Ousted leader may yet go to the Hague

A long-standing Serb human rights activist in Brussels has insisted in the last couple of years that Slobodan Milosevic would eventually crave to be tried at the liberal International Criminal Tribunal for the Former Yugoslavia in The Hague (ICTY) rather than at home after he had been toppled from power.

Following last week's revolution and the escalation of factory revolts against Milosevic's henchmen this week it is easier to understand the activist's point, which was greeted with hollow disbelief before those momentous events. The role of the tribunal has become an important point of negotiation with President Kostunica in Belgrade and as he meets EU leaders for lunch today at their summit in Biarritz.

Yesterday's attempted arrest of an indicted war criminal, Janco Janjic, in the town of Foca, during which he committed suicide and wounded four German soldiers serving with Sfor, bespeaks renewed activism to enforce its mandate. Mr Kostunica says that issue is low down his list of priorities as he grapples with the tasks of consolidating his power and reviving a wrecked economy. But the very difficulties to be faced will underline just how culpable the Milosevic regime has been. The idea that he should be charged with war crimes before Yugoslav or Serb courts may well take root - if, that is, he is not dealt with much more summarily by those enraged by his record.

The tribunal's rules of procedure allow for concurrent jurisdiction on war crimes. But this week Mr Graham Blewitt, its Australian deputy prosecutor, said in The Hague the tribunal would assert its primacy over national courts if that arose. It is putting pressure on for the arrest of indictees sheltering in Yugoslavia, hopes to open offices in Belgrade and is developing its outreach programme to convince Serbs and Montenegrins of the tribunal's legitimacy and fairness.

The ICTY was set up in May 1993 by resolution 827 of the UN Security Council. It is mandated to prosecute those responsible for serious violations of international humanitarian law committed on the territory of the former Yugoslavia since 1991.

Four clusters of offences are involved: grave breaches of the 1949 Geneva Conventions dealing with the conduct of war as it affects the wounded and sick, prisoners of war and civilians; violations of law or customs of war laid down in the 1907 Hague Convention concerning limited and proportionate methods of waging war, ruling out for example wanton destruction of undefended cities, towns and villages; genocide, defined as acts committed with intent to destroy in whole or in part a national, ethnic, racial or religious group; and crimes against humanity directed against any civilian population, such as murder, extermination, rape or deportation.

The creation of the tribunal represents a significant development in international law. This has direct relevance to other similar bodies such as the tribunal on Rwanda war crimes and the International Criminal Court created last year, as became clear from a recent briefing visit to the ICTY. It includes continuous elaboration of rules of procedure and evidence, an accumulation of judicial practice indispensable for future international legal tribunals.

The ICTY has grown enormously since being set up, having 1,011 staff from 75 countries as of May this year and a budget of nearly $100 million. Most of that is devoted to legal aid for those indicted, provided by over 200 lawyers who have volunteered their services; 500 investigators, many of them former police officers, work with the tribunal's chief and deputy prosecutors to gather information on suspects.

Carla Del Ponte from Switzerland has been Chief Prosecutor since September 1999, when she took over from Louise Armour of Canada.

Their office is responsible for presenting indictments to the tribunal's 14 judges (from 14 countries), who decide whether to confirm or dismiss them. Ninety-four public indictments have been made so far, 18 of which were subsequently withdrawn.

An unknown number of undisclosed or sealed indictments have also been made. These are necessitated, the court believes, because of the difficulty in apprehending indictees. The ICTY has no police force to do that, but must rely on forces such as SFOR and on national police services to arrest and deliver them to its jurisdiction. Sealed indictments introduce an element of surprise and uncertainty.

There are 67 outstanding public indictments, 41 of whom are currently in proceedings, 26 still at large. National police have arrested nine of them, 12 have voluntarily surrendered and 20 have been detained by international forces. Officials estimate it could take another 10 years to complete the tribunal's work. It has now a very well-established presence in The Hague at its handsome headquarters. An excellent website provides detailed information on its work (http://www.un.org/icty).

The tribunal is controversial not only with Yugoslavs but with a wider constituency which suspects it smacks of a winners' court, is a tool of NATO, or is over-influenced by the United States. That appears to be confirmed by stories of US diplomats going around Belgrade warning members of the Milosevic regime they had unsealed indictments in their briefcases, and by western diplomatic pressure to have indictees delivered.

But such suspicions disregard the formidable accumulation of evidence and due process concerned with the four main dimensions of the tribunal's work, These are based firmly on humanitarian law and are underlined by the sheer internationalism of the tribunal's work and personnel.

The ICTY has had to struggle hard to establish itself and to secure suitable evidence from US and other intelligence services.

Ms Armour scared NATO governments by setting up a legal review group in June 1999 to investigate whether NATO itself had committed war crimes during the bombing campaign against Yugoslavia.

In the event the legal team recommended that NATO should not be indicted for war crimes.

It is likely that the ICTY's work will bear increasingly on that of the International Criminal Court, as it also establishes itself in the years to come. It is a practical manifestation of a growing contemporary internationalism.