A Premature Death
I'd told you in the wrap-up of my March 9 podcast conversation with Linda Schade that I was standing by to return to the Hague imminently, to be a witness for the defense in Milosevic's trial at the International Criminal Tribunal for the Former Yugoslavia (ICTY). With his death this morning in his cell that's not going to happen. So here are a few ramblings: Casual, somewhat rumpled, Milosevic talked more than I did, chain smoking the entire time. Since he'd battled indictments for genocide, crimes against humanity, and war crimes for over two years I'd expected a chastened, worn out man but found him full of vinegar, determined to turn the tables on the court. "I will ruin them!" he told me. When Milosevic's team asked me to be a defense witness I was of two minds. On the one hand I figured he should probably be in jail in Serbia (and I told him so), on the other the prosecution at the ICTY had never been able to provide a 'smoking gun' implicating Milosevic in any particular crime. Indeed, the prosecution saw ordinary grounds for dismissal as a plus: it cleared away facts and gave the court a chance to convict on a theory of history, thereby fulfilling its informal mandate to legitimize Nato's interventions in Yugoslavia's collapse. The prosecution alleged Milosevic had 'command responsibility' in a 'joint criminal enterprise' to start a civil war, wreck the Yugoslav state, and create a 'greater Serbia' from the rubble. Conviction would have applied in principle to Serbia as a whole, making its policy stance during the civil war illegal after the fact. At least up through 1995whether we liked him or notMilosevic had been an indispensable partner in negotiating a settlement and indeed was a signatory to the Dayton agreement that ended the war. Setting the later Kosovo indictments aside (which I was not in a position to testify about), to chase after Milosevic for pre-Dayton activities seems to me illogical and would, in some substantive way, make all the negotiating partners complicit in the alleged crimes. Moreover, if the ICTY wanted to go after Milosevic in such a manner then fairness dictates that leaders from the top echalons on all sides should be indicted for similar 'command responsibility' for identical crimes. They were not. Milosevic asked me, "Why did the US and Nato do this to us?" He was genuinely puzzled. I have thought a lot about the "whys" and ventured that in post-Cold War Europe no place remained for a large, independent-minded, socialist state that resisted globalization. He'd had such ideas too, and fell silent, slowly nodding his head with a wry smile. "We were too good," he said, and after a pause, "and too independent." I offered one further insight: How could it be that western elites coalesced so early, so easily, upon a narrative for Yugoslavia's civil war so at variance with known facts, and so impermeable to correction? The elite's ability to get things wrong still does not speak clearly for itself. A predisposition existed, I told him, that ascribes infallibility to claims of genocide if they were repeated often and loudly enough. Milosevic slouched over, listening, staring at the desk. When I finished he shook his head, 'no.' Perish the thought he should have added to his troubles yet for me it remains a worthy question. The ICTY's maximum penalty is a life sentence. We didn't talk about the difficulties of coping with prison but I sensed he walked a fine line. "I am not a nationalist," he explained, in a digression that took over an hour. Or, on the subject of why Serbia kept paying Serbs fighting outside Serbia, "It was natural," "an obligation," and only "a minor matter." As the trial moved forward the drama of those conflicting priorities only partially played out. Ex post facto justice never makes sense. Milosevic may have been guilty of somethingindeed, he probably wasbut it wasn't genocide, crimes against humanity or war crimes. Nor can any court determine the true history of a civil war, no matter its power. With such intellectual fallacies we make a poor exchange, replacing rational human relationships with arbitrary authoritysomething, in all its guises, genuinely to be feared. The decent thing would have been to give Milosevic back to Serbia. The prudent thing now would be to pull the plug on the ICTY, before its tainted processes do permanent damage to our sense of justice. |
For five
hours in mid-August 2004, I met with 
