the region, the United Nations Security Council adopted Resolution 743, establishing the United Nations Protection Force (UNPROFOR). (38) Subsequently, the Republic of Bosnia and Herzegovina voted for independence from Yugoslavia on March 1, 1992, (39) which was recognized by the European Community on April 6, 1992. (40) Shortly after the dissolution of Yugoslavia, Serb forces attacked Croatian and Bosnian Muslim populations in the republic of Bosnia and Herzegovina to unite Bosnian Serb populations with greater Serbia. (41) Although the official Yugoslav National Army (JNA) eventually pulled out of Bosnia and Herzegovina, Serbia continued to arm and direct Bosnian Serbs in the self-declared "Republika Srpska," a Serb-dominated area of Bill, (42) over the next few years committing violations of international humanitarian law, (43) numerous mass killings, (44) and attacks on United Nations designated "safe areas." (45) The United Nations's inability to provide security for these areas led civilians to call their "guests" by the derogatory name, "UNprotection Force," from the acronym UNPROFOR, or United Nations Protection Force. (46) One of the worst massacres of the war occurred in eastern Bosnia in the town of Srebrenica after Bosnian-Serb troops overran United Nations peacekeeping forces and then executed thousands of unarmed men and boys alongside trenches. (47)

   In 1995, after air strikes carried out by the United States with NATO support, Slobodan Milosevic traveled to the United States and signed the Dayton Peace Accord dividing Bosnia and Herzegovina into two "entities:" the Bosnian-Serb "Republika Srpska" and the Muslim-Croat Federation. (48) The accord also allowed for greater deployment of United Nations Peacekeeping forces known as IFOR. (49) After several years of war, and up to 250,000 Muslim deaths and the displacement of over 2 million from Serb-controlled areas in Bosnia and Herzegovina, (50) it appeared that violence in the region had reached its maximum and peace was on the horizon. (51)

   Ideas of self-determination permeated the region, however, and, in 1996, the Kosovo Liberation Army (KLA) began attacking Serbian positions. (52) Serbian forces then turned their energies away from Bosnia and Herzegovina and began clearing ethnic Albanians from the territory of Kosovo through forced relocation and killings of civilians. (53) The ensuing exodus of the ethnic Kosovo Albanians brought about another NATO bombing campaign, (54) the withdrawal of Serb forces from the region, and a new government in Serbia. (55)

   The NATO led bombing campaign, economic crisis, international pressure, and years of unrest evaporated Milosevic's grasp on power. In September 2000, Vojislav Kostunica defeated Milosevic in the Federal Republic of Yugoslavia's presidential elections. (56) Milosevic did not recognize the results of the election even though the Constitutional Court of Yugoslavia and the Serbian Parliament recognized Kostunica as the legitimate president. (57) Milosevic finally submitted his resignation on October 6, 2000, after...