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The Milosevic Case: Questions and Answers

Question: Can the United Nations Security Council establish an international court?  
Answer: The Security Council has, under Chapter VII of the United Nations Charter, "paramount responsibility" for dealing with threats to international peace and security. Under this authority the Security Council has taken many steps, including dispatching peacekeepers to conflict zones, including the former Yugoslavia. On May 25, 1993, the Security Council adopted Resolution 827 establishing a court to try those responsible for the worst crimes committed in the Yugoslav conflict. When an earlier defendant before the tribunal challenged its creation, his claims were unanimously dismissed by Tribunal judges from Italy, Egypt, China, Canada, and Pakistan.  
The Security Council also established a similar tribunal to try those responsible for the 1994 genocide in Rwanda. The United Nations General Assembly has no such authority.  
Question: Is there an "anti-Serb bias" at the Tribunal?  
Answer: The Tribunal is empowered to investigate anyone, regardless of nationality, who committed serious crimes in the course of the conflicts in the former Yugoslavia. As of March 2001, the Tribunal had publicly indicted 66 individuals, 50 of them Serbs. It recently handed a down a forty-five year prison sentence against a Croatian army general accused of war crimes. From its field investigations of the conduct of all sides to the conflicts in the former Yugoslavia, Human Rights Watch has found that the majority of crimes were committed by Serb forces. Not insignificantly, Serb forces were the only ones to participate in each of the conflicts-in Croatia, Bosnia-Herzegovina, and Kosovo.  
Question: Can Slobodan Milosevic get a fair trial before this Court, which is strongly supported by NATO countries? Isn't the trial of Milosevic "victors' justice"?  
Answer: While the tribunal is not perfect (no court is), the ICTY functions according to the highest standards of international justice. This means that Mr. Milosevic will receive all the guarantees necessary for a fair trial. Its proceedings have to date resulted in the acquittal of a number of defendants, including Serbs, on various charges. If the Tribunal falls short in protecting any of Milosevic's rights to mount a vigorous defense, it should be criticized and change its practice.  
The ICTY is an international court. The pre-trial judges hearing the initial proceedings are from the United Kingdom, Jamaica, and Morocco. As of April 2001, the Tribunal employed a staff of 1,103 from 74 different countries. While certainly there are citizens from NATO countries serving at all levels of the Tribunal, if there is a specific conflict of interest, that individual should recuse him or herself from the proceedings.  
Question: Why hasn't the Tribunal tried NATO officials for war crimes in Yugoslavia?  
Answer: The tribunal carried out an investigation into the conduct of NATO forces during the conflict in Kosovo and concluded that there was insufficient evidence to support a prosecution.  
Human Rights Watch itself conducted extensive field research into the 1999 NATO air war against Yugoslavia. We found that 500 civilians were killed and 90 targets were selected inappropriately because they were civilian targets. We concluded that these incidents, which violated the laws of war, did not, however, rise to the more serious level of "grave breaches" or war crimes that the tribunal is empowered to prosecute.  
If other evidence of NATO culpability for war crimes does arise, it would be essential for the tribunal to investigate those allegations. If the evidence warrants, the court should investigate and, if need be, prosecute those responsible for the alleged crimes.  
Here is HRW's short assessment of what happened on the ground in Kosovo, including the "chain of command" establishing Milosevic's authority.

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