The InternationaL Criminal Tribunal for the former Yugoslavia was set up to deal with the gravest international crimes in Europe since World War II. These crimes were committed during the bloody conflict that engulfed Yugoslavia from 1991 to 1995. The war was the product of cynical leaders who sought to expand their control by what has euphemistically been called “ethnic cleansing” — systematic strategies of forced deportation, destruction of property, terrorism, mass killing, crimes against humanity, and genocide that cost more than 200,000 lives, mostly civilians.
Last week, the tribunal decided a landmark case involving two former officials of the Serbian secret police who had been at the center of this ethnic cleansing enterprise. The tribunal acquitted the officials of all charges.
The decision in the case of Jovica Stanisic and Franko Simatovic came as a shock to victims of the war. The record had demonstrated that Stanisic and Simatovic had provided leadership to the ethnic cleansing enterprise, had known that subordinates were committing crimes, and had done nothing to stop them. Nevertheless, two of the three judges in the case voted to acquit the commanders on the ground that there was no direct evidence they had given orders for specific criminal acts.
The tribunal ruling eviscerated the doctrine of command responsibility, a central principle of international criminal law. This principle was first applied by the Nuremburg tribunal established after World War II to judge the responsibility of Nazi leaders for crimes committed by the Nazi regime. If the International Criminal Tribunal for the former Yugoslavia majority had been sitting at Nuremburg, few, if any, Nazi leaders would have been convicted.
The historical record is fundamentally at odds with the tribunal’s decision. The forced deportations that started the war in Yugoslavia were carried out by military and paramilitary units in Serbia and Croatia and their proxy organizations in Bosnia and Croatia. These enterprises were directed by the then-leaders of the two countries, Slobodan Milosevic, who was later indicted by the tribunal and died during his trial, and Franjo Tudjman, who died in 1999 but was later found by the tribunal to have engaged in a joint criminal enterprise aimed at expelling non-Croats from Croat areas in Bosnia.
The evidence in the Stanisic and Simatovic case showed that the two secret police commanders played key parts in organizing, training, and financing the Serb militia and paramilitary forces engaged in criminal deportations and ethnic cleansing in Bosnia and Croatia.
Under the command responsibility doctrine, the trial record should have supported the conviction of the two defendants. More than 100 prosecution witnesses, many of them former members of the secret police and wartime paramilitary units, tied Stanisic and Simatovic directly to the recruitment and financing of the ethnic cleansing operations, and showed that they had knowledge of the criminal activity and took no action to stop it.
The leaders of the paramilitary groups, like the notorious “Arkan,” appear to have been selected because they were known to have previously committed armed robbery, rape, abduction, murder, and other crimes that made them especially suited for their ethnic cleansing assignments. Furthermore, the trial record is replete with evidence that the units organized and funded by the two secret police leaders were extensively engaged in murder, destruction of property, and forcible transfer.
In the face of this overwhelming record of command responsibility, the two judges who voted to acquit Stanisic and Simatovic concluded, remarkably, that the assistance the defendants had systematically given to the ethnic cleansing units might “reasonably” have been intended not to support criminal deportation activities, but to “establish and maintain Serb control over these areas.”
The tribunal has yet to hold any Serb high-level official accountable for the massive crimes committed during the war in the former Yugoslavia. The far-reaching implications of the Stanisic decision were bluntly expressed by dissenting Judge Michele Picard of France: “If we cannot find that the accused aided and abetted those crimes, I would say we have come to a dark place in international law. It is a place, in the words spoken by the honorable judge [and Supreme Court justice] Robert H. Jackson in 1949, where ‘law has terrors only for little men and takes note only of little wrongs.’ ”
John Shattuck, president of Central European University, was involved in establishing the International Criminal Tribunal for the former Yugoslavia when serving from 1993 to 1998 as US assistant secretary of state for democracy, human rights, and labor.