Sat, 27 Mar 1999

Similarities between Milosevic and Pinochet

By Gwynne Dyer

LONDON(JP): "The official position of defendants, whether heads of state or...officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment," reads the Charter of the International Military Tribunal that tried the Nazi leaders after the World War II. But Serbian dictator Slobodan Milosevic had no reason to worry about that, because the Nuremberg trials were only for Germans.

Last Wednesday's landmark ruling by Britain's Law Lords that being a former head of state gives former Chilean dictator Augusto Pinochet no immunity from prosecution for crimes he committed while in power is another matter entirely. It means that Milosevic cannot afford to lose power if he hopes to avoid prison or the gallows. But whether that makes him more or less likely to end the war quickly is another question.

It's true that Milosevic already had to worry about the international tribunal that has been created for Bosnia, scene of the worst crimes of mass murder committed under his auspices. However, the danger of prosecution was actually pretty limited.

It could be a problem for Milosevic if one of his leading Bosnian Serb henchmen, like Radovan Karadzic, was captured, and spilled the beans to the Hague tribunal about the orders he got from Belgrade. But it would not be in his own interests to confess, and until North Atlantic Treaty Organization (NATO) lost patience in Kosovo and started bombing on Wednesday, men like Karadzic faced little risk of arrest anyway. NATO troops were leaving them alone to keep Bosnia quiet.

But now Milosevic faces a much higher level of risk. He could lose power in Belgrade if he allows allied troops into Kosovo to supervise a peace agreement there. He could also fall if he goes on defying NATO and his own people overthrow him to stop the bombing. Either way he becomes, like Augusto Pinochet, an ex-head of state -- and probably an exiled one.

That is never an ideal situation, but it has proved both safe and comfortable for other ex-dictators from Haiti's "Baby Doc" Duvalier (now living in France) to Ethiopia's Haile Mariam Mengistu (in Zimbabwe) to Uganda's Idi Amin (in Saudi Arabia). The precedent created by the British ruling makes them all vulnerable to extradition.

Insofar as Pinochet himself goes, the judgment is only a limited triumph for international justice, for the Law Lords ruled that he could not be extradited for any charges that were not criminal offenses in Britain at the time. So since Britain only incorporated the provisions of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment into its own Criminal Justice Act in 1988, Pinochet can only be extradited to face trial for crimes he committed after that date.

This is good news for Pinochet, since the mass murders and systematic torture of thousands mostly happened in the first years after his coup in 1973. Of the 30 charges Spain originally brought against him, it must agree to try him only for three post-1988 instances of torture and murder before Britain will agree to send him to Madrid for trial. And there are still several further legal hoops to go through in Britain before even that comes to pass.

But the Law Lords did say, quite unequivocally, that being an ex-head of state no longer confers immunity from prosecution for all offenses. In Lord Phillips' words: "International law is on the move... There are some categories of crime so grave that they shock the consciousness of mankind and...any individual who commits such a crime offends against international law."

Lord Saville, who characterized Pinochet as "a prime example of an official torturer," said that Pinochet lost his immunity from extradition when Chile, Spain, and Britain all ratified the Torture Convention in 1988.

"If there were states that wished to preserve such immunity (for their heads of state) in the face of the universal condemnation of official torture, it is perhaps not surprising that they kept quiet about it."

For those younger dictators who were still killing and torturing people after 1988, the ruling is a nightmare. After they lose power, they are vulnerable to demands for extradition not just from the country they ruled, but from any other country whose nationals they murdered -- demands that could pursue them no matter where they take refuge.

Just as Spain has asked Britain to extradite Pinochet for the murder and torture of Spanish citizens in Chile and elsewhere, so Canada could ask France to extradite Duvalier for the murder or torture of people with dual Haitian-Canadian citizenship -- and the fact that he was a head of state when he ordered the crimes no longer gets him off the hook.

Now put yourself in Milosevic's shoes. This fourth Balkan war of the 1990s is his last -- after Kosovo, "Yugoslavia" (i.e. Serbia) has no other non-Serb republics left to drive into revolt -- and Milosevic risks losing power in the collapse. If he does, there are not a lot of places he can go that would shelter him from the demands for extradition that would surely follow him. When you are responsible for killing hundreds of thousands of people, you must expect some resentment.

In fact, the only safe havens for Milosevic, if he must leave Belgrade, are Russia or Belarus, where the principle of "Slavic solidarity" blots out all his sins. (Never mind that most of his victims were also Slavs, and that other Slavic countries, from Poland to Ukraine to Bulgaria, can tell the difference between mass murderers and Slavs worthy of support.)

Even Russia and Belarus would not be completely safe havens, for their courts must treat extradition requests from their major creditors and trading partners seriously. So what goes through Milosevic's mind as he contemplates the end-game that has now begun?

Perhaps not very much, for he just sits in the dark drinking a good deal of the time. His circle of advisers is so narrow that he may not even understand the implications of the Pinochet decision. But if he does, how will it affect his decisions in the next days and weeks?

Not very positively, for he may well conclude that fighting all the way to the last ditch is likelier to keep him out of jail than making a deal that might turn him into an ex-head of state, an exile and a target for extradition. On the other hand, it is clear that NATO is desperate to cut any deal that will save it from having to commit ground troops to drive the Serbian forces out of Kosovo. It would be quite willing to leave Milosevic in power in Serbia proper if the Serbs themselves don't throw him out.

So on balance, he is likely to tough it out for a while, and then look for a deal in which NATO itself recognizes him as the legitimate ruler of a yet more shrunken 'Yugoslavia'. You can extradite ex-heads of state, but you can't extradite ruling ones.